Exhibit 4.1
SHAREHOLDERS AGREEMENT
BETWEEN
(1) GROHE AKTIENGESELLSCHAFT
(2) BC EUROPEAN CAPITAL VI AND OTHERS
(3) TEABAR CAPITAL CORPORATION
(4) CAISSE DE DEPOT
(5) MANAGEMENT
(6) BDW BETEILIGUNGSGESELLSCHAFT FUER DIE DEUTSCHE WIRTSCHAFT
MBH & CO. KG
(7) HVB OFFENE UNTERNEHMENSBETEILIGUNGS AG
(8) CRESCAT EQUITY 1 BETEILIGUNGSGESELLSCHAFT MBH & CO. KG
(9) SOUTH LIGHT INVESTMENT PTE LIMITED
(10) HARBOURVEST INTERNATIONAL PRIVATE EQUITY PARTNERS III-
DIRECT FUND L.P.
(11) LARANJEDO SERVICIOS E GESTAO LDA
(12) BC EUROPEAN CAPITAL V
(13) XX. XXXXXXX X. XXXXXXXX
(14) XXXXXXXXX XXXXX
(15) XX. XXXXXX X. XXXXX
CONTENTS
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CLAUSE NO. HEADING PAGE NO.
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1. Interpretation 3
2. Application of Subscription Monies 3
3. Fees and Expenses 3
4. Institution Rights 4
5. Conduct of the Group 4
6. Provision of Information 4
7. Supervisory Board 5
8. Shareholders Meeting 5
9. Transfer of Shares 6
10. Announcements 6
11. Termination and Adherence 7
12. General 7
13. Notices 7
14. Notarisation 8
15. Governing Law and Jurisdiction 8
16. Severability 8
Schedule 1 BC Funds Parties 9
Schedule 2 Teabar 12
Schedule 2 A Caisse de depot 12
Schedule 2 B Management 12
Schedule 2 C 12
Schedule 3 The Company 14
Schedule 4 The Shareholders 15
Schedule 5 Conduct of the Group 19
Schedule 6 Definitions and Interpretations 26
THIS AGREEMENT is made the 26th of August 1999 and amended as of 11.10.1999,
30.11.1999, 14.12.1999, 23.10.200112.08.2002, 30.07.2003 and of 19.12.2003 - the
following text of the Agreement includes the afore - mentioned amendments
BETWEEN:
(1) GROHE Aktiengesellschaft, a stock corporation entered in the Commercial
Register of the Local Court of Iserlohn, Germany (registered no. HRB 2770)
and having its registered office at Xxxxxxxxxxxx 000, 00000 Xxxxx,
Xxxxxxx (hereinafter called "the Company");
2
(2) THE PERSONS whose names and addresses are set out in Schedule 1
(hereinafter, "BC Funds"); and
(3) THE PERSON whose name and address is set out in Schedule 2 (hereinafter
"Teabar").
(4) THE PERSON whose name and address is set out in Schedule 2 A (hereinafter
"Caisse de depot")
(5) THE PERSONS whose names and addresses are set out in Schedule 2 B
(hereinafter "Management")
(6) THE PERSONS whose names and addresses are set out in Schedule 2 C
WHEREAS:
(A) The Company (details of which are set out in Schedule 3) was incorporated
in the Commercial Register of the Local Court of Frankfurt am Main on 9th
July 1999 under the name RENATA Verwaltungsgesellschaft mbH. By
shareholders resolution of 21 September 1999 the name of the Company was
changed to Grohe Holding GmbH. By shareholders resolution of 15.07.2003
the shareholders resolved the transformation of the Company into a stock
corporation (Aktiengesellschaft) named GROHE Aktiengesellschaft.
(B) The shareholders and the shareholdings of the Company can be seen in
Schedule 4. No other shares have been allotted or issued by the Company.
The shares carry the rights and are subject to the restrictions set out in
the articles of association as resolved on 15.07.2003 (hereinafter called
"the Articles").
(C) The Company has entered into an Agreement (hereinafter called "the
Acquisition Agreement") dated 15th July 1999 providing amongst other
things for the purchase by the Company of 69.13% (100% of the ordinary
shares and 28.7% of the preferred shares) of the issued share capital of
Xxxxxxxxx Xxxxx AG.
(D) The company which has been acquired pursuant to the terms of the
Acquisition Agreement carries on the business of, INTER ALIA, the
manufacture, distribution, marketing and wholesale of sanitary products
(fixtures, furniture and fittings).
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
In this Agreement and the Schedules (which shall be deemed to be part of
and construed as one with this Agreement), unless the context otherwise
requires, words and expressions shall be interpreted in accordance with and
have the meaning ascribed to them in Schedule 6.
3
2. APPLICATION OF SUBSCRIPTION MONIES
The Company hereby undertakes that it will forthwith apply the share
subscription monies and the loans:
2.1 first, in paying the consideration under the Acquisition Agreement;
2.2 secondly, towards the fees and expenses incurred in connection with
this Agreement and the Acquisition.
3. FEES AND EXPENSES
3.1 Subject to Clause 3.2 each party will bear its own costs and expenses
incurred in connection with this Agreement and the documents
ancillary to this Agreement.
3.2 The Company shall pay on demand so far as is lawful:
3.2.1 all taxes or similar duties or fees arising out of the
Acquisition Agreement;
3.2.2 all reasonable expenses including, without limitation, all
travel costs, legal, accounting and other professional fees
(together with value added tax on them) (on a full indemnity
basis) incurred by or on behalf of the Institutions (acting
with Supervisory Board Consent), in connection with the
negotiation and preparation of this Agreement, the Articles
and all ancillary documentation, and any subsequent
variation of any such document, and any consent or approval
given under any such document;
3.2.3 all reasonable expenses including, without limitation, all
travel costs, legal, accounting and other professional fees
(together with value added tax on them) incurred by any of
the Institutions (acting with Supervisory Board Consent) in
connection with registration, preservation or enforcement of
any of its rights under this Agreement or the Articles.
4. INSTITUTIONS RIGHTS
4.1 The Institutions agree amongst themselves that the following
provisions shall apply in relation to the enforcement of any of the
obligations of the Company by the Institutions under this Agreement
("the Obligations"):
4.1.1 no claim in respect of any breach of the Obligations shall
be brought by any of the Institutions without Supervisory
Board Consent;
4.1.2 the costs incurred by any Institution in bringing a claim in
respect of any breach of the Obligations ("a Claim") shall
be borne by all of the Institutions in the Relevant
Proportions; and
4
4.1.3 any damages obtained as a result of any Claim will after
deduction of all costs and expenses, be divided amongst the
Institutions in the Relevant Proportions.
4.2 Any liability of the Company under any of the Obligations may in
whole or in part be released, compounded or compromised with
Supervisory Board Consent or time indulgence may be given with such
agreement.
5. CONDUCT OF THE GROUP
5.1 In connection with the intended transformation of the Company into a
stock corporation a Supervisory Board which is governed by the
provisions of the German Co Determination Law 1976
(MITBESTIMMUNGSGESETZ 1976) will be established. The Supervisory
Board will issue internal rules for the board of management. It is
intended, that these rules require consent for the matters set out in
Schedule 5 A.
5.2 The Company hereby undertakes to and covenants with the Institutions
that it shall (and each of the Managers in their capacity as
employees and/or directors and/or shareholders of the Group, hereby
undertake to and covenant with the Institutions to procure in so far
as they are reasonably able that the Company shall) unless
Supervisory Board Consent to act otherwise has been obtained, comply
with the obligations set out in Schedule 5B.
6. PROVISION OF INFORMATION
The Company hereby undertakes to and covenants with the Institutions that
it shall furnish each of the Institutions with the information set out in
Schedule 5C. If the Company shall fail to provide any such financial
information within the periods specified, the Institutions (acting with
Supervisory Board Consent) shall be entitled to request the auditors of the
Company, or in the absence of their agreement within a period of 7 days, to
appoint another firm of accountants to prepare such accounts and other
financial information, at the Company's expense and the Company agrees to
provide all information required by the auditors and/or firm of accountants
appointed by the Institutions (acting as aforesaid), as the case may be,
for such purpose.
7. SUPERVISORY BOARD
7.1 The Company shall have a Supervisory Board consisting of twelve
members. Six members will be elected by the shareholders of the
Company and six members
5
will be elected by the employees according to German Co Determination
Law 1976 (MITBESTIMMUNGSGESETZ 1976).
7.2 BC European Capital VI and Teabar are entitled to jointly propose
four members of the Supervisory Board which are to be elected by the
shareholders. BC European Capital VI is entitled to propose the two
remaining members of the Supervisory Board which are to be elected by
the shareholders. In case BC European Capital VI does not wish to
exercise this right, the remaining shareholders will agree upon the
election of the remaining members of the Supervisory Board to be
elected by the shareholders. The shareholders are obliged to exercise
their voting rights in the shareholders meeting according to the
proposals for the election of members of the Supervisory Board which
are made by BC European Capital VI and Teabar following the
aforementioned provisions.
7.3 The members of the Supervisory Board will receive a remuneration and
reimbursement of their expenses as provided in the Articles.
7.4 If the shareholders being entitled to propose the election of a
member of the Supervisory Board intent to dismiss this member the
remaining shareholders are obliged to vote in the shareholders
meeting according to the proposal of such shareholders to dismiss the
relevant member of the Supervisory Board.
7.5 The Supervisory Board will appoint the directors of the Company.
7.6 The Supervisory Board may assign its rights provided under this
Agreement to an executive committee in accordance with section 107
para. 3 Aktiengesetz (German stock corporation act). The members of
the executive committee should be such members of the Supervisory
Board which are elected according to the joint proposals of BC
European Capital VI and Teabar. The shareholders are obliged to
undertake all reasonable efforts which are permitted by law to
achieve this.
8. SHAREHOLDERS MEETING
As far as BC European Capital VI in the shareholders meeting makes a
proposal which is commercially reasonable, the remaining shareholders will
cooperate in the realisation of that proposal and support the proposal.
This comprises in particular:
o the realisation of the strategy for the Exit,
o changes of the Articles (Satzung),
o capital measures for the financing of acquisitions.
The shareholders are entitled to participate in capital increases pro rata
according to their participation in the Company.
6
9. TRANSFER OF SHARES
9.1 No transfer of shares, or any interest in shares may be made except
with Supervisory Board Consent. This does not apply for the transfer
of shares to companies which are associated companies (verbundene
Unternehmen) in the meaning of section 15 Aktiengesetz (German stock
corporation act), provided the transferee adheres to this
shareholders agreement.
9.2 In case BC European Capital VI sells its shares in the Company in
whole or in part to a bona fide arm's length third party purchaser,
upon demand of BC European Capital VI the other shareholders are
obliged to sell a proportion of their shares in the Company, which
reflects the proportion BC European Capital VI has sold of its
shareholding, to that purchaser on the same conditions and at the
same price.
9.3 BC European Capital VI undertakes not to transfer its shares in the
Company in whole or in part to a third party, unless the third party
makes an offer to all the shareholders to acquire a proportion of
their shares in the Company which reflects the proportion BC European
Capital VI intends to transfer of its shareholding, on the same
conditions and at the same price.
10. ANNOUNCEMENTS
10.1 No public announcement or communication concerning this Agreement (or
the transactions the subject of it) shall be made or despatched by or
on behalf of any party hereto (and the Company shall procure that
none of the same shall be made or despatched by or on behalf of any
member of the Group) without Supervisory Board Consent. For the
avoidance of doubt, no such consent shall be required for the making
of any communication relating to this Agreement or the Group by an
Institution to the persons investing in that Institution or any
client of that Institution.
10.2 The Company authorises the Institutions and their professional
advisers acting with Supervisory Board Consent to consult fully with
the lenders under the Finance Documents and any other Investor or any
institution in or client of any Institution as to its affairs and to
exchange information (whether oral or written) on a confidential
basis with such persons, in such manner as the Institutions (acting
with Supervisory Board Consent) and/or the said lenders shall deem
necessary.
10.3 Save as set out above and subject to Clause 10.4, the Institutions
shall keep confidential all information relating to the Group.
10.4 Nothing in this clause 10 shall prevent the Institutions from
disclosing information which at the time of disclosure is within the
public domain (other than by reason
7
of a breach of the terms of this Agreement) or which the Institutions
are required to disclose by any court of law or by statute or by any
regulatory body whose rules have statutory effect.
11. TERMINATION AND ADHERENCE
11.1 This Agreement shall automatically lapse and cease to have effect and
no party shall have any rights or obligations hereunder (save in
respect of any antecedent breach) immediately on completion of an
Exit or an IPO.
11.2 In relation to any Institution, that Institution will cease to have
any rights or obligations hereunder (save in respect of any
antecedent breach) on the completion by that Institution of a
transfer of shares such that the Institution no longer holds any
shares in the capital of the Company and such person shall cease to
be an Institution.
11.3 Each future institution can only subscribe or acquire shares in the
Company if it has adhered to this Agreement.
12. GENERAL
12.1 Each of the parties hereto shall, for so long as he or it is a
shareholder in the Company, join with the other parties hereto in
procuring and convening of all such meetings and the giving or
passing of all such waivers and resolutions and the doing or
procuring of all such acts and things as shall be necessary under the
Articles from time to time or otherwise in relation to the Company to
give effect to this Agreement.
12.2 This Agreement contains the entire agreement between the parties or
any of them with respect to the matters contemplated herein and shall
supersede all prior offers of finance, proposals, representations,
agreements and negotiations relating thereto, whether written, oral
or implied, between the parties or any of them or their respective
advisers or any of them.
12.3 In the event of any inconsistency between any provisions of this
Agreement and the Articles, the Articles in force from time to time
shall prevail.
12.4 The parties will enter into notarised articles of association
(Satzung) for the Company which reflect the content of this
Agreement, as far as the existing Articles should not already reflect
the content of this Agreement.
13. NOTICES
Any notice or other document to be given or served hereunder or in
connection herewith shall be given by sending the same either by personal
delivery or registered
8
post to the address of the relevant party or parties set out in this
Agreement or to such other address as such party or parties may from time
to time notify to the other parties and a notice sent by registered post
shall be deemed (in the absence of evidence of earlier receipt) to have
been delivered 48 hours after despatch and in proving the time of despatch
it shall be sufficient to show that the envelope containing such notice was
properly addressed, stamped and posted. A notice delivered personally shall
be deemed to have been served immediately upon delivery.
14. NOTARISATION
This Agreement needs to be notarised in order to be valid.
15. GOVERNING LAW AND JURISDICTION
This Agreement and the documents to be entered into as provided herein
shall be governed by and construed in accordance with the law of Germany
and the parties hereto irrevocably submit to and prorogate the
non-exclusive jurisdiction of the German Courts.
16. SEVERABILITY
16.1 In the event that a provision of this Agreement is or becomes wholly
or partly invalid, the validity of the remaining provisions will not
be affected. In such event, the parties are obliged to co-operate and
produce provisions which reproduce as far as possible legally and
commercially the same provision which was deemed invalid.
16.2 In the event that provisions of this Agreement need to be interpreted
or supplemented then the interpretation or addition shall be
completed in such a way that the spirit, contents and purpose of this
agreement are adhered to as far as possible. In this respect the
provision that will be valid will then be that which the parties
would have agreed to on completion of this agreement if they had
recognised the need for interpretation or supplement.
16.3 In the event that this Agreement contains gaps clause 2 above will
apply accordingly.
_________________
9
SCHEDULE 1
BC FUNDS PARTIES
NAME OR NAME & ADDRESS
1. BC European Xxxxxxx XX-0
XX Xxx 000
Xxxxxxxxx Xxxxx
Les Banques
St Xxxxx Port
Guernsey GY1 3QL, Channel Islands
2. BC European Xxxxxxx XX-0
XX Xxx 000
Xxxxxxxxx Xxxxx
Les Banques
St Xxxxx Port
Guernsey GY1 3QL, Channel Islands
3. BC European Xxxxxxx XX-0
XX Xxx 000
Xxxxxxxxx Xxxxx
Les Banques
St Xxxxx Port
Guernsey GY1 3QL, Channel Islands
4. BC European Xxxxxxx XX-0
XX Xxx 000
Xxxxxxxxx Xxxxx
Les Banques
St Xxxxx Port
Guernsey GY1 3QL, Channel Islands
5. BC European Xxxxxxx XX-0
XX Xxx 000
Xxxxxxxxx Xxxxx
Les Banques
St Xxxxx Port
Guernsey GY1 3QL, Channel Islands
6. BC European Xxxxxxx XX-0
XX Xxx 000
Xxxxxxxxx Xxxxx
Les Banques
St Xxxxx Port
Guernsey GY1 3QL, Channel Islands
7. BC European Xxxxxxx XX-0
XX Xxx 000
Xxxxxxxxx Xxxxx
Les Banques
St Xxxxx Port
Guernsey GY1 3QL, Channel Islands
8. BC European Xxxxxxx XX-0
XX Xxx 000
Xxxxxxxxx Xxxxx
Les Banques
St Xxxxx Port
Guernsey GY1 3QL, Channel Islands
9. BC European Xxxxxxx XX-0
XX Xxx 000
Xxxxxxxxx Xxxxx
Les Banques
Xx Xxxxx Xxxx
Xxxxxxxx XX0 0XX, Xxxxxxx Xxxxxxx
10. BC European Capital VI-10
PO Box 255
Trafalgar Court
Les Banques
Xx Xxxxx Xxxx
Xxxxxxxx XX0 0XX, Xxxxxxx Xxxxxxx
11. BC European Capital VI-11
PO Box 255
Trafalgar Court
Les Banques
Xx Xxxxx Xxxx
Xxxxxxxx XX0 0XX, Xxxxxxx Xxxxxxx
12. BC European Capital VI-12
PO Box 255
Trafalgar Court
Les Banques
Xx Xxxxx Xxxx
Xxxxxxxx XX0 0XX, Xxxxxxx Xxxxxxx
13. BC European Capital VI-14
XX Xxx 000
Xxxxxxxxx Xxxxx
0
Les Banques
Xx Xxxxx Xxxx
Xxxxxxxx XX0 0XX, Xxxxxxx Xxxxxxx
14. Xxxxxx Xxxxxxx
00 Xxx Xxxxxx xx Xxxx
00000 Xxxxx
Xxxxxx
15. Xxxxx Xxxxxxx
00 Xxx Xxxxxx xx Xxxx
00000 Xxxxx
Xxxxxx
16. Xxxxxxx Xxxxxxx
00 Xxx Xxxxxx xx Xxxx
00000 Xxxxx
Xxxxxx
17. Xxxxxxx Xxxxxxxx
0 Xxx Xxxx Xxxxxxxxx
00000 Xx Xxxxx Xxxxx Xxxx
Xxxxxx
18. Xxxxxxx Xxxxxx
00 Xxx xx Xx Xxxxx
00000 Xxxxx
Xxxxxx
19. Xxxxxxx Fesquet
00 Xxx Xxxxxxxxxx
00000 Xxxxx
Xxxxxx
20. Xxxx Xxxxxxx
0 Xxx xxx Xxxxxx Xxxxx
00000 Xxxxx
Xxxxxx
SCHEDULE 2
TEABAR
NAME OR NAME & ADDRESS
1. Teabar Capital Corporation
5th floor, 0000 Xxxxx Xxxxxx
Xxxxx Xxxx (Xxxxxxx) X0X 0X0
Xxxxxx
3
SCHEDULE 2 A
CAISSE DE DEPOT
NAME OR NAME & ADDRESS
1. Caisse de depot et placement du Quebec
1000, Place Xxxx-Xxxx-Xxxxxxxx
Montreal (Quebec) X0X 0X0
Xxxxxx
SCHEDULE 2 B
MANAGEMENT
1. Xxxxx Xxxxxxx-Xxxxxx, Xxxxxxxxxxxx 00, 00000 Xxxxxxxx
2. Xxxxxx Xxxxxxx, Zum Xxxxxx See 28, 58285 Gevelsberg
3. Xxxxxxx X. Xxxx, Xxxxxxxxxxxxx 00, 00000 Xxxxxxxx
4. Xxxxxxx Xxxxx, Xxxxxxxxxxx 00, 00000 Xxxxxxxx-Xxxxxxxxxx
SCHEDULE 2 C
1. BdW Beteiligungsgesellschaft fuer die deutsche Wirtschaft mbH & Co.
KG, Xxxxxxxxxxxxx 0-0, 00000 Xxxxxxxxx xx Xxxx
2. HVB Offene Xxxxxxxxxxxxxxxxxxxxxxx XX, Xx Xxxxxxxxxx 0, 00000
Xxxxxxxx
3. Crescat Equity 1 Beteiligungsgesellschaft mbH & Co. KG,
Xxxxxxxxxxxxxxx 00, 00000 Xxxxxxx;
4. South Light Investment Pte Limited, 000 Xxxxxxxx Xxxx, #00-00 Xxxxxxx
Xxxxx, Xxxxxxxxx 000000, Republic of Singapore
5. HarbourVest International Private Equity Partners III-Direct Fund
L.P., 1209 Orange Street, Wilmington, New Castle County, Xxxxxxxx
00000, XXX;
6. Laranjedo Servicios e Gestao Lda, Avenida do Xxxxxxx, Xx 00, Xx,
Xxxxxxx, Xxxx Xxxxxx xx Xxxxxxx;
7. BC European Capital X - 0, X.X. Xxx 000, Xxxxxxxxx Xxxxx, Xxx
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx XX0 0XX, Xxxxxxx Xxxxxxx
8. BC European Capital X -0, X.X. Xxx 000, Xxxxxxxxx Xxxxx, Xxx Xxxxxxx,
St.
0
Xxxxx Xxxx, Xxxxxxxx XX0 0XX, Xxxxxxx Xxxxxxx
9. BC European Capital X - 0, X.X. Xxx 000, Xxxxxxxxx Xxxxx, Xxx
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx XX0 0XX, Xxxxxxx Xxxxxxx
10. BC European Capital X - 0, X.X. Xxx 000, Xxxxxxxxx Xxxxx, Xxx
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx XX0 0XX, Xxxxxxx Xxxxxxx
11. BC European Capital X - 0, X.X. Xxx 000, Xxxxxxxxx Xxxxx, Xxx
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx XX0 0XXXxxxxxx Islands
12. BC European Capital X - 0, X.X. Xxx 000, Xxxxxxxxx Xxxxx, Xxx
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx XX0 0XX, Xxxxxxx Xxxxxxx
13. Xx. Xxxxxxx X. Xxxxxxxx, Xxxxxxx Xxxxxxxxxxxxxx 0, 00000 Xxxxxxxx
14. Xxxxxxxxx Xxxxx, Xxxxxxxxxx 000, 00000 Xxxxxxx
15. Xx. Xxxxxx X. Xxxxx, Burgwedeler Xxxxxxx 00, 00000 Xxxxxxxxxx
SCHEDULE 3
THE COMPANY
A. THE COMPANY
NAME: GROHE Aktiengesellschaft
REGISTERED NUMBER: HRB 2770 Local Court of Iserlohn
REGISTERED OFFICE: Xxxxxxxxxxxx 000, 00000 Xxxxx,
Xxxxxxx
DIRECTORS: Xxxxx Xxxxxxx-Xxxxxx,
Xxxxxx Xxxxxxx,
Xxxxxxx X. Xxxx,
Xxxxxxx Xxxxx
DATE TO WHICH ANNUAL
ACCOUNTS MADE UP: December, 31
________________
5
SCHEDULE 4
THE SHAREHOLDERS
--------------------------------------------------------------------------------------------------------------
SHAREHOLDER DOMICILE/ADDRESS NUMBER OF SHARE
--------------------------------------------------------------------------------------------------------------
1. BC European Xxxxxxx XX-0 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 1,837,550
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 3 QL, Channel Islands
2. BC European Xxxxxxx XX-0 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 1,837,550
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 3 QL, Channel Islands
3. BC European Xxxxxxx XX-0 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 1,837,550
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 3 QL, Channel Islands
4. BC European Xxxxxxx XX-0 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 1,804,250
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 3 QL, Channel Islands
5. BC European Xxxxxxx XX-0 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 1,790,850
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 3 QL, Channel Islands
6. BC European Xxxxxxx XX-0 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 1,789,150
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 3 QL, Channel Islands
7. BC European Xxxxxxx XX-0 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 1,780,800
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 3 QL, Channel Islands
8. BC European Xxxxxxx XX-0 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 1,779,300
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 0 XX, Xxxxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------------
SHAREHOLDER DOMICILE/ADDRESS NUMBER OF SHARE
--------------------------------------------------------------------------------------------------------------
9. BC European Xxxxxxx XX-0 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 1,812,550
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 0 XX, Xxxxxxx Xxxxxxx
10. BC European Xxxxxxx XX-00 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 1,787,500
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 0 XX, Xxxxxxx Xxxxxxx
11. BC European Capital VI-11 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 000,000
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 0 XX, Xxxxxxx Xxxxxxx
12. BC European Capital VI-12 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 000,000
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 0 XX, Xxxxxxx Xxxxxxx
13. BC European Xxxxxxx XX-00 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 16,650
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 0 XX, Xxxxxxx Xxxxxxx
14. Teabar Capital Corporation 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, 10,722,950
Xxxxxxx X0X 0X0, Xxxxxx
15. Xxxxxx Xxxxxxx 00 Xxx xx Xxxxxx xx Xxxx, 00000 Xxxxx, 33,450
France
16. Xxxxx Xxxxxxx 00 Xxx xx Xxxxxx xx Xxxx, 00000 Xxxxx, 000
Xxxxxx
17. Xxxxxxx Xxxxxxx 00 Xxx xx Xxxxxx xx Xxxx, 00000 Xxxxx, 000
Xxxxxx
18. Xxxxxxx Xxxxxxxx 0 Xxx Xxxx Xxxxxxxxx, 00000 Xx Celle 16,650
Xxxxx Xxxx, Xxxxxx
00. Xxxxxxx Xxxxxx 00 Xxx xx Xx Xxxxx, 00000 Xxxxx, 16,650
France
20. Xxxxxxx Fesquet 00 Xxx Xxxxxxxxxx, 00000 Xxxxx, Xxxxxx 350
2
--------------------------------------------------------------------------------------------------------------
SHAREHOLDER DOMICILE/ADDRESS NUMBER OF SHARE
--------------------------------------------------------------------------------------------------------------
21. Xxxx Xxxxxxx 0 Xxx xxx Xxxxxx Xxxxx, 00000 Xxxxx, 000
Xxxxxx
22. Caisse de depot et placement du 1000 Place Xxxx-Xxxx-Xxxxxxxx, 8,223,750
Quebec. Xxxxxxxx, Xxxxxx, X0X 0X0 Xxxxxx
23. Dipl. Betriebsw. Xxxxx Xxxxxxxxxxxx 00, 00000 Xxxxxxxx 352,500
Xxxxxxx-Xxxxxx
24. Xx. Xxxxxx Xxxxx Burgwedeler Xxxxxxx 00, 00000 352,500
Isernhagen
25. BdW Beteiligungsgesellschaft fuer Xxxxxxxxxxxxx 0-0, 00000 Frankfurt 2,824,850
die deutsche Wirtschaft am Main
mbH & Co. KG
26. HVB offene Am Tucherpark 1, 80538 2,824,850
Unternehmensbeteiligung AG Muenchen
27. Crescat Equity 1 Xxxxxxxxxxx. 00 000,000
Beteiligungsgesellschaft mbH & 00000 Xxxxxxx
Co. KG
28. South Light Investment Pte 000 Xxxxxxxx Xxxx, #00-00 2,824,850
Limited Xxxxxxx Xxxxx
Xxxxxxxxx 000000, Republic of
Singapore
29. HarbourVest International 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, New 1,694,850
Private Equity Partners III- Xxxxxx Xxxxxx, Xxxxxxxx 00000, XXX
Direct Fund L.P.
30. Laranjedo Servicios e Avenida do Xxxxxxx, Xx 00, Xx, 000,000
Xxxxxx Xxx Xxxxxxx, Xxxx Xxxxxx xx Xxxxxxx
31. BC European Capital V - 1 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 000,000
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 0 XX, Xxxxxxx Xxxxxxx
3
--------------------------------------------------------------------------------------------------------------
SHAREHOLDER DOMICILE/ADDRESS NUMBER OF SHARE
--------------------------------------------------------------------------------------------------------------
32. BC European Capital X - 0 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 163,850
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 3 QL, Channel Islands
33. BC European Capital V - 3 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 000,000
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 3 QL, Channel Islands
34. BC European Capital V - 4 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 000,000
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 3 QL, Channel Islands
35. BC European Capital V - 5 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 000,000
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 3 QL, Channel Islands
36. BC European Capital V - 6 XX Xxx 000, Xxxxxxxxx Xxxxx, Xxx 000,000
Banques, Xx. Xxxxx Xxxx, Xxxxxxxx
XX0 0 XX, Xxxxxxx Xxxxxxx
37. Xxxxxx Xxxxxxx Zum Xxxxxx Xxx 00, 00000 Xxxxxxxxxx 228,050
38. Xx. Xxxxxxx X. Xxxxxxxx Xxxxxxx Neuwittelsbach 5, 80639 59,900
Muenchen
39. Xxxxxxxxx Xxxxx Xxxxxxxxxx 000, 00000 Xxxxxxx 10,150
40. Xxxxxxx X. Xxxx Xxxxxxxxxxxxx 00, 00000 Xxxxxxxx 185,600
41. Xxxxxxx Xxxxx Breitseeweg 49, 63303 185,600
Dreieich-Buchschlag
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total 51,374,300
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SCHEDULE 5
SCHEDULE 5A
The following transactions and measures of the board of directors require the
consent of the Supervisory Board or a committee appointed by the Supervisory
Board to the extent permitted by statute in as far as they are not already
contained in the corporate plans approved by the Supervisory Board, whereby in
the following KG shall mean "Grohe Beteiligungs GmbH & Co. KG" and "company of
the Grohe group" shall mean any company in which the Company has a direct or
indirect holding of more than 50 % of the shares:
a) determination of corporate policy and corporate planning - specifically,
the annual planning and any medium and long term planning - in particular,
regarding financial, investment and personnel planning of the Company, the
KG and the individual business areas;
b) deciding Company targets and strategies, not only for group companies in
the Grohe group as a whole but also for important individual business areas
and the use of existing synergies between individual companies and the
Grohe group;
c) acquisition and sale of companies or of participations in companies and the
foundation and closure of companies to the extent that they are connected
with an overall involvement (in particular, acquisition costs, loans, bank
guarantees, foreseeable initial losses) of more than EUR 500,000.00 in the
individual case or an overall involvement of EUR 2.5m during the course of
the financial year.
d) capital or other measures which generate rights or shares in the capital,
in particular the rights to acquire, sell, issue or assume option rights on
the corporate capital of the Company, the KG or a group company of the
Grohe group;
e) increase or reduction of approved or subscribed capital in the KG or group
companies in the Grohe group, in as far as this is not required for the
prevailing version of the Finance Documents (as defined in Schedule 6) or
carried out in the context of the assertion of securities already
furnished;
f) entering into and ending or amending agreements by the Company, the KG or a
group company of the Grohe group which fundamentally changes the assets,
finance or earnings position of the Company, the KG or a group company of
the Grohe group;
g) taking up loans and entering into other obligations of more than EUR 5m for
the group companies in the Grohe group in total or of more than EUR 2.5m
during the course of a business year for an individual company over the
course of a financial year to the extent that this is not provided for in
the Finance Documents;
h) provision of guarantees or deeds of release and the provision of securities
relating to obligations of third parties, loan commitments, approval or
change in such guarantees, deeds of release or securities or loan
commitments, in as far as this is not provided for in the Finance Documents
and such practice is within the realms of usual business practice and leads
to sensible commercial conditions;
i) sale of or any other disposal of fixed assets by the Company, the KG or a
company of the Grohe group in which the purchase price, the book or market
value or other consideration is more than EUR 250,000.00, in as far as this
is not expressly required by the Finance Documents or has not occurred in
association with asserting securities already furnished; the Supervisory
Board is bound by the provisions of the Finance Documents when granting its
consent;
j) actions and transactions which pose risks of more than EUR 500,000.00 for
the Company, the KG or group companies in the Grohe group unless these are
actions and transactions which are part of the usual course of business,
k) acquisition, sale and encumbrance, rent or lease of real property or
similar rights by the Company or a group company of the Grohe group where
the annual rent or lease exceeds EUR 250,000.00 or where the market value
of the real property or right is more than EUR 250,000.00;
l) the conclusion of rent or lease agreements where the capitalised value of
all claims exceeds EUR 250,000.00 and are not contained in the corporate
plans approved by the Supervisory Board and entering into obligations which
do not fall within the realm of usual business practice;
m) the conclusion of agreements or understandings with shareholders of the
Company with external shareholders of companies of the Grohe group, members
of bodies of the Company, the KG or of group companies or next of kin of
such persons within the meaning of Section 15 German Tax Code;
n) amendment of the accounting principles for preparing the annual financial
statements, the monthly reports and the budget of the Company, the KG or a
company of the Grohe group;
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o) conclusion of or amendment to service contracts for which the basic net
remuneration (without associated ancillary costs, benefits, pension scheme,
taxes, etc.) over a period of 12 months exceeds EUR 150,000.00 or if the
basic annual net remuneration rises to over EUR 150,000.00 through
follow-up agreements;
p) the conclusion of or amendment to service contracts for directors of group
companies in the Grohe group in as far as:
- the turnover of the employing company does not exceed EUR 30,000,000.00
per year or - the annual basic salary is more than EUR 150,000.00 and - the
service contract provides for a notice period or term of more than three
months,
and issuing payments and special bonuses to directors of all group
companies of the Grohe group outside the existing agreements;
q) issue and revocation of powers of representation (management, general
powers of attorney, PROKURA, commercial powers of attorney);
r) social and employment policy measures of specific importance;
s) introduction of employee participation programmes or other programmes to
motivate employees in the Company, the KG or a company in the Grohe group;
t) planning, preparation or implementation of an application for an IPO for
the Company, the KG or any other companies in the Grohe group;
u) delegation of decisions which are of significance to the Grohe group, the
KG or companies in the Grohe group to part of the board of management (e.g.
to a committee);
v) conduct of legal disputes by the Company, the KG or a company of the Grohe
group with a dispute value greater than EUR 250,000.00 in the individual
case or where the costs thereof exceed EUR 50,000.00;
w) naming the shareholders or indicating that there are contacts with
individual shareholders provided this is not required mandatorily by
statute;
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x) significant amendments in the public representation of the Company, the KG
or group companies in the Grohe group;
y) making individual donations to charitable organisations of more than EUR
50,000.00 or EUR 50,000.00 on aggregate per year to an organisation or
donations in any amount to political parties;
z) exercising votes in the shareholders' meeting of Grohe Geschaftsfuhrungs AG
(formerly Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG) on the subject of the
ratification of members of the board of directors in the following cases:
a) the board of directors is appointed with a majority of persons who
belong to the board of directors of Grohe Geschaftsfuhrungs AG (formerly
Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG) and
b) members of the board of directors have a function in a body of a group
company of the Grohe group on the basis of which they can exercise
voting rights of the shareholders in Grohe Geschaftsfuhrungs AG
(formerly Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG).
SCHEDULE 5B
The obligations referred to in Clause 5.2 are to:
1. generally make available to each Institution any information which such
Institution (acting with Supervisory Board Consent) may reasonably require
relating to the Group;
2. notify the Institutions in advance of, and afford the Institutions the
opportunity to discuss with the Company in advance, any announcement or
other information which relates to matters likely to affect materially the
general character or nature of the business of the Group or which involves
an acquisition or disposal which, if any of the Company's share capital had
been listed on a stock exchange would (under any test relevant thereto
except by reference to market capitalisation) require the approval of
shareholders of the Company. For the purposes of this Clause notification
to BC European Capital VI shall be deemed to satisfy the requirement to
notify the Institutions whose names are listed at number 1 to number 13 of
Schedule 1;
4
3. maintain in full force and effect such insurance policies as are normally
maintained by prudent companies carrying on businesses similar to that of
the Group and supply the Supervisory Board (annually or on request) with a
schedule of such insurances;
4. procure that in each financial year the audited consolidated accounts of
the Company and its subsidiary undertakings are approved for signature by
the board of management of the Company as soon as practicable and in any
event within 120 days of the end of the financial year in respect of which
such accounts have been prepared;
5. procure that any expansion, development or evolution of the business
carried on by the Group will only be effected through the Company or
through a wholly owned subsidiary of the Company;
6. use its reasonable endeavours (having regard to the trading position of the
Company at the relevant time) to pursue any claims which may arise under
the warranties and/or indemnities contained in the Acquisition Agreement
and/or associated deed of tax covenant and which the Company has a
contractual right to pursue and, without prejudice to the foregoing
generality, to pursue such claims in accordance with the directions of the
Supervisory Board;
7. comply with the terms of the Articles;
8. procure that proper books and records are prepared in accordance with good
accounting practice and are kept up-to-date at all times and show a true
and accurate record of all of the dealings and transactions of each member
of the Group;
9. adopt and implement, in respect of each financial year, the annual budget;
10. take all such action as may be required of it by the Institutions to
protect the property or assets of the Group;
11. procure that copies of all minutes of all meetings of the board of
management shall be delivered as promptly as is practicable to the
Supervisory Board;
12. deliver to the Supervisory Board at least one month before the commencement
of each financial year of the Company and, for the financial year current
at the date hereof, within one month from the date hereof, an annual budget
for the Group (including a detailed consolidated operating and capital
budget and cash flow forecast together with the Managers' analysis of such
budget) and use all reasonable endeavours to agree changes to such budget
(if any) as the Supervisory Board may require.
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SCHEDULE 5C
The information referred to in Clause 6 is:
1. copies of the audited financial statements of each member of the Group
together with audited consolidated financial statements of the Company and
its subsidiary undertakings in respect of each financial year of the Group
ending after the Completion Date forthwith upon the same becoming available
and not in any event later than the expiration of 120 days from the end of
such financial year;
2. monthly management accounts in respect of the Group in such form as the
Supervisory Board may require (and which shall include a comparison with
the annual budget referred to in paragraph 3 below and the same period in
the previous year) within 30 days of the end of each such month. For the
purposes of this Clause, the obligations to provide the Institution whose
name is listed at number 1 of Schedule 2 shall be satisfied if delivery is
made to BC European Capital VI on behalf of that party;
3. annual budgets for the Group (including a detailed consolidated operating
and capital budget and cash flow forecast together with the Directors'
written analysis of such budget) in such format as the Supervisory Board
may require not less than 30 days before the start of the financial year or
period to which the said budgets relate (such budgets having been
previously approved in writing by the Supervisory Board);
4. such further information in the possession or control of the Company
regarding the financial condition and operations of the Group as each
Institution (acting with Supervisory Board Consent) may request; and
5. written notice forthwith upon the Company or any Director becoming aware of
the same of any offer made to or from ordinary shareholders of the Company
to purchase any shares in the capital of the Company.
SCHEDULE 6
DEFINITIONS AND INTERPRETATION
1.1 In this Agreement and the Schedule, unless the context otherwise requires,
the following words shall have the following meanings:
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"Acquisition" means the acquisition by the Company of
the entire issued share capital of
Target on the terms of the Acquisition
Agreement;
"Acquisition Agreement" shall bear the meaning given to it in
Recital (C);
"in the Agreed Form" means in relation to any document the
draft of that document which has been
initialled for identification purposes
only by or on behalf of the parties
hereto;
"Agreed Form Documents" means:
(i) Articles;
(ii) the Acquisition Agreement;
(iii) the Resolutions;
"Articles" shall bear the meaning given to it in
Recital (B);
"BC European Capital VI" means the Institutions and persons whose
details are set out at number 1 to
number 20
in Schedule 1;
"Documents" means:
(i) the Acquisition Agreement;
(ii) the Deed of Covenant;
(iii) Finance Documents;
(iv) this Agreement;
"Exit" means: a sale of the shares or the
disposal of any other interest in the
Company by way of an IPO or a trade sale
by the shareholders;
"financial statements" mean, in respect of each accounting
period, a balance sheet, profit and loss
account, notes and directors' report and
a statement of the source and
application of funds;
7
"Finance Documents" means the Multicurrency Term and
Revolving Facilities Agreement dated 17
March 2003 as amended and restated from
time to time;
"Group" means:
(i) in relation to matters and events
prior to the Acquisition, the
Target Group;
(ii) in relation to the matters and
events after the Acquisition, the
Company and each of its
subsidiaries;
and member of the Group shall be
construed accordingly;
"Institutions" means the Institutions, whose details
are set out at number 1 to number 20 in
Schedule 1, Schedule 2, Schedule 2 A and
Schedule 2 C and such Institutions which
will adhere to this agreement in the
future;
"Institutions Group" means the Institutions and any holding
company or subsidiary of the relevant
one of the Institutions and any
subsidiary of any such holding company;
"IPO" Initial Public Offering: The first day
shares of the Company are traded on a
stock exchange;
"Management" means the persons whose details are set
out in Schedule 2 B;
"Ordinary Shares" means the ordinary shares in the capital
of the Company;
"Relevant Proportion" in relation to an Institution means that
proportion which the number of Ordinary
Shares held by it (or by its nominees)
bears to the total number of Ordinary
Shares in issue and held by
Institutions;
8
"Resolutions" means the resolutions in the Agreed Form
INTER ALIA increasing the share capital
of the Company and adopting the
Articles;
"Schedule" means any of the Schedules annexed and
executed as relative to the Agreement;
"Supervisory Board" means the supervisory board of the
Company being in office from time to
time;
"Supervisory Board Consent" means the consent of the Supervisory
Board given by its competent
representative;
"Target" means Xxxxxxxxx Xxxxx AG & Co. KG;
"Target Group" means Target and its subsidiaries and
subsidiary undertakings;
"Teabar" means the Institution whose details are
set out in Schedule 2.
1.2 In this Agreement words denoting the singular shall include the plural and
VICE VERSA; words denoting any gender shall include all genders; words
denoting persons shall include bodies corporate, and VICE VERSA; and
references to any document shall include all amendments, modifications and
supplements thereto.
1.3 The headings and contents page in this Agreement have been inserted for
convenience only and shall not affect its construction.
1.4 Unless otherwise stated, references to Recitals, Clauses, Annexures and
Parts of the Schedule are to recitals, clauses, annexures of and parts of
the Schedule to this Agreement.
1.5 References in this Agreement to any statute or statutory provision shall
include any statute or statutory provision which whether before or after
the date hereof amends, extends, consolidates or replaces the same, or
which has been amended, extended, consolidated or replaced by the same and
shall include any orders, regulations, instruments or other subordinate
legislation made under the relevant statute provided that any such
amendment, extension, consolidation or replacement shall be deemed not to
impose a more onerous obligation on either party than that existing at the
Completion Date.
9
1.6 Schedules 1 to 6 shall be deemed to form part of and shall be construed as
one with the Agreement.
1.7 In this Agreement, the expression "the Institutions" shall include any
assignee in whole or in part of the benefit of this Agreement and shall
exclude any person who was an Institution but who, at the relevant time no
longer holds any shares in the capital of the Company.
1.8 References to any of the parties hereto shall include their respective
executors, personal representatives and successors in title.
1.9 References to "the Institutions" shall, unless the context otherwise
requires, be a reference to the Institutions or any of them.
_______________
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