Exhibit 2.1
General Agreement
BY AND BETWEEN THE UNDERSIGNED:
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ARCC HOLDINGS BV, a company under incorporation in the Netherlands with its
registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ Hoofddorp, the Netherlands,
registered at the Amsterdam companies registry under N(degree) 34156348,
represented by Bas ▇▇▇▇▇▇, duly empowered for the purposes hereof,
(hereafter referred to as "ARCC")
OF THE FIRST PART
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AND:
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▇▇▇▇▇▇ PACKAGING EUROPE , a company incorporated in France as a societe en nom
collectif with its registered office at ▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, registered at the Nanterre companies registry under N(degree)
391 289 253, represented by Ashok SUDAN, duly empowered for the purposes hereof,
(hereafter referred to as "▇▇▇▇▇▇ Europe")
OF THE SECOND PART
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▇▇▇▇▇▇ PACKAGING FRANCE, a company incorporated in France as a societe par
actions simplifiee, with a capital of (euro) 24.568.515 having its registered
seat at Blyes 01150 ▇.▇. ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇'▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, registered at
the Belley Companies registry under n(degree) ▇▇▇ ▇▇▇ ▇▇▇, represented by Mr
Ashok SUDAN, duly empowered for the purposes hereof,
(hereafter referred to as "▇▇▇▇▇▇ France").
OF THE THIRD PART
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(ARCC, ▇▇▇▇▇▇ Europe and ▇▇▇▇▇▇ France are collectively referred to herein as
the "Parties").
All companies of the ▇▇▇▇▇▇ group (except ▇▇▇▇▇▇ Packaging Blyes) being
collectively referred to as "▇▇▇▇▇▇".
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WHEREAS:
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▇▇▇▇▇▇ Europe is a company active in the plastic blow moulding industry with
strategic and business development responsibilities for the European plastic
blow moulding operations of the ▇▇▇▇▇▇ Packaging Company, York, Pennsylvania,
USA ("▇▇▇▇▇▇ Group").
▇▇▇▇▇▇ Europe has determined that its Blyes operations, that until recently were
part of its 100 % subsidiary ▇▇▇▇▇▇ France, no longer fit within its long-term
overall strategy and need restructuring or even closure. ▇▇▇▇▇▇ Europe's current
business operations and corresponding assets (including land and real estate)
with respect to its Blyes production facility are referred to as the "Business".
ARCC is a subsidiary of Business Creation Holdings BV ("BCH") that is involved
in investment and business redevelopment activities. ▇▇▇▇▇▇ has contacted ARCC
to take-over the site, avoid closing down the Business, save a maximum of
employment (80 jobs in FTE) by continuing current and new activities by means of
a redevelopment project.
▇▇▇▇▇▇ has set up a new 100% daughter company called ▇▇▇▇▇▇ Packaging Blyes, an
SARL with a share capital of (euro) 8.000 which seat is at Rueil Malmaison
(92500) L'Europeen D, Rueil 2000, registered with the trade court of Nanterre
under n(degree) 441 573 631 ("▇▇▇▇▇▇ Blyes" or the "Company").
▇▇▇▇▇▇ France has sold its entire fonds de commerce relating to its Business
operated in Blyes to ▇▇▇▇▇▇ Blyes by agreement signed on 1st June 2002 and
registered with the tax authorities on 25th June 2002 a copy of which is
attached on Annex 1 (hereafter referred as the "Sale of Fonds de Commerce").
▇▇▇▇▇▇ France was already in the process of a collective dismissal on economical
grounds. After the above mentioned sale ▇▇▇▇▇▇ Blyes has continued such
collective dismissal on economical grounds (licenciement collectif pour cause
economique) with regard to approximately 23 employees working in the business.
▇▇▇▇▇▇ Blyes is presently negotiating with its works council a so-called plan
social in order to limit as far as possible the negative effects of the
dismissals for the people at stake.
▇▇▇▇▇▇ France has contributed to ▇▇▇▇▇▇ Blyes the real estate and buildings
where the Business is operated. This contribution has entailed an increase of
the share capital of (euro) 705,000 with a share premium of (euro) 705,000.
ARCC wishes to acquire the entire share capital of the Company under the terms
and conditions of this agreement as defined herein (the "Agreement"), and ▇▇▇▇▇▇
Europe and ▇▇▇▇▇▇ France, have accepted such proposal.
In order to allow ARCC to successfully re-deploy the activities of the Company
after it will have acquired the share capital of the Company, ▇▇▇▇▇▇ Europe has
agreed to finance the Company with an aggregate amount of 2,5 million Euros in
cash as a share capital and share premium contribution to the Company of which
1,562,500 Euros on the date hereof and the remaining part , i.e. 937,500 Euros,
3 months after the date hereof at the latest. Additionally ▇▇▇▇▇▇ Europe will
financially support the redevelopment of the Company as further set forth in
Clause 7.5, 7.6, 7.7 and 7.8.
▇▇▇▇▇▇ France has agreed to enter into a Supply Contract with ▇▇▇▇▇▇ Blyes on
the date hereof (hereafter referred to as the "Supply Contract"), and which is
annexed hereto in Annex 2.
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NOW, THEREFORE, IT HAS BEEN AGREED AS FOLLOWS:
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1. SALE
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▇▇▇▇▇▇ Europe and ▇▇▇▇▇▇ France hereby sell to ARCC, which hereby
agrees to purchase, under the terms and conditions specified herein,
all of the shares of the Company (hereafter referred to as the
"Shares") free of any pledge lien or other third party right, effective
on the Closing Date (as this term is defined under clause 5.).
The sale of the Shares shall take effect, and all right, title and
interest in and to the Shares shall be automatically transferred to
ARCC on the Closing Date.
2. PURCHASE PRICE
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The total purchase price for the Shares will be Two Euro (EUR 2) (the
"Purchase Price"), to be paid by ARCC to ▇▇▇▇▇▇ Europe (1 (euro)) and
▇▇▇▇▇▇ France (1 (euro)) on the Closing Date .
3. CONDITIONS PRECEDENT ARCC
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At the latest on the Closing Date:
(i) ARCC board of directors and shareholders shall have authorised the
acquisition of the Shares;
(ii) ARCC shall have carried out an environmental audit with respect to
potential (environmental) pollution or hazardous substances in
land or buildings on the basis of the reports issued by the Parc
Industriel de La Plaine de l'Ain attached in Annex 3 (ii).
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4. CONDITIONS PRECEDENT ▇▇▇▇▇▇
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At the latest on the Closing Date, unless otherwise agreed or waived by the
Parties hereto, the following operations will have been completed by ▇▇▇▇▇▇:
(i) the Sale of Fonds de Commerce by ▇▇▇▇▇▇ France to ▇▇▇▇▇▇ Blyes as set
forth in "WHEREAS" above shall have been completed and published in a
legal paper ("journal d'annonces legales") and filing formalities
with the relevant Companies Registry will have been carried out;
(ii) all stocks and other inventories related to the blow moulding activities
of ▇▇▇▇▇▇ France have been sold to the Company.
(iii) The District ("commune") of Blyes will have expressly waived its right
of first refusal ("droit de prehemption urbain") on the real estate
contributed by ▇▇▇▇▇▇ France to the Company.
(iv) The Company will have implemented all proceedings with its Works Council
under chapter IV and III and will have obtained the Works Council's prior
opinion on the:
- change in shareholdership
- dismissals on economical grounds
- plan de sauvegarde de l'emploi
(v) ▇▇▇▇▇▇ France will have removed from the Company all waste materials as
well as those inventories (raw materials, work in progress and finished
products) that will not be of use to the Company during the first 4
months after the Closing Date;
(vi) ▇▇▇▇▇▇ will have issued a purchase order for reconditioning of the
Plax line and made the plant manager of the Blyes operations (i.e. Mr.
Serge Mikolacjzyk) responsible for managing the reconditioning process;
(vii) ▇▇▇▇▇▇ Europe in its capacity as shareholder of ▇▇▇▇▇▇ Blyes will have
decided to increase the share capital of ▇▇▇▇▇▇ Blyes by 1,250,000 Euros
in cash of which 25% (i.e. 312,500 Euros) will have been paid with a
share premium of 1,250,000 Euros which will have been fully paid to the
Company on Closing;
(viii)▇▇▇▇▇▇ Blyes will have been converted into a SAS and the shareholders'
decision to this effect will have been deposited with Me ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
public notary;
(ix) ▇▇▇▇▇▇ France will have contributed the land and buildings free of any
mortgages or other third party rights (as further described in the
Contribution Agreement attached in Annex 4 to ▇▇▇▇▇▇ Blyes in exchange
of 70,500 shares.
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5. CLOSING
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5.1 Closing Date
Unless otherwise agreed by the Parties, the completion of the sale and
acquisition of the Shares contemplated under this Agreement shall
occur no later than July 31, 2002 (the "Closing" or the "Closing
Date").
5.2 Deliveries at Closing
5.2.1 ▇▇▇▇▇▇ Europe's Deliveries
At Closing, ▇▇▇▇▇▇ Europe shall deliver, or shall cause to
be delivered, to ARCC the following:
(i) duly signed and completed share transfer forms
("ordre de mouvement") in favour of ARCC or its
designee(s) for the Shares;
(ii) the stock transfer register ("registre des mouvements
de titres");
(iii) letter of resignation of the President of the Company;
(iv) a counterpart of the SupplyContract, duly executed on
behalf of ▇▇▇▇▇▇ France and ▇▇▇▇▇▇ Europe;
(v) a counterpart of the Loan Agreement, duly executed on
behalf of ▇▇▇▇▇▇ Europe;
(vi) proof that all conditions precedent (as described in
clause 4) have been completed.
5.2.2 ARCC's Deliveries
At Closing, ARCC shall deliver, or shall cause to be
delivered, to ▇▇▇▇▇▇ Europe the following:
(i) the Purchase Price in the manner set forth in Clause 2;
(ii) a copy, duly certified as true and correct, of the
minutes of a meeting of the board of directors and
shareholders of ARCC authorising its purchase of the
Shares; and
(iii) a counterpart of the Supply Contract, duly executed on
behalf of the Company ;
(iv) a counterpart of the Loan Agreement, duly executed on
behalf of the Company ;
(v) proof that the condition precedent (as described in
clause 3) has been completed.
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6. REPRESENTATIONS AND WARRANTIES
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the Representations and Warranties, as set forth in this Clause 6, are
certified by the Parties as true, complete and correct as of the Closing
Date.
6.1 ▇▇▇▇▇▇ Europe's Representations and Warranties.
▇▇▇▇▇▇ Europe makes the following representations and warranties (the
"▇▇▇▇▇▇ Europe Representations & Warranties") relating to the Shares
and the Company as per the Closing Date :
6.1.1 Corporate Existence of Company; Ownership of the Shares;
No Third Party Rights. The Company is a Societe par Actions
Simplifiee duly incorporated and validly existing under the
Laws of France. ▇▇▇▇▇▇ Europe and ▇▇▇▇▇▇ France are the
legal owners of the Shares and have obtained the necessary
authorisation to sell the Shares to ARCC. The Shares are
fully paid-up except for 125,000 shares subscribed by
▇▇▇▇▇▇ Europe on the date hereof which have been paid up
for an amount corresponding to 25 % of their nominal
value, i.e. 312,500 Euros, and are not subject to any third
party rights of any nature, including any liens, pledges or
attachment of any kind. Neither ▇▇▇▇▇▇ Europe, nor any
person controlling, controlled by or under common control
with ▇▇▇▇▇▇ Europe, has an obligation, absolute or
contingent, to any other person to sell any of the Shares
of the Company, to effect any merger, consolidation, or
other reorganisation of the Company, to sell all or
substantially all of the assets of the Company or to enter
into any agreement with respect thereto. The Shares
constitute all of the share capital of the Company.
6.1.2 Voting Rights attached to the Shares. Following the
transfer of the Shares to ARCC, ARCC shall obtain all of
the rights attached to the Shares and all of the voting
rights in the Company.
6.1.3 Employees. Attached hereto as Annex 6.1.3 (i) is an
exhaustive list of all union, collective bargaining or other
employee association agreements to which the Company is a
party or is bound. The Company has not breached or otherwise
failed to comply with any provision of any agreement set
forth on Annex 6.1.3 (i) hereto.
A complete list of all employees employed by the
Company as of the Closing Date is set forth on Annex
6.1.3. (ii).
▇▇▇▇▇▇ Europe will be entirely responsible and liable
for the further negotiations and implementation of the
plan social at ▇▇▇▇▇▇ Blyes, i.e. ▇▇▇▇▇▇ Europe will
provide human resources assistance as further detailed
in a separate agreement entitled Services Agreement
which will be entered into within 15 (fifteen) days
from Closing, bear all financial consequences and more
generally hold ▇▇▇▇▇▇ Blyes and ARCC harmless against
any claim by any of the employees of the company
relating to said economical dismissals in this
respect.
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However, ▇▇▇▇▇▇ will not be responsible in case the
new management of the Company refuses to cooperate.
All human resource related claims and liabilities,
which have originated prior to the Closing Date or are
linked to clause 6.1.3 will be borne by ▇▇▇▇▇▇.
Moreover, but without limiting the generality of the
forgoing, ▇▇▇▇▇▇ will be responsible for difference
between the legal indemnity and the indemnity in the
social plan signed by the Company, dated June 29, 2002
payable to any employee who decide not to accept the
change in the shift schedule desired by the Company.
This will be limited up to a maximum amount of EUR
9000 (V.A.T. excluded) per employee and will only
apply for employees who make the decision known prior
to December 31, 2002. It is also agreed that ▇▇▇▇ ▇▇▇▇
or another ▇▇▇▇▇▇ representative will participate in
the negotiations with the unions for this purpose.
6.1.4 Tax and Labour Law Liabilities. The Company has filed all
declarations required to be filed concerning the Company
and employees, with respect to tax, labour, and social
security laws and regulations, and has fully and timely
paid all taxes, charges, duties and contributions of any
nature whatsoever due under applicable tax, labour and
social security laws and regulations relating to the
Company and employees, up to and including the Closing
Date. ▇▇▇▇▇▇ will directly compensate the Company
with the cash equivalent of all by the Authorities
imposed claims, fines and corresponding direct and
indirect related costs connected to the operation of the
Company prior to Closing. ▇▇▇▇▇▇ will have the opportunity
to intervene in the proceedings regarding the aforementioned
at its own costs.
6.1.5 Ownership of Assets. The Company has good, valid and
marketable title to, or a valid and enforceable leasehold
interest in, the assets including the land and buildings
(further described in Annex 6.1.5) and personal property,
tangible or intangible, used by it, all of which are
located on its premises, (other than as disposed of by it in
the ordinary course of business or, in the case of
inventory, for inventory sold by it in the ordinary
course of business and not yet shipped and except for the
personal property belonging to the employees of the
Company which may be located on the premises of the
Company) and no assets or properties owned by the Company,
tangible or intangible, are subject to any liens,
encumbrances or rights of any other person.
6.1.6 Sale of fonds de commerce. ▇▇▇▇▇▇ France will have
completed the sale of its fonds de commerce and
therefore, will have transferred to the Company,
prior to the Closing Date, , all of the assets
relating to the Business operated in Blyes, as
defined in the Sale of fonds de commerce Agreement
attached in Annex 1; ▇▇▇▇▇▇ will remain entirely
responsible and liable in relation with the
formalities carried out for this Sale of Fonds de
Commerce and will hold ▇▇▇▇▇▇ Blyes harmless against
any claim relating thereto.
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6.1.7 No Change. From the beginning of the negotiation
between the Parties through the date hereof, ▇▇▇▇▇▇
has (except as far as the collective dismissal on
economical ground is concerned continued to manage
the Blyes Activity in the ordinary course, consistent
with past practice and as a "bon pere de famille"; in
particular, ▇▇▇▇▇▇ Europe has not disposed of or
pledged, mortgaged, granted a security interest in or
otherwise encumbered the Real Estate, or any
furniture, fixtures or equipment located therein and
used in connection with the Blyes Activity.
6.1.8 Contracts and Related Matters. All contracts,
agreements, leases and licenses to which the Company
is a party (or is bound) and set forth on Annex 6.1.8
hereto are valid and binding obligations of the
Parties thereto and are in full force and effect.
6.1.9 Governmental Consents. No authorisation, consent,
approval, exemption, or other action by or notice to
or filing with any Governmental Authority is required
to permit ▇▇▇▇▇▇ Europe to execute and deliver this
Agreement, to consummate the transactions
contemplated by this Agreement, to comply with and
fulfil the terms and conditions of this Agreement, or
to sell the Shares to ARCC.
6.1.10 Compliance with Laws. Except for instances of
non-compliance that would not reasonably be expected
to have a material adverse effect on the Company, the
Company is currently conducting its business in
compliance with all applicable laws and permits. In
addition, except for any permit of which the failure
to possess would not reasonably be expected to have a
material adverse effect on the Company, the Company
possesses all permits necessary to conduct its
respective operations as they are currently being
conducted and all such permits are in full force and
effect. The Plant is an "installation classee".
Furthermore, the plant has been audited for asbestos
and the results of such audits are attached hereto as
Annex 6.1.10 .
6.1.11 Disputes. There are no proceedings pending, or to
▇▇▇▇▇▇ Europe's knowledge, threatened against the
Company or which in any manner challenge or seek to
prevent, enjoin, alter or materially delay the
transactions contemplated by this Agreement.
6.1.12 ▇▇▇▇▇▇ guarantees that all the account receivable
balances in the closing balance sheet will be paid by
the corresponding debtors after Closing Date. Any of
those debtors not having paid their outstanding
balance by the time the Loan (as defined under clause
7.7) is due to ▇▇▇▇▇▇, will be deducted from the loan
once it is due, to the extent where their term has
expired when the Loan is repaid. ARCCC shall do its
best efforts and shall cause the Company to do its
best efforts to collect the corresponding receivables
on time and will keep ▇▇▇▇▇▇ informed of any
delinquent payments and shall do nothing and cause
the Company to do nothing which could prevent or
limit the recovering in due time by the Company of
the accounts receivable. .
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6.1.13 Closing Balance. Within a period of five (5) working
days following the Closing Date, ▇▇▇▇▇▇ will
establish a closing balance sheet showing all assets
and liabilities owned by the Company on the Closing
Date (including those transferred by the Sale of
Fonds de Commerce and contribution of the real
estate). The closing balance sheet will be
established in accordance with French GAAP and will
not include any liabilities other than directly
related to the day-to-day operations and the
liabilities explicitly agreed upon in this Agreement.
Subject to these adjustments, ▇▇▇▇▇▇ will guarantee
that the closing balance sheet completely and
accurately represents the actual situation regarding
the Company and taking into account clause 7.4.
The Parties will assign an external auditor to assist
in properly finalising the closing balance sheet in
order to be more certain no clerical errors would
remain.
6.1.14 The stock take listing as per July 31 2002 duly
signed by the stock take team (first representative
of ▇▇▇▇▇▇ Blyes, first representative of ▇▇▇▇▇▇
France and first representative of ARCC) will be made
available to the Parties together with the closing
balance sheet referred to under clause 6.1.13. ▇▇▇▇▇▇
guarantees that all raw materials, work in progress
and finished goods of the inventory as per July 31,
2002 will be used by the Company within a period of 4
months from the Closing Date. Within 30 days after
this 4 months period, the Company will inform ▇▇▇▇▇▇
in writing and deduct the amount of such stock at the
value used in the July 31, 2002 stock listing from
the outstanding amount of the Working Capital Loan.
6.1.15 ▇▇▇▇▇▇ confirms that it has provided the staff of
ARCC and/or its authorised representatives all
material information relevant for the take over of
the Company even if not specifically requested. No
material information or data has been withheld from
the ARCC staff or their representatives.
6.1.16 ARCC or the Company can claim under these
representations and warrantees during a period of
five (5) years after the Closing Date with regards to
employee related claims and disputes.
6.1.17 With regard to tax and social security claims, ARCC
or the Company can claim under these representations
and warrantees during the applicable statutory time
period and, except as provided under clause 6.1.16,
during a period of two (2) years as from the Closing
Date in respect of claims arising out from any other
matters.
6.1.18 ▇▇▇▇▇▇ Europe will be fully responsible for all, if
any, pollution to the environment or hazardous
substances identified in the environmental audit
mentioned in clause 3 (ii). The pollution to the
environment or hazardous substances identified in the
report attached in Annex 3 will be removed at expense
of ▇▇▇▇▇▇ Europe.
6.1.19 All warranty or guarantee, returned goods, other
claims and connected costs and liabilities related to
products, production, sales, transportation and
services sold or provided before the Closing Date by
the Company will be for the account of ▇▇▇▇▇▇.
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6.2 ARCC's Representations and Warranties.
ARCC makes the following representations and warranties (the
"ARCC Representations & Warranties") relating to ARCC and its
activity at the Closing Date:
6.2.1 Corporate Existence of ARCC; Authority. ARCC is a
corporation duly incorporated and validly existing under
the Laws of the Netherlands. ARCC has the full power,
authority and right to enter into this Agreement and to
consummate the transactions contemplated hereby and the
performance of its obligations hereunder and the
consumption of the transactions contemplated hereby have
been duly authorised by all requisite corporate action of
ARCC. ARCC is a wholly-owned subsidiary of ▇▇▇▇ Industries
BV, which is itself a wholly-owned subsidiary of BCH and
therefore, ARCC is an indirect, wholly-owned subsidiary
of BCH. This Agreement constitutes the legal, valid and
binding obligations of ARCC enforceable against ARCC in
accordance with its terms and conditions and will not
conflict with, contravene, result in a violation or breach
or any default under (a) any law applicable to ARCC, (b)
any provision of the organisational documents of ARCC or
(c) any contract, agreement or other instrument to which
ARCC is a party.
6.2.2 Disputes. There are no proceedings pending, or to
ARCC's knowledge, threatened against it or which in
any manner challenge or seek to prevent, enjoin,
alter or materially delay the transactions
contemplated by this Agreement.
6.2.3 Due Diligence. ARCC has conducted a thorough due
diligence of the Company, including an inspection of
the Real Estate and the Blyes Activity; further, ARCC
has conducted an independent analysis of the
viability of the Blyes Activity and alternative
operations that could be conducted by the Company
following the purchase of the Shares.
6.2.4 Governmental Consents. No authorisation, consent,
approval, exemption, or other action by or notice to
or filing with any Governmental Authority is required
to permit ARCC to execute and deliver this Agreement,
to consummate the transactions contemplated by this
Agreement, to comply with and fulfil the terms and
conditions of this Agreement, or to purchase the
Shares from ▇▇▇▇▇▇ Europe and ▇▇▇▇▇▇ France.
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7. COVENANTS BY THE PARTIES
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Guarantees by ▇▇▇▇▇▇ to be put in place.
7.1 Registration Formalities. ARCC hereby undertakes to perform the
registration of the shares' transfers with the French tax
authorities within one (1) month from the Closing Date.
7.2 Insurance. ▇▇▇▇▇▇ Europe hereby undertakes to maintain all
insurance policies needed to operate the Blyes Activity in
effect up to and including the Closing Date. ARCC shall be
responsible for assuring that all such insurance policies are
replaced with equivalent policies that take effect upon
Closing Date.
7.3 Access to Records. ▇▇▇▇▇▇ Europe and ARCC each agree to
provide the other with access to the financial records and tax
information relative to the Company and the Blyes Activities
as may be reasonably required by each of them in connection
with its financial reporting or filing of tax returns after
the Closing Date.
7.4 The results of the operations of the Company prior to Closing are
for the account of ▇▇▇▇▇▇.
7.5 In order to ensure that redevelopment will not be restrained
by cash outflow excess employment by the Company, ▇▇▇▇▇▇
Europe will pay upon Closing, the sum of EUR 390.000 (V.A.T.
excluded) to the Company.
7.5.1 This amount represents, the Company's costs for 35 FTE
for 4 months at equivalent salary level previously paid
by ▇▇▇▇▇▇ France.
7.5.2 Any recovery or reduction in salary costs obtained by
the Company through un-employment benefits ("chomage"
of any form) will be to the benefit of the Company;
In case of failure by ▇▇▇▇▇▇ Europe to pay this sum on the
Closing Date, it will pay to the Company over the period which
it is in default, a 6% annual interest charge over the
outstanding amount, without prejudice to ▇▇▇▇▇▇ Europe's duty
to fulfil its obligations on first demand.
▇▇▇▇▇▇ Europe will pay to the Company, within three (3) months
following the Closing Date, the remaining part of the 125.000
shares it subscribed on the Closing Date, i.e. the sum of
937,500 Euros.
In case of failure by ▇▇▇▇▇▇ Europe to pay to the Company the
remaining part of the share nominal value within a period of
three (3) months following the Closing Date, ▇▇▇▇▇▇ Europe
will pay to the Company over the period which it is in
default, a 6% annual interest charge over the outstanding
amount, without prejudice to ▇▇▇▇▇▇ Europe's duty to fulfil
its obligations on first demand.
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7.6 ▇▇▇▇▇▇ Europe will have included on or prior to Closing as
free cash equivalent in the assets of the Company labour
related liabilities, like the not yet taken holidays, pension
liabilities (for an amount of (euro) 85,000 V.A.T. excluded),
13th month accrual, RTT accrual and if applicable other labour
related accruals
7.7 In order to avoid capital spending constraints on the
development of new activities, ▇▇▇▇▇▇ Europe provides the
Company with a loan to cover working capital at the Closing
Date (the "Loan"). Working capital is defined as: trade
receivables plus inventory minus trade payables (further
detailed in Annex 7.7).
7.8 ▇▇▇▇▇▇ will assist the Company as much as reasonably can be requested
to transfer production, production volume, sales and other
relevant know how.
▇▇▇▇▇▇ will provide free of charge all assistance to the
Company that can be reasonably requested regarding the
equipment, skills, know how necessary regarding Finance, Tax,
IT, HR and sales related matters as of Closing Date with a
maximum of 6 months to be further defined in a Services
Agreement to be signed at the latest on August 15, 2002.
7.9 On a basis of a six (6) months agreement automatically
renewable for the same period, ▇▇▇▇▇▇ France will allow the
Company employees to park their car, free of charge and at
their own risks, in the parking area that is currently in use
by ▇▇▇▇▇▇ France in Blyes and that is not part of the land
contributed by ▇▇▇▇▇▇ France to the Company. Such agreement
being terminated in case, for any reason, ▇▇▇▇▇▇ France has no
longer the use of the lands.
7.10 Use of ▇▇▇▇▇▇'▇ name, logo, and other intellectual property rights.
ARCC undertakes to change the Company's name (denomination
sociale) and to fulfil the relating formalities within a
maximum period of 2 months from Closing Date. ARCC and the
Company are entitled to use the ▇▇▇▇▇▇ Group's name only as a
historical reference.
Moreover, the Company is entitled to use the existing moulds
with the G logo for its activities during a maximum period of
30 years after Closing. The Company will not transfer any of
the existing moulds to any third party without ▇▇▇▇▇▇'▇
written prior authorisation.
ARCC shall not use and shall cause the Company to not use any
intellectual property right belonging to ▇▇▇▇▇▇ and in
particular shall not make any reference and shall not affix
any logo, ▇▇▇▇▇, trademarks or name belonging to the ▇▇▇▇▇▇ or
the ▇▇▇▇▇▇ Group on new moulds manufactured after the Closing
Date by the Company.
7.11 Mr Durdilly
▇▇▇▇▇▇ France will make available the services and skills of
Mr Durdilly to the Company for a maximum period of 6 months
following the Closing Date. The monthly salary and related
costs of Mr Durdilly will be invoiced to and paid by the
Company. Upon prior agreement of ▇▇▇▇▇▇ France the Company may
extend the period it may use the services of Mr Durdilly for a
period mutually agreed. Mr Durdilly will be assigned on a
full time bases. See the annex 7.11 for details.
12
7.12 ARCC shall cause the Company to not sell its assets, including its
real estate, during a period of twenty four (24) months
following the Closing Date, without ▇▇▇▇▇▇ Europe's prior written
consent, which consent shall not be unreasonably withheld, unless
the sale is made (i) in favour of a company in which Business
Creation Holdings B.V. holds more than 50% of the shareholders
voting rights, being understood that in such case, ARCC shall
cause the purchasing party to not resell the said assets during the
above mentioned period, or unless the sale is made (ii) for the
sole purpose of finding or securing financing to support the
redevelopment activities of the Company's current business. If, for
any reason, the Company dispose of its assets, ARCC undertakes and
cause the Company to undertake to not use during a period of at least
twenty four (24) months from such disposal, the proceeds generated
by such disposal for any distribution or payment, in any manner
whatsoever in favour of its shareholders, affiliates, offices,
directors and/or managers except for reasonable management fees in
the normal course of business.
In case of failure by ARCC or the Company to comply with
clause 7.12, the Company will pay to ▇▇▇▇▇▇ Europe upon first
demand an interest charge of 6% of the book value of the
assets transferred, without prejudice to the Company's duty to
fulfil its obligations on first demand.
7.13 A 6-layer Plax machine is presently under refurbishing (under
▇▇▇▇▇▇'▇ control and at ▇▇▇▇▇▇'▇ costs) in order to make this
Plax line mechanically and electrically capable of production
of the Company' current product portfolio. This 6 layer Plax
machine will be sold and delivered together with the end of
the line to the Company at the latest on 15 September 2002.
The purchase price will be (euro) 289.000 (V.A.T. excluded)
or, if the actual third party expenses paid by ▇▇▇▇▇▇ for the
Plax line are lower, the price will be reduced by the
difference between (euro) 289.000 and such actual expenses.
The invoice will be sent at delivery and paid 60 days after
receipt.
7.14 If due to whatever reason customers are transferred back to
▇▇▇▇▇▇ Europe from the Company after Closing, ▇▇▇▇▇▇ will also
take-over at cost price from the Company the corresponding
inventory of raw materials and finished products. The value of
the inventory will then be settled with (part) of/deducted
from the working capital loan as mentioned in clause 7.7.
7.15 ▇▇▇▇▇▇ Europe will bear the financial costs of the Company's
plan social initiated before the Closing Date and will hold
the Company and ARCC harmless against any claim by any of the
Company's employees in relation thereto in the extent where
the Company's new management shall have implement the said
plan social in compliance with its terms and conditions as
negotiated prior to the Closing Date (falls within the scope
of the HR assistance provided by ▇▇▇▇▇▇..
The Company shall notify ▇▇▇▇▇▇ Europe at least four (4) days
before they are due, of any sum payable by the Company in
relation with the implementation of the plan social. In
addition and in the mean time the Company shall provide ▇▇▇▇▇▇
Europe with a detail and justification of these costs with the
date they are payable by the Company. In the extend where
▇▇▇▇▇▇ Europe will have been duly notified by the Company, it
will make the necessary payment to the Company at least 48
hours (counted in working days only) before the date of
payment indicated by the Company.
13
7.16 ARCC shall not, and shall cause the Company to not abandon and
stop the Company's blow moulding activities on its site of
Blyes during a period of two (2) years following the Closing
Date. In case ARCC or the Company fails to comply with this
obligation ARCC shall cause the Company to sell to ▇▇▇▇▇▇ the
research & development related tooling equipment at a price of
EUR 1.
7.17 ARCC shall not use and shall cause the Company to not use any
cash contribution made by ▇▇▇▇▇▇ Europe or ▇▇▇▇▇▇ France to
the Company for any other purpose than the continuation and
redevelopment of the Company's business activity on its
current site of Blyes, except for a maximum amount of EUR
250,000 and except for reasonable management fees in the
normal course of business.
7.18 ARCC shall not decide or make and shall cause any shareholder
of the Company to not decide or make any reduction or
cancellation of all or part of the Company's share capital,
share premium and/or equity, in any manner whatsoever, in
order to be distributed or paid to its shareholder(s), during
at least two years following the Closing Date, except for
reasonable management fees in the normal course of business.
Redevelopment fees and expenses are excluded from this clause.
7.19 ARCC shall not and shall cause the Company to not decide any
forced dismissals on economic grounds of any of its employees
during a period of 24 months following the Closing Date. In
order to avoid misunderstanding: those employees who opt for the
social plan as mentioned under 6.1.3. do not fall within the scope
of this clause.
In order to support the redevelopment of the Company's
business activities and to allow the Company to proceed with
appropriate investments to reach good quality standards for
the manufacturing and supply of goods to ▇▇▇▇▇▇ under the
Supply Agreement, ▇▇▇▇▇▇ Europe will make a cash contribution
to the Company for an amount of nine hundred thousand euros
(EURO 900,000 V.A.T. excluded) on January 15, 2003. However,
if the Company requests so, 50% of this sum will be paid on
December 10, 2002.
7.20 ▇▇▇▇▇▇ will have the NT Server, that was transferred from
Wraxham, installed and made fully operational as the current
NT server is currently used and operated by the Business,
before September 30, 2002. The current ▇▇▇▇▇▇ IT manager (GSG)
will assist the Company with keeping this NT server in
operation in the first few months after Closing.
7.21 The Company will have the right of first refusal to take over
free of charge such the Company's customers for whom products
are being manufactured by the Company if due to whatever
reason such customers are part of business operations being
divested within ▇▇▇▇▇▇, the corresponding obligations and
responsibilities regarding the period before such transfer
will be for the account of ▇▇▇▇▇▇.
14
8. BANK GUARANTEE
--------------
▇▇▇▇▇▇ will at the latest on August 15, 2002, provide the Company with
a first demand Bank guarantee issued by a European bank in the amount
of 1,000,000 Euro, to cover any sums due by ▇▇▇▇▇▇ under this
agreement. This Bank guarantee will have a duration of 6 (six) months
after Closing.
9. NOTICES
-------
All notices that must now or in the future be made under this
Agreement, its performance and all matters arising in connection
herewith, shall be validly and properly made by the dispatch of an
overnight courier service with return receipt to the addresses of the
Parties set forth above. Any time periods set to run as from such
notices shall begin to run on the date of receipt of said overnight
courier or of its first presentation for delivery, as applicable,
provided that such period shall not exceed three (3) business days
following the dispatch of said overnight courier. For the computation
of the time periods, the date of receipt or of the first presentation
for delivery shall be included.
The address of either Party for the purpose of communications or
notices under this Agreement may be changed by giving notice in writing
at any time to ▇▇▇▇▇▇ Europe or ARCC, as appropriate.
10. EXPENSES
--------
The Parties shall each bear their respective expenses and costs
relating to the execution of this Agreement and those expenses and
costs that may arise in connection herewith or result herefrom,
including the fees of their respective advisors.
11. ELECTION OF DOMICILE
--------------------
For the performance hereof, the undersigned Parties hereby elect
domicile at their respective domiciles, as first written above.
12. ENTIRE AGREEMENT
----------------
This Agreement represents the entirety of the agreement between the
Parties with respect to their object and replaces, cancels and prevails
over all previous agreements, letter of intent, memorandum of
understanding or any other documents which they may have concluded or
sent to one another having a similar or identical object to that of
this Agreement.
13. GOVERNING LAW - JURISDICTION
----------------------------
This Agreement shall be governed by the laws of France.
Except as otherwise set forth herein, any claims or disputes arising in
connection with the present Agreement, shall be settled by the courts
of Paris.
15
14. PRESS RELEASE AND PUBLIC ANNOUNCEMENT
-------------------------------------
Neither of the Parties hereto shall issue any press release nor make
any public announcement relating to the subject matter of this
Agreement without the prior approval of the other Party. The Parties
shall coordinate their actions regarding any such press release or
public announcement, and such release shall not include any reference
to the Purchase Price.
15. BENEFICIARIES
-------------
This Agreement shall be for the benefit of the Parties hereto and there
shall be no third party beneficiaries to this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed in
four (4) originals by their duly authorised respective officers, effective as of
the 31 day of July 2002.
ARCC HOLDINGS B.V. ▇▇▇▇▇▇ EUROPE S.N.C.
By: /s/ Bas ▇▇▇▇▇▇ By: /s/ Ashok Sudan
---------------- -----------------
Name: Bas ▇▇▇▇▇▇ Name: Ashok Sudan
----------- ------------
Title: Managing Director by Power of Attorney Title: V.P. & Gen. Mgr.
-------------------------------------- ----------------
By Power of Attorney
--------------------
▇▇▇▇▇▇ FRANCE SAS
By: /s/ Ashok Sudan
-----------------
Name: Ashok Sudan
------------
Title: President
---------
Note: The annexes to this Agreement listed above are omitted from the filing of
this Current Report on Form 8-K. The Registrant agrees to furnish supplementally
a copy of any such omitted exhibit to the Securities and Exchange Commission
upon request.
16
