EXHIBIT 10(ss)
AKZO NOBEL N.V.
VELPERWEG 76, PO BOX 9300
6800 SB ARNHEM
THE NETHERLANDS
CONFIDENTIAL
DELIVERED BY HAND
Flexsys Holding B.V.
Flexsys America LP
Flexsys Rubber Chemicals Ltd.
Solutia Inc.
27 February 2007
RE: PROPOSED SALE AND PURCHASE OF AKZO NOBEL'S INTEREST IN THE
FLEXSYS COMPANIES
Dear Sirs,
We refer to the terms and conditions of the draft Transaction Agreement among
Akzo Nobel N.V., Akzo Nobel Chemicals International B.V., and Akzo Nobel
Chemicals Inc. (collectively "AKZO NOBEL"), Flexsys Holding B.V., Flexsys
America LP, and Flexsys Rubber Chemicals Ltd. (collectively "FLEXSYS"), and
Solutia Inc. ("SOLUTIA"), including all Schedules, attachments and other
related documents, all of which are attached hereto (the "AGREEMENT") and our
discussions in relation thereto (the "PROPOSED TRANSACTION") (Akzo Nobel,
Flexsys and Solutia are collectively referred to herein as the "PARTIES").
We irrevocably commit to signing the Agreement in accordance with the terms
and conditions contained in the Agreement (the "OFFER") upon your acceptance
of the same and we confirm that signing shall not be conditional, unless
explicitly set out otherwise in the Agreement or this letter. Solutia's
execution of this letter shall constitute its acceptance of the Offer. Subject
only to the provisions on employee consultation set forth below, you
irrevocably commit to signing the Agreement in accordance with the Offer. You
confirm that signing shall not be conditional upon any matter other than the
provisions on employee consultation set forth below.
EMPLOYEE CONSULTATION
We acknowledge that Flexsys Holding B.V. cannot accept the Offer until the
employee consultations in the Netherlands required for the Proposed
Transaction to be completed prior to the signing of the Agreement have been
completed as set out below: (a) the advice has been given by the relevant
works council, such advice to be requested by Flexsys Holding B.V. and (b) the
consultation with the unions and the notice to the Secretary of the Social and
Economic Council by the relevant Parties jointly has taken place. We agree
with you that we will discuss how we will participate in and contribute to the
works
council consultation processes referred to under (a) and how we will
jointly carry out the consultations referred to under (b).
EXCLUSIVITY
Upon the signing for acknowledgement by you of this letter and until the later
of (i) the signing of the Agreement and (ii) the conclusion of the employee
consultations set forth below, but in any event no later than May 25, 2007,
or, if earlier, the date this Offer is cancelled or rescinded in accordance
with the terms of this letter, we will grant you exclusivity in relation to
the sale and acquisition of Akzo Nobel's interests in Flexsys. We therefore
undertake not to accept any bid from any third party or otherwise engage in
discussions or commitments concerning the Proposed Transaction in whole or in
part during the period indicated in the previous sentence, provided that this
undertaking shall terminate, and at its sole election Akzo Nobel may rescind
this Offer, if Solutia and Flexsys do not obtain binding commitment letters
and/or definitive financing agreements with respect to the Company Financing
Amount (as defined in the Agreement) by February 28, 2007.
We confirm that during this period of exclusivity, our Offer (subject to the
terms of this letter) is irrevocable and will not be changed.
PRESS RELEASE AND CONFIDENTIALITY
Following the signing for acknowledgement of this letter by all Parties, all
Parties agree to abide by the provisions of Section 10.9 of the Agreement
which are incorporated herein by reference.
AGREEMENT
The Parties shall execute the Agreement within three Business Days from the
later of the date on which (i) the notice to the Secretary of the Social and
Economic Counsel has been sent, (ii) the consultations with the trade unions
have, to the extent required, taken place, and (iii) the relevant works
council of Flexsys Holding B.V. has rendered the advice required under Dutch
law in respect of the Proposed Transaction.
In the event the employee consultation process results in (a) a negative
advice or (b) any suggestions or conditions relating to the terms of the
Proposed Transaction which have an impact on the Offer in such a manner that
it could not be expected from a reasonable purchaser or seller to pursue the
Proposed Transaction, then the Parties will discuss in good faith (without any
binding obligation to agree any changes) whether and to what extent the
Proposed Transaction can be altered to accommodate the relevant employee body.
Changes to the Agreement shall only relate to the outcome of the employee
consultation process, and, if any such changes are agreed, the Parties shall
be bound to enter into the Agreement as so amended.
If the Parties cannot agree on changes to the Proposed Transaction to
accommodate the relevant employee body's suggestions or conditions, then you
will inform the relevant employee body accordingly, in which case the
Agreement will be executed as soon as:
2
(a) the period as set out in article 25 paragraph 6 of the Dutch Works
Council Act shall have lapsed, without such employee body having
initiated legal proceedings as set out in article 26 of the Dutch
Works Council Act; or
(b) in the event that the legal proceedings as set out in article 26 of
the Dutch Works Council Act have been initiated, Flexsys Holding B.V.
shall have received a final order from the Enterprise Section of the
Amsterdam Court of Appeal ('Ondernemingskamer') dismissing the
relevant employee body's appeal.
In the event that the relevant Dutch court referred to under (b) above, in a
final order decides in favor of the relevant employee body and this has an
impact on the Offer in such a manner that it could not be expected from a
reasonable purchaser or seller to pursue the Proposed Transaction, you shall
not be obligated to sign the Agreement and we may decide to rescind and/or
cancel the Offer.
MISCELLANEOUS
From and after the date of the execution of this letter, the Parties agree
that they will be bound by the terms of and subject to all of the obligations
under Sections 7.3, 7.6, 7.11, 7.12, and 7.13 of the Agreement; provided, that
--------
no Disentanglement Transaction (as defined in the Agreement) shall be
consummated in the Netherlands until the conclusion of the employee
consultations set forth herein.
In the event the Agreement is not signed on or before May 25 2007 (other than
by reason of default of one of the Parties), we may decide to rescind and/or
cancel the Offer, or you may decide to rescind and/or cancel your acceptance
of the Offer. In either such case, the party electing to rescind the Offer or
acceptance, as applicable, must do so in writing to the other parties, at
which time none of the parties will have any obligations under this letter.
Notwithstanding the foregoing, no such action to rescind or cancellation shall
relieve any party from any liability for any breach of any of its obligations
under Sections 7.3, 7.6, 7.11, 7.12 (with respect to obligations outside of
the Netherlands) or 7.13 of the Agreement and Solutia shall be obligated to
comply with Section 8.2(b)(iii) of the Agreement.
This letter shall be governed by and construed in accordance with the laws of
the Netherlands. Any disputes arising hereunder, if not resolved amicably,
shall be settled in accordance with the Dispute Resolution provisions set
forth in Section 10.14 of the Agreement, which are incorporated herein by
reference.
3
Yours sincerely,
AKZO NOBEL N.V.
By: /s/ D.W. Welch
-------------------------------
Name: D.W. Welch
Title: Director Corporate Strategy
By: /s/ Graham White
-------------------------------
Name: Graham White
Title: Deputy Director Corporate Strategy
AKZO NOBEL CHEMICALS INTERNATIONAL B.V.
By: /s/ D.W. Welch
-------------------------------
Name: D.W. Welch
Title: Attorney in Fact
By: /s/ Graham White
-------------------------------
Name: Graham White
Title: Deputy Director Corporate Strategy
AKZO NOBEL CHEMICALS INC.
By: /s/ D.W. Welch
-------------------------------
Name: D.W. Welch
Title: Attorney in Fact
By: /s/ Graham White
-------------------------------
Name: Graham White
Title: Deputy Director Corporate Strategy
4
ACKNOWLEDGED AND AGREED FOR ON BEHALF OF:
FLEXSYS HOLDING B.V.
By: /s/ Peter Schneider
- ----------------------------------
Name: Peter Schneider
Title: Director Flexsys Holding B.V.
By: /s/ W. Kymmell
- ----------------------------------
Name: W. Kymmell
Title: General Counsel
FLEXSYS AMERICA LP
By: Flexsys America Co.,
its General Partner
By: /s/ W. Kymmell
- ----------------------------------
Name: W. Kymmell
Title: General Counsel
FLEXSYS RUBBER CHEMICALS LTD.
By: /s/ W. Kymmell
- ----------------------------------
Name: W. Kymmell
Title: General Counsel
SOLUTIA INC.
By: /s/ Rosemary L. Klein
- ----------------------------------
Name: Rosemary L. Klein
Title: Senior Vice President
5