EXHIBIT (c)(2)
AMENDMENT NO. 1
This Amendment No. 1 (this "Amendment") to the Purchase Agreement (as
defined below) is entered into between Tokheim Corporation ("Tokheim") and
Schlumberger Limited ("Schlumberger") as of September 30, 1998.
RECITALS
X. Xxxxxxx and Schlumberger entered into a Master Agreement for Purchase
and Sale of Shares, Assets and Liabilities, dated as of June 19, 1998 (the
"Purchase Agreement"), pursuant to which Tokheim agreed to purchase the fuel
dispenser manufacturing, sales and service business units (the "RPS Division")
of Schlumberger for a price equal to $335 million, subject to certain
adjustments (the "Acquisition"). Pursuant to letter agreements dated as of July
21, 1998, July 31, 1998 and August 28, 1998, Schlumberger agreed to certain
concessions which are superseded by this Amendment No. 1. Tokheim and
Schlumberger now agree, as defined in those letter agreements, to retain the
Abbeville facility. Defined terms used in this Amendment No.1 that are not
defined herein shall have the meanings ascribed to them in the Purchase
Agreement.
B. The Purchase Agreement requires the parties to close the Acquisition on
the last day of the month in which the last of the conditions precedent to the
closing is met. On September 23, 1998, Schlumberger notified Tokheim that such
conditions precedent to closing had been met and scheduled the closing for
September 30, 1998.
X. Xxxxxxx has proposed to pay only $100 million of the purchase price in
cash and has requested Schlumberger to agree to (i) amend the Purchase Agreement
to provide that the balance of the purchase price will be paid as provided
herein and (ii) accept the debt securities and warrants of Tokheim referred to
herein in payment of the balance of the purchase price.
D. Schlumberger is willing to amend the Purchase Agreement as provided
herein and to finance the balance of the purchase price on the terms and
conditions set forth below and in the summary term sheet (the "Term Sheet")
attached as Exhibit A.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Tokheim and Schlumberger agree as
follows:
Section 1. Corporate Restructurings. At Tokheim's request, Schlumberger
has agreed to proceed with certain corporate restructurings, on or before
Closing, that had not initially been contemplated. These restructurings include
(i) the transfer to a French Schlumberger entity, ETPM SA, of the Acquired RPS
Activities in France (listed in Schedule C to the Purchase Agreement), with the
exception of the Abbeville facility, which facility Schlumberger has agreed to
keep, together with all liabilities associated thereto and (ii) the transfer of
the Acquired RPS Activities in Italy (RPS activities operated by Schlumberger
Industries Spa and listed in Schedule C to the Purchase Agreement) to the
Acquired Company in Italy (CME-RIMIC Spa). An amended version of Schedules D
and E and E-1(b) and E-1(a)(vi) are attached hereto as Exhibit B. Schedules
E-1(a)(i), E-1(a)(iii) and E-1(m) to the Purchase Agreement are deleted.
Schlumberger has also, with
Tokheim's approval, restructured the share capital of the RPS entity in
Switzerland, Denmark and Slovakia in order for said entities to be in
compliance with local law. An amended version of Schedule C is attached hereto
as Exhibit C.
Section 2. Intercompany Loan Agreements. In order to reduce the Acquired
Companies' bank exposure in view of the Closing, and with Tokheim's approval,
Schlumberger set up a number of inter-company loans between Acquired Companies
or between Acquired Companies and the Selling Subsidiaries, a list of which is
attached hereto as Exhibit D (the "Intercompany Loans"). The Intercompany Loans
will be reimbursed at Closing by Tokheim as part of the Total Purchase Price.
Section 3. Employees. Schlumberger will provide Tokheim with an amended
version of Schedule 5.20 to the Purchase Agreement updated as of the Closing
Date, within ten business days from the Closing Date. Exhibit E hereto sets
forth a list of five Chinese university graduates hired as part of a Resident
Development Program. Schlumberger is willing to continue executing its
commitments towards these employees should Tokheim be willing to release them.
An amended version of Schedule 7.8(a) is also attached hereto in Exhibit E.
Section 4. Chinese Joint Venture. Pursuant to section 7.17 of the
Purchase Agreement, BUYER was given 90 days form the date of signature of the
Purchase Agreement to notify SCHLUMBERGER of its decision to acquire
SCHLUMBERGER's indirect interest in the Chinese Joint Venture. This time period
is now expired. However, SCHLUMBERGER has agreed to give BUYER a new period of
90 days from the date of this Amendment to notify it of BUYER's decision to
acquire SCHLUMBERGER's interest in the Chinese Joint Venture. Section 7.17 of
the Purchase Agreement is to be read accordingly.
Section 5. Non-Competition. Tokheim acknowledges that pursuant to its
agreement with Schlumberger, Schlumberger has agreed not to transfer to Tokheim
the Abbeville facility that is fully devoted to the RPS Business. Tokheim
agrees that Schlumberger shall be entitled to continue operating the Abbeville
facility as currently operated and that such continuation shall not be deemed a
breach of Schlumberger's non-competition commitment as provided by Section 7.2
of the Purchase Agreement so long as it continue to operate the facility as
currently operated. During the 90-day period as of the date of this Amendment
and after such term, should SCHLUMBERGER be obliged to stay as a shareholder of
the Chinese Joint Venture, SCHLUMBERGER shall not be considered in violation of
any non-competition obligation or warranty as it relates to the Chinese Joint
Venture so long as it conducts the Chinese Joint Venture as currently conducted,
provided SCHLUMBERGER shall exit the share capital of the Chinese Joint Venture
by December 31, 2014.
Section 6. Russia. SCHLUMBERGER has agreed to postpone the transfer of
the RPS Business in Russia pending the incorporation by BUYER of a local entity.
During a period not to exceed 12 months form the date of this Agreement, the
cost (salary, benefits and expenses) of the employees exclusively providing
services to with the RPS Business in Russia, as listed in Schedule 5.20 to the
Purchase Agreement will be billed to BUYER by their employer with no margin.
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Section 7. Amendment of Purchase Agreement.
(a) Section 1.3 of the Purchase Agreement is amended to read as follows:
"The aggregate of the reimbursement of the Intercompany Loans and the purchase
price for the Acquired Shares and the Acquired Assets shall be US dollars
330,000,000 (three hundred and thirty million dollars) (the "Total Purchase
Price"), subject to the assumption by Tokheim and the Acquiring Subsidiaries of
the Assumed Liabilities. The Total purchase Price shall be allocated to each of
the Acquired Companies, and to each of the, or group of, Acquired Assets
relating to each of the Acquired RPS Activities as indicated in Schedule 1.3 of
the Purchase Agreement."
An amended version of Schedule 1.3 is attached hereto as Exhibit F. The rest of
Section 1.3 remains unchanged.
(b) Section 1.4 of the Purchase Agreement is amended to read as follows:
"Payment of the Total Purchase Price for the Acquired Shares and the
Acquired Assets shall be made by BUYER on the Closing Date by: (i)
depositing, by wire transfer in US Dollars, $100,000,000 in immediately
available funds, into an account designated by SCHLUMBERGER for such
purpose, which designation shall be made as soon as practicable by
SCHLUMBERGER, acting as agent for the Selling Subsidiaries; and (ii)
delivering to SCHLUMBERGER the Junior Subordinated Notes as provided in
Section 7, the Senior Subordinated Notes, as provided in Section 8 and the
Warrants as provided in Section 9.
(c) Section 1.6(a) of the Purchase Agreement is amended to read as follows:
"Within thirty (30) calendar days from the Closing, SCHLUMBERGER shall
deliver to BUYER a combined audited balance sheet of the RPS Business as of
the month-end which shall correspond to the Closing Date, as defined in
Section 4.1 hereto (the "Closing Balance Sheet"). The Closing Balance
Sheet shall be prepared in accordance with US GAAP and the Accounting
Principles. To the extent that the Net Equity, shown on the Base Balance
Sheet is higher than the Net Equity shown on the Closing Balance Sheet,
SCHLUMBERGER shall make a payment to BUYER equivalent to the amount of the
difference, subject to a deductible of US dollars 3,000,000 (three million
dollars). To the extent that the Net Equity shown on the Base Balance
Sheet is less than the Net Equity shown on the Closing Balance Sheet, BUYER
shall make a payment to SCHLUMBERGER equivalent to the amount of the
surplus, subject to a deductible of US dollars 3,000,000 (three million
thousand dollars). Any payment resulting from this Section 1.6(a) shall be
referred to as the "Post Closing Adjustment". "Net Equity" ("situation
reelle") shall mean an amount equal to (i) the aggregate book value of the
assets of the RPS Business, excluding cash, cash equivalents and
intercompany receivables, as the case may be, reflected on a balance sheet
prepared at a given date, in accordance with US GAAP and the Accounting
Principles, minus (ii) the aggregate book value of the liabilities,
excluding third party (bank) debt and intercompany payables, as the case
may be, of the RPS Business reflected on that same balance sheet."
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(d) Section 1.6(f) of the Purchase Agreement is amended to add the
phrase", inclusive of the $3,000,000 deductible referred to in Section 1.6(a),"
immediately after the phrase "in no event shall the Post-Closing Adjustment".
(e) Section 4.1 of the Purchase Agreement is amended to read as follows:
"The Closing for the acquisition of the RPS Business shall take places at
the offices of Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx LLP, xxxxxx Xxxxxx 000, 0000
Xxxxxxxx and at the offices of Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx LLP, 000 Xxxx
Xxxxxx Xxxxx, Xxxxxxx, XX 00000, on September 30, 1998 and October 1, 1998."
(f) Section 9.14 of the Purchase Agreement is amended to read as follows:
"In accordance with Section 5.26(i), SCHLUMBERGER shall arrange and bear
the cost at the Bladel, Netherlands site for monitoring and remediation of
the soil and groundwater contamination currently known by SCHLUMBERGER,
as discussed in part in the Bladel Environmental Report listed in Schedule
9.14, subject to a US dollars 700,000 (seven hundred thousand dollars)
deductible. The Remedial Action required to address this contamination
will be conducted in accordance with applicable Environmental Laws and
under the oversight and with the approval of the appropriate governmental
authorities. SCHLUMBERGER's obligation to arrange and bear the costs for
the Bladel Remedial Action as required under this Section 9.14, expires
eight years form the date of this Agreement, provided, however, that during
this period, SCHLUMBERGER shall make its best efforts to proceed with such
Remedial Action."
Section 8. Services Agreement. On the Closing Date or thereafter,
Schlumberger and Tokheim will enter into one or more services agreements. Under
the agreements, Schlumberger will pay Tokheim a minimum fee of US$850,000 a year
(regardless of use) for a period of five years, payable monthly. The payments
under the services agreements are due in full even if Schlumberger terminates
the agreements or discontinues use of the services at any time during the five
year payment period. The provisions of this Section 6 supersede any prior
agreements or understandings between Schlumberger and Tokheim on this subject.
Section 9. Junior Subordinated Notes. Subject to the terms and
conditions hereof and in the Term Sheet, in payment of a portion of the Purchase
Price Tokheim will issue, and Schlumberger will acquire, junior subordinated
notes of Tokheim in the principal amount of $40 million (the "Junior
Subordinated Notes"), pursuant to a Securities Purchase Agreement substantially
in the form of Exhibit G.
Section 10. Senior Subordinated Notes. Subject to the terms and
conditions hereof and in the Term Sheet, in payment of a portion of the Purchase
Price Tokheim will issue, and Schlumberger will acquire, junior subordinated
notes of Tokheim in the principal amount of $170 million (the "Senior
Subordinated Notes"), pursuant to a Securities Purchase Agreement substantially
in the form of Exhibit G.
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Section 11. Warrants. Subject to the terms and conditions hereof and in
the Term Sheet, in payment of a portion of the Purchase Price Tokheim will
issue, and Schlumberger will acquire, warrants to purchase up to an aggregate of
up to 19.9% of the outstanding shares of common stock of Tokheim (the
"Warrants"), pursuant to a Securities Purchase Agreement substantially in the
form of Exhibit G.
Section 12. Partial Escrow. In order to provide adequate time for
Tokheim to comply with certain provisions of French law, Schlumberger will
continue to hold in escrow the Acquired Assets of the French subsidiary for up
to ten days.
Section 13. Documentation. The Junior Subordinated Notes, the Senior
Subordinated Notes and the Warrants will be governed by definitive agreements
and documentation, including the Securities Purchase Agreement, an indenture
governing the terms of the Junior Subordinated Notes, an indenture governing the
terms of the Senior Subordinated Notes and a Warrant Agreement governing the
terms of the Warrants (collectively, the "Financing Documentation"), in form and
substance reasonably satisfactory to Schlumberger. The Financing Documentation
will be prepared by Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel to
Schlumberger. The Financing Documentation will contain such covenants, terms
and conditions as are customary for transactions of this type and consistent
with this Amendment No. 1 and the Term Sheet.
Section 14. Conditions. The obligation of Schlumberger to accept the
Junior Subordinated Notes, the Senior Subordinated Notes and the Warrants in
payment of a portion of the purchase price is subject to fulfillment of the
following conditions:
(a) Financing Documentation. Tokheim and Schlumberger shall have
entered into the Financing Documentation on terms and in form and substance
reasonably satisfactory to Schlumberger.
(b) Bank Financing. Tokheim shall have entered into definitive
documentation on terms and in form and substance reasonably satisfactory to
Schlumberger with respect to an aggregate at least $230 million of senior
bank financing (collectively with all documents and instruments related
thereto or delivered in connection therewith, the "Bank Documents") with a
commercial lender or lenders or a syndicate of commercial lenders. At the
closing, the Bank Documents shall be in full force and effect and the
parties thereto shall be in compliance with all material agreements
thereunder.
(c) Capital Structure. The pro forma consolidated capital structure
of Tokheim and its subsidiaries, after giving effect to the Acquisition,
shall be consistent with the capital structure contemplated herein, and
other than the Bank Financing, the Junior Subordinated Notes, the Senior
Subordinated Notes and other indebtedness reasonably satisfactory to
Schlumberger, Tokheim and its subsidiaries, after giving effect to, and
upon consummation of, the Acquisition, shall have no outstanding
indebtedness for money borrowed.
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(d) Opinions. At the closing, Schlumberger shall have received a
legal opinion and other certificates of officers (including with respect to
solvency) from persons, and covering matters, reasonably acceptable to
Schlumberger.
(e) Take-Out Bank. Tokheim shall have engaged BT Alex. Brown,
Donaldson, Lufkin & Xxxxxxxx Securities Corporation or other investment
banker reasonably satisfactory to Tokheim and Schlumberger (the "Take-Out
Bank") to privately place securities of Tokheim, the proceeds of which will
be used to prepay the Senior Subordinated Notes.
(f) Rights Plan. Tokheim shall have amended its shareholder rights
plan to provide that the transactions contemplated hereby and by the
documents and instruments referred to herein may be consummated without
triggering any rights under the shareholder rights plan.
Section 15. Board Representation. Within 120 days of the Closing, Tokheim
shall take all necessary action to cause two nominees of Schlumberger, selected
by Tokheim from among Xxxxx Xxxxxxx, Xxxxx Xxxxxxxxx or Xxxx-Xxxx Bize, to be
added to the Tokheim Board of Directors on January 29, 1999 if the Senior
Subordinated Notes or the Roll-Over Notes are outstanding and have not been paid
in full prior thereto.
Section 16. Termination. Schlumberger's agreements and obligations
hereunder will terminate on October 1, 1998 if the closing has not occurred at
such time.
IN WITNESS WHEREOF, the parties have hereunto set their respective hands as
of the date first above written.
TOKHEIM CORPORATION
By______________________
SCHLUMBERGER LIMITED
By_______________________
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EXHIBIT A
Summary Term Sheet
Junior Subordinated Notes
Issuer: Tokheim Corporation.
Guarantors: All obligations under the Junior Subordinated Notes
will be unconditionally guaranteed on a junior
subordinated basis by each of Tokheim's domestic
subsidiaries, and each of Tokheim's non-U.S.
subsidiaries to the extent that they provide credit
support with respect to the Bank Financing
(collectively, the "Guarantors").
Purchaser: Schlumberger Limited
Amount: U.S. $40 million.
Maturity: Ten years from the closing date.
Interest Rate: 12%, payable quarterly in arrears in cash or in kind
at Tokheim's option.
Optional Redemption: At any time, at par plus accrued interest.
Change of Control: Holder has put at 101% of par plus accrued interest.
Use of Proceeds: To fund a portion of the purchase price of the
Acquisition.
Registration Rights: One demand registration right, exercisable at any
time, at Tokheim's expense. Unlimited piggy-back
registration rights at Schlumberger's expense.
Ranking: The obligations of Tokheim and the Guarantors under
the Junior Subordinated Notes will be junior
subordinated obligations of Tokheim and the Guarantors
and will rank (i) junior in right of payment to all
senior bank indebtedness of Tokheim or the Guarantors,
(ii) junior in right of payment to all indebtedness
for borrowed money of Tokheim or the Guarantors
outstanding on the closing date and (iii) junior in
right of payment to all indebtedness for borrowed
money of Tokheim incurred within 18 months after the
closing date.
Mandatory Prepayment: Subject to the terms of the Bank Documents, net
proceeds of sales of debt securities or equity
securities, in a public offering or private
placement by Tokheim or any of its subsidiaries,
shall be used to
A1
prepay the Junior Subordinated Notes plus accrued
interest and any other amount payable thereunder to
the full extent of the net proceeds so received to the
extent such net proceeds are not used to retire bank
debt or the Senior Subordinated Notes.
Covenants: The documentation for the Junior Subordinated Notes
will contain customary covenants, including without
limitation restrictions on the ability of Tokheim and
its subsidiaries to pay dividends and make certain
other restricted payments and investments, impose
restrictions on the ability of Tokheim's subsidiaries
to pay dividends or make certain payments to Tokheim,
create liens, enter into transactions with affiliates,
and merge, consolidate or transfer substantially all
of their respective assets.
Representations and Customary for transactions of this type.
Warranties
Conditions Precedent: Customary for transactions of this type.
Events of Default: Customary for transactions of this type, including
without limitation payment defaults, covenant
defaults, bankruptcy and insolvency, judgments, cross
acceleration of and failure to pay at final maturity
other indebtedness aggregating $5 million or more,
subject to, in certain cases, notice and grace
provisions.
Governing Law and Forum: The State of New York.
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Senior Subordinated Notes
Issuer: Tokheim Corporation.
Guarantors: All obligations under the Senior Subordinated Notes
will be unconditionally guaranteed on a senior
subordinated basis by each of the Guarantors.
Purchaser: Schlumberger Limited
Amount: U.S. $170 million.
Maturity: 120 days from the date of issuance. In the event that
Tokheim has failed to raise sufficient additional
capital to repay the Senior Subordinated Notes on or
prior to the stated maturity thereof, the Senior
Subordinated Notes will be converted, subject to the
conditions described in the term sheet for the Roll-
Over Notes, to the Roll-Over Notes.
Interest Rate: 12%, payable quarterly in arrears in cash.
Change of Control: Holder has put at 101% of par plus accrued interest.
Use of Proceeds: To fund a portion of the purchase price of the
Acquisition.
Registration Rights: None.
Ranking: The obligations of Tokheim and the Guarantors under
the Senior Subordinated Notes will be senior
subordinated obligations of Tokheim and the Guarantors
and will rank (i) junior in right of payment to all
senior bank indebtedness of Tokheim or the Guarantors,
(ii) pari passu with indebtedness incurred after the
closing to the extent that the proceeds of such
indebtedness are used to repay the Senior Subordinated
Notes and (iii) senior in right of payment to all
other subordinated indebtedness of Tokheim or the
Guarantors.
Mandatory Prepayment: Subject to the terms of the Bank Documents, net
proceeds of sales of debt securities or equity
securities, in a public offering or private placement
by Tokheim or any of its subsidiaries, and net
proceeds of significant asset sales, shall be used to
prepay the Senior Subordinated Notes plus accrued
interest and any other amount payable thereunder to
the full extent of the net proceeds so received to the
extent such net proceeds are not used to retire bank
debt and permanently reduce the bank facility.
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Optional Prepayment: Tokheim may prepay the Senior Subordinated Notes, in
whole or in part, at any time at a redemption price
equal to 100% of the principal amount thereof plus
accrued interest thereon.
Covenants: The documentation for the Senior Subordinated Notes
will contain customary affirmative and negative
covenants, including without limitation restrictions
on the ability of Tokheim and its subsidiaries to
incur additional indebtedness and to incur
indebtedness which is subordinated to senior debt and
not subordinated to the Senior Subordinated Notes, pay
certain dividends and make certain other restricted
payments and investments, impose restrictions on the
ability of Tokheim's subsidiaries to pay dividends or
make certain payments to Tokheim, create liens, make
asset sales, enter into transactions with affiliates,
and merge, consolidate or transfer substantially all
of their respective assets.
Representations and Customary for transactions of this type.
Warranties
Conditions Precedent: Customary for transactions of this type.
Events of Default: Customary for transactions of this type, including
without limitation payment defaults, covenant
defaults, bankruptcy and insolvency, judgments, cross
acceleration of and failure to pay at final maturity
other indebtedness aggregating $5 million or more,
subject to, in certain cases, notice and grace
provisions.
Governing Law and Forum: The State of New York.
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Warrants
Issuer Tokheim
Purchaser Schlumberger
Warrants: Warrants representing up to 19.9% of the outstanding
common stock of Tokheim (the "Warrants") before giving
effect to such issuance with customary anti-dilution
provisions for transactions of this type. The actual
number of shares issuable upon exercise of the
Warrants will be determined by dividing (i) $20
million by (ii) the weighted average closing price of
the Tokheim common stock on the NYSE-Composite Tape
for a two-month period beginning one month prior to
and ending one month after the closing date. If the
number of shares so obtained represents less than
19.9% of the number of shares of Tokheim common stock
outstanding on the closing date, the Warrants will be
exercisable for such number of shares. If the number
of shares so obtained exceeds 19.9%, the actual number
of shares for which the Warrants may be exercised will
be 19.9% of the number of shares of Tokheim common
stock outstanding on the closing date.
Exercise Price: $0.01 per share.
Term: Exercisable at any time during the five-year period
beginning 120 days after the closing date.
Optional Redemption: Can be redeemed in whole or in part within the 120-day
term of the Senior Subordinated Notes, provided that
the Senior Subordinated Notes have been paid in full
and a portion of the Junior Subordinated Notes
(determined by multiplying the then-outstanding
principal amount of Junior Subordinated Notes by a
fraction, the numerator of which is the value of the
warrants being redeemed and the denominator of which
is $20 million) simultaneously is redeemed.
Representations and Customary for transactions of this type.
Warranties
Conditions Precedent: Customary for transactions of this type.
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Roll-Over Notes
Issuer Tokheim
Guarantors: All obligations under the Senior Subordinated Notes
will be unconditionally guaranteed on a senior
subordinated basis by each of the Guarantors.
Purchaser Schlumberger
Amount: The lesser of (i) U.S. $170 million or (ii) the unpaid
principal amount of the Senior Subordinated Notes.
Maturity: Eight years from the date of issuance.
Interest Rate: 12% (the "Base Rate") for the first three months from
the date of issuance
12.5% for the next three months
13.0% for the next three months
13.5% for the next three months
14.0% for the next three months
14.5% thereafter,in each case payable quarterly in
arrears;
The Base Rate will be payable in cash, and interest in
excess of the base rate will be added to the
outstanding principal amount on the applicable
interest payment date.
Conversion Conditions (i) Neither Tokheim nor any Subsidiary is subject to a
bankruptcy or other insolvency proceeding and (ii) no
payment default exists or would exist with the passage
of time or the giving of notice.
Change of Control: Holder has put at 101% of par plus accrued interest.
Use of Proceeds: To fund the repayment of the Senior Subordinated
Notes.
Registration Rights: Holders of the Roll-Over Notes will be entitled to the
benefits of an Exchange and Registration Rights
Agreement, with terms customary for Rule 144A-offered
securities (except as to any provisions increasing the
rate other than as set forth above), pursuant to which
Tokheim will agree to file with the Securities and
Exchange Commission (i) a registration statement under
the Securities Act registering an issue of senior
subordinated notes of Tokheim which are identical in
all material respects to the Roll-Over Notes and (ii)
under certain circumstances, a shelf registration
statement pursuant to Rule 415 under the Securities
Act.
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Ranking: The obligations of Tokheim and the Guarantors under
the Roll-Over Notes will be senior subordinated
obligations of Tokheim and the Guarantors and will
rank (i) junior in right of payment to all senior bank
indebtedness of Tokheim or the Guarantors and (ii)
senior in right of payment to all other indebtedness
of Tokheim or the Guarantors.
Mandatory Prepayment: Subject to the terms of the Bank Documents, net
proceeds of sales of debt securities or equity
securities, in a public offering or private placement
by Tokheim or any of its subsidiaries, and net
proceeds of significant asset sales, shall be used to
prepay the Senior Subordinated Notes plus accrued
interest and any other amount payable thereunder to
the full extent of the net proceeds so received to the
extent such net proceeds are not used to retire bank
debt and permanently reduce the bank facility.
Optional Prepayment: Tokheim may prepay the Roll-Over Notes, in whole or in
part, at any time at a redemption price equal to 100%
of the principal amount thereof plus accrued interest
thereon.
Covenants: The documentation for the Senior Subordinated Notes
will contain customary affirmative and negative
covenants, including without limitation restrictions
on the ability of Tokheim and its subsidiaries to
incur additional indebtedness and to incur
indebtedness which is subordinated to senior debt and
not subordinated to the Senior Subordinated Notes, pay
certain dividends and make certain other restricted
payments and investments, impose restrictions on the
ability of Tokheim's subsidiaries to pay dividends or
make certain payments to Tokheim, create liens, make
asset sales, enter into transactions with affiliates,
and merge, consolidate or transfer substantially all
of their respective assets.
Representations and Customary for transactions of this type.
Warranties
Conditions Precedent: Customary for transactions of this type.
Governing Law and Forum: The State of New York.
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EXHIBIT B TO AMENDMENT NO. 1
MASTER AGREEMENT
Schedule D
Acquired Companies and Acquired RPS Activities
ACQUIRED COMPANIES
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Schlumberger Technologies GesmbH
A company incorporated in Austria, with a capital of ATS 46,500,000 formed of
one share with a nominal value of ATS 46,500,000 and having its registered
address at Xxxxxxxxxxxxxxxxx 0-0, 0000 Xxxxxxxxxxx, Xxxxxxx.
Shareholder: Schlumberger B.V., The Netherlands
Schlumberger Tanksysteme GmbH
A company incorporated in Germany, with a capital of DM 5,300,000 divided into 3
shares with respective nominal values of DM 2,505,000, DM 2,495,000, and DM
300,000, and having its registered address at Xxxxxxxxxxxx 0, 00000 Xxxxxxx,
Xxxxxxx.
Shareholder: Schlumberger GmbH, Germany
Schlumberger Xxxxxxx GmbH
A company incorporated in Germany, with a capital of DM 50,000 formed of one
share with a nominal value of DM 50,000 and having its registered address at
Xxxxxxxxxxxxx 00, 00000 Xxxxxxx, Xxxxxxx.
Shareholder: Schlumberger GmbH, Germany
Schlumberger Measurement & Systems KFT
A company incorporated in Hungary, with a capital of HUF 19,900,000 divided into
19,900,000 shares with a nominal value of HUF 1 each, and having its registered
address at Xxxxxxxxxxxx XX 00, 0000 Xxxxxxxx, Xxxxxxx;
Shareholders: MC and C Holdings Limited, British Virgin Island 17,910,000 shares
Schlumberger BV, The Netherlands 1,990,000 shares
Schlumberger Technologies Ltd
A company incorporated in Ireland, with a capital of I.P 10,000 divided into
10,000 shares with a nominal value of IP 1 each, and having its registered
address at Xxxx 0, Xxxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxx 00,
Xxxxxxx.
Shareholders: Schlumberger B.V., the Netherlands 9,999 shares
BVI Holdings Ltd, British Virgin Islands 1 share
Tulla Electronics Ltd
A company incorporated in Ireland, with a capital of I.P 56,576 divided into
56,576 shares with a nominal value of I.P 1 each, having its registered address
at Tulla County Clare, Ireland.
Shareholders: BVI Holdings Ltd, British Virgin Islands 56,575 shares
Schlumberger Eastern Holding Inc., Panama 1 share
CME RIMIC S.r.l
A company incorporated in Italy, with a capital of Lire 20,000,000 formed of one
share of Lire 20,000,000, and having its registered address at Xxx Xxxxxx 000,
Xxxxxxx Xxxxxxxxxx (XX), Xxxxx.
Shareholder: Schlumberger Industries S.P.A., Italy
Koppens Automatic Fabrieken B.V.
A company incorporated in the Netherlands, with a capital of DFL 100,000 divided
into 100 shares with a nominal value of DFL 1,000 each, and having its
registered address at Xxxxxxxxxxxx 0, 0000 XX Xxxxxx, xxx Xxxxxxxxxxx.
Shareholder: Schlumberger Investment Services B.V., The Netherlands.
Koppens Schlumberger B.V.
A company incorporated in the Netherlands, with a capital of DFL 5,000 divided
into 20 shares with a nominal value of DFL 250 each, and having its registered
address at Xxxxxxxxxxxxxxxx 00, 0000 XX, Xxxxxxxxxx, xxx Xxxxxxxxxxx.
Shareholder: Schlumberger Investment Services B.V., The Netherlands
Koppens Holding Nederland B.V.
A company incorporated in The Netherlands, with a capital of DFL 28,000 divided
into 28 shares with a nominal value of DFL 1,000 each, and having its registered
address at Xxxxxxxxxxxxxxxx 00, 0000 XX, Xxxxxxxxxx, xxx Xxxxxxxxxxx.
Shareholder: Schlumberger Limited
Schlumberger Industries S.r.o.
A company incorporated in the Slovak Republic, with a capital of SK 6,200,000
formed of one share with a nominal value of SK 6,200,000, and having its
registered address at Xxxxxxx 00, Xxxxxxxxxx 00000, Xxxxxx Xxxxxxxx.
Shareholder: Schlumberger B.V., The Netherlands
Koppens Iberica SA
A company incorporated in Spain, with a capital of Ptas 200,000,000 divided into
200,000 shares with a nominal value of Ptas 1,000 each, and having its
registered address at Imprenta 5, Poligono Industrial de Alcobendas, 28100
Alcobendas (Madrid), Spain.
Shareholders: Schlumberger Measurement & Systems SA 196,000 shares
1 share
Cedipsa 4,000 shares
E.T.P.M. S.A
A company incorporated in France, with a capital of FF 39,178,800 divided into
391,788 shares with a nominal value of FF 100 each, and having its registered
address at 0, xxxxxx Xxxxxxx, 00000 Xx Xxxxxxx Xxxxxxxx, Xxxxxx.
Shareholders: Schlumberger Industries SA, France 391,788 shares
Schlumberger Technologies S.A
A company incorporated in Switzerland, with a capital of CHF 3,750,000 divided
into 2,450 shares with a nominal value of CHF 1,000 each, and having its
registered address at Xxxxx xx Xxxxxxx 0, 0000 Xxxxxxxx, Xxxxxxxxxxx.
Shareholder: Schlumberger B.V., The Netherlands 3,746 shares
4 individuals 4 shares to bearer
Schlumberger-Xxx Xxxx Retail Petroleum Systems Corporation Limited
A company incorporated in China, with a capital of $2,850,000 and having a
registered address at Xxx Xxxx High Tech Industrial Park, Xxx Xx Development
Zone, Shenyang, China (subject to the exercise by BUYER of the option set forth
in section 7.17)
Shareholders: Schlumberger Eastern Holding Inc., Panama 58%
Xin Xin Corporation (non related Schlumberger party) 42%
ACQUIRED RPS ACTIVITIES
-----------------------
Czech Republic
Schlumberger RPS, a division of Schlumberger Industries S.r.o, a company
incorporated in Czech Republic, and having commercial and/or industrial offices
located at Xxxxxxxxx 00, XX - 186 02 Praha 8.
Russia
Schlumberger RPS, a division of Schlumberger Industries, a company incorporated
in Russia, and having commercial and/or industrial offices located at 00 Xxxxxxx
Xxx., 000000 Xxxxxx.
X.X
Schlumberger RPS, a division of Schlumberger Public Limited Company, a company
incorporated in U.K, and having commercial and/or industrial offices located at
Unit 4, Cliveden Office Village, Xxxxxxxxx xxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxxxxx
XX00 0XX and at Xxxx 0, Xxxxx Xxxx, Xxxx Xxxxxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx XX0
0XX.
USA
Schlumberger RPS, a division of Schlumberger Technologies Inc., a company
incorporated in the State of Delaware, and having commercial and/or industrial
offices at 000 Xxxx 0xx Xxxxxx, 2900 N Center and Bonham Manufacturing Center,
0000 Xxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 and 000-X Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000
MASTER AGREEMENT
Schedule E
Acquired Assets / Assumed Liabilities
1. Acquired Assets shall mean:
(a) all machinery, equipment, furniture, office equipment, computer
equipment (including all hardware and software), communications
equipment, vehicles, storage tanks, space and replacement parts, fuel
and other tangible property (and interests in any of the foregoing) of
the Selling Subsidiaries used for purposes of the Acquired RPS
Activities (collectively, the "Equipment"). Listings of the Equipment
are attached hereto for the Acquired Activities in the UK (Schedule
E-1(a)(ii)), the Czech Republic (Schedule E-1(a)(iv)) and Russia
(Schedule E-1(a)(v)), and the USA (Schedule E-1(a)(vi));
(b) all real estate owned by the Selling Subsidiaries and fully dedicated
to the Acquired Activities (collectively the "Real Estate"). A list of
the Real Estate is attached hereto as Schedule E-1(b);
(c) all items of inventory used for purposes of the Acquired RPS
Activities notwithstanding how classified in the financial records of
the Selling Subsidiaries, including all raw materials, work-in-
process, finished goods, supplies, spare parts and samples
(collectively, the "Inventory");
(d) all contracts, agreements options, leases, licenses, sales and
purchase orders, commitments and other instruments of any kind,
whether written or oral, to which the Selling Subsidiaries are a party
and which relate to the Acquired RPS Activities on the Closing Date
(collectively, the "Contracts");
(e) all accounts, with the exception of the bank account cash balances,
accounts receivable and note receivable, together with any unpaid
interest or fees accrued thereon or other amounts due with respect
thereto, of the Selling Subsidiaries, which relate to the Acquired RPS
Activities and any security or collateral therefor, including
recoverable advances and deposits;
(f) all prepaid charges and expenses of the Selling Companies, allocated
to the Acquired RPS Activities, including any such charges and
expenses with respect to ad valorem taxes, leases and rentals and
utilities;
(g) all rights of the Selling Subsidiaries to insurance proceeds with
respect to claims for damages to the Acquired Assets occurring prior
to the Closing Date, unless such proceeds reimburse the Selling
Subsidiaries for the repair or restoration of such Acquired Assets;
(h) all of the Selling Subsidiaries' rights, claims, credits, causes of
action or rights of set-off against third parties relating to the
Acquired RPS Activities or the Acquired Assets, whether liquidated or
unliquidated, fixed or contingent, including claims pursuant to all
warranties, representations and guarantees made by suppliers,
manufacturers, contractors and other third parties in connection with
products or services purchased by or furnished to Seller for use in
the Acquired RPS Activities or affecting any to the Acquired Assets;
(i) all of the Selling Subsidiaries' registered patents, patent
applications, registered copyrights and applications therefor,
registered trademarks applications therefor and designs as listed in
Schedule 5.9(a) to the Agreement, all know-how, processes, trade
secrets, inventions, and other proprietary data, used exclusively for
purposes of the Acquired RPS Activities, with the exception of the
"SCHLUMBERGER" name, trademark and logos and the following patents
held by the Selling Subsidiary of the French RPS Business:
. Fluid Viscosity Measurement Device (French filing n(degrees)
97.15042)
. Fluid Flow Meter (French filing n(degrees) 97.15043)
. Multicurrency display (French filing n(degrees) 97.15973)
(j) all transferable franchises, licenses, permits or other authorizations
issued or granted by any Governmental Authority that are owned by,
granted to or held or used by the Selling Subsidiaries and used in the
Acquired RPS Activities;
(k) to the extent available, all books, records, files and papers of the
Selling Subsidiaries, whether in hard copy or computer format,
including bank account records, books of account, invoices,
engineering information, sales and promotional literature, manuals and
data, sales and purchase correspondence, lists of present and former
suppliers, personnel and employment records or present and, to the
extent lawful, former employees, and documentation developed or used
for accounting, marketing, engineering, manufacturing or any other
purpose related exclusively to the conduct of the Acquired RPS
Activities at any time prior to the Closing;
(l) to the extent available, all lists of present customers and lists of
former customers of the Selling Subsidiaries for the Acquired RPS
Activities;
2. Assumed Liabilities shall mean:
------------------------------
(a) all obligations and liabilities under Contracts; and
(b) any obligation, liability or debt, other than an Excluded Liability,
incurred or assumed by a Selling Subsidiary in the ordinary course of
business of the Acquired RPS Activities and arising out of the normal
conduct of the RPS Business, including all debt of Selling
Subsidiaries properly accrued on the Base Balance Sheet in the
following categories: suppliers, employee and other creditors,
estimated liability for taxes on income, deferred taxes on income,
other long term liabilities, minority interest, or any subsection
thereto.
3. Excluded Liabilities shall mean:
-------------------------------
(a) any liability of the Selling Subsidiaries that is not attributable to,
or that does not arise out of, the normal conduct of, the RPS
Business;
(b) any liability whether presently in existence or arising hereafter
which is attributable to an asset that is not included in the Acquired
Assets;
(c) any liability the existence of which constitutes a breach of any
representation or warranty under the Agreement;
(d) any liability of the Selling Subsidiaries for any taxes attributable
to the RPS Business in any period prior to the Closing Date and
overdue of the Closing Date; and
(e) any liability of the RPS Business for outstanding litigation in
France, the USA and the United Kingdom, on the Closing Date.
MASTER AGREEMENT
Schedule E-1(b)
Real Property
- UNITED KINGDOM Xxxx 0, Xxxxx Xxxx,
Xxxx Xxxxxxx Xxxxxxxxxx Xxxxxx,
Dundee DD4 8 AG
- CZECH REPUBLIC None
- RUSSIA None
- USA Bonham Manufacturing Center
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
MASTER AGREEMENT
Schedule E-1(a)(VI)
USA--Fixed Assets
EXHIBIT C TO AMENDMENT NO. 1
MASTER AGREEMENT
Schedule C
The RPS Business
ENTITIES
Schlumberger Technologies GesmbH
A company incorporated in Austria, with a capital of ATS 46,500,000 formed of
one share with a nominal value of ATS 46,500,000 and having its registered
address at Xxxxxxxxxxxxxxxxx 0-0, 0000 Xxxxxxxxxxx, Xxxxxxx.
Schlumberger Technologies N.V
A company incorporated in Belgium, with a capital of BEF 10,000,000 divided into
2,500 shares with a nominal value of BEF 4,000 each and having its registered
address at Xxxxxxxxxxxxxx 00, 0000 Xxxxxxxx, Xxxxxxx.
Schlumberger Industrier A/S
A company incorporated in Denmark, with a capital of DKK 500,000 divided into 1
share with a nominal value of DKK 500,000 and having its registered address at
Xxxxxxxxx 00, XXX 000, 0000 Xxxxxxx, Xxxxxxx and with a foreign registered
branch located at Verkseier, Furulunds vei 11B, XX Xxx 00, Xxxxxxx, 0000 Xxxx,
Xxxxxx.
Schlumberger Tanksysteme GmbH
A company incorporated in Germany, with a capital of DM 5,300,000 divided into 3
shares with respective nominal values of DM 2,505,000, DM 2,495,000, and DM
300,000, and having its registered address at Xxxxxxxxxxxx 0, 00000 Xxxxxxx,
Xxxxxxx.
Schlumberger German GmbH
A company incorporated in Germany, with a capital of DM 50,000 formed of one
share with a nominal value of DM 50,000 and having its registered address at
Xxxxxxxxxxxx 00, 00000 Xxxxxxx, Xxxxxxx.
Schlumberger Measurement & Systems KFT
A company incorporated in Hungary, with a capital of HUF 19,900,000 divided
into 19,900,000 shares with a nominal value of HUF 1 each, and having its
registered address at Xxxxxxxxxxxx XX 00, 0000 Xxxxxxxx, Xxxxxxx.
-2-
Schlumberger Technologies Limited
A company incorporated in Ireland, with a capital of I.P 10,000 divided into
10,000 shares with a nominal value of I.P 1 each, and having its registered
address at Xxxx 0, Xxxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxx 00,
Xxxxxxx.
Tulla Electronics Limited
A company incorporated in Ireland, with a capital of I.P 56,576 divided into
56,576 shares with a nominal value of I.P 1 each, having its registered address
at Tulla County Clare, Ireland.
CME RIMIC S.r.l
A company incorporated in Italy, with a capital of Lire 20,000,000 formed of one
share of Lire 20,000,000, and having its registered address at Xxx Xxxxxx 000,
Xxxxxxx Xxxxxxxxxx (XX), Xxxxx.
Koppens Automatic Fabrieken B.V.
A company incorporated in the Netherlands, with a capital of DFL 100,000
divided into 100 shares with a nominal value of DFL 1,000 each, and having its
registered address at Xxxxxxxxxxxx 0, 0000 XX Xxxxxx, xxx Xxxxxxxxxxx.
Koppens Schlumberger B.V.
A company incorporated in the Netherlands, with a capital of DFL 5,000 divided
into 20 shares with a nominal value of DFL 250 each, and having its registered
address at Xxxxxxxxxxxxxxxx 00, 0000 XX, Xxxxxxxxxx, xxx Xxxxxxxxxxx.
Houdster Maatschappij Automatic Rotterdam B.V.
A company incorporated in the Netherlands, with a capital of DFL 15,000 divided
into 15 shares with a nominal value of DFL 1,000 each, and having its registered
address at Xxxxxxxxxxxxxxxx 00, 0000 XX, Xxxxxxxxxx, xxx Xxxxxxxxxxx.
Koppens Holding Nederlands B.V.
A company incorporated in the Netherlands, with a capital of DFL 28,000 divided
into 28 shares with a nominal value of DFL 1,000 each, and having its registered
address at Xxxxxxxxxxxxxxxx 00, 0000 XX, Xxxxxxxxxx, xxx Xxxxxxxxxxx.
Schlumberger Industries S.r.o.
A company incorporated in the Slovak Republic, with a capital of SK 6,200,000
formed of one share with a nominal value of SK 6,200,000, and having its
registered address at Xxxxxxx 00, Xxxxxxxxxx 00000, Xxxxxx Xxxxxxxx.
-3-
Schlumberger Technologies S.A
A company incorporated in Switzerland, with a capital of CHF 2,450,000 divided
into 2,450 shares with a nominal value of CHF 1,000 each, and having its
registered address at Xxxxx xx Xxxxxxx 0, 0000 Xxxxxxxx, Xxxxxxxxxxx.
E.T.P.M. S.A
A company incorporated in France, with a capital of FF 39,178,000 divided into
391,788 shares with a nominal value of FF 100 each, and having its registered
address at 0, xxxxxx Xxxxxxx, 00000 Xx Xxxxxxx Xxxxxxxx, Xxxxxx.
Xxx Xxxxxxx Schlumberger Spolka Z.o.o
A company incorporated in Poland, with a capital of PLZ 253,500 divided into 780
shares with a nominal value of PLZ325 each and having its registered address at
X0 Xxxxxxxx 0, 00-000 Xxxxxx, Xxxxxx.
Rossgermann Joint Stock Company
A company incorporated in Russia, with a capital of Russian Xxxxx 200,000,000
and having its registered address at 9th, Xxxxxxx Xxxxxx 00, 000000 Xxxxxxx,
Xxxxxx.
GNC-Systemas e Servicios de Medicao, Limitada
A company incorporated in Portugal, with a capital of ESC 831,017,728 and having
its registered address at Lugar de Louredo, Freguesia de Calendario, Vila Nova
de Famalicao, Portugal.
Schlumberger-Xxx Xxxx Retail Petroleum Systems Corporation Limited
A company incorporated in China, with a capital of $2,850,000 and having a
registered address at Xxx Xxxx High Tech Industrial Park, Xxx Xx Development
Zone, Shenyang, China.
DIVISIONS
---------
Czech Republic
Schlumberger RPS, a division of Schlumberger Industries S.r.o, a company
incorporated in Czech Republic, and having commercial and/or industrial offices
located at Xxxxxxxxx 00, XX-000 00 Xxxxx 0.
Xxxxxx
Schlumberger RPS, a division of Schlumberger Industries SA, a company
incorporated in France, and having commercial and/or industrial offices located
at:
/./ Montrouge - 00, xxxxxx Xxxx Xxxxxx, 00000 Xxxxxxxxx Cedex
/./ Abbeville - Z.I. Route de Domqueur, 80100 Abbeville
/./ Lille - Centre Gros N(degrees)2, 2bd du Petit Quinquin, 59815 Lesquin
-4-
/./ Reims - Z.A. xxx Xxxxxx Boelle, 51110 Bourgogne
/./ Xxxxx - X.X. Xxx, 0 xxxxx xxx Xxxxxx Xxxxxx, 00000 Heillecourt
/./ Dijon - 00, xxx xxx Xxxxxxx Xxxxxxxx, Xxx x'Xxxx, 00000 Ahuy
/./ Cambrai - 00, xxx xxx Xxxxxxx xx Xxxxxx, 00000 Xxxxxxx Cedex
/./ Strasbourg - X.X. 00, xxxxxx xx x'Xxxxxxx, 00000 Bischeim
/./ Lognes - Z.A. du Mandinet 00 xxx xxx Xxxxxxxxxx, 00000 Xxxxxx
/./ Xxxxx Xxxxxx - 00 xxxx des Xxxxxx Xxxxxx Xx. Xxxx, 00000 Hillion
/./ Tours- 0 xxx Xxxxxxx Xxxxxx, 00000 Xxxx-xxx-Xxxxx
/./ Nantes 0, xxx xx Xxxxxxxxx, 00000 Xxxxx Xxxxxxxx Cedex
/./ Limoges - X.X. xx Xxxxxxx, Xxx xxxxxxx Xxxxx, 00000 Limoges
/./ Lyon - C.A Chateau de l'Isle, 0, xxx Xxxxx Xxxxxxxxx, 00000 Feyzin
/./ Chambery - PAE Landiers Nord, 000, xx xx Xxxxxxxxxx, 00000 Chambery
/./ Nice - Les Cardoulines, route des Dolines, Bt HT 3, 06560 Sophia Antipolis
/./ Bordeaux - Xxxxxx xx Xxxxxxxx, X.X. xx Xxxxxxxxx, 00000 Gradignan
/./ Toulouse -00 xx xxx Xxxxxxx, 00000 Xxxxxxxxx
/./ Marseille - X.X. xxx Xxxxxxxxxxx, 0/xxx/ xx X(xxxxxxx) 00. 13127 Vitrolles
/./ Plessis Xxxxxxxx - 9 av Galilee, 92350 Le Plessis Xxxxxxxx
Transferred to E.T.P.M. as of September 30, 1998, with the exception of the
Abbeville facility that will continue being operated by Schlumberger Industries
SA.
Italy
Schlumberger RPS, a division of Schlumberger Industries Spa, a company
incorporated in Italy, and having commercial and/or industrial offices at Xxx
Xxxxxx, 000 xxxxxx Xxx Xxxx, 00000 Caronno Pertusella (VA)
Transferred to CME-Rimic as of September 30, 1998.
Russia
Schlumberger RPS, a division of Schlumberger Industries, a company incorporated
in Russia, and having commercial and/or industrial offices located at 00 Xxxxxxx
Xxx., 000000 Xxxxxx.
X.X
Schlumberger RPS, a division of Schlumberger Industries Limited Company, a
company incorporated in U.K, and having commercial and/or industrial offices
located at Unit 4, Cliveden Office Village, Xxxxxxxxx xxxx, Xxxx Xxxxxxx,
Xxxxxxxxxxxxxxx XX00 0XX and at Xxxx 0, Xxxxx Xxxx, Xxxx Xxxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxxx XX0 0XX.
U.S.A.
Schlumberger RPS, a division of Schlumberger Technologies Inc., a company
incorporated in the State of Delaware, and having commercial and/or industrial
offices at 000 Xxxx 0/xx/ Xxxxxx, 2900 N Center and Bonham Manufacturing Center,
0000 Xxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 and 000-X Xxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000.
EXHIBIT D TO AMENDMENT NO. 1
INTERCOMPANY LOANS
--------------------------------------------------------------------------------
LENDING COMPANY BORROWING COMPANY MAXIMUM LOAN
AMOUNT
--------------------------------------------------------------------------------
Tulla Electronics Limited Schlumberger Technologies IEP 1,500,000
Limited
--------------------------------------------------------------------------------
GNC-Sistemas e Servicos de Koppens Iberica SA ESP 665,000,000
Medicao Limitada
--------------------------------------------------------------------------------
Schlumberger Measurement Koppens Iberica SA ESP 385,000,000
& Systems SA
--------------------------------------------------------------------------------
Schlumberger Industries Engineering, Techniques FRF 90,000,000
Petrolieres, Maitrise "ETPM"
--------------------------------------------------------------------------------
Schlumberger Industries SpA CME Rimic SRL Lira 15,000,000,000
--------------------------------------------------------------------------------
Schlumberger Gmbh Schlumberger Xxxxxxx XX 20,000,000
Gmbh
--------------------------------------------------------------------------------
Xxxxxxx GmbH PolGermann Poland DM 750,000
--------------------------------------------------------------------------------
Schlumberger B.V. Schlumberger Technologies AG NLG 4,600,000
--------------------------------------------------------------------------------
Schlumberger Investment Koppens Automatic NLG 5,000,000
Services B.V. Fabricken B.V.
--------------------------------------------------------------------------------
Schlumberger Investment Koppens Schlumberger B.V. NLG 3,000,000
Service B.V.
--------------------------------------------------------------------------------
Schlumberger Investment Koppens Holding Nederland NLG 10,500,000
Services B.V. B.V.
--------------------------------------------------------------------------------
Koppens Holding Nederland Schlumberger Technologies NLG 8,000,000
B.V. SA
--------------------------------------------------------------------------------
Schlumberger B.V. Schlumberger Technologies NLG 4,000,000
GesmbH
--------------------------------------------------------------------------------
EXHIBIT E TO AMENDMENT NO. 1
MASTER AGREEMENT
Schedule 5.20(a) (i)
RPS Employees
Xxxxxx Xxx, located in Bladel (The Netherlands),
Gu Jinghua, located in Montrougc (France),
Xxxxx Xxxxxxxx, located in Bladel (The Netherlands),
Nurul Hussinis, located in Chesapeake (USA),
Zhang Le, located in Dundee (UK)
have been hired by Schlumberger as new graduates from Chinese universities and
are part of the Resident Development Program (RDP). Under the RDP, such
individuals are sent to various units around the world for successive 2 year
period and are committed to work for Schlumberger during 4 years prior to
returning to their native country to implement locally their experience.
Such obligation is not any more applicable in the hypothesis of the contemplated
sale of the RPS Activity; however and due to the Schlumberger commitment on that
respect please be informed that if Tokheim is willing to release them,
Schlumberger is prepared to take them back within the Schlumberger group of
companies, in line with our related moral obligations.
MASTER AGREEMENT
Schedule 7.8 (a)
Employees of other SCHLUMBERGER divisions and entities fully dedicated to the
RPS Business
Employees: South America/Latin America/Asia
- Mexico - Xxxxxxx Xxxx, Sales Manager
- Flavia Cardala, Sales Administration
- Xxxxxxx Xxxxxxx, Service Engineer
- Xxxxx Xxxxx, SW Engineer
- South America:
. Argentina - Xxxxxx Xxxxxx, Sales
. Brazil - Antonio de Xxxxx, Sales
. Chile - Emmanuael Lemouroux, Sales
- Asia - Spencer Folk, Technical & Services Asia, Hong
Kong
- Xxxxxx Xxx, Mkt & Sales Asia, Singapore
- Xxxx Podoprat, RPS Technical Centre, Hong Kong
- TK Xxxx, XX Manager, Xxxx Xxxx
- Xxxx You, Aipha/Harmony Technical Support
Beijing
- Xxxx Xxx and Xx Xx, Shunde office, service
engineers fully dedicated to the RPS
service activity in China
- India - Xxxx Xxxxxx, Sales & Service India
- Xxxxxx Xxxxx, Sales & Services Delhi (presently
on temporary secondment. Planned to return to
Electricity Division in the very near future)
- Xxxxxx Xxxx, Service Engineer Calcutta
- X.X. Xxxxx, Field Technician Delhi
- Bashir Shiekh, Field Technician Mumbai
- X. Xxxxxx, Field Technician Mumbai
- Xxxxxx Xxxxx, Field Technician Delhi
- Xxxxx X. Service Engineer Bangalore (shared
resource with the ATE & Telecom Divisions)
- Xxxxxxxxxxx, Field Technician Chennai
MASTER AGREEMENT EXHIBIT F TO AMENDMENT 1
Schedule 1.3 ------------------------
Allocation of Total Purchase Price
Shares or Assets Shares or Assets Intercompany Loan Intercompany Loan Total
Agreements Agreements
(K USD) (K LOCAL CURRENCY) (K USD) (K LOCAL CURRENCY) (K USD)
France 24 119 FF 226,692 15 000 XX 00,000 00 000
XXX 65 000 65 000
Spain 15 018 ESP 2,540,835 2 682 ESP 385,000 17 700
Germany 46 164 11 836 DM 20,000 58 000
Holland(1) 53 442 10 858 NLG 20,700 64 000
Xxxxxxxxxxx 5 187 2 413 NLG 4,600 7 600
UK 42 500 42 500
Ireland 7 200 7 200
Italy 315 Lira 15,526,350 8 985 Lira 15,000,000 9 000
Xxxxxxx 4 577 2 623 NLG 5,000 7 200
Hungary 5 000 5 000
Xxxxx Xxxxxxxx 0 000 0 000
Xxxxxxxx 1 700 1 700
------- ------ -------
274 722 55 278 330 000
======= ====== =======
(1) Including Belgium and Denmark
EXHIBIT G
TOKHEIM CORPORATION
SECURITIES PURCHASE AGREEMENT
September 30, 1998
SCHLUMBERGER LIMITED
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Tokheim Corporation, an Indiana corporation (the "Company"), purposes to
issue and sell: (i) $170,000,000 aggregate principal amount of its 12% Senior
Subordinated Notes due January 28, 1999 (the "Senior Subordinated Notes"); (ii)
$40,000,000 aggregate principal amount of its 12% Junior Subordinated Notes due
September 30, 2008 (the "Junior Subordinated Notes"); and (iii) warrants (the
"Warrants") to purchase up to 19.9% of the outstanding shares of common stock of
Tokheim. The Senior Subordinated Notes will be issued pursuant to an Indenture
to be dated as of September 30, 1998 (the "Senior Indenture") between the
Company and Xxxxxx Trust and Savings Bank, as trustee (the "Senior Trustee"),
substantially in the form of Exhibit A. The Junior Subordinated Notes will be
issued pursuant to an Indenture to be dated as of September 30, 1998 (the
"Junior Indenture") between the Company and Xxxxxx Trust and Savings Bank, as
trustee (the "Junior Trustee"), substantially in the form of Exhibit B. In the
event that the Company is unable to repay the Senior Subordinated Notes at their
stated maturity, the Senior Subordinated Notes will convert, subject to certain
conditions, into Increasing Rate Senior Subordinated Notes due 2007 (the "Roll-
Over Notes"). The Company's obligations under the Senior Subordinated Notes and
the Junior Subordinated Notes will be guaranteed by certain of the Company's
subsidiaries (the "Guarantor Subsidiaries"). The Warrants will be issued
pursuant to a Warrant Agreement to be dated as of September 30, 1998 (the
"Warrant Agreement") between the Company and Schlumberger, substantially in the
form of Exhibit C. The Senior Subordinated Notes, Junior Subordinated Notes,
Roll-Over Notes and Warrants are sometimes referred to collectively as the
"Securities". The Company will grant certain registration rights to the holders
of the Securities pursuant to a Registration Rights Agreement to be dated as of
September 30, 1998 (the "Registration Rights Agreement"), substantially in the
form of Exhibit D.
The Company is issuing the Securities to Schlumberger in satisfaction of a
portion of the purchase price payable by the Company to Schlumberger pursuant to
the Master Agreement for Purchase and Sale of Shares, Assets and Liabilities
dated as of June 19, 1998 between the Company and Schlumberger, as amended by
letter agreements dated July 21, 1998, July 31, 1998 and August 28, 1998 and
Amendment No. 1 thereto dated September 30, 1998 (as so amended, the "Purchase
Agreement").
1. Representations, Warranties and Agreements of the Company. The Company
represents and warrants to, and agrees with, Schlumberger on and as of the date
hereof and the Closing Date (as defined in Section 3) that:
(a) The Company's Annual Report on Form 10-K for the year ended
November 30, 1997 (the "Form 10-K"), Quarterly Reports on Form 10-Q for the
quarters ended February 28, 1998 and May 31, 1998 and Current Reports on
Form 8-K filed subsequent to May 31, 1998 (the "Exchange Act Reports")
taken together do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representation or warranty in this Section 1(a) with
respect to the public disclosure of the transaction contemplated by the
Purchase Agreement.
(b) Assuming the accuracy of the representations and warranties of
Schlumberger contained in Section 2, it is not necessary, in connection
with the issuance of the Securities to Schlumberger, to register the
Securities or the Guarantees (as defined in Section 1(e)) under the
Securities Act or to qualify the Senior Indenture or the Junior Indenture
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
(c) The Company and each of its subsidiaries (the "Subsidiaries") have
been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation,
are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to so qualify or have such power
or authority would not, singularly or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company and the Subsidiaries taken
as a whole (a "Material Adverse Effect").
(d) The Company has an authorized capitalization as set forth under
the heading "Capitalization" in the Company's Preliminary Offering
Memorandum dated July 31, 1998 relating to the proposed offering of its __%
Senior Subordinated Notes due 2008 (the "Preliminary Offering Memorandum").
All of the outstanding shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and non-
assessable. All of the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable and are, to the extent indicated in the Form 10-K,
owned indirectly by the Company.
(e) The Company has full right, power and authority to execute and
deliver this Agreement, the Senior Indenture, the Junior Indenture, the
Warrant Agreement, the Registration Rights Agreement and the Securities
(collectively, the "Transaction Documents") and to perform its obligations
hereunder and thereunder; and all corporate action required to be taken for
the due and proper authorization, execution and delivery of
2
each of the Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken. Each of the Guarantor
Subsidiaries has full right, power and authority to execute and deliver the
Senior Indenture, the Junior Indenture and their respective guarantees
thereunder (the "Guarantees") and to perform its obligations thereunder; and all
corporate action required to be taken for the due and proper authorization,
execution and delivery of each such agreement or instrument and the consummation
of the transactions contemplated thereby have been duly and validly taken.
(f) This Agreement had been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding agreement of the Company.
(g) The Registration Rights Agreement has been duly authorized by the
Company and, when duly executed and delivered in accordance with its terms by
Schlumberger, will constitute a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its terms, except to
the extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law) and, with respect to
the indemnification provisions, public policy considerations.
(h) The Senior Indenture has been duly authorized by the Company and the
Guarantor Subsidiaries and, when duly executed and delivered in accordance with
its terms by the Senior Trustee, will constitute a valid and legally binding
agreement of the Company and the Guarantor Subsidiaries enforceable against the
Company and the Guarantor Subsidiaries in accordance with its terms, except to
the extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law). On the Closing Date,
the Senior Indenture will conform in all material respects to the requirements
of the Trust Indenture Act and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
(i) The Junior Indenture has been duly authorized by the Company and the
Guarantor Subsidiaries and, when duly executed and delivered in accordance with
its terms by the Junior Trustee, will constitute a valid and legally binding
agreement of the Company and the Guarantor Subsidiaries enforceable against the
Company and the Guarantor Subsidiaries in accordance with its terms, except to
the extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(j) The Warrant Agreement has been duly authorized by the Company and,
when duly executed and delivered in accordance with its terms by Schlumberger,
will constitute
3
each of the Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken. Each of the Guarantor
Subsidiaries has full right, power and authority to execute and deliver the
Senior Indenture, the Junior Indenture and their respective guarantees
thereunder (the "Guarantees") and to perform its obligations thereunder; and all
corporate action required to be taken for the due and proper authorization,
execution and delivery of each such agreement or instrument and the consummation
of the transactions contemplated thereby have been duly and validly taken.
(f) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and legally binding agreement of the Company.
(g) The Registration Rights Agreement has been duly authorized by the
Company and, when duly executed and delivered in accordance with its terms by
Schlumberger, will constitute a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its terms, except to
the extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law) and, with respect to
the indemnification provisions, public policy considerations.
(h) The Senior Indenture has been duly authorized by the Company and the
Guarantor Subsidiaries and, when duly executed and delivered in accordance with
its terms by the Senior Trustee, will constitute a valid and legally binding
agreement of the Company and the Guarantor Subsidiaries enforceable against the
Company and the Guarantor Subsidiaries in accordance with its terms, except to
the extent that such enforceability may be limited to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law). On the Closing Date,
the Senior Indenture will conform in all material respects to the requirements
of the Trust Indenture Act and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
(i) The Junior Indenture has been duly authorized by the Company and the
Guarantor Subsidiaries and, when duly executed and delivered in accordance with
its terms by the Junior Trustee, will constitute a valid and legally binding
agreement of the Company and the Guarantor Subsidiaries enforceable against the
Company and the Guarantor Subsidiaries in accordance with its terms, except to
the extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(j) The Warrant Agreement has been duly authorized by the Company and, when
duly executed and delivered in accordance with its terms by Schlumberger, will
constitute
4
a valid and legally binding agreement of the Company enforceable against
the Company in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(k) The Securities have been duly authorized by the Company and, when
duly executed, authenticated, issued and delivered as provided herein and
in the Senior Indenture, the Junior Indenture and the Warrant Agreement,
will be duly and validly issued and outstanding and will constitute valid
and legally binding obligations of the Company, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law). The Guarantees
have been duly authorized by the Guarantor Subsidiaries and, when duly
executed, authenticated, issued and delivered as provided in the Senior
Indenture and the Junior Indenture, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of
the Guarantor Subsidiaries, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(l) The execution, delivery and performance by the Company and the
Guarantor Subsidiaries of each of the Transaction Documents, the issuance,
authentication, sale and delivery of the Securities and the Guarantees and
compliance by the Company and the Guarantor Subsidiaries with the terms
thereof and of the Purchase Agreement and the consummation of the
transactions contemplated by the Transaction Documents and the Purchase
Agreement will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Guarantor Subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument that remains in effect after the
Closing Date to which the Company or any of the Guarantor Subsidiaries is a
party or by which the Company or any of the Guarantor Subsidiaries is bound
or to which any of the property or assets of the Company or any of the
Guarantor Subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or any
of the Guarantor Subsidiaries or any statute or any judgment, order,
decree, rule or regulation of any court or arbitrator or governmental
agency or body having jurisdiction over the Company or any of the Guarantor
Subsidiaries or any of their properties or assets which would have a
material adverse effect; and no consent, approval, authorization or order
of, or filing or registration with, any such court or arbitrator or
governmental agency or body under any such statute, judgment, order,
decree, rule or regulation is required for the execution, delivery and
performance by the Company or any of the Guarantor Subsidiaries of each of
the Transaction Documents or the Purchase Agreement, the issuance,
authentication, sale and delivery of the Securities and the
5
Guarantees and compliance by the Company and the Guarantor Subsidiaries
with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents and the Purchase Agreement,
except for such consents, approvals, authorizations, filings, registrations
or qualifications (i) which shall have been obtained or made prior to the
Closing Date and (ii) as may be required to be obtained or made under the
Securities Act of 1933, as amended (the "Securities Act") and applicable
state securities laws as provided in the Registration Rights Agreement.
(m) PricewaterhouseCoopers, to the knowledge of the Company, are
independent certified public accountants with respect to the Company and
the Subsidiaries within the meaning of Rule 101 of the Code of Professional
Conduct of the American Institute of Certified Public Accountants ("AICPA")
and its interpretations and rulings thereunder. The historical financial
statements (including the related notes) contained in the Preliminary
Offering Memorandum with respect to the Company comply in all material
respects with the requirements applicable to a registration statement on
Form S-1 under the Securities Act (except that certain supporting schedules
are omitted); such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods covered thereby and fairly present, in all material
respects, the financial position of the entities purported to be covered
thereby at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated; and
the financial information contained in the Preliminary Offering Memorandum
under the headings "Summary--Summary Financial Data of Tokheim",
"Capitalization", "Selected Financial Data of Tokheim" and "Management's
Discussion and Analysis of Results of Operations and Financial Condition"
are derived from the accounting records of the Company and the Subsidiaries
and fairly present the information purported to be shown thereby. The pro
forma financial information contained in the Preliminary Offering
Memorandum has been prepared on a basis consistent with the historical
financial statements contained in the Preliminary Offering Memorandum
(except for the pro forma adjustments specified therein), includes all
material adjustments to the historical financial information required by
Rule 11-02 of Regulation S-X under the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") to reflect the
transactions described in the Preliminary Offering Memorandum, gives effect
to assumptions made on a reasonable basis and fairly presents, in all
material respects, the historical and proposed transactions contemplated by
the Preliminary Offering Memorandum, the Transaction Documents and the
Purchase Agreement. The other historical financial and statistical
information and data included in the Preliminary Offering Memorandum with
respect to the Company are, in all material respects, fairly presented.
(n) Except as disclosed in the Exchange Act Reports, there are no
legal or governmental proceedings pending to which the Company or any of
the Subsidiaries is a party or of which any property or assets of the
Company or any of the Subsidiaries is the subject which, singularly or in
the aggregate, if determined adversely to the Company or any of the
Subsidiaries, could reasonably be expected to have a Material Adverse
Effect; and to the best knowledge of the Company, no such proceedings are
threatened or
6
contemplated by governmental authorities or threatened by others.
(o) No action has been taken and no statute, rule, regulation or order has
been enacted, adopted or issued by any governmental agency or body which
prevents the issuance of the Securities; no injunction, restraining order or
order of any nature by any federal or state court of competent jurisdiction has
been issued with respect to the Company or any of the Subsidiaries which would
prevent or suspend the issuance of the Securities; no action, suit or proceeding
is pending against or, to the best knowledge of the Company, threatened against
or affecting the Company or any of the Subsidiaries before any court or
arbitrator or any governmental agency, body or official, domestic or foreign,
which could reasonably be expected to interfere with or adversely affect the
issuance of the Securities or in any manner draw into question the validity or
enforceability of any of the Transaction Documents or the Purchase Agreement or
any action taken or to be taken pursuant thereto.
(p) Neither the Company nor any of the Subsidiaries is (i) in violation of
its charter or by-laws, (ii) in default in any material respect, and no event
has occurred which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which it is a party or by which it is
bound or to which any of its property or assets is subject or (iii) in violation
of any law, ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject, which would have a material adverse
effect.
(q) The Company and each of the Subsidiaries possess all material licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate federal, state or foreign
regulatory agencies or bodies which are necessary or desirable for the ownership
of their respective properties or the conduct of their respective businesses as
described in the Preliminary Offering Memorandum, except where the failure to
possess or make the same would not, singularly or in the aggregate, have a
Material Adverse Effect, and neither the Company nor any of the Subsidiaries has
received notification of any revocation or modification of any such license,
certificate, authorization or permit or has any reason to believe that any such
license, certificate, authorization or permit will not be renewed in the
ordinary course, except where such revocation or modification or failure to
renew would not have a material adverse effect.
(r) The Company and each of the Subsidiaries have filed all material
federal, state, local and foreign income and franchise tax returns required to
be filed through the date hereof and have paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company or any of the
Subsidiaries which has had (nor does the Company or any of the Subsidiaries have
any knowledge of any tax deficiency which, if determined adversely to the
Company or any of the Subsidiaries, could reasonably be expected to have) a
Material Adverse Effect.
7
(s) Neither the Company nor any of the Subsidiaries is (i)an "investment
company" or a company "controlled by" an investment company within the meaning
of the Investment Company Act of 1940, as amended (the "Investment Company
Act"), and the rules and regulations of the Commission thereunder or (ii) a
"holding company" or a "subsidiary company" of a holding company or an
"affiliate" thereof within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
(t) The Company and each of the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that: (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(u) To the best of the Company's knowledge, the Company and each of the
Subsidiaries have insurance covering their respective properties, operations,
personnel and businesses, which insurance is in such amounts and insures against
such losses and risks as are adequate to protect the Company and the
Subsidiaries and their respective businesses. Neither the Company nor any of the
Subsidiaries has received notice from any insurer or agent of such insurer that
capital improvements or other expenditures are required or necessary to be made
in order to continue such insurance.
(v) The Company and each of the Subsidiaries own or possess adequate rights
to use all material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service xxxx registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses; and the conduct of
their respective businesses will not conflict in any material respect with, and
the Company and the Subsidiaries have not received any notice of any claim of
conflict with, any such rights of others.
(w) The Company and each of the Subsidiaries have good and valid title in
fee simple to, or have valid rights to lease or otherwise use, all items of real
and personal property which are material to the business of the Company and the
Subsidiaries, in each case free and clear of all liens, encumbrances, claims and
defects and imperfections of title except as set forth in the Bank Credit
Agreement and disclosed in the Preliminary Offering Memorandum or such as (i) do
not materially interfere with the use made and proposed to be made of such
property by the Company and the Subsidiaries or (ii) could not reasonably be
expected to have a Material Adverse Effect.
(x) No labor disturbance by or dispute with the employees of the Company or
any of the Subsidiaries exists or, to the best knowledge of the Company, is
contemplated or
8
threatened.
(y) No "prohibited transaction" (as defined in Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"), or Section 4975 of the
Internal Revenue Code of 1986, as amended from time to time (the "Code")) or
"accumulated funding deficiency" (as defined in Section 302 of ERISA) or any of
the events set forth in Section 4043(b) of ERISA (other than events with respect
to which the 30-day notice requirement under Section 4043 of ERISA has been
waived) has occurred with respect to any employee benefit plan of the Company or
any of the Subsidiaries which could reasonably be expected to have a Material
Adverse Effect; each such employee benefit plan is in compliance in all material
respects with applicable law, including ERISA and the Code; the Company and each
of the Subsidiaries have not incurred and do not expect to incur material
liability under Title IV of ERISA with respect to the termination of, or
withdrawal from, any pension plan for which the Company or any of the
Subsidiaries would have any liability; and each such pension plan that is
intended to be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by failure to
act, which could reasonably be expected to cause the loss of such qualification.
(z) Neither the Company nor, to the best knowledge of the Company, any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company has: (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(aa) On and immediately after the Closing Date, the Company (after giving
effect to the issuance of the Securities and to the consummation of the
Acquisition) will be Solvent. As used in this paragraph, the term "Solvent"
means, with respect to a particular date, that on such date: (i) the present
fair market value (or present fair salable value) of the assets of the Company
(on a consolidated basis) is not less than the total amount required to pay the
probable liabilities of the Company on its total existing debts and liabilities
(including contingent liabilities) as they become absolute and matured, (ii) the
Company is able to realize upon its assets and pay its debts and other
liabilities, contingent obligations and commitments as they mature and become
due in the normal course of business, (iii) assuming the issuance of the
Securities as contemplated by this Agreement, the Company is not incurring debts
or liabilities beyond its ability to pay as such debts and liabilities mature
and (iv) the Company is not engaged in any business or transaction, and is not
about to engage in any business or transaction, for which its property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which the Company is engaged. In
computing the amount of such contingent liabilities at any time, it is intended
that such liabilities will be
9
computed at the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(bb) Except as set forth herein or described in the Preliminary
Offering Memorandum, there are no outstanding subscriptions, rights,
warrants, calls or options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with respect to the sale
or issuance of, any shares of capital stock of or other equity or other
ownership interest in the Company or any of the Subsidiaries.
(cc) None of the proceeds of the sale of the Securities will be used,
directly or indirectly, in violation or conflict with Regulation T, U or X
of the Federal Reserve Board.
(dd) Neither the Company nor any of the Subsidiaries is a party to
any contract, agreement or understanding with any person that would give
rise to a valid claim against the Company or Schlumberger for a brokerage
commission, finder's fee or like payment in connection with the offering
and sale of the Securities.
(ee) Neither the Company nor any of its affiliates has, directly or
through any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security (as such term is defined
in the Securities Act), which is or will be integrated with the sale of the
Securities in a manner that would require registration of the Securities
under the Securities Act.
2. Issuance of the Securities. (a) The Company agrees to issue to
Schlumberger, and Schlumberger, on the basis of the representations, warranties
and agreements contained herein and in the Purchase Agreement, and subject to
the terms and conditions set forth herein, agrees to accept from the Company,
the Junior Subordinated Indentures as payment of $40 million of the purchase
price, the Senior Subordinated Notes as payment of S 170 million of the purchase
price, and the Warrants as payment of $20 million of the purchase price, for the
Acquisition.
(b) Schlumberger represents and warrants to the Company that it is
purchasing the Securities for investment purposes and not with a view to the
resale or other distribution thereof.
3. Delivery of the Securities. (a) Delivery of the Securities shall be made
at such place or places as shall be agreed upon by Schlumberger and the Company,
at 10:00 A.M., local time, on September 30, 1998 in connection with the closing
of the Acquisition pursuant to the Purchase Agreement (such date and time of
payment and delivery being referred to herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the Securities
shall be made to the Company by crediting the amounts set forth in Section 2(a)
against the purchase price for the Acquisition. Upon delivery, the Securities
shall be in global form, registered in such names and in such denominations as
Schlumberger shall have requested in writing not less than one business day
prior to the Closing Date.
10
4. Further Agreements of the Company. The Company agrees with Schlumberger:
(a) to advise Schlumberger promptly prior to the Closing Date and, if
requested, confirm such advice in writing, of the happening of any event which
makes any statement of a material fact made in the Exchange Act Reports untrue
or which requires the making of any amendments to or changes in the Exchange Act
Reports in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(b) for so long as the Securities are outstanding, to furnish to
Schlumberger copies of any annual reports, quarterly reports and current reports
filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by the Company to the
Senior Trustee or the Junior Trustee or to the holders of the Securities
pursuant to the Senior Indenture or the Junior Indenture or the Exchange Act or
any rule or regulation of the Commission thereunder;
(c) to do and perform all things required to be done and performed by it
under this Agreement that are within its control prior to or after the Closing
Date, and to use its best efforts to satisfy all conditions precedent on its
part to the delivery of the Securities; and
(d) not to take any action prior to the execution and delivery of the
Senior Indenture or the Junior Indenture which, if taken after such execution
and delivery, would have violated any of the covenants contained in the Senior
Indenture or the Junior Indenture.
5. Conditions of Schlumberger' obligations. The obligations of
Schlumberger hereunder are subject to the accuracy, on and as of the date hereof
and the Closing Date, of the representations and warranties of the Company
contained herein and in the Purchase Agreement, to the accuracy of the
statements of the Company and its officers made in any certificates delivered
pursuant hereto and thereto, to the performance by the Company of its
obligations hereunder and thereunder, and to each of the following additional
terms and conditions:
(a) All conditions to the closing of the Acquisition shall have been
satisfied, and all documents, certificates and opinions required to be delivered
to Schlumberger pursuant to the Purchase Agreement shall have been executed and
delivered to Schlumberger and shall be satisfactory in all material respects to
Schlumberger.
(b) Schlumberger shall not have discovered and disclosed to the Company on
or prior to the Closing Date that the Exchange Act Reports or any amendment
thereto contains an untrue statement of a fact which, in the opinion of counsel
for Schlumberger, is material or omits to state any fact which, in the opinion
of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
11
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents and
the Purchase Agreement, and all other legal matters relating to the
Transaction Documents, the Purchase Agreement and the Transactions
contemplated thereby, shall be satisfactory in all material respects to
Schlumberger, and the Company shall have furnished to Schlumberger all
documents and information that it or its counsel may reasonably request to
enable them to pass upon such matters.
(d) Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) and Xxxxxx X.
Xxxxxx, General Counsel of the Company, shall have furnished to
Schlumberger their written opinions, as counsel to the Company, addressed
to Schlumberger and dated the Closing Date, in form and substance
reasonably satisfactory to Schlumberger, substantially to the aggregate
effect set forth in Exhibit E.
(e) Schlumberger shall have received from Xxxxxx, Xxxx & Xxxxxxxx
LLP, counsel for Schlumberger, such opinion or opinions, dated the Closing
Date, with respect to such matters as Schlumberger may reasonably require,
and the Company shall have furnished to such counsel such documents and
information as they request for the purpose of enabling them to pass upon
such matters.
(f) The Company shall have furnished to Schlumberger a certificate,
dated the Closing Date, of its chief executive officer and its chief
financial officer, stating that (A) such officers have carefully examined
the Exchange Act Reports, (B) in their opinion, the Exchange Act Reports,
as of their respective dates, did not include any untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading and
(C) as of the Closing Date, the representations and warranties of the
Company in this Agreement and the Purchase Agreement are true and correct
in all material respects, the Company has complied in all material respects
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder and thereunder on or prior to the Closing
Date, and subsequent to the date of the Purchase Agreement and prior to the
Closing Date there has been no material adverse change in the financial
position or results of operation of the Company or any of the Subsidiaries,
or any change, or any development including a prospective change, in or
affecting the condition (financial or otherwise), results of operations,
business or prospects of the Company and the Subsidiaries taken as a whole.
(g) Schlumberger shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered
by a duly authorized officer of the Company.
(h) The Senior Indenture shall have been duly executed and delivered
by the Company, the Guarantor Subsidiaries and the Senior Trustee, and the
Senior Subordinated Notes shall have been duly executed and delivered by
the Company and duly authenticated by the Senior Trustee.
12
(i) The Junior Indenture shall have been duly executed and delivered
by the Company, the Guarantor Subsidiaries and the Junior Trustee, and the
Junior Subordinated Notes shall have been duly executed and delivered by
the Company and duly authenticated by the Junior Trustee.
(j) The Rights Agreement, dated as of January 22, 1997, between the
Company and Xxxxxx Trust and Savings Bank, as Rights Agent (the "Rights
Plan"), shall have been duly amended to exempt the issuance of the Warrant
and the shares issuable thereunder from the operations of the Rights Plan.
(k) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or
sale of the Securities or the closing of the Acquisition; and no
injunction, restraining order or order of any other nature by any federal
or state court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the Securities or
the closing of the Acquisition.
(l) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date there shall not have occurred any of the
following: (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the over-the-counter market shall
have been suspended or limited, or minimum prices shall have been
established on any such exchange or market by the Commission, by any such
exchange or by any other regulatory body or governmental authority having
jurisdiction, or trading in any securities of the Company on any exchange
or in the over-the-counter market shall have been suspended or (ii) any
moratorium on commercial banking activities shall have been declared by
federal or New York state authorities or (iii) an outbreak or escalation of
hostilities or a declaration by the United States of a national emergency
or war or (iv) a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) the effect of which,
in the case of this clause (iv), is, in the judgment of Schlumberger, so
material and adverse as to make it impracticable or inadvisable to proceed
with the sale or the delivery of the Securities and the closing of the
Acquisition on the terms and in the manner contemplated by this Agreement
and in the Purchase Agreement.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for Schlumberger.
6. Termination. The obligations of Schlumberger hereunder may be
terminated by Schlumberger, in its absolute discretion, by notice to the Company
prior to delivery of the Securities if, prior to that time, any of the
conditions precedent to the closing of the Acquisition shall fail to be
satisfied to the reasonable satisfaction of Schlumberger.
7. Reimbursement of Schlumberger's Expenses. If (a) this Agreement shall
have been
13
terminated pursuant to Section 6 or (b) the Company shall fail to tender the
Securities for delivery to Schlumberger, the Company shall reimburse
Schlumberger for such out-of-pocket expenses (including reasonable fees and
disbursements of counsel) as shall have been reasonably incurred by Schlumberger
in connection with this Agreement and the proposed issuance of the Securities.
8. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and Schlumberger
contained in this Agreement or made by or on behalf of the Company or
Schlumberger pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any of them or
any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
9. Notices, etc. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to Schlumberger, shall be delivered or sent by mail or telecopy
transmission to Schlumberger Limited, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxx X. Xxxxxxxxx (telecopier no.: (000) 000-0000);
or
(b) if to the Company, shall be delivered or sent by mail or telecopy
transmission to Tokheim Corporation, 0000 Xxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxxxxx 00000-0000, Attention: Xxxxxxx X. Xxxxxx (telecopier no.: 219-484-
1110).
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
11. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
12. Amendments. No amendment or waiver of any provision of this Agreement,
nor any consent or approval to any departure therefrom, shall in any event be
effective unless the same shall be in writing and signed by the parties hereto.
14
13. Headings. The headings herein are inserted for convenience of reference only
and are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement between the Company and Schlumberger in
accordance with its terms.
Very truly yours,
TOKHEIM CORPORATION
By
---------------------------
Accepted:
SCHLUMBERGER LIMITED
By
------------------
15
EXHIBIT A
[Form of Senior Subordinated Indenture]
16
EXHIBIT B
[Form of Junior Subordinated Indenture]
17
EXHIBIT C
[Form of Warrant Agreement]
18
EXHIBIT D
[Form of Exchange and Registration Rights Agreement]
19
EXHIBIT E
[Form of Opinion of Counsel for the Company]
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) and Xxxxxx X. Xxxxxx,
General Counsel of the Company, shall have furnished to Schlumberger their
written opinions, as counsel to the Company, addressed to Schlumberger and dated
the Closing Date, in form and substance reasonably satisfactory to Schlumberger,
substantially to the aggregate effect set forth below:
(i) The Company and each of its subsidiaries (the "Subsidiaries") have been
duly incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign corporations in
each jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification, and have
all power and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the failure to
so qualify or have such power or authority would not, singularly or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the Company and the
Subsidiaries taken as a whole (a "Material Adverse Effect").[NR]
(ii) The Company has an authorized capitalization as set forth under the
heading "Capitalization" in the Company's Preliminary Offering Memorandum dated
July 31, 1998 relating to the proposed offering of its _____% Senior
Subordinated Notes due 2008 (the "Preliminary Offering Memorandum"). All of the
outstanding shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable.[NR]
(iii) Assuming the accuracy of the representations and warranties of
Schlumberger contained in Secdon 2, it is not necessary, in connection with the
issuance of the Securities to Schlumberger to register the Securities or the
Guarantees under the Securities Act or to qualify the Senior Indenture or the
Junior Indenture under the Trust Indenture Act.[SASMF]
(iv) The Company has full right, power and authority to execute and deliver
this Agreement, the Senior Indenture, the Junior Indenture, the Warrant
Agreement, the Registration Rights Agreement and the Securities and to perform
its obligations thereunder; and all corporate action required to be taken for
the due and proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions contemplated
thereby have been duly and validly taken.[NR]
(v) This Agreement has been duly authorized, executed and delivered by the
Company [NR] and constitutes a valid and legally binding agreement of the
20
Company[SASMF].
(vi) The Registration Rights Agreement has been duly authorized by the
Company[NR] and, assuming due execution and delivery thereof by Schlumberger, is
a valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law)[SASMF].
(vii) The Senior Indenture has been duly authorized by the Company and the
Guarantor Subsidiaries [NR] and, assuming due execution and delivery thereof by
the Senior Trustee, is a valid and legally binding agreement of the Company and
the Guarantor Subsidiaries enforceable against the Company and the Guarantor
Subsidiaries in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law). The Senior Indenture conforms
in all material respects to the requirements of the Trust Indenture Act and the
rules and regulations of the Commission applicable to an indenture which is
qualified thereunder[SASMF].
(viii) The Junior Indenture has been duly authorized by the Company and
the Guarantor Subsidiaries [NR] and, assuming due execution and delivery
thereof by the Junior Trustee, is a valid and legally binding agreement of the
Company and the Guarantor Subsidiaries enforceable against the Company and the
Guarantor Subsidiaries in accordance with its terms, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law)[SASMF].
(ix) The Warrant Agreement has been duly authorized by the Company [NR]
and, assuming due execution and delivery thereof by Schlumberger, is a valid and
legally binding agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law)[SASMF].
(xi) Neither the Company nor any of the Subsidiaries is (i) an "investment
company" or a company "controlled by" an investment company within the meaning
of the Investment Company Act of 1940, as amended (the "Investment Company
Act"), and the rules and regulations of the Commission thereunder.[SASMF]
21