CONFORMED COPY
DATED 10TH NOVEMBER, 1999
THE SELLERS NAMED IN SCHEDULE 1
THE WARRANTHOLDERS NAMED IN SCHEDULE 2
AND
SOLUTIA INC.
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AGREEMENT
FOR THE SALE AND PURCHASE OF
SHARES AND LOAN STOCK AND THE CANCELLATION
OF WARRANTS IN VIKING RESINS GROUP HOLDINGS B.V.
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ALLEN & OVERY
London
CONTENTS
CLAUSE PAGE
1. Interpretation 1
2. Sale and Purchase of the Securities 4
3. Cancellation of Warrants 5
4. Consideration 5
5. Conditions Precedent 6
6. Rescission 6
7. Covenants up to Completion 7
8. Inks 10
9. Completion 12
10. Herberts and other Claims 12
11. Announcements 13
12. Notices 14
13. Resolutions and Waivers 14
14. General 14
15. Whole Agreement 16
16. Governing Law 16
SCHEDULES [OMITTED]
1. Sellers' Shareholdings and Entitlements
2. Warrantholders
3. Apportionment of Ordinary Consideration
4. Particulars of the Company
5. Completion Arrangements
6. Completion Balance Sheet
7. Preference Consideration and Loan Stock Consideration
8. Additional Executives
9. Apportionment of Payments Under Clause 10
Signatories 40
THIS AGREEMENT is made on 10th November, 1999 BETWEEN:
(1) THE PERSONS whose names and addresses are set out in Schedule 1
(each a "SELLER" and together the "SELLERS");
(2) THE PERSONS whose names and addresses are set out in Schedule 2
(each a "WARRANTHOLDER" and together the "WARRANTHOLDERS"); and
(3) SOLUTIA INC. of 575 Maryville Centre Drive, St. Louis, MO 63141
(the "PURCHASER").
WHEREAS:
(A) Viking Resins Group Holdings B.V. (the "COMPANY") is a company,
short particulars of which are set out in Schedule 4.
(B) The Sellers are the holders of the A Shares, Preference Shares and
Loan Stock as set out opposite their respective names in
Schedule 1.
(C) The Warrantholders are the holders of the Warrants and parties to
the Warrant Agreement and on exercise of the Warrants would be
entitled to that number of class A shares of NLG 90 each in the
Company as set out opposite their respective names in Schedule 2.
(D) The Sellers wish to sell and the Purchaser wishes to purchase the
Securities on the terms and subject to the conditions set out in
this agreement.
(E) The Warrantholders have agreed to the cancellation of their
Warrants on the terms and subject to the conditions set out in
this agreement.
IT IS AGREED as follows:
1. INTERPRETATION
(1) In this agreement:
"ADMINISTRATION AGREEMENT" means the administration agreement in
the Initialled Form;
"A SHARES" means the 97,445 class A shares of NLG90 each in the
issued capital of the Company;
"B SHARES" means the 6,888 class B shares of NLG90 each in the
issued capital of the Company;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on
which banks are open for business in London, Frankfurt, New York
and St. Louis, Missouri;
"COMPLETION" means completion of the sale and purchase of the
Securities and the cancellation of the Warrants in accordance with
clause 9;
"COMPLETION BALANCE SHEET" means the Completion Balance Sheet
agreed or determined in accordance with Schedule 6;
"DEED OF TERMINATION" means the deed of termination, in the
Initialled Form;
2
"DEM" means Deutschmarks;
"DEPIV" has the meaning ascribed to it in Schedule 1;
"EXECUTIVES" means Helmut Strametz, Jurgen Willi Reichhold, Josef
Sauer, Manfred Heinrich Schrod, Karl-Heinz Schonwalder, Bernhard
August Kottmann, Heinrich Otto Geidt and Luca Floriani;
"EURIBOR" means the Euro Euribor rate per annum for three months
deposits as quoted in the World Interest Rates table of the
Financial Times (London edition) on the date of Completion;
"FINANCE AGREEMENTS" means the Senior Documents and the Mezzanine
Documents (as those terms are defined in an Intercreditor Deed
dated 15th December, 1998 made between, inter alia, Bankers Trust
Company, Lehman Brothers International (Europe) and the Company);
"GROSS EQUITY VALUE" or "GEV" means DEM 427,100,000 less the Net
Asset Adjustment Amount plus any additional amount determined in
accordance with clause 8(3);
"HERBERTS" means Herberts GmbH and its subsidiaries;
"HERBERTS CLAIM" means that particular and specific claim for DEM
4,800,000 made by or on behalf of Herberts against the Vianova
Group (or particular members thereof) in relation to the supply of
product which, allegedly, was out of specification or otherwise
defective;
"HOECHST" means Hoechst AG and its subsidiaries;
"HOECHST AGREEMENT" means the agreement dated 6th October, 1998
between Hoechst A.G. and the Company pursuant to which the Company
acquired the business currently carried on by the Vianova Group,
as amended by an agreement dated 15th December, 1998;
"INITIALLED FORM" means, in relation to any document, the form of
that document which has been initialled for the purpose of
identification by the Sellers' Solicitors and the Purchaser's
Solicitors;
"INKS BUSINESS" means the business of the Vianova Group engaged in
the production, marketing and sale of certain printing inks;
"LOI" means the letter of intent dated 21st October, 1999 relating
to the proposed sale of the Inks Business, in the Initialled Form;
"LOAN STOCK" means the DEM32,000,000 Unsecured 10% Loan Stock 2008
of the Company in issue constituted by an instrument dated 15th
December, 1998;
"LOAN STOCK CONSIDERATION" means the consideration payable in
respect of the sale of the Loan Stock under clause 4(2);
"MGPE" means Morgan Grenfell Private Equity Limited of 23 Great
Winchester Street, London EC2P 2AX;
3
"MINORITY SHARE SALE AGREEMENTS" means the draft agreements for
the sale to the Purchaser of the B Shares, each in the Initialled
Form;
"NET ASSET ADJUSTMENT AMOUNT" means:
(a) if the Net Assets are less than DEM 285,300,000, the amount
of the deficiency plus DEM 10,000,000; or
(b) if the Net Assets are DEM 285,300,000 or greater, DEM 0;
"NET ASSETS" means the amount shown in the Completion Balance
Sheet against line item "net assets after obligations to
shareholders";
"NET CASH PROCEEDS" has the meaning ascribed to it in clause 8(4);
"NLG" means Dutch Guilders;
"ORDINARY CONSIDERATION" means the consideration for the sale of
the A Shares and the cancellation of the Warrants as calculated
pursuant to clause 4(3);
"PREFERENCE CONSIDERATION" means the consideration payable in
respect of the sale of the Preference Shares in accordance with
clause 4(1);
"PREFERENCE SHARES" means the 38,191 class I preference shares of
NLG0.01 each, the 38,191 class II preference shares of NLG0.01
each, the 38,191 class III preference shares of NLG0.01 each, the
38,191 class IV preference shares of NLG0.01 each, the 38,191
class V preference shares of NLG0.01 each and the 38,191 class VI
preference shares of NLG0.01 each in the issued capital of the
Company;
"PURCHASER'S SOLICITORS" means Baker & McKenzie of 100 New Bridge
Street, London EC4V 6JA;
"SECURITIES" means the A Shares, the Preference Shares and the
Loan Stock;
"SELLERS' SOLICITORS" means Allen & Overy of One New Change,
London, EC4M 9QQ;
"VIANOVA GROUP" means the Company and its subsidiaries;
"WARRANT AGREEMENT" means the agreement dated 16th December, 1998
between the Company, Bankers Trust Company, the Warrantholders and
the holders of the A Shares;
"WARRANT CANCELLATION AGREEMENT" means the warrant cancellation
agreement in the Initialled Form; and
"WARRANTS" means the warrants granted pursuant to the Warrant
Agreement providing the holders with the right to subscribe in
aggregate for 6,160 class A shares of NLG 90 each in the Company.
(2) In this agreement any reference, express or implied, to an
enactment includes references to:
4
(a) that enactment as amended, extended or applied by or under
any other enactment (before or after signature of this
agreement);
(b) any enactment which that enactment re-enacts (with or
without modification); and
(c) any subordinate legislation made (before or after signature
of this agreement) under any enactment, as re-enacted,
amended, extended or applied as described in paragraph (a)
above, or under any enactment referred to in paragraph (b)
above;
except to the extent that any amendment or modification made after
the date of this agreement would increase or alter the liability
of any party under this agreement, and "ENACTMENT" includes any
legislation in any jurisdiction.
(3) Words denoting persons shall include bodies corporate,
partnerships and other unincorporated associations of persons.
(4) Subclauses (1) to (3) above apply unless the contrary intention
appears.
(5) The headings in this agreement do not affect its interpretation.
2. SALE AND PURCHASE OF THE SECURITIES
(1) Subject to clauses 5 and 6, each of the Sellers shall sell and the
Purchaser shall purchase those of the Securities set opposite that
Seller's name in Schedule 1 together with all rights attaching to
such Securities, including dividends declared or fallen due but
not paid at Completion.
(2) Each of the Sellers warrants to and covenants with the Purchaser
that he has the right to sell and transfer the full legal and
beneficial interest (or, in the case of DEPIV, transfer the
beneficial interest and procure the transfer by Ropa
Beteiligungsgesellshaft mbH of the legal interest) in the
Securities set opposite his name in Schedule 1 to the Purchaser on
the terms set out in this agreement and that such Securities shall
be sold free from all liens, charges, equities and encumbrances
and other legal and equitable rights exercisable by third parties.
(3) Each of the Warrantholders warrants to and covenants with the
Purchaser that he has the right to deal with the full legal and
beneficial interest in the Warrants held by him (details of which
are set out opposite his name in Schedule 2) in the manner
contemplated by this agreement.
(4) None of the Sellers, the Warrantholders or the Purchaser shall be
obliged to complete the sale and purchase of any of the Securities
or the cancellation of the Warrants unless the sale and purchase
of all the Securities and the cancellation of all the Warrants is
completed simultaneously in accordance with this agreement and
simultaneously with completion of the Minority Share Sale
Agreements in accordance with their respective terms.
(5) Each of the Sellers and the Warrantholders warrants to and
covenants with the Purchaser that (other than the interests of a
Warrantholder under the Warrants) he has no right to or interest
in any shares in the Company not agreed by him to be sold (or, in
the case of the Warrantholders, cancelled) pursuant to this
agreement.
5
3. CANCELLATION OF WARRANTS
Subject to clauses 5 and 6, each of the Warrantholders agrees to
the cancellation of the Warrants on the terms of the Warrant
Cancellation Agreement.
4. CONSIDERATION
(1) The consideration for the sale of the Preference Shares shall be
the amount in Schedule 7 set opposite the date of Completion under
the column "Preference Consideration", payable in cash on
Completion.
(2) The consideration for the sale of the Loan Stock shall be the
amount in Schedule 7 set opposite the date of Completion under the
column "Loan Stock Consideration", payable in cash on Completion.
(3) The consideration for the sale of the A Shares and the
cancellation of the Warrants shall be the product (in DEM) of the
following formula:
( 8400 )
Ordinary Consideration = GEV minus ( GEV x ------ )
( 112005 )
(( ) ( 15 8400 ))
minus (( GEV - 252,549,784.11 ) x ( --- - ------ ))
(( ) ( 100 112005 ))
(4) The Sellers shall be entitled to the Preference Consideration and
the Loan Stock Consideration in the proportions shown in columns
(D) and (F) respectively of Schedule 1.
(5) The Sellers of the A Shares and the Warrantholders shall be
entitled to the Ordinary Consideration in the proportions set out
opposite their respective names in Schedule 3.
(6) The Purchaser shall pay to the Sellers of the A Shares and the
Warrantholders DEM 381,977,079.36 in cash on Completion on account
of the Ordinary Consideration (the "PAYMENT ON ACCOUNT").
(7) Within 7 days following agreement or determination of the
Completion Balance Sheet in accordance with Schedule 6 and (if
applicable) the Net Cash Proceeds in accordance with clause 8:
(a) if the Payment on Account is greater than the Ordinary
Consideration, the Sellers of the A Shares and the
Warrantholders shall repay to the Purchaser in cash the
amount of the excess; and
(b) if the Payment on Account is less than the Ordinary
Consideration, the Purchaser shall pay to the Sellers of the
A Shares and the Warrantholders in cash the amount of the
deficiency,
in each case together with interest accruing daily on such amount
at the rate of Euribor plus 2 per cent. per annum from the date of
Completion to (but not including) the date of payment.
6
(8) Payments to or by the Sellers of the A Shares and the
Warrantholders pursuant to subclause (7) shall be made in the same
proportions as their respective entitlements to the Ordinary
Consideration.
5. CONDITIONS PRECEDENT
(1) The sale and purchase of the Securities and the cancellation of
the Warrants is conditional on:
(a) the Commission of the European Communities notifying
the Purchaser that it will neither initiate proceedings
under Article 6(1)(c) of Council Regulation (EEC) 4064/89 in
relation to the purchase of the Securities by the Purchaser
or any matter arising from it, nor refer the purchase or any
matter arising from it to the competent authorities of a
Member State under Article 9(1) of that Regulation; and
(b) the execution of each of the Minority Share Sale Agreements,
the Administration Agreement and the Deed of Termination by
all the parties thereto.
(2) Each of the parties shall use reasonable endeavours to procure
that each of the conditions in subclause (1) above is fulfilled on
or before 29th February, 2000. The Purchaser shall enter into
each of the Minority Share Sale Agreements upon the other party
thereto entering into it. Each of the Sellers shall enter into
the Deed of Termination upon the other parties thereto entering
into it and each of the Sellers and the Warrantholders shall enter
into the Administration Agreement upon the other parties thereto
entering into it.
(3) If either of the conditions in subclause (1) above is not
fulfilled on or before the date specified in subclause (2) above,
all the clauses of this agreement (other than clauses 11 to 16)
shall cease to have effect and none of the parties will have any
rights or liabilities under those clauses except in respect of an
antecedent breach.
6. RESCISSION
(1) If between the date of this agreement and Completion:
(a) any Seller is in material breach of any obligation on his
part under this agreement or if any of the persons given an
instruction under clause 7(1) is in material breach of the
terms of that instruction or if any of the Executives is in
material breach of any obligation on his part under any of
the Minority Share Sale Agreements and, where the breach is
capable of remedy, it is not remedied to the Purchaser's
reasonable satisfaction prior to Completion; or
(b) Hoechst makes any claim or allegation that the Hoechst
Agreement is in any way invalid or unenforceable or that it
has not been performed in all material respects in
accordance with its terms; or
(c) any statute, regulation or decision is enacted or taken by a
governmental or other official authority, including a court
of competent jurisdiction (except for regulations or
decisions relating to employee, competition or anti-trust
matters) which would prohibit, restrict or delay beyond 29th
February, 2000 the sale and purchase of the Securities or
the cancellation of the Warrants;
7
(d) any of the following occurs (except to the extent the same
has arisen as a result of the unreasonable delay or
withholding of consent by the Purchaser in respect of a
matter requiring the consent of the Purchaser under clause
7(1)) which has a material adverse effect on the financial
position of the Vianova Group taken as a whole:
(i) any statute, regulation or decision is enacted or
taken by a governmental or other official authority,
including a court of competent jurisdiction, (except
decisions or regulations relating to employee,
competition or anti-trust matters) which would
prohibit, restrict or affect the operation of any of
the businesses of the Vianova Group (or any part
thereof) after Completion;
(ii) a strike or industrial dispute at the Vianova Group's
facilities at Hamburg, Fechenheim, Wiesbaden, Graz,
Werndorf, Romano, Lalagosta, Dijon, Soborg, Suzano or
Rayong;
(iii) any loss, damage, destruction, breakdown or other
event at, or in respect of, the Vianova Group's
manufacturing facilities at Hamburg, Fechenheim,
Wiesbaden, Graz, Werndorf, Romano, Lalagosta, Dijon,
Soborg, Suzano or Rayong which prevents any one or
more of such facilities from operating in the ordinary
course of business; or
(e) any member of the Vianova Group enters into liquidation,
administration, receivership, bankruptcy or any proceeding
analogous thereto as a result of a material adverse change
in the financial position of the Vianova Group taken as a
whole; or
(f) it transpires that the Company has in issue securities in
addition to those to be sold pursuant to this agreement and
the B Shares or that any person (other than the
Warrantholders under the Warrants) has any rights in
relation to unissued share capital of the Company,
then the Purchaser may elect to rescind this agreement by giving
notice to the Sellers' Solicitors, and the provisions of clause
5(3) shall apply, mutatis mutandis.
(2) In no circumstances may this agreement be rescinded after
Completion.
(3) If prior to Completion any of the Sellers becomes aware of any of
the matters set out in subclause (1) above he shall notify the
Purchaser thereof as soon as practicable after becoming so aware.
7. COVENANTS UP TO COMPLETION
(1) Morgan Grenfell Development Capital Nominees Limited shall, and
DEPIV shall procure that Ropa Beteiligungsgesellschaft mbH shall,
forthwith give (and not revoke, waive or alter the same without
the Purchaser's consent) to each member of the Supervisory Board
of the Company, each Executive and each of those persons
identified in Schedule 8 (the "ADDITIONAL EXECUTIVES") a written
instruction:
(a) not to approve (without the Purchaser's consent) anything
(other than a sale of the Inks Business in accordance with
clause 8 or any step necessary to implement Schedule 5)
which he reasonably believes is outside the ordinary course
of business of the relevant member of the Vianova Group or
(without limitation to the foregoing) any of the following
matters:
8
(i) capital expenditure by any member of the Vianova Group
in an amount exceeding DEM1 million per calendar month
or DEM4 million in aggregate for the entire Vianova
Group or which, when aggregated with other capital
expenditure incurred during calendar year 1999 by it
or any other member of the Vianova Group, exceeds
DEM21.4 million;
(ii) the disposal or acquisition by any member of the
Vianova Group of any assets having a net book or
market value in excess of DEM1 million;
(iii) the acquisition, disposal or formation by any member
of the Vianova Group of any subsidiary or affiliate;
(iv) the grant or issue by any member of the Vianova Group
of any security including, without limitation,
mortgages, charges, guarantees or debentures in
connection with any part of its business, except in
what he reasonably believes to be the ordinary course
of business;
(v) the entry into or amendment by any member of the
Vianova Group of any agreement, contract or other
binding commercial arrangement which: (AA) is not
capable of being terminated on 12 months' notice or
less by that member and which involves payment or
receipt by that member of more than DEM 1 million per
annum (or the equivalent sum in the relevant local
currency); or (BB) involves payment or receipt by any
member of the Vianova Group in excess of DEM 2 million
per annum (or the equivalent sum in the relevant local
currency) other than any agreement, contract or
arrangement for the purchase of raw materials made in
the ordinary course;
(vi) the making by any member of the Vianova Group of any
material change in the terms and conditions of
employment of the members of the Management Board
listed in Schedule 4, the termination of the
employment of such persons or the employment of any
new persons in positions equivalent or similar to
those held by such persons;
(vii) the assumption or grant by any member of the Vianova
Group of any rights in respect of real estate
otherwise than in what he reasonably believes to be
the ordinary course of business;
(viii) the entry into by any member of the Vianova Group of
any new, or the renewal of any current, "shop
agreements" ("Betriebsvereinbarungen"), or any
equivalent union or works council agreements;
(ix) the institution or joinder by any member of the
Vianova Group as a plaintiff before any court,
governmental agency, arbitration panel or other
tribunal of any proceeding with an individual value in
dispute in excess of DEM200,000;
(x) the creation, issue, purchase, redemption or
conversion by any member of the Vianova Group of any
class of share capital or the grant of any options or
other rights in favour of any of the Sellers or any
third parties in connection with any class of share
capital or the recapitalisation of any intergroup
indebtedness;
9
(xi) the entry into by any member of the Vianova Group of
any new facility agreement for the borrowing of money
or the discounting of invoices, or the amendment in
any material respect of the Finance Agreements;
(xii) the repayment of any term indebtedness;
(b) not, without the prior consent of the Purchaser, to do or
omit to do anything or knowingly allow any member of the
Vianova Group to do or omit to do anything which he knows
does, will or might:
(i) cause any provision of the Hoechst Agreement to be or
become unenforceable, in whole or part and whether
before or after Completion, in accordance with its
terms; or
(ii) cause or allow enforcement of any provision of the
Hoechst Agreement to be waived, in whole or in part;
(c) to use his reasonable endeavours to procure that any and all
returns, notices, computations and elections which he is
aware are required to be filed with any tax, duty or excise
authority are properly filed by the due date;
(d) to inform and consult via Dr. Strametz with the Purchaser
about and regarding the matters referred to in clauses 10(2)
and (3), to take into account the reasonable suggestions of
the Purchaser with respect thereto and not to settle those
matters other than on reasonable commercial terms (it being
acknowledged that the current intention of the Vianova Group
is that any amount paid to the Vianova Group by Hoechst in
respect of the Herberts Claim will be equal to any amount
paid by the Vianova Group to Herberts in respect of it); and
(e) to notify the Purchaser as soon as practicable after
becoming aware of any of the matters referred to in clause
6(1),
provided that the instruction referred to in (d) above shall be
given to Dr. Strametz, Herr Schrod and Herr Geidt only and the
instruction in (b) and (e) above need not be given to the
Additional Executives.
(2) The Purchaser shall not withhold or delay its consent under
subclause (1)(a) if the relevant member of the Vianova Group has
an obligation to do the thing in question pursuant to a legally
binding obligation entered into by it prior to the date of this
agreement nor shall it unreasonably withhold or delay its consent
to any matter referred to in subclause (1)(b)(ii).
(3) None of the Sellers shall before Completion without the consent of
the Purchaser:
(a) dispose of any interest, legal, equitable or otherwise, in
any of the Securities to be sold by him or convert any of
the Securities into any other class of share or security or
grant any option or right of pre-emption over, or grant any
other third party right in respect of, or mortgage, charge
or otherwise encumber any of those Securities; or
(b) vote in favour of any proposed resolution of the Company's
shareholders other than a resolution to adopt the accounts
for the year ended 31st December, 1998, including
10
any resolution for the declaration, making or payment of any
dividend or other distribution, whether of profits, retained
earnings or other cash or otherwise.
(4) None of the Warrantholders shall before Completion without the
consent of the Purchaser dispose of any interest, legal, equitable
or otherwise in any of the Warrants held by him, grant any option
or right of pre-emption over, or grant any other third party right
in respect of, or mortgage, charge or otherwise encumber or
exercise any of those Warrants.
(5) Neither the Company nor any of the Sellers shall before Completion
do anything which would require the Company to give a notification
under clause 3.2 of the Warrant Agreement, other than in
connection with the transactions contemplated by this agreement or
with the prior consent of the Warrantholders.
(6) Until Completion DEPIV shall use its best endeavours to procure
(and none of the other Sellers shall restrict the ability of DEPIV
so to procure) that:
(a) the Purchaser, its agents, advisers and representatives are
provided in a timely fashion with such information regarding
the businesses and affairs of the Vianova Group as the
Purchaser may reasonably require by notice to Dr. Strametz;
and
(b) the Purchaser, its agents, advisers and representatives are
given reasonable access during normal working hours to
PricewaterhouseCoopers and to the officers, directors,
employees, premises, books and records of members of the
Vianova Group. Requests for such access shall be
communicated via MGPE which may impose such conditions as
are reasonable to avoid undue disruption to the Company's
business and activities and to allow an adequate and proper
process control to be exerted by MGPE (on behalf of the
Sellers and the Warrantholders), including requiring the
attendance of a representative of the Sellers at any meeting
with directors, officers and/or employees of the Vianova
Group; and
(c) the Purchaser, its agents, advisers and representatives are
given such assistance by the directors, officers and
employees of the Vianova Group as the Purchaser may
reasonably require in order to:
(i) arrange the discharge on or following Completion of
all the obligations of the Vianova Group under the
Finance Agreements, including the provision of a
forecast of the gross and net debt position of the
Vianova Group on a company by company basis as at
Completion no later than five days before the date set
for Completion; and
(ii) ensure, to the extent required by the Purchaser, that
new or replacement finance agreements are established
on or following Completion.
(7) For the purposes of this clause, the Purchaser's consent shall be
the consent of any of Robert B. Toth, Steve Zollmann or John J.
Moore.
8. INKS
(1) Up to Completion, DEPIV shall procure in so far as it is
reasonably able (and none of the other Sellers shall restrict the
abiliy of DEPIV so to procure) that:
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(a) the Vianova Group uses reasonable and good faith efforts to
sell the Inks Business (and any other assets intended to be
sold with it, as described in the LOI) on terms consistent
with the LOI and any other terms agreed by Purchaser (such
agreement not to be unreasonably withheld or delayed); and
(b) the Purchaser shall have the right to review the proposed
terms of the sale and shall be entitled to prevent the sale
on reasonable grounds, including (without limitation) (i)
the allocation of liability between the Vianova Group (on
the one hand) and the acquirer of the Inks Business (on the
other hand) being such that the Vianova Group retains or
acquires any potential liability for post-acquisition acts
or omissions of such acquirer; and (ii) the inclusion in the
assets sold of all or part of the InfraServ share interest
without a corresponding and appropriate increase in the
consideration for the Inks Business.
(2) After Completion and up to 29 February, 2000, the Purchaser shall
use reasonable and good faith efforts to sell the Inks Business on
a basis which is consistent with the basis inherited at
Completion, provided that such basis is reasonably (having regard
to the provisions of subclause (1)) acceptable to the Purchaser.
(3) If the sale of the Inks Business is completed on or before 29
February, 2000 then the Gross Equity Value shall be increased by
an amount equal to 50% of the Net Cash Proceeds agreed or
determined in accordance with the following provisions of this
clause.
(4) "NET CASH PROCEEDS" means the cash consideration received by the
seller of the Inks Business for the Inks Business on or prior to
29th February, 2000 plus any liabilities assumed by the acquirer
of the Inks Business and any accounts receivable of the Inks
Business (less provision for bad and doubtful debts) retained by
the seller of the Inks Business, less all charges and accruals for
actual and contingent liabilities, liabilities for taxes, costs
arising in connection with the transaction (including actual or
contingent redundancy, relocation and retraining costs), fees
(including legal, notary, financial and other advisors' fees) and
expenses (including out-of-pocket expenses incurred by the Vianova
Group in negotiating the transaction) arising or having arisen,
directly or indirectly, in connection with the sale, purchase and
transfer of the Inks Business.
(5) If the sale of Inks Business is completed on or before the date of
Completion, the Purchaser shall procure that the relevant Vianova
Group managers prepare and deliver to the Purchaser and PwC (as
defined in Schedule 6) a statement of the Net Cash Proceeds at the
same time as the draft unaudited Completion Balance Sheet (as
defined in Schedule 6) is delivered to the Purchaser and PwC. The
provisions of Part A and paragraphs (i) to (iv) of Part C of
Schedule 6 shall apply mutatis mutandis to such statement and to
the agreement or determination thereof.
(6) If the sale of Inks Business is completed after the date of
Completion, the Purchaser shall procure that as soon as reasonably
practicable and in any event no later than 60 days following
completion of the sale of the Inks Business or the date of
delivery of the draft unaudited Completion Balance Sheet (as
defined in Schedule 6), whichever is later, the relevant Vianova
Group managers shall prepare and deliver to the Sellers and the
Appointed Advisor (as defined in Schedule 6) a statement of the
Net Cash Proceeds. The provisions of Part A and paragraphs (i) to
(iv) of Part C of Schedule 6 shall apply mutatis mutandis to such
statement of Net Cash Proceeds and to the agreement or determination
thereof with further appropriate changes consistent with the audit
being conducted by the Appointed Advisor rather than PwC.
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9. COMPLETION
(1) Completion shall take place at the offices of Loeff Claeys Verbeke
at Apollolaan 15, 1077 AB Amsterdam, The Netherlands two Business
Days' after satisfaction of the condition set out in clause
5(1)(a) or immediately after satisfaction of the condition set out
in clause 5(1)(b), whichever is the later, and simultaneously with
completion of the Minority Share Sale Agreements; provided that if
Completion would otherwise occur during the period between 23rd
December, 1999 and 16th January, 2000 (inclusive) it shall occur
on 17th January, 2000.
(2) At Completion the Sellers, the Warrantholders and the Purchaser
shall do those things set out in Schedule 5.
10. HERBERTS AND OTHER CLAIMS
(1) The Purchaser shall on Completion pay to the Sellers of the A
Shares and the Warrantholders (for the purposes of this clause,
together the "SELLERS") the Relevant Percentage of DEM 6,500,000.
(2) The Sellers shall pay to the Purchaser the Relevant Percentage of:
(a) any amount paid by the Vianova Group to Herberts in respect
of the Herberts Claim whether before, on or after the date
of Completion, provided that in relation to any amount paid
prior to the date of Completion the amount shown in the
notes to the Completion Balance Sheet as relating to the
Herberts Claim and as having been written back for the
purposes of the Completion Balance Sheet shall be conclusive
evidence of the amount so paid and provided further that the
maximum amount payable by the Sellers under this paragraph
(a) shall be the Relevant Percentage of DEM 5,000,000; and
(b) any amount of corporation tax paid by Vianova Spain in
respect of the period from 1st January to 1st June, 1999 by
virtue of the merger of Vianova Spain with Viking Spain
being effective on 1st June, 1999 rather than 1st January,
1999, whether payment is made before, on or after the date
of Completion, provided that in relation to any amount paid
prior to the date of Completion the amount shown in the
notes to the Completion Balance Sheet as relating to the
corporation tax paid by Vianova Spain for that period and as
having been written back for the purposes of the Completion
Balance Sheet shall be conclusive evidence of the amount so
paid and provided further that the maximum amount payable by
the Sellers under this paragraph (b) shall be the Relevant
Percentage of DEM 1,500,000.
(3) The Purchaser shall pay to the Sellers the Relevant Percentage of:
(a) any amount received by the Vianova Group from Hoechst in
respect of the Herberts Claim net of reasonable out-of-
pocket costs and expenses incurred in making recovery,
whether before, on or after the date of Completion, provided
that in relation to any amount received prior to the date of
Completion the amount shown in the notes to the Completion
Balance Sheet as relating to the Herberts Claim and as
having been written back for the purposes of the Completion
Balance Sheet shall be conclusive evidence of the amount so
received provided that the maximum amount
13
payable by the Purchaser under this paragraph shall be
no greater than the aggregate liability of the Sellers
under subclause 2(a);
(b) any amount received by Vianova Spain from the Spanish
taxation authorities or any other person in respect of
corporation tax paid or payable by Vianova Spain in respect
of the period from 1st January to 1st June 1999 by virtue of
the merger of Vianova Spain with Viking Spain being
effective on 1st June 1999 rather than 1st January, 1999
(net of reasonable out-of-pocket costs and expenses incurred
in making recovery), whether received before, on or after
the date of Completion, provided that in relation to any
amount received prior to the date of Completion the amount
shown in the notes to the Completion Balance Sheet as
relating to such corporation tax and as having been written
back for the purposes of the Completion Balance Sheet shall
be conclusive evidence of the amount so received provided
that the maximum amount payable by the Purchaser under this
paragraph shall be no greater than the aggregate liability
of the Sellers under subclause 2(b);
(c) any amount received by the Vianova Group after Completion
under clause 6.19 of the Hoechst Agreement.
(4) Each payment to be made by the Sellers to the Purchaser or vice
versa under subclause (2) or (3) (as the case may be) shall be
paid within ten Business Days after:
(i) the related amount having been paid or received (as the case
may be); or
(ii) agreement or determination of the Completion Balance Sheet,
whichever is the later.
(5) After Completion, the Purchaser shall inform and consult with MGPE
(on behalf of the Sellers) about and regarding the matters
referred to in subclauses (2) and (3) and take into account the
reasonable suggestions of MGPE (on behalf of the Sellers). The
Purchaser shall procure that any settlement of those matters is
made on reasonable commercial terms (it being acknowledged that
the current intention of the Vianova Group is that any amount paid
to the Vianova Group by Hoechst in respect of the Herberts Claim
will be equal to any amount paid by the Vianova Group to Herberts
in respect of it). The Purchaser will use all reasonable
endeavours to pursue any rights it may have against third parties
which would entitle it to a payment of the type referred to in
subclause (3) above.
(6) Any payment to be made to or by the Sellers under subclauses (1)
to (3) above shall be apportioned amongst them in accordance with
Schedule 9, and shall be treated as an increase or reduction in
the consideration for the sale and purchase of the A Shares and
the cancellation of the Warrants.
(7) "RELEVANT PERCENTAGE" means, in relation to a payment to be made
under subclauses (1), (2) or (3), 85%.
11. ANNOUNCEMENTS
No party shall make or permit any person connected with him to
make any announcement concerning this sale and purchase or any
ancillary matter before Completion except as required by law or
any competent regulatory body or with the written approval of the
other parties (and for these purposes MGPE may agree any
announcement by the Purchaser on
14
behalf of the Sellers and the Warrantholders), such approval not
to be unreasonably withheld or delayed.
12. NOTICES
(1) Except as otherwise specifically provided in this agreement, any
notice or other document to be served under this agreement shall
be delivered to the party to be served at his address appearing in
this agreement or at such other address as he may have notified to
the other parties in accordance with this clause.
(2) Any notice or document shall be deemed to have been served at the
time of delivery.
(3) In proving service of a notice or document it shall be sufficient
to prove that delivery was made.
13. RESOLUTIONS AND WAIVERS
(1) Each of the Sellers and of the Warrantholders shall procure so far
as it is able the convening of all meetings of the Company, the
giving of all waivers and consents and the passing of all
resolutions as are necessary under its constitutional documents to
give effect to this agreement and the Minority Share Sale
Agreements.
(2) Each Seller and each Warrantholder waives (and shall procure the
waiver by his nominee of) all rights of pre-emption which he (or
such nominee) may have (whether under the Company's constitutional
documents or otherwise) in respect of the transfer to the
Purchaser or its nominee of the Securities or any of them or in
respect of the transfer to the Purchaser of the shares to be sold
under the Minority Share Sale Agreements.
(3) Each Warrantholder waives (and shall procure the waiver by his
nominee of) all rights which he (or such nominee) may have under
the Warrant Agreement in respect of the transfer to the Purchaser
or its nominee of the Securities or any of them, including rights
to receive notice of the sale of the Securities (or any of them)
and to exercise the Warrants conditionally upon completion of the
sale of the Securities. Any consent of the Warrantholders
required pursuant to the Warrant Agreement or applicable law to
the transactions contemplated by this agreement shall be deemed to
have been given or waived and any exercise notice given under the
Warrant Agreement shall be deemed to have been cancelled.
14. GENERAL
(1) All payments to the Sellers and the Warrantholders to be made
under this agreement shall be made in DEM in immediately available
funds to the account of the Sellers' Solicitors at:
bank: NatWest Bank plc
15 Bishopsgate
London
sort code: 50-00-00
Swift address: NWBKGB2L
account number: 190/00/02346087
account name: Allen & Overy Client Account
and such payment shall be in full and final satisfaction of any
obligation of the Purchaser to pay that amount to the Sellers or
the Warrantholders.
15
(2) Each party shall pay the costs and expenses incurred by him in
connection with the entering into and completion of this agreement
provided that any stamp duties, transfer taxes, notarial fees or
the like arising in connection with the transfer of the Securities
or the cancellation of the Warrants and which are identified prior
to the date when the Completion Balance Sheet is agreed or
determined shall be borne by the Sellers and the Warrantholders up
to a maximum of DEM200,000.
(3) None of the rights or obligations under this agreement may be
assigned or transferred without the prior written consent of all
the parties, provided that the Purchaser may assign its rights
under this agreement to any of its wholly-owned subsidiaries,
subject to such subsidiary covenanting with the Sellers and the
Warrantholders to be jointly and severally liable with the
Purchaser to perform the Purchaser's obligations under this
agreement.
(4) This agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same
agreement and any party may enter into this agreement by executing
a counterpart.
(5) Where any obligation, representation, warranty or undertaking in
this agreement is expressed to be made, undertaken or given by two
or more of the Sellers or of the Warrantholders, they shall be
severally responsible in respect of it.
(6) All figures stated in this agreement are exclusive of any value
added tax or its equivalent.
(7) All of the provisions of this agreement shall remain in full force
and effect notwithstanding Completion (except insofar as they set
out obligations which have been fully performed at Completion).
(8) If any provision or part of a provision of this agreement shall
be, or be found by any authority or court of competent
jurisdiction to be, invalid or unenforceable, such invalidity or
unenforceability shall not affect the other provisions or parts of
such provisions of this agreement, all of which shall remain in
full force and effect.
(9) No failure of a party to exercise, and no delay or forbearance in
exercising, any right or remedy in respect of any provision of
this agreement shall operate as a waiver of such right or remedy.
(10) Upon and after Completion each of the Sellers and the
Warrantholders shall do and execute or procure to be done and
executed all such further acts, deeds, documents and things as may
be necessary to transfer the Securities and cancel the Warrants
and pending the doing of such acts, deeds, documents and things
the Sellers shall as from Completion hold the legal estate in the
Securities to be sold by them pursuant to this agreement in trust
for the Purchaser.
(11) As from the date of this agreement and until the date when it
becomes apparent that the condition set out in clause 5(1)(a) is
incapable of fulfilment in accordance with its terms by 29th
February, 2000, none of the Sellers or the Warrantholders shall
treat with, solicit offers from, approach or entertain any offer
from, or supply information to, any person other than the
Purchaser with respect to a proposed sale of any of the Securities
or Warrants other than to inform such party that no discussions
can be held because the Purchaser has been granted exclusivity.
16
(12) Each of DEPIV, Morgan Grenfell Development Capital Nominees
Limited and Morgan Grenfell Development Capital Syndications
Limited undertake to the Purchaser that it will not at any time
during the period of five years after Completion disclose or
divulge to any person (other than to officers or employees of the
Vianova Group) any confidential or secret information of any
member of the Vianova Group (other than any which comes into the
public domain other than as a result of a breach of this
undertaking or which it is obliged by law or regulatory authority
to disclose).
15. WHOLE AGREEMENT
(1) This agreement and the documents referred to in it contain the
whole agreement between the parties relating to the transactions
contemplated by this agreement and supersede all previous
agreements between the parties relating to these transactions.
(2) Each of the parties acknowledges that in agreeing to enter into
this agreement he has not relied on any representation, warranty,
collateral contract or other assurance (except those set out in
this agreement and the documents referred to in it) made by or on
behalf of any other party before the signature of this agreement.
Each of the parties waives all rights and remedies which, but for
this subclause, might otherwise be available to him in respect of
any such representation, warranty, collateral contract or other
assurance, provided that nothing in this subclause shall limit or
exclude any liability for fraud.
16. GOVERNING LAW
(1) This agreement is governed by and shall be construed in accordance
with English law.
(2) Each party submits to the jurisdiction of the English courts for
all purposes relating to this agreement.
AS WITNESS the hands of the parties (or their duly authorised
representatives) on the date which appears first on page 1
40
SIGNATORIES
Signed by Tom Leader ) TOM LEADER
on behalf of Morgan Grenfell Private )
Equity Limited, in its capacity as )
general partner of Deutsche European )
Partners IV (US ERISA) (No. 1) LP, )
Deutsche European Partners IV (No.2) )
LP, Deutsche European Partners IV )
(No.3) LP, Deutsche European Partners IV)
(US Dollar Fund) LP, Deutsche European )
Partners IV (E) LP, Deutsche European )
Partners IV (E) (No. 2) LP and )
Deutsche European Partners IV (AB) )
LP and as attorney for Commercial )
Union Life Assurance Company )
Limited, Parallel Ventures Nominees )
Limited, Bahrain International Bank )
(E.C.), HarbourVest International )
Private Equity Partners III - Direct )
Fund LP, Mellon Bank N.A. as )
trustee for the Bell Atlantic Master )
Trust, Allied Capital Germany Fund )
LLC, Allied Capital Corporation, )
Bayerische Hypo - Und Vereinsbank )
AG, RBS Mezzanine Limited, )
Westdeutsche Landesbank )
Girozentrale, Bankers Trust Company )
and Lehman Commercial Paper Inc. )
Signed by Tom Leader ) TOM LEADER
as attorney for Morgan Grenfell )
Development Capital Nominees )
Limited, Deutsche Bank Nominees )
(Guernsey) Limited and Morgan )
Grenfell Development Capital )
Syndications Limited )
Signed by John Saucier ) JOHN SAUCIER
for Solutia Inc. )
OMITTED SCHEDULES
A list briefly identifying the contents of all omitted schedules to this
agreement for the sale and purchase of shares and loan stock and the
cancellation of warrants in Viking Resins Group Holdings B.V., dated
10th November, 1999, appears in the Table of Contents to this agreement.
Solutia will furnish supplementally to the Securities and Exchange
Commission upon request a copy of any omitted schedule.