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EXHIBIT 2.1
SHARE PURCHASE AND SALE AGREEMENT
This Share Purchase and Sale Agreement (together with the Exhibits and Schedules
hereto, this "Agreement") is made on August 2, 2000, in Paris.
BETWEEN
1. ARIES INDUSTRIES, a societe anonyme organized and existing under the laws of
France, whose registered office is located at ▇-▇▇, ▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, registered at the Corporate and Commercial
Registry of Versailles under the number 343 486 007 (hereinafter "Aries" or the
"Seller"), represented by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, its President Directeur General,
duly authorized;
AND
2. OXFORD AUTOMOTIVE MECANISMES ET DECOUPAGE FIN II, a societe par actions
simplifiee in formation under the laws of France, having its principal office at
Parc d'activites la Cle de Saint-Pierre, rue du Marechal de Lattre de Tassigny,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, (hereinafter the "Purchaser"), represented by ▇▇. ▇▇▇▇▇
▇▇▇▇▇, duly authorized;
(The Seller and the Purchaser are referred to hereinafter individually as a
"Party" and collectively as the "Parties".)
IN THE PRESENCE, FOR THE SOLE PURPOSES OF SECTION 1.2.7, OF
3. OXFORD AUTOMOTIVE FRANCE, a societe par actions simplifiee organized and
existing under the laws of France, having its principal office at Parc
d'activites la Cle de Saint-Pierre, rue du Marechal de Lattre de Tassigny, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ registered at the Corporate and Commercial Registry of
Versailles under the number 421 303 264, (hereinafter "OXFORD AUTOMOTIVE
FRANCE"), represented by Mr. ▇▇▇▇-▇▇▇▇▇▇▇▇ Constant, its President, duly
authorized;
IN THE PRESENCE, FOR THE SOLE PURPOSES OF SECTION III.C, OF
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4. ARIES, a societe anonyme organized and existing under the laws of France,
whose registered office is located at ▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, registered at the Corporate and Commercial Registry of Paris under
the number 329 780 498 (hereinafter "ASA"), represented by ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇, its President Directeur General, duly authorized;
5. ARIES INDUSTRIES STRUCTURE, a societe anonyme organized and existing under
the laws of France, whose registered office is located at ▇-▇▇, ▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, registered at the
Corporate and Commercial Registry of Versailles under the number 351 981
402 (hereinafter "AIS"), represented by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, its President
Directeur General, duly authorized;
6. ARIES FINANCE, a societe anonyme organized and existing under the laws of
France, whose registered office is located at ▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, registered at the Corporate and Commercial Registry of Paris under
the number 409 617 024 (hereinafter "AFSA"), represented by ▇▇.▇▇▇▇▇
▇▇▇▇▇▇, duly authorized;
WITNESSETH
WHEREAS:
A. Seller owns 486,855 shares (the "Shares") representing 100% of the
share capital and 100% of the voting rights of Aries Industries Mecanismes et
Decoupage Fin, a societe anonyme organized and existing under the laws of France
with a nominal share capital of FF 48,685,500 divided into 486,855 shares of a
nominal value of FF 100 having its registered office located at 3 avenue du
Canada, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, registered with
the Commercial Registry of Evry under the number D 705 780 203 (hereinafter
"AIMDF"),
B. AIMDF owns directly or indirectly 100% of the shares of the capital stock of
each of the following companies, as set forth below and as more fully described
in EXHIBIT I hereto:
(i) 15,000 shares (the "Murat Shares") in Murat S.A., a French
societe anonyme with a nominal share capital of FF 1,500,000
divided into 15,000 shares of FF 100 each, having its
registered office at ▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ and
registered with the Registry of Commerce and Companies of
Paris under the number B 379 138 787 (hereinafter "Murat");
and
(ii) 2,500 shares (the "SMBI Shares") in SMBI S.A., a French
societe anonyme with a nominal share capital of FF 8,250,000
divided into 2,500 shares of FF 3,300 each, having its
registered office at Route de Poury Saint-Remy, Brevilly,
08140 Douzy, France and registered with the Registry of
Commerce and Companies of Sedan under the number 395 293 806
(hereinafter "SMBI"); and
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(iii) 9,000,000 shares (the "AMS Shares") in Aries Meccanismi S.p.A.
, a company organized and existing under the laws of Italy
with a nominal share capital of Lira 9,000,000,000 divided
into 9,000,000 shares of Lira 1,000 each, having its
registered office at Pozzili (Isernia), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and registered under the number 234
2041 1999 (hereinafter "AMS"); and
(iv) 20,000 shares (the "CAE Shares") in Coskununoz Aries Metal
I leri ve Montaj Endustri ve Ticaret Anonim Sirteki, a company
organized and existing under the laws of Turkey with a nominal
share capital of TL 20,000,000,000 divided into 20,000 shares
of TL 10,000,000 each, having its registered office at ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇(▇▇▇▇▇▇)▇, ▇▇▇▇▇ (▇▇▇▇▇▇▇), ▇▇▇▇▇▇ and
registered with the commercial registry of Bursa under the
number 48 387 55060 (hereinafter "CAE"); and
(v) 17,500 shares (the "AMB Shares") in Aries Mecanismos do Brasil
Ltda, a company organized and existing under the laws of
Brazil with a nominal share capital of R$17,500 divided into
17,500 shares of $1 each, having its registered office at ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇, ▇ ▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, cep.0455-000,
cidad de Sao Paulo, stade de Sao Paulo, Brazil and registered
under the number 35 216 204 975 with the Commercial Registry
of Sao Paulo (JUCESP) and under the number 03 724 779 10001 86
with the National Commercial Registry (CNPJ) (hereinafter
"AMB"); and
(vi) 12,000 shares (the "AMA Shares") in Aries Mecanismos de
Argentina S.A., a company organized and existing under the
laws of Argentina with a nominal share capital of 12,000
divided into $12,000 shares of $1 each, having its registered
office at ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇, ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ and registered under the number 168 0 165 of the
Inspection of Justice and under number 7 815 with the Register
of sociedades_por accionnes (hereinafter "AMA").
(AIMDF and the above mentioned companies are referred to hereinafter
individually as a "Company" and collectively as the "Companies".)
C. The Seller desire to sell to the Purchaser and the Purchaser desires to
purchase from the Seller the Shares in accordance with the terms and conditions
set forth herein.
NOW, THEREFORE, the Parties hereto agree as follows:
ARTICLE 0
DEFINITIONS
In addition to such terms as are defined elsewhere in this Agreement (including
in the Exhibits and Schedules hereto), in this Agreement:
- "Accounting Principles": means the principles and methods set forth on
EXHIBIT II;
- "Adjusted Current Account Amount" has the meaning assigned to such term in
Section 1.2.1 hereof;
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- "Affiliate": when used with reference to a specified Person, means any
Person that directly or indirectly through one or more intermediaries
controls, is controlled by or is under common control with the specified
Person. For such purposes, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise;
- "AIMDF Consolidated Net Assets" has the meaning assigned to such term in
Section 1.2.2 hereof;
- "AIMDF Consolidated EBITDA" has the meaning assigned to such term in
Section 1.2.2 hereof;
- "Business Day": means any day except Saturday, Sunday and any day which is
in Paris or New York a legal holiday or a day on which banking institutions
are authorized or required by law or other government action to close;
- "Company" and "Companies" have the meaning assigned to such terms in the
recitals hereof;
- "Consent": means any consent, waiver, authorization or approval of or
notice to any governmental or regulatory authority, or of any other person,
firm or corporation, including the prior consultation with or the provision
of information to any work council or employee-related bodies, or any
declaration to or filing or registration with any such governmental or
regulatory authority;
- "Current Account": means the net sums of the Seller's Group shareholder
current accounts (compte courant d'actionnaire) in AIMDF;
- "Current Account Amount" has the meaning assigned to such term in Section
1.2.1 hereof;
- "Current Account Partial Repayment Amount" has the meaning assigned to
such term in Section 1.2.1 hereof;
- "EURIBOR": means the European Interbank Offered Rate published by the FBE
and displayed on the Telerate system at 11 a.m. on the Business Day next
preceding the Closing Date and each anniversary date thereof with respect
to 1-month deposits in Euros;
- "Financial Statements": has the meaning assigned to such term in Section
4.5 hereof;
- "Financial Indebtedness" means, in respect of each and all the Companies,
whether due or to be due (i) all indebtedness of the Companies for borrowed
money, all loans or advances to the Companies from banks or etablissements
assimiles, reimbursable grants or subsidies and other indebtedness of the
Companies evidenced by bonds, debentures, notes or similar; (ii) all
liabilities or payables relating to discounted receivables (escompte),
receivables financed through the ▇▇▇ ▇▇▇▇▇▇, receivables factored or
financed through any similar methods, (iii) all debts and other liabilities
of the Companies towards the Seller and/or its Affiliates other than the
Companies, including under any shareholder current accounts but excluding
the Current Account; (iv) all liabilities of the Companies in respect of
any credit-bail, sale and leaseback, equipment or similar lease financing
and (v) all liabilities of the Companies for profit sharing for periods
prior to the Closing Date but excluding any account payable or other
current liability or obligation of such Company incurred in the ordinary
course of business in connection with the obtaining of material or services
other than those mentioned in (i) to (v) above and net of cash and money
market investment accounts;
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- "Financial Indebtedness Amount": has the meaning assigned to such term in
Section 1.2.6.1 (c) hereof;
- "Judgment": means any judgments, orders, rulings or awards of any court,
arbitrator or other judicial authority or any governmental, administrative
or regulatory authority;
- "June 30, 2000 Financial Statements": has the meaning assigned to such term
in Section 4.5 hereof;
- "1999 Financial Statements": has the meaning assigned to such term in
Section 4.5 hereof;
- "Laws": means any applicable laws, decrees, binding rules or regulations of
any governmental, administrative or regulatory authority;
- "Liens": means any and all liens, options, mortgages, charges, security
interests, preemptive rights, burdens, encumbrances or other limitations of
any nature whatsoever;
- "Liened Asset Receivables Amount": has the meaning assigned to such term
in Section 1.2.6.1 (c) hereof;
- "Organizational Documents": means with respect to any company, the
"Statuts" or "Contrat constitutif" or the memorandum and articles of
association of such company, as filed with the relevant commercial registry
or company registrar, as the same may be amended, supplemented or otherwise
modified from time to time or with respect to non-French entities any
corporate organizational documents constituting the equivalent thereof;
- "Person": means a natural person, company, partnership, trust or
unincorporated organization, or a government or any agency or political
subdivision thereof;
- "Purchaser's Accountants": means PricewaterhouseCoopers, represented by M.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
- "Purchaser's Group": means the Purchaser and its Affiliates
- "Restricted Business": means the manufacture, stamping, plating, welding,
assembly, machining, sale and/or distribution of mechanisms including
without limitation hinges, locks, sliding doors, doorframes, rails, parking
brakes, articulations, hinges, jacks and fine blanking, for the vehicle
industry;
- "Seller's Accountants": means Tuillet Associes, represented by M. ▇▇▇▇▇▇
▇▇▇▇▇;
- "Seller's Group": means the Seller and its Affiliates;
- "Shares" has the meaning assigned to such term in the recitals hereof;
- "Target AIMDF Consolidated EBITDA" has the meaning assigned to such term in
Section 1.2.2 hereof;
- "Target AIMDF Consolidated Net Assets" has the meaning assigned to such
term in Section 1.2.2 hereof;
- "Taxes": has the meaning assigned to such term in Section 4.7 hereof.
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ARTICLE I
SALE AND PURCHASE
1.1 PURCHASE AND SALE OF THE SHARES.
Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing (used in this Agreement as defined in Section 1.3.2
below), the Seller shall sell to the Purchaser and the Purchaser shall purchase
from the Seller the Shares.
1.2 PURCHASE PRICE.
1.2.1. Purchase Price for the Shares
In consideration of (i) the sale of the Shares in accordance with the terms and
conditions of this Agreement, of (ii) the commitment of the Seller to assume and
pay in accordance with Section 1.2.6(a) (ii) all of the Financial Indebtedness
of all of the Companies as of the Closing Date without charge, cost or other
financial contribution or other obligation of the Companies in this respect,
(iii) of the commitment of the Seller to pay to AIMDF the Liened Asset
Receivables Amount as of the Closing Date, of (iv) the commitment of the Seller
to cause AIMDF to repay the sums owed to the Seller under the Current Account as
of the Closing Date (the amount of such repayment hereinafter the "Current
Account Amount") in an amount equal to the Liened Asset Receivables Amount as of
the Closing Date but in no event greater than the Current Account (the "Current
Account Partial Repayment Amount"), to which commitments the Seller hereby
agrees, and of (v) the commitment of the Purchaser, acting on behalf of AIMDF,
to repay to the Seller the amount corresponding to the remaining sums owed to
the Seller under the Current Account as of the Closing Date after repayment by
AIMDF to the Seller of the Current Account Partial Repayment Amount (the "
Adjusted Current Account Amount"), the Purchaser shall pay to the Seller in
accordance with the terms and conditions hereof the sum of
(i) on the Closing Date, an amount equal to (a) three hundred fifty
million French Francs (FF 350,000,000) (the "Base Amount") less
(b) the Financial Indebtedness Amount unpaid by the Seller at the
Closing Date and (c) less the Current Account Amount and plus (d)
the Adjusted Current Account Amount (the "INITIAL CONSIDERATION");
and
(ii) an amount equal to eighty million French Francs (FF 80,000,000)
(the "DEFERRED CONSIDERATION") as adjusted, if applicable,
pursuant to Section 1.2.2 (the "NET ASSETS ADJUSTMENT") and
pursuant to Section 1.2.3 (the "EBITDA ADJUSTMENT"); the sum of
(i) the Initial Consideration, and (ii) the Deferred Consideration
adjusted, as the case may be, pursuant to Sections 1.2.2 and
1.2.3, being referred to in this Agreement as the "SHARES PURCHASE
PRICE".
1.2.2 Net Assets Adjustment to the Deferred Consideration
1.2.2.1 - Definitions
For the purpose of this Article 1.2.2 only:
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a) AIMDF CONSOLIDATED NET ASSETS AMOUNT shall mean the consolidated net assets
of the Companies at the Closing Date calculated in accordance with the
Accounting Principles;
b) TARGET AIMDF CONSOLIDATED NET ASSETS Amount shall mean four hundred million
French Francs (FF 400,000,000);
c) RELEVANT BALANCE SHEET shall mean the audited consolidated balance sheet of
AIMDF as at the Closing Date prepared in accordance with the Accounting
Principles;
d) BALANCE SHEET DATE shall mean the Closing Date.
1.2.2.2 - Computation of the Net Assets Adjustment - Formula
a) If the AIMDF Consolidated Net Assets Amount reflected in the Relevant Balance
Sheet is less than the Target AIMDF Consolidated Net Assets Amount, the Deferred
Consideration payable in accordance with Article 1.2.6.1 (b) shall be reduced on
a FF 1 for FF 1 basis by the amount of the shortfall (the "Net Assets
Adjustment").
b) [Deleted]
1.2.3 EBITDA Adjustment to the Deferred Consideration
1.2.3.1 - Definitions
For the purpose of this Article 1.2.3 only:
a) AIMDF CONSOLIDATED EBITDA shall mean the consolidated EBITDA of the
Companies calculated in accordance with the Accounting Principles for the
twelve-month period following the Closing Date;
b) TARGET AIMDF CONSOLIDATED EBITDA shall mean one hundred twenty five million
French Francs (FF125,000,000);
c) RELEVANT BALANCE SHEET shall mean the audited consolidated financial
statements of AIMDF for the twelve month-period following the Closing Date
prepared in accordance with the Accounting Principles;
d) BALANCE SHEET DATE shall mean the first anniversary of the Closing Date.
1.2.3.2 - Computation of the EBITDA Adjustment - Formula
a) If AIMDF Consolidated EBITDA reflected in the Relevant Balance Sheet is
less than the Target AIMDF Consolidated EBITDA, the Deferred Consideration
payable in accordance with Article 1.2.6.1 (b) shall be reduced by an
amount equal to 3.5 times the difference between (i) the Target AIMDF
Consolidated EBITDA and (ii) the AIMDF Consolidated EBITDA (the "EBITDA
Adjustment")
b) In the case where the EBITDA Adjustment is less than ten million French
Francs (FF 10,000,000), an amount equal to the difference between ten
million French Francs (FF 10,000,000), and the EBITDA Adjustment shall be
paid by the Purchaser to the Seller within twenty (20) Business Days after
the AIMDF Consolidated EBITDA has been finally determined in accordance
with Section 1.2.4 (the "Advance Released Amount"). Any Advance Released
Amount paid under the present paragraph shall reduce on a FF 1
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for FF 1 basis from the Deferred Consideration payable in accordance with
Section 1.2.6.1 (b).
1.2.4 - Computation of the Net Assets Adjustment and EBITDA Adjustment -
Procedure
1.2.4.1. Introduction and definitions
The Parties agree to apply the following procedure for each of the computation
of the Net Assets Adjustment and of the EBITDA Adjustment, it being specified
that, when used in the present article, the definitions of Balance Sheet Date
and Relevant Balance Sheet shall refer to the definitions of those terms in
Section 1.2.2 and in Section 1.2.3. as appropriate, and that, for the purpose of
applying:
Section 1.2.2, under this Section 1.2.4 "AIMDF Figures" shall mean "AIMDF
Consolidated Net Assets Amount"; and
Section 1.2.3, under this Section 1.2.4 "AIMDF Figures" shall mean "AIMDF
Consolidated EBITDA".
1.2.4.2 Within ninety (90) calendar days of the Balance Sheet Date, the
Purchaser shall cause the Purchaser's Accountants to deliver to the Seller and
the Purchaser the Relevant Balance Sheet including the AIMDF Figures.
1.2.4.3 Within thirty (30) Business Days from receipt by the Seller of the
Relevant Balance Sheet including the AIMDF Figures, the Seller shall either
accept or dispute the AIMDF Figures. In the event the Seller does not provide
the Purchaser written notice of its acceptance or dispute of the AIMDF Figures
within thirty (30) Business Days, such AIMDF Figures shall be conclusively and
irrevocably deemed accepted. In the event that Seller disputes the AIMDF Figures
reflected in the Relevant Balance Sheet, the Seller and the Purchaser shall
attempt to reconcile their differences and, for such purpose, each of, on the
one hand, the Seller and the Seller's Accountants and, on the other hand, the
Purchaser and the Purchaser's Accountants shall have access to each other's
working papers with respect to the disputed items and shall have the right to
perform additional relevant audits and to have access to, subject to prior
written consent of the Purchaser, which consent shall not be unreasonably
withheld, and under circumstances reasonable in the Purchaser's judgment, the
personnel of the Companies to the extent related to the matters to which the
disputed items relate. Any resolution by the Purchaser and the Seller hereto as
to any disputed item shall be evidenced in a document executed by them and
identifying the items on which they have reached an agreement (the "AGREED
ITEMS") and those on which there remains a dispute (the "DISPUTED ITEMS"). The
agreement on the Agreed Items shall be final, binding and conclusive on the
Parties. It shall not be subject to appeal or any other form of recourse.
1.2.4.4 In case the Parties have not been able to agree on the AIMDF Figures
within a thirty (30) Business Day period beginning on the date a notice of
dispute is provided by the Seller to the Purchaser, the Disputed Items will be
referred by the Purchaser or the Seller to an independent auditor (the "
INDEPENDENT AUDITOR") to be agreed by the parties. In the event the Parties
cannot agree on an Independent Auditor within seven (7) calendar days after the
end of the thirty (30) Business Day period referred to above or if such
Independent Auditor refuses to accept or cannot perform its mission, the
Independent Auditor shall be appointed by the President of the Commercial Court
of Paris acting on the request of the most diligent
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Party. The Independent Auditor will be exclusively instructed to settle the
Disputed Items by applying the Accounting Principles in order to definitively
settle the AIMDF Figures and the adjustment to Deferred Consideration pursuant
to Article 1592 of the French Civil Code. The Independent Auditor shall, as
expeditiously as possible after its appointment, issue a report in which it
shall present its determination of the Disputed Items.
The determination of the Disputed Items by the Independent Auditor shall, save
only for manifest error (erreur manifeste), be final, binding and conclusive on
the Parties. It shall not be subject to appeal or any other form of recourse.
The AIMDF Figures (and therefore the related adjustment to the Deferred
Consideration) shall be computed by applying the Accounting Principles and, as
appropriate, the definitions set forth in Section 1.2.2 or 1.2.3 and using the
figures determined, for the Agreed Items, by the Parties and, for the Disputed
Items, by the Independent Auditor.
1.2.4.5 The fees and costs of the Seller's Accountants shall be borne by the
Seller. The fees and costs of the Purchaser's Accountants shall be borne by the
Purchaser. The fees and costs of the Independent Auditor shall be shared equally
by the Purchaser on the one hand and Seller on the other hand.
1.2.5. Overall limit on Adjustments
The Parties agree that in no event shall the sum of the Net Assets Adjustment
and the EBITDA Adjustment exceed eighty million French Francs (FF80,000,000)
(the "Overall Limit").
1.2.6 - Payment of the Shares Purchase Price and Related Transactions
1.2.6.1 The Parties agree that:
a) the Initial Consideration shall be paid by the Purchaser in two parts as
follows;
(i) [deleted];
(ii) on the Closing Date, the sum corresponding to the Base Amount less
(a) the amount of the Financial Indebtedness unpaid by the Seller
at the Closing Date (the "Financial Indebtedness Amount") and less
(b) the Current Account Amount without regard to any repayment to
be made on the Closing Date pursuant to this Agreement, by
irrevocable bank / wire transfer to the account designated by the
Seller in writing to the Purchaser five Business Days prior to the
Closing Date (the "Shares Closing Payment"); and
(iii) on the Closing Date, the Adjusted Current Account Amount by
irrevocable bank wire transfer to the account designated by the
Seller in writing to the Purchaser five Business Days prior to the
Closing Date (the "Current Account Closing Payment");
it being specified and agreed however that should the sum of the Shares
Closing Payment and the Current Account Closing Payment to be made pursuant
to this Section exceed one hundred forty-six million five hundred thousand
French francs (FF146,500,000), the Purchaser shall have, at its sole
discretion, the right not to consummate the transactions contemplated in
this Agreement and shall have the right to terminate this Agreement.
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b) the Deferred Consideration (i) as adjusted pursuant to Sections 1.2.2.2 (a)
and 1.2.3.2 (a) and (ii) less any amount paid by the Purchaser as an
Advance Release Amount pursuant to Section 1.2.3.2 (b), shall be paid by
the Purchaser to the Seller in two equal instalments, the first instalment
on the second anniversary of the Closing Date and the second instalment on
the third anniversary of the Closing Date.
c) on the Closing Date, simultaneously with the payments referred to in
Sections 1.2.6.1 (a) (ii) and (iii) and without prejudice to any rights
that the Companies may have against the Seller in this respect, the Seller
shall pay to AIMDF by irrevocable bank wire transfer/ bank check the amount
corresponding, in respect of any and all account receivables resulting from
the activities of the Companies prior to and on the Closing Date, to the
total sum, net after deduction of the corresponding interest charge equal
to one (1) month EURIBOR plus 50 basis points per annum until the date the
receivable is due or the ▇▇▇▇ of trade is payable, of (i) any and all
partial or whole payments made to or any other sums collected by the Seller
in connection with such account receivables which the Seller has not yet
paid to the Companies and (ii) the amounts of such account receivables
which the Seller has transferred by way of the Dailly procedure or has
otherwise transferred, discounted or factored (in the case of bills of
trade, regardless of whether or not they have been discounted) whether in
whole or in part (the "Liened Asset Receivables Amount") and deliver to the
Purchaser reasonable evidence of such payment.
d) on the Closing Date, simultaneously with the payments referred to in
Sections 1.2.6.1 (a) (ii) and (iii) and without prejudice to any rights
that the Companies may have against the Seller in this respect, the Seller
shall cause AIMDF to pay to the Seller by irrevocable bank wire transfer/
bank check the Current Account Partial Repayment Amount and deliver to the
Purchaser reasonable evidence of such payment.
e) As a condition to Closing and in particular as a condition to the payments
to be made by the Purchaser under this Agreement, for the sole purposes of
the calculations of the payments to be made under this Section 1.2.6.1 and
subject to further adjustments in accordance with Section 1.2.6.1 (f), the
Seller shall, no later than one (1) full Business Day prior to the Closing
Date, deliver to the Purchaser (i) a certificate (the "Certificate")
setting forth the Liened Asset Receivables Amount, the Financial
Indebtedness Amount, the Current Account Amount, the Current Account
Partial Repayment Amount and the Adjusted Current Account Amount as of the
Closing Date as computed by the Seller in accordance with the terms and
conditions of this Agreement and French GAAP as consistently applied by the
Seller and (ii) appropriate documents reasonably evidencing the accuracy of
the computations of such amounts.
f) Notwithstanding any other provision of this Agreement, the Parties agree
and recognise that any and all payments made pursuant to this Section
1.2.6.1 are subject, notably, to the review by the Purchaser and
Purchaser's Accountants of the Certificate, the computations of the amounts
stated therein and of any relevant data, information and/or documents. The
Parties agree that the Purchaser and Purchaser's Accountants shall have the
right to conduct such review during a period not to exceed sixty (60)
Business Days from the Closing Date. In the event that Purchaser notifies
Seller that it disputes any of the amounts set forth in the Certificate,
the Seller and the Purchaser shall attempt to reconcile their differences
and, for such purpose, each of, on the one hand, the Seller and the
Seller's Accountants and, on the other hand, the Purchaser and the
Purchaser's Accountants shall have access to each other's working papers
with respect to the
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disputed items and shall have the right to perform additional relevant
audits and the Seller shall have access to, subject to prior written
consent of the Purchaser, which consent shall not be unreasonably withheld,
and under circumstances reasonable in the Purchaser's judgment, the
personnel of the Companies, and the Purchaser shall have access to, subject
to prior written consent of the Seller and under circumstances reasonable
in the Seller's judgment, the personnel of the Seller's Group, in each case
to the extent related to the matters to which the disputed items relate.
Subject to the following provisions, any rectification of the amounts set
forth in the Certificate shall result in the computation of the payments
that should have been made in accordance with this Section if the amounts
used for such payments had been the rectified amounts and the Parties shall
and/or shall cause AIMDF, if applicable, to make appropriate payments to
the Purchaser, the Seller and/or AIMDF accordingly in order to have each
Party and/or AIMDF, if applicable, finally receive and pay exactly the
amounts that they should have received or paid if the rectified amounts had
been initially used. In case the Parties have not been able to agree on
such amounts within a thirty (30) Business Day period beginning on the date
a notice of dispute is provided by the Purchaser to the Seller, disputed
items will be referred by the Purchaser or the Seller to an independent
auditor (the "INDEPENDENT AUDITOR") to be agreed by the parties. In the
event the Parties cannot agree on an Independent Auditor within seven (7)
calendar days after the end of the thirty (30) Business Day period referred
to in the preceding sentence or if such Independent Auditor refuses to
accept or cannot perform its mission, the Independent Auditor shall be
appointed by the President of the Commercial Court of Paris acting on the
request of the most diligent Party. The Independent Auditor will be
exclusively instructed to settle the disputed items by applying French GAAP
as consistently applied by the Seller in order to definitively settle the
amounts that should have been set forth on the Certificate and to determine
the appropriate computations of the sums owed by any Party in accordance
with this Section pursuant to Article 1592 of the French Civil Code. The
Independent Auditor shall, as expeditiously as possible after its
appointment, issue a report in which it shall present its determination of
the disputed items. Such determination by the Independent Auditor shall,
save only for manifest error (erreur manifeste), be final, binding and
conclusive on the Parties. It shall not be subject to appeal or any other
form of recourse. The fees and costs of the Independent Auditor shall be
shared equally by the Purchaser on the one hand and the Seller on the other
hand.
g) The Parties agree that notwithstanding any other provision contained
herein, the Seller shall pay the Financial Indebtedness Amount on the
Closing Date such that the Companies shall have no further obligations in
respect of such amount and shall obtain that on the Closing Date all Liens,
if any, in respect of such Financial Indebtedness shall have been
discharged in full with no further obligations of the Companies in this
respect (and the Purchaser shall have been furnished with reasonable
evidence of such full discharge) or (ii) such Financial Indebtedness Amount
may be set-off by the Purchaser against the corresponding portion of the
Initial Consideration mentioned in Section 1.2.6.1.
h) On the Closing Date, the Seller shall have paid to AIMDF the amount of the
advance of sixty million French Francs (FRF 60,000,000) by irrevocable bank
wire transfer/ bank check in accordance with the Transition Services
Agreement as referred in EXHIBIT XIII.
1.2.6.2 The above payments shall be made at the above-mentioned dates.
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1.2.6.3 The Seller undertakes not to assign or transfer or charge or pledge in
part or in whole its claims to the Shares Purchase Price (including but not
limited to the Deferred Consideration), without the Purchaser's prior written
consent.
1.2.6.5 Neither the Initial Consideration nor the Deferred Consideration of the
Shares Purchase Price shall bear any interest.
1.2.7 - Oxford Automotive France
Oxford Automotive France hereby agrees to be liable, jointly and severally, with
the Purchaser to pay to the Seller the Deferred Consideration in accordance with
the terms and conditions of this Agreement.
1.3 ACTIONS AT AND IN CONNECTION WITH SIGNING AND CLOSING
1.3.1 ACTIONS TO TAKE PLACE ON THE DATE HEREOF BY THE PARTIES; EXHIBIT III;
[DELETED]
1.3.2 CLOSING
Provided that the conditions to the respective obligations of the parties set
forth in Article II hereof have been satisfied or waived and provided further
that the Parties shall have been able to mutually agree on the determination of
the Financial Indebtedness of the Companies in accordance with Section 1.2.6.1,
the consummation of the sale and purchase of the Shares (the "Closing") shall be
held at the offices of Salans ▇▇▇▇▇▇▇▇▇ & Heilbronn, ▇ ▇▇▇ ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, or such other location as shall be mutually agreed by the
parties, at 9 a.m. (Paris time) on August 2nd, 2000 (such date and time being
referred to herein as the "Closing Date"). All actions provided for in this
Section 1.3 to occur at Closing shall be mutually conditioned on the concurrence
of all of the other such actions provided for in this Section 1.3 and in
Sections 2.1 and 2.2 at Closing.
1.3.3 ACTIONS TO TAKE PLACE AT CLOSING
At the Closing, the Seller shall deliver or cause to be delivered to the
Purchaser (i) duly executed share transfer orders (ordres de mouvements) for all
of the Shares, sufficient to convey to the Purchaser good and marketable title
to the Shares; and (ii) the certificates and other documents required to be
delivered pursuant to Section 2.1 and listed in EXHIBIT IV. At the Closing, the
Purchaser shall deliver or caused to be delivered to the Seller the certificates
and the documents required to delivered pursuant to Section 2.2 and listed in
EXHIBIT V.
1.4 RIGHTS IN RESPECT OF SHARES.
As from the Closing, neither the Seller nor any members of the Seller's Group
(other than the Companies) shall have any rights in respect of the Shares
(including without limitation any right to receive dividends from the Companies
on or after Closing).
1.5 SELLER'S GROUP / COOPERATION.
The Seller shall procure (se porte fort) from the Companies and from the other
entities of the Seller's Group consistent with the Laws applicable to such
Companies and entities full
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cooperation in order to give effect to this Agreement, including without
limitation the taking of any action, and the execution and delivery of any
agreement or other document reasonably requested by the Purchaser. In this
connection, the Seller undertakes in particular, and without limiting the
Purchaser's right to seek damages or other recourse, to reimburse the Purchaser
on its first demand without delay any and all costs incurred by the Purchaser
(including without limitation any and all professional fees and expenses) in
connection with the negotiation, preparation, execution and carrying into effect
of this Agreement in the event that the Closing does not occur because the
Seller is not able to or does not transfer one hundred percent (100%) of the
Shares to the Purchaser at Closing.
1.6 Purchaser undertakes to ensure that the Companies comply with their
obligations under the financing agreements listed in EXHIBIT VI.1 hereto; if,
for any reason, the Seller was required by final judgment, or otherwise if
expressly authorized in writing by the Purchaser (which consent shall not be
unreasonably withheld), to make any payment under the guarantees issued by it in
connection with any one of these agreements and also listed in EXHIBIT VI.2
hereto, Purchaser shall forthwith reimburse the Seller any such payments as well
as any costs or expenses reasonably incurred by it in connection therewith.
ARTICLE II
CONDITIONS TO CLOSING
2.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER.
The obligations of the Purchaser to consummate the transactions
contemplated by this Agreement are subject to the satisfaction at or prior
to Closing of each of the following conditions, any one or more of which
may be waived by the Purchaser in its sole discretion:
(i) all representations and warranties made by the Seller in this
Agreement shall be true and correct in all respects on and as of
the date hereof and the Closing Date as though restated on and as
of such date (except in the case of any representation or warranty
that by its terms is made as of a date specified therein, which
shall be accurate at such date), and the Seller shall provide a
certificate to the Purchaser at Closing in the form of EXHIBIT VII
confirming that fact;
(ii) the Seller shall have performed and complied with all agreements
and covenants required by this Agreement to be performed or
complied with by the Seller prior to or at Closing and the Seller
shall provide a certificate to the Purchaser at closing in the
form of EXHIBIT VIII confirming such fact and the Seller's
compliance with its agreements set forth in Sections 3.2 and 3.6;
(iii) all Consents required for the consummation of the transactions
contemplated by this Agreement listed in Schedule 4.3 shall have
been obtained or satisfied in the judgment of the Purchaser on
reasonably satisfactory terms and all waiting periods specified
under applicable Laws, and all extensions thereof, the passing of
which is necessary for such consummation, shall have passed (and
the Purchaser shall have been furnished with reasonable evidence
of the obtaining or satisfaction of all such Consents and the
timely making of all required filings and consultations);
(iv) the Persons listed on EXHIBIT IX shall have tendered their
resignations from their respective offices;
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(v) the Seller shall have made available to the Purchaser for its
review at least ten (10) full Business Days prior to the Closing
Date and at Closing the share registers and other statutory books
of the Companies duly maintained to such date, and shall have
delivered to the Purchaser in reasonably satisfactory form
evidence of compliance by the Seller with all preemptive or
similar rights contained in the Organizational Documents of the
Companies or in any agreements among any of the Companies'
shareholders;
(vi) no preliminary or permanent injunction or other order issued by
any court or governmental or regulatory authority, nor any
statute, rule, regulation, decree or executive order promulgated
or enacted by any government or governmental or regulatory
authority, which declares this Agreement invalid in any respect or
prevents the consummation of the transactions contemplated hereby,
or which materially adversely affects the assets, properties,
operations, prospects, net income or financial condition of the
Companies shall be in effect; and no action or proceeding before
any court or governmental or regulatory authority, shall have been
instituted or threatened by any government or governmental or
regulatory authority, or by any other Person (other than the
Purchaser or any of its Affiliates) which seeks to prevent or
delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of
this Agreement (other than a frivolous or vexatious application);
(vii) during the period from January 1, 2000, to the Closing Date, there
shall not have been any material adverse change in the assets,
properties, business, operations, prospects or financial condition
of any of the Companies;
(viii) the results of the Purchaser's due diligence legal, financial,
business and environmental review of the Companies shall be
satisfactory to the Purchaser in its sole discretion;
(ix) the Purchaser shall have completed all visits to the customers of
the Companies to complete its business due diligence and shall
have received from such customers such assurances in respect of
customer relations (in particular as to the continuity of customer
relationships and business with the Companies after the Closing
Date) as the Purchaser deems necessary or desirable;
(x) The following persons shall have agreed to remain employed by the
Companies: ▇. ▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇, ▇.
▇▇▇▇▇▇▇▇, P. Foucon, ▇.▇. ▇▇▇▇▇▇, J. Munte, ▇. ▇▇▇▇▇▇▇, ▇.▇
▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇, ▇. ▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇;
(xi) [Deleted];
(xii) The Seller shall have, and shall have caused its relevant
Affiliates, to fully release and discharge the Companies from any
and all obligations or other liabilities regarding all Financial
Indebtedness of the Companies towards them, without charge, cost
or other financial contribution of the Companies, it being
specified however that, regarding any indebtedness of the
Companies under any shareholder current account, the Seller shall
have transferred free from any Liens, and shall have caused its
relevant Affiliates to transfer free from any Liens, all of their
related rights to the Purchaser; the Seller shall provide to the
Purchaser a certificate addressed to the attention of the
Purchaser and the Companies in the form of EXHIBIT X confirming
that fact as well as reasonable evidence of the foregoing;
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(xiii) The rights, obligations and other liabilities of AIMDF under the
commercial lease agreement dated November 5, 1997 regarding the
Poissy site and/or in connection with such site shall have been
fully transferred to the Seller, at no cost to and with no further
obligations or other liabilities by any of the Companies in
connection therewith and related security deposit and interests
thereon shall have been repaid to AIMDF in full; the Purchaser
shall have been furnished with reasonable evidence of the
foregoing.
(xiv) The Seller shall have caused its Affiliate the "SCI du lieudit "le
village"" and AIMDF to execute and deliver to the Purchaser a
promise to purchase the site of ▇▇▇▇▇▇▇▇▇ in the form of EXHIBIT
XI.1 hereto and shall have delivered to the Purchaser appropriate
evidence that AIMDF has duly exercised the option granted to it
pursuant to the above-mentioned credit-bail, which exercise is
binding on the lessors under this finance lease.
(xv) The Seller shall have executed and delivered to the Purchaser an
environmental indemnity and remediation agreement concerning the
sites of ▇▇▇▇▇▇▇▇▇ and ▇▇▇ D'Ajol in the form of EXHIBIT XII
hereto.
(xvi) The Purchaser shall have received written notice from the Seller
certifying that the prior completion of all obligations on the
part of the Seller to consult with or inform its "Comite
d'entreprise" or the "Comites d'entreprise" of the Companies) have
been fulfilled.
(xvii) The Seller and AIMDF shall have executed and delivered a
Transition Services Agreement in the form of EXHIBIT XIII hereto.
(xviii) The Seller shall have provided the Purchaser with an irrevocable
and unconditional valid written commitment of M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to
assign at no cost the share that he holds in AMB to the Purchaser
or any of its Affiliates.
(xix) ASA, AIS, AFSA shall have delivered to the Purchaser appropriate
evidence of the obtaining of all Consents required for the
consummation of the transactions contemplated by this Agreement in
respect of their obligations hereunder such as the corporate
resolutions authorizing the guarantees and commitments provided in
Sections III.C and III.D.
2.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER.
The obligations of the Seller to consummate the transactions contemplated
by this Agreement are subject to the satisfaction at or prior to the
Closing of each of the following conditions, any one or more of which may
be waived by the Seller in its sole discretion:
(i) the Purchaser shall have performed and complied with, all
agreements and commitments required by this Agreement to be
performed or complied with by it prior to or at Closing;
(ii) all Consents of any Person required for the consummation of the
transactions contemplated by this Agreement shall have been
obtained and all waiting periods specified under applicable Laws,
and all extensions thereof, the passing of which is necessary for
such consummation, shall have passed (and the Seller shall have
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been furnished with reasonable evidence of the obtaining of all
such Consents and the timely making of all required filings and
consultations);
(iii) the Purchaser shall have tendered to the Seller the Shares Closing
Payment;
(iv) no preliminary or permanent injunction or other order issued by
any court or other governmental or regulatory authority, nor any
statute, rule, regulation, decree or executive order promulgated
or enacted by any government or governmental or regulatory
authority, that declared this Agreement invalid or unenforceable
in any respect or which prevents the consummation of the
transactions contemplated hereby shall be in effect; and
(v) all certificates, instruments and other documents required to be
executed or delivered by or on behalf of the Purchaser under the
provisions of this Agreement, and all other actions and
proceedings required to be taken by or on behalf of the Purchaser
in furtherance of the transactions contemplated hereby, shall be
reasonably satisfactory in form and substance.
ARTICLE III
(A) COVENANTS OF THE SELLER
3.1 ORDINARY COURSE OF BUSINESS
(a) During the period from the date of this Agreement through Closing (or the
earlier termination of this Agreement pursuant to Section 7.3 hereof), the
Seller will ensure that the Companies will conduct their business solely
in the ordinary course consistent with past practices and, without
limiting the foregoing, without the prior written consent of the
Purchaser, the Seller will not, except as required or permitted pursuant
to the terms hereof, permit any of the Companies (taken individually or
collectively) to:
(i) make any material change in the conduct of their business or
operations or enter into any transaction other than in the
ordinary course of business consistent with past practices and
this Agreement;
(ii) make any change in their Organizational Documents or issue any
additional shares of capital stock or other interest in their
capital, grant any option, warrant or right to acquire any capital
stock or interest in their capital, or issue any security
convertible into or exchangeable for their capital stocks or
interests in their capital or make any change in their outstanding
shares of capital stock or other interests in their capital;
(iii) incur, assume or guarantee any indebtedness for borrowed money;
(iv) redeem or purchase any shares of their capital stock or declare,
set aside, make or pay (in cash or otherwise) any dividend or
other distribution in respect of their capital stock or any form
of profit participation or any special payment;
(v) make any change in their methods of accounting;
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(vi) acquire or form any corporation, partnership, association or other
business organization;
(vii) make any sale, assignment, transfer, abandonment or other
conveyance of any of its assets or any part thereof, except
transactions pursuant to existing contracts expressly referenced
in the Exhibits or Schedules hereto and dispositions of inventory
for fair or reasonable value in the ordinary course of business
consistent with past practices, or enter into any agreement
(whether verbal or written) with any customer providing for any
new rebate or discount or modifying any existing rebate or
discount, otherwise than as set forth in Schedule 4.17 hereof.
(viii) acquire or dispose of any items of real property other than (a)
the non material sale to ▇. ▇▇▇▇▇▇▇▇ and (b) the exercise of the
option under the credit-bail Batical as set forth in Schedule
4.6.(e) hereof; acquire or dispose of any items of equipment or
machinery having an individual value in excess of FF 200,000 or
make or commit to make any capital expenditure in excess of FF
200,000 other than those capital expenditures which are
specifically set forth in Schedule 4.6(e) (2);
(ix) make any loan, advance or capital contribution to or investment in
any Person, except loans or advances with respect to salaries,
goods or services pursuant to transactions in the ordinary course
of business consistent with past practices and on commercially
reasonable terms;
(x) make any material change in any sales procedures or policies or in
their practices for the collection of accounts receivable;
(xi) pay, lend or advance any amount to, or sell, transfer or lease any
properties or assets to, or incur any obligations in respect of,
any of the Companies, their Affiliates or their shareholders,
managers, employees or consultants or family members thereof,
except transactions pursuant to existing contracts expressly
referenced in the Exhibits and Schedules hereto and for amounts
and under conditions consistent with past practices, or enter into
any new agreement or arrangement with any of the aforementioned
Companies, Affiliates or Persons;
(xii) appoint or hire any additional managers, employees or consultants
other than temporary employees hired pursuant to contracts of
fixed duration (contrats a duree determinee) of not more than six
(6) months or in conditions consistent with past practices, or
increase remuneration or benefits of managers, employees or
consultants;
(xiii) take any action that would have the direct consequence of causing
any of the representations and warranties made by the Seller in
this Agreement not to remain true and correct;
(xiv) incur or grant liens on any property or enter into any Material
Contract (as this term is defined in Section 4.9 below);
(xv) enter into any new purchase orders individually in excess of FF
1,000,000 or in the aggregate in excess of FF 5,000,000;
(xvi) make any change in existing insurance policies or levels of
insurance average; or
(xvii) commit itself to do any of the foregoing.
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(b) During the period from the date of this Agreement through Closing (or the
earlier termination of this Agreement pursuant to Section 7.3 hereof), the
Seller will cause the Companies to keep the Purchaser regularly informed in
writing of (i) any discounting or write-offs of any notes or accounts receivable
or portions thereof, (ii) any issue or problem faced by the Companies in
connection with the collection of any receivables and (iii) any proposals to or
from customers for new purchase orders.
(c) During the period from the date of this Agreement through Closing (or the
earlier termination of this Agreement pursuant to Section 7.3 hereof), the
Seller shall make its best efforts to preserve the business and goodwill of the
Companies and in particular shall not authorize or permit any of the Companies
to transfer any employee of the Companies to the Seller or to any Affiliates or
business units thereof without the Purchaser's prior written approval. Moreover,
the Seller shall not authorize and/or permit any purchase orders or requests for
proposals to be directly or indirectly transferred or directed by the Companies
to the Seller or to any Affiliates or business units thereof without the
Purchaser's prior written approval.
3.2 SETTLING OF CERTAIN ACCOUNTS - RELATED PARTY CONTRACTS
The Seller acknowledges and represents to the Purchaser that other than pursuant
to the contracts listed in EXHIBIT XIV, as from Closing, the Companies will no
longer be a party to or be bound by, or have any continuing obligations or other
liability under, nor have the Companies incurred any management fee liability
since December 31, 1999 pursuant to, nor does the Seller or any of its
Affiliates have any outstanding obligations under, any contract with or in favor
of the Seller or any of its Affiliates other than the Companies (a "Related
Party Contract"), in particular in connection with the contracts listed in
Schedule 4.4(c) hereto.
The Seller shall obtain that any and all amounts owed to any of the Companies
pursuant to any such Related Party Contracts shall be repaid to such Companies
at the latest by Closing (including without limitation all positive balances of
the Companies pursuant to any cash pooling arrangement).
3.3 COOPERATION; ACCESS
The Seller shall cooperate, and shall cause its representatives and advisers and
the representatives and advisers of the Seller's Group to cooperate, with the
Purchaser and its representatives and advisers in order to enable the Purchaser
to complete its legal, financial, business and environmental due diligence
review of the Companies to its satisfaction. The Seller shall afford, and shall
cause the Companies to afford, to the Purchaser and its representatives and
legal, financial and environmental advisers access during normal business hours
throughout the period from the date hereof through the Closing Date (or the
earlier termination of this Agreement pursuant to Section 7.3 hereof) to the
Companies' properties, books, contracts, commitments and records and, during
such periods, shall furnish promptly to the Purchaser all other information
concerning the Companies' business, properties, management and personnel as the
Purchaser may reasonably request in order to complete its due diligence review
of the business, assets, liabilities and accounting and financial condition of
the Companies, provided that no investigation or receipt of information pursuant
to this Section 3.3 shall affect any representation or warranty of the Seller,
and provided further that the Purchaser shall, to the extent consistent with the
performance of a complete due diligence
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review of the Companies, exercise discretion in its inquiries of the Companies'
personnel and third parties.
Without limiting the foregoing, the Seller shall have provided the Purchaser
with unrestricted access to the management of the Companies in order to assess
their capabilities and to reach an understanding with them as to the future
direction and management of the Companies as part of an enlarged Group of the
Purchaser, including further development of business forecasts for fiscal years
2000-2004 acceptable to the Purchaser.
3.4 LIMITATIONS ON SOLICITATION
The Seller agrees that for a period of two (2) years from the Closing Date,
neither the Seller nor any member of the Seller's Group shall directly or
indirectly solicit or employ any management person and/or solicit any technical
person now employed by the Companies without the consent of the Purchaser.
3.5 EXCLUSIVITY
From date hereof through Closing (or termination of this Agreement pursuant of
Section 7.3 hereof if earlier), neither the Seller nor the Seller's Group, nor
the Companies, nor the Companies' officers or directors nor anyone acting on
behalf of the Seller, of the Seller's Group or of such Persons shall, directly
or indirectly, encourage, continue, solicit, engage in discussions or
negotiations, or enter into any agreement, with any Person (other than the
Purchaser or its representatives), or provide any information to any potential
purchaser (other than the Purchaser or its representatives), concerning any
purchase or sale of shares, merger, consolidation, liquidation, sale of
substantially all of the assets or similar transaction involving the Companies
or their assets, or encourage any third party to initiate unsolicited actions to
accomplish any of the foregoing. The Seller shall notify the Purchaser
immediately in writing of the details of any indications of interest from any
Persons with respect to the foregoing of which the Seller or the Seller's Group
or the Companies become aware.
3.6 SHAREHOLDERS MEETING
The Seller shall cause a special meeting of the shareholders of the French
Companies to be validly called for the Closing Date, the agenda of which shall
include the matters listed on EXHIBIT XV hereto.
3.7 FURTHER ACTIONS
Subject to the terms and conditions herein provided, the Seller shall use its
best efforts, to take, or cause to be taken, all such further actions and to do,
or cause to be done, all such additional things necessary, proper or advisable
consistent with all applicable Laws to consummate and make effective the
transactions contemplated by this Agreement, including obtaining any Consents to
consummate the transactions contemplated by this Agreement. In particular, the
Seller shall keep the Purchaser regularly informed of its actions in connection
with the satisfaction of the conditions set forth in Section 2.1. The Seller
shall have delivered, at the latest by the Closing, to the Purchaser all
certificates, instruments and other documents listed in EXHIBIT XVI, and all
other actions and proceedings required to be taken by or on behalf of the Seller
in furtherance of the transactions contemplated hereby, shall be reasonably
satisfactory in form and substance;
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3.8 UNDERTAKINGS NOT TO COMPETE
In consideration of the purchase of the Shares, the Seller undertakes with the
Purchaser that it will not, and that it will procure that the Seller's Group
will not:
(a) for a period of three (3) years from the Closing Date within the
territory described on EXHIBIT XVII hereto carry on or be engaged in any
Restricted Business;
(b) at any time after Closing disclose or use for any purpose any information
concerning the Companies or their business affairs, except:
(i) to the extent required by Law, or necessary in order to defend or
pursue litigate against the Purchaser under this Agreement;
(ii) to its professional advisers under circumstances of
confidentiality, or
(iii) to the extent that such information is at the date hereof or
hereafter becomes public knowledge otherwise than through improper
disclosure by any Person.
However, as an exception to this Section 3.8 only, the Parties agree that the
provisions of this Section 3.8 shall not apply to a purchaser acquiring control
of the Seller's Group provided that such purchaser does not use the name "Aries"
in connection with any Restricted Business.
3.9 COOPERATION REGARDING MATERIAL CONTRACTS
The Seller shall ensure that the Companies shall promptly notify the counter
parties under the contracts referred to in Section 4.3(f) of the transactions
contemplated by this Agreement and obtain any required Consents to such
transactions; in connection therewith, the Seller shall introduce the Purchaser
to the Companies' main clients and shall use its best efforts to support the
Purchaser as the Seller's successor in respect of such clients.
3.10. MANAGEMENT INFORMATION SYSTEM
The Seller shall not permit any of the Companies to acquire or implement or
incur any costs in connection with any new management information system (i)
which would not be operationally independent of any and all management
information system of the Seller's Group as from the Closing and (ii) without
the prior written approval of the Purchaser.
3.11. STATUTORY AUDITORS
The Seller shall have used its best efforts to obtain that the principal and
substitute statutory auditors (commissaires aux comptes) of the French Companies
tender their written resignations as statutory auditors of the Companies
effective as of the Closing Date.
3.12. SELLER'S OTHER UNDERTAKING
The Seller hereby undertakes, for so long as it and/or AIS shall have any
obligation in connection with this Agreement and/or any related covenant,
agreement or undertaking, that it shall not and shall cause its subsidiaries not
to make any extraordinary distributions with respect to its or their capital
stock or a substantial part of its assets and that it shall not, and shall cause
its subsidiaries not to, liquidate or dissolve or otherwise transfer, encumber
or affect the shares of AIS other than for fair value or permit the transfer or
sale of a substantial
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part of the Seller's and/or AIS's assets other than for fair value or commit to
do any of the foregoing without first (i) having notified the Purchaser thereof
prior to the occurrence of such event and (ii) having provided to Purchaser with
such alternate guaranty as Purchaser may reasonably require.
(B) COVENANTS OF THE PURCHASER
3.13. MANAGING AND OPERATING POLICIES
The Parties agree that the Purchaser shall, when not unreasonable, do its best
efforts to cause the business of the Companies to be conducted during the twelve
(12) months period after the Closing Date in accordance with the following
policies: the business of the Companies shall be conducted in the ordinary
course of business, in a manner consistent with past practice; the PALOMA cost
saving plan shall continue to be implemented; AMS shall continue to comply in
all material respects with the conditions imposed by the Italian government in
connection with the grant obtained in the past by AMS from the Italian
government; no material changes in the accounting principles applicable to the
Companies shall be made except when required pursuant to French Laws and French
GAAP; no material changes to the commercial policies of the Companies shall be
made; any transactions with the Purchaser or any of its Affiliates shall be made
at fair market value and during the period of twelve months following the
Closing Date, the Purchaser shall procure that the Companies keep reasonable
details of any transaction with the Purchaser or any of its Affiliates which
shall all be made at fair market value.
3.14 NOLS
Without prejudice to Article IV, the Parties agree that with respect to the tax
sharing agreement a copy of which is set forth in Schedule 4.7(i), for so long
as the French Companies are part of the Purchaser's Group, the Purchaser shall
cause the French Companies after the Closing not to claim reimbursement of
AIMDF's NOLs used by the Seller prior to December 31, 1999.
3.15 LIMITATIONS ON SOLICITATION
In the event of termination of this Agreement pursuant to Section 7.3 and in
such event only, the Purchaser agrees that for a period of two years from the
date of such termination neither the Purchaser nor any member of the Purchaser's
Group shall directly or indirectly solicit any management person and/or solicit
any technical person now employed by the Companies without the consent of the
Seller,provided that nothing in the foregoing shall prevent any industry wide
solicitation.
(C) COVENANTS OF ASA, AIS AND AFSA
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C - 1. GENERAL JOINT AND SEVERAL GUARANTEE AND UNDERTAKINGS OF ASA, AIS AND AFSA
3.16 JOINT AND SEVERAL GUARANTEE OF ASA, AIS AND AFSA
Subject to the provisions of Section C-2 with respect to ASA, AIS and AFSA
regarding the representations and warranties related to Sections 4.2(a) and
4.2(c), ASA, AIS and AFSA hereby jointly and severally guarantee to the
Purchaser as from the Closing Date the performance by the Seller of the latter's
covenants, agreements and/or obligations under and/or in connection with this
Agreement, and/or any related covenant, agreement or undertaking delivered by
the Seller relating thereto; it being specified however that in respect of AIS
exclusively, such guarantee of AIS pursuant to this Section 3.16 shall become
effective only as from the date on which the Deferred Consideration is paid by
the Purchaser to the Seller, in whole or in part, in accordance with Section
1.2.6.1 and/or is subject to final reduction to zero.
3.17 OTHER UNDERTAKINGS OF ASA, AIS AND AFSA
3.17.1 ASA hereby undertakes, for so long as it and/or the Seller, AIS and/or
AFSA shall have any obligation in connection with this Agreement and/or
any related covenant, agreement or undertaking, that it shall not and
shall cause its subsidiaries not to make any extraordinary distributions
with respect to its/or their capital stock or otherwise and/or and that
it shall not and shall cause its subsidiaries not to, liquidate or
dissolve or permit the Seller, AIS and/or AFSA to otherwise transfer,
encumber or affect the shares of the Seller, AIS and/or AFSA other than
for fair value or permit the transfer or sale of a substantial part of
its/their assets other than for fair value or commit to do any of the
foregoing without first (i) having notified the Purchaser thereof prior
to the occurrence of such event and (ii) having provided to Purchaser
with such alternate guaranty as Purchaser may reasonably require.
3.17.2 ASA, AIS and AFSA hereby each represents and warrants to the Purchaser
that their respective guarantee mentioned in Section 3.16 constitutes a
valid, binding and reasonable undertaking on its part and is in its best
interest and that it has obtained all necessary Consents for the
consummation of the transactions contemplated by this Agreement and in
particular the corporate authorizations in respect of the guarantee and
commitments provided in Section C.1.
3.17.3 ASA, AIS and AFSA jointly and severally undertake to indemnify until the
sixth month following the expiration of the applicable statute of
limitation the Purchaser from and against and agrees to hold the
Purchaser harmless from any and all action, judgment, damage, loss,
liability and expense incurred by the Companies and/or the Purchaser as a
result of any breach or incorrectness of any representation and warranty
of ASA, AIS and/or AFSA pursuant to this Article III(C). This indemnity
shall not be subject to any limitations with respect to amounts provided
in Article VI with respect to indemnification claims by Purchaser.
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C - 2. SPECIFIC JOINT AND SEVERAL GUARANTEE AND UNDERTAKINGS OF ASA AND AFSA
3.18 SPECIFIC JOINT AND SEVERAL GUARANTEE OF ASA AND AFSA
Without prejudice to any other provision contained in this Agreement, ASA and
AFSA hereby jointly and severally guarantee to the Purchaser, as from the
Closing Date until the sixth month following the expiration of the applicable
statute of limitation, the accuracy of the representations and warranties
contained in Sections 4.2(a) and 4.2(c), and shall consequently indemnify the
Purchaser from and against and agrees to hold the Purchaser harmless from any
and all action, judgment, damage, loss, liability and expense incurred by the
Companies and/or the Purchaser as a result of any inaccuracy, breach, or
incorrectness of any such representations and warranties without limitations as
to amounts; it being agreed however that such guarantee of ASA and AFSA pursuant
to this Section 3.18, and the guarantee by AIS pursuant to Section 3.16 but only
in respect of Sections 4.2(a) and (c), shall be limited to a period of five (5)
years as from the Closing Date if and to the sole extent (i) the Seller shall
have delivered to the Purchaser, within one hundred twenty (120) days of the
Closing Date, a guarantee and undertakings in the form attached in EXHIBIT XVIII
issued and taken by each of Aries Expansion SA ("AE") and COMIREG SA ("COMIREG")
in favor of the Purchaser together with originals of the corporate
authorizations in respect of the guarantee and commitments provided in Section
C.2 and (ii) no material adverse change shall have occurred in the financial
condition of AE or COMIREG during that one hundred twenty (120) day period and
such companies shall have continued to own 100% of the capital stock of ASA.
3.19 OTHER UNDERTAKINGS OF ASA AND AFSA
3.19.1 This Section C.2 shall not affect or otherwise limit the undertakings of
ASA pursuant to Section 3.17 above.
3.19.2 ASA and AFSA hereby each represents and warrants to the Purchaser (i)
that the guarantee mentioned in Section 3.18. constitutes a valid,
binding and reasonable undertaking on its part and is in its best
interest, (ii) that it has obtained all necessary Consents for the
consummation of the transactions contemplated by this Agreement and in
particular the corporate authorizations in respect of the guarantee and
commitments provided in Section C.2 (iii) that AE has full and, except
for the pledge over 50,375 shares in favor of Credit du Nord,
unencumbered ownership over 96,814 shares of ASA, (iii) that COMIREG has
full and, except for the pledge over 29,091 shares in favor of Credit
Lyonnais, unencumbered ownership over 228,183 shares of ASA and (iv) that
the shares held by AE and COMIREG as aforementioned represent all of the
share capital of ASA.
3.19.3 ASA and AFSA jointly and severally undertake to indemnify until the sixth
month following the expiration of the applicable statute of limitations
the Purchaser from and against and agrees to hold the Purchaser harmless
from any and all action, judgment, damage, loss, liability and expense
incurred by the Companies and/or the Purchaser as a result of any breach
or incorrectness of any representation and warranty of ASA and/or
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AFSA pursuant to this Article III (C). This indemnity shall not be
subject to any limitations with respect to amounts provided in Article VI
with respect to indemnification claims by Purchaser.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES GIVEN BY THE SELLER
The Seller hereby makes the following representations and warranties with
respect to the Companies. The Seller hereby acknowledges that the Purchaser has
agreed to enter into this Agreement on the basis of these representations and
warranties, and is relying on these representations and warranties regardless of
the participation of the Purchaser's auditors in reviewing financial statements
of the Companies and any other investigation which the Purchaser may have
directly or indirectly made. Each schedule pursuant to the following sections of
the Article IV relates solely to the section or the part of the section the
number of which it bears subject to express specific cross-references in such
schedule.
4.1 CORPORATE MATTERS
(a) Each Company has been duly organized in conformity with the laws of its
jurisdiction of incorporation. The Companies have obtained all permits,
licenses, authorizations and approvals (governmental or otherwise)
necessary to own and operate their assets and to carry out their business
as is now being conducted. The Companies have accurately and diligently
accomplished, on or prior to the applicable deadlines, all formalities
that are required to validly continue their existence.
(b) There has been no request for the annulment or the dissolution of any of
Company, nor any bankruptcy restructuring procedure ("redressement
judiciaire") or judicial liquidation, nor any equivalent procedure; none
of the Companies are insolvent ("etat de cessation de paiements"). To the
best knowledge of the Seller, there are no grounds upon which a third
party could require the dissolution or winding up of the affairs of any
Company.
(c) A complete, up-to-date, certified copy of the by-laws (or equivalent
Organizational Documents) of the Companies, as well as an original
excerpt ("Extrait K-bis") from the Registry of Commerce and Companies (or
equivalent certificate) for the Companies are attached hereto in Schedule
4.1(c)(i). No resolution has been approved that results or will result in
the amendment of the attached by-laws or the dissolution or winding up of
the affairs of any Company. Except as set forth in Schedule 4.1(c)(ii)
hereto, all of the corporate books and registries of the Companies have
been properly maintained in all material respects in accordance with
applicable law. The corporate books and registries of the Companies
accurately reflect, in all material respects in accordance with
applicable law, their activities since their incorporation. A copy of the
last board of directors minutes of each Company, as well as the minutes
of the last shareholders' meeting, are attached hereto as Schedule
4.1(c)(iii).
(d) Other than the Companies, the Companies do not have any subsidiaries and
do not directly or indirectly hold shares or other securities or
interests in any company, entity or other Person, whether French or
foreign. Neither of the Companies is part of any group
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or association with third parties nor of any organization to which it
could be obligated to contribute additional capital or the liabilities of
which it could be required to pay or guarantee. Except as set forth in
Schedule 4.1(d) hereto, none of the Companies acts as a member of the
board of directors of any other company. No contract exists whose stated
purpose is to give to a third party (i) influence over the control or the
management of the Companies or their respective business or (ii) a right
to claim a part of the profits of the Companies.
4.2 CAPITAL STRUCTURE
(a) The Shares represent 100% of the shares in AIMDF. Except as set forth in
Schedule 4.2(a) hereto, all of the shares in the Companies other than the
Shares are owned by AIMDF or one or more of the Companies (such shares,
together with the Shares, the "COMPANIES' SHARES"). The Companies shall
own at the latest on the Closing Date all of the shares in the Companies
other than the Shares. The Companies' Shares are fully paid-in. The
Companies have not issued shares or rights of any kind whatsoever, other
than the Companies' Shares, which may give rise, directly or upon
conversion, exchange, reimbursement or exercise, to an increase of its
capital or an issuance of securities which entitle their owners to a
share of the profits or to voting rights of the Companies.
(b) Except as set forth in Schedule 4.2(b) hereto, the Seller has full legal
right, power and authority to sell the Shares and have obtained all
requisite permits and consents for such sale.
(c) The Companies' Shares are fully negotiable and free from any option
rights, claims, privileges, liens, security interests, collateral,
encumbrances, charges or restrictions of any kind whatsoever. Immediately
following the sale of the Shares to the Purchaser, the Purchaser shall
acquire full ownership of the Shares and will own directly or indirectly
100% of the Companies' Shares, free from any option rights, claims,
privileges, liens, security interests, collateral, encumbrances, charges
or restrictions of any kind whatsoever.
4.3 EFFECT OF THE SALE
All Consents required for the consummation of the transactions contemplated by
this Agreement (in particular the Consents relating to the change of control
clauses and relating to approval of new shareholders) are listed in Schedule 4.3
hereto.
Except as set forth in Schedule 4.3 hereto, the sale of the Shares to the
Purchaser will not:
(a) conflict with or violate the by-laws or other Organizational Documents of
any Company or conflict with or violate any legal or regulatory
disposition, or any judgment or decision that has been notified to any
Company, whether judicial or regulatory; or
(b) result in the creation of any option rights, claims, privileges, liens,
security interests, collateral, encumbrances, charges or restrictions of
any kind whatsoever upon any material assets owned by the Companies; or
(c) give any person the right to revoke a guarantee, surety, comfort letter
or other similar document issued for the benefit of any Company; or
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(d) give any person the right to modify, cancel or revoke any material permit,
authorization or license necessary for the legal exercise of the
activities of the Companies' businesses or of any favorable tax regime or
of subsidy or other public assistance; or
(e) provide the basis for any Person pursuant to any contract to increase the
cost of raw materials, supplies or energy; or
(f) give any person the right to terminate a material contract or agreement to
which the Companies are a party, or any other material contract or
agreement which is necessary for the Companies' businesses or to modify
the effects of any such contracts or agreements, including without
limitation increasing any costs related thereto.
4.4 POTENTIAL CONFLICTS OF INTEREST
Except as set forth in Schedule 4.4 hereto, neither the Seller, nor the Seller's
Group, nor any of their Affiliates:
(a) holds, or has the option to acquire, directly or indirectly, a
participation in a company or business which conducts business with the
Companies as a supplier, purchaser, lessor, provider of services or in any
other manner; or
(b) holds, or has the option to acquire, directly or indirectly, in whole or
part, any assets or rights used by any Company for purposes of conducting
its activities or which are necessary for the conduct of the business of
any Company; or
(c) is a party to an agreement or other contractual arrangement concerning the
provision of goods or services to any Company; or
(d) receives any remuneration from persons who provide goods or services to
any Company, or from persons who purchase goods or services from any
Company; or
(e) has made, or intends to make or holds, a claim or has granted to a third
party a right, against any Company whether by virtue of a contract or by
operation of law; or
(f) is owed any amounts by any Company by reason of a loan or for any reason.
4.5 FINANCIAL SITUATION
(a) The Seller has delivered to the Purchaser a true and complete copy of (i)
the audited financial statements (including the balance sheet the profit
and loss statements and annexes thereto) of each of the Companies (the
"1999 Audited Financial Statements") and the unaudited proforma
consolidated financial statements (based on the assumption that all
Companies were at that date fully owned by AIMDF) (constituted by the
balance sheet and the profit and loss statements) of the Companies, each
as of and for the year ended on December 31, 1999 (hereinafter the "1999
Unaudited Consolidated Financial Statements" and together with the 1999
Audited Financial Statements, the "1999 Financial Statements"), and (ii)
the unaudited financial statements (constituted by the balance sheet, and
profit and loss statements) of each of the Companies, except for CAE (it
being specified however that the Seller hereby represents and warrants
that the results of CAE for the period as from January 1, 2000, until June
30, 2000, will be materially consistent with past results), each as of and
for the period ended on June 30, 2000
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(hereinafter together the "June 30, 2000 Financial Statements", and
collectively with the 1999 Financial Statements, the "Financial
Statements"), which are attached hereto as Schedule 4.5 (a).
(b) The Financial Statements have been prepared according to French GAAP (for
the French Companies), Italian GAAP (for the Italian Company), Turkish
GAAP (for the Turkish Company), International Accounting Standards (for
the Brazilian Company and for the Argentine Company) consistently applied.
The consolidated financial statements contained in the Financial
Statements have been prepared according to French GAAP consistently
applied. The 1999 Financial Statements accurately present the financial
condition of the Companies at the date thereof and the results of the
operations of the Companies for the financial period then ended; and are
complete, reflecting correctly the books of accounts and records of the
Companies. The June 30, 2000 Financial Statements fairly present in all
material respects the financial situation and/or results of operations of
the Companies at the date thereof.
(c) Except as set forth in the Financial Statements, none of the Companies has
incurred any contingent liabilities other than, in respect of the period
from June 30th, 2000 through the Closing Date, normal trade payables and
operating accruals reflected in the books and records of the Companies and
which shall be set forth on the Relevant Balance Sheet as of the Balance
Sheet Date as provided in Section 1.2.2.
(d) Schedule 4.5 (d) sets forth the amounts of the Liened Asset Receivables
Amount, the Financial Indebtedness Amount, the Current Account Amount, the
Current Account Partial Repayment Amount and the Adjusted Current Account
Amount as of the day preceding the date of signature hereof.
4.6 CURRENT OPERATIONS
Each of the Companies has since January 1, 2000 been managed in the ordinary
course of business and "en bon pere de famille" and none of the Companies has
made any material change in the conduct of its business or operations, nor
entered into any transaction other than in the ordinary course of business
consistent with past practices. Except as set forth in Schedule 4.6 hereto,
since January 1, 2000:
(a) None of the Companies has been involved in any transaction of any
kind which had, has or will have a material adverse effect on the
financial condition, assets, prospects or operations of the
Companies and no event or modification has taken place which had,
has, or will have such an effect;
(b) None of the Companies has made any change in its Organizational
Documents or has issued any additional shares of capital stock or
other interest in its capital, has granted any option, warrant or
right to acquire any capital stock or interest in its capital, or
has issued any security convertible into or exchangeable for its
capital stocks or interests in its capital or has made any change in
its outstanding shares of capital stock or other interests in its
capital;
(c) No dividend or other distribution in respect of their capital stock
or any form of profit participation or any special payment has been
declared, set aside, made or paid (in cash or otherwise) by the
Companies, no amount has been improperly
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paid out by any Company, and no shares of the Companies have been
repurchased or redeemed by the Companies; without limiting the
foregoing, no payment of the type described in Section 3.1(a)(xi)
has been made other than as set forth in Schedule 4.6(c);
(d) None of the Companies has contracted a commitment or incurred an
obligation other than in the ordinary course of its business, in
conformity with its previous practice and in amounts comparable with
those commitments contracted in the past; none of the Companies has
incurred, assumed or guaranteed any indebtedness for borrowed money,
which is not included in the Financial Indebtedness and disclosed as
provided in the Agreement;
(e) None of the Companies has acquired or disposed of any items of real
property, nor made any sale, assignment, transfer, abandonment or
other conveyance of any of its material assets or any part thereof,
except transactions pursuant to existing contracts expressly
referenced in the Exhibits or Schedules hereto and dispositions of
inventory for fair or reasonable value in the ordinary course of
business consistent with past practices, nor (except for contested
items or for other reasonable commercial reasons) relinquished any
debts or other rights due to it without receiving full compensation
therefor, nor repaid any loan prior to its repayment date, nor made
or committed to make any capital expenditure in excess of FF 200,000
other than those capital expenditures which are specifically set
forth in Schedule 4.6 (e) (2);
(f) None of the Companies has made any change in its methods of
accounting, nor made any material change in any sales procedures or
policies or in its practices for the collection of accounts
receivables, nor acquired or formed any corporation, partnership,
association or other business organization;
(g) None of the Companies has made any non-operational payments or any
loan, advance or capital contribution to or investment in any
Person, except loans or advances with respect to salaries, goods or
services pursuant to transactions in the ordinary course of business
consistent with past practices and on commercially reasonable terms;
(h) None of the Companies has paid, lent or advanced any amount to, or
sold, transferred or leased any properties or assets to, or incurred
any obligations in respect of, any of the Companies, their
Affiliates or their shareholders, managers, employees or consultants
or family members thereof, except transactions pursuant to existing
contracts expressly referenced in the Exhibits and Schedules hereto
and for amounts and under conditions consistent with past practices,
or enter into any new agreement or arrangement with any of the
aforementioned Companies, Affiliates or Persons;
(i) None of the Companies has guaranteed, paid, lent or advanced any
amount to, or sold, transferred or leased any properties or amounts
to, or incurred any obligations in respect of, any of the Seller's
Group other than the Companies;
(j) None of the Companies has raised the remuneration or modified the
terms of the management, employment or consultancy contracts to
which it is a party, nor the benefits enjoyed by its managers,
employees and consultants. None of the Companies has (except in the
ordinary course of business or as required by applicable laws,
regulations and collective bargaining agreements) expressly
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undertaken to increase the remuneration or bonuses or other
advantages of any of their employees, managers or consultants. None
of the Companies has appointed or hired any additional managers,
employees or consultants other than temporary employees hired
pursuant to contracts of fixed duration (contrats a duree
determinee) of not more than six (6) months or in conditions
consistent with past practices;
(k) None of the Companies has incurred or granted any option rights,
mortgages or other security interests or encumbered the property of
the Companies in any way or entered into any Material Contract (as
this term is defined in Section 4.9 below), nor into any agreement
(whether verbal or written) with any customer providing for any new
rebates or discount or modifying any existing rebates or discounts,
otherwise than as set forth in Schedule 4.17 hereof;
(l) None of the Companies has committed itself to do any of the
foregoing.
4.7 TAX, SOCIAL SECURITY AND CUSTOMS
All tax returns, reports, declarations of estimated tax and forms required to be
filed under applicable Laws on or before the Closing Date by or on behalf of the
Companies with respect to any income, properties or operations of the Companies
with any taxing, welfare, social security or other social authority have been
filed through the date hereof, or will be filed on or before the Closing Date in
accordance with all applicable laws, and all taxes (including transfer, property
sales, withholding, income, value-added or customs, social security fees,
governmental charges, welfare charges, or assessments, or social, welfare and
other contributions, governmental insurance fees, governmental pension plan
contributions, duties, charges, levies, contributions, penalties, interest and
other charges) (collectively "TAXES" and each individually a "TAX") due under
applicable law, whether or not reported or reflected on such returns, reports,
declarations, and forms have been paid or reserved for in the Financial
Statements. All Taxes that the Companies were required by law to withhold or
collect have been duly withheld or collected, and, to the extent required, have
been paid to the proper authority. The Companies have no liability for any tax
obligation of any entity (including, any affiliated group of corporations or
other entities that included the Companies during any prior period) other than
themselves. Without limiting the foregoing, none of the Companies has ever
entered into any tax sharing agreement with any member of the Seller's Group
other than the tax sharing agreement a copy of which is set forth in Schedule
4.7(i). The Companies have not and will not have in the future any liability to
make any contribution under or in connection with any tax sharing agreement
entered into with any member of the Seller's Group for any period prior to the
Closing Date. All documents requiring an ad valorem stamp have been duly
stamped, and no document of the Companies that is the subject of any such ad
valorem stamp duty is or will be unstamped or insufficiently stamped, nor has
any relief from any such duty been improperly obtained, nor has any event
occurred as a result of which any such duty from which the Companies have
obtained relief has become payable. Except as set forth in Schedule 4.7(ii),
there is no action, suit, proceeding, investigation, audit, examination or claim
pending as of the date hereof against any of the Companies or, with respect to
any Tax, nor has any claim for additional Tax been asserted or, to the best
knowledge of the Seller, threatened by any such authority relating to the Taxes
of the Companies.
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4.8 COMPLIANCE WITH THE LAW; LITIGATION
(a) Except as otherwise disclosed in Schedule 4.12, the Companies have acted
in conformity with the laws, decrees, regulations and binding decisions of
competent authorities that are applicable to them or that relate to their
activities, except where such non-compliance or non-conformity has no
material adverse effect on the financial condition, assets and/or
operations of any of them.
(b) Except for those items described in Schedule 4.8(b)(1) hereto (to include,
in particular, name of the concerned Company, description of the case or
matter, name of the counter-party, name of the lawyers of the Company,
name of the lawyers of the other party, amounts, status (e.g. pending,
potential...)), none of the Companies is a party to any material
administrative, judicial or arbitration procedures. There are specific and
adequate reserves in the Financial Statements in accordance with the
relevant general accounting principles and/or standards described in
Section 4.5(b) for liabilities which may arise as a result of any
procedures to which the Companies are a party. Except as set forth in
Schedule 4.8(b)(2), none of the Companies is the subject of any claim and
the Seller has no knowledge of any circumstance which makes it reasonably
foreseeable that such a claim will be made against one of them. With
respect to such listed claims in Schedule 4.8(b)(2), there are specific
reserves in the Financial Statements if required in accordance with the
relevant general accounting principles and/or standards described in
section 4.5(b). None of the Companies has received any notification of a
proceeding or administrative investigation.
4.9 CONTRACTS
(a) Schedule 4.9(a) hereto enumerates all of the contracts to which any
Company is a party:
(i) conferring rights or obligations as a distributor, commercial agent
or traveling sales representative (VRP) or toll manufacturer whether
exclusive or non-exclusive; or
(ii) requiring an annual payment of greater than FF 350,000, other than
those contracts enumerated under (i), (iii), (iv) or (v) under this
Section 4.9; or
(iii) requiring, if terminated immediately after the date hereof, the
payment of an indemnity, penalty or other sum exceeding FF 350,000,
or, in the case of employment contracts, requiring indemnities other
than indemnities required by law or applicable collective bargaining
agreements; or
(iv) licensing property or rights of any Company; or licensing property
or rights from third parties; or
(v) purchase or customer orders in an amount of greater than FF
3,000,000.
Such contracts shall be referred to herein as the "Material Contracts".
(b) None of such Material Contracts violates any mandatory law or regulation,
and the Companies have full rights to require their performance in
accordance to their respective terms. Except as set forth in Schedule
4.9(b), none of the Companies is in breach of the obligations contained in
these contracts and to the best of Seller's knowledge no other party to
these contracts is in breach of the obligations contained therein thus
giving a third party a right to terminate or to require payment of an
indemnity in excess of FF 100,000.
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No discussion is underway with the view to modifying or terminating any of
these contracts. None of the Material Contracts contain provisions which
would require the approval of the opposite party to a change in control of
the Companies.
(c) None of the Companies are subject to any contractual agreement not to
compete including without limitation with respect to products, processes,
customers or geographical location or other agreement restricting their
ability to conduct their business.
4.10 REAL PROPERTY AND FIXTURES
(a) Schedule 4.10(a) (i) sets forth a true and complete list of all real
properties which the Companies own, lease (including under "contrats de
credit bail", use or have agreed or are obligated to purchase or sell or
lease, which specifies in each case, if the concerned Company owns,
leases, uses or has agreed or is obligated to purchase or sell or lease,
such real property. The Companies have good and marketable title to all
real properties shown in such Schedule as owned by them and good and
transferable right to occupy and use all real estate shown in such
Schedule as leased by them, in each case under valid and enforceable
leases. Except as disclosed in Schedule 4.10 (a)(i), none of the real
properties owned or leased by the Companies is subject to any Lien.
Schedule 4.10(a)(ii) contains a true and complete copy of all leases
pursuant to which the Companies lease real property as of the date hereof
(including "contrats de credit bail") and any amendments thereof. The
Companies are not in breach of or default (and no event has occurred
which, with due notice of lapse of time or both, may constitute such a
breach of default) under any such lease, and no party to any such lease
has given the Companies written notice of or made a claim with respect to
any breach or default, the consequences of which, individually or in the
aggregate, might result in the termination of such lease. Except as set
forth on Schedule 4.10(a)(iii), no consent to the consummation of the
transactions contemplated by this Agreement is required from the lessor of
any such real property. Except as set forth in Schedule 4.10(a) (iv), the
real property and said fixtures used in their industrial and commercial
activity are not subject to any contract that permits a third party to
occupy the premises owned, leased or used by the Companies or that could
materially restrict or limit the ability of the Companies to operate their
activities as presently carried out.
(b) Except as stated in Schedule 4.10(b), all of the real property and
attached fixtures (immeubles par destination) used by the Companies are in
good working order and repair (reasonable wear and tear excepted) in
conformity in all material respects with the laws and regulations
applicable to them, in particular with respect to zoning, environment,
safety and labor law. The electrical, water and gas installations conform
in all material respects to existing legal requirements. All compliance
costs associated with the items set forth in such Schedule 4.10(b) are
specifically reflected in Schedule 4.6(e) (2).
(c) Except as otherwise disclosed in Schedule 4.12, none of the Companies have
been notified in writing by a competent authority of any decision that has
or will have the effect (i) of restricting or modifying the use of the
real property or installations used by the Companies or (ii) requiring
material new investments. No decision has been published by a competent
authority that has or will have the effect of (i) restricting or modifying
the use of the real property or installations used by the Companies or
(ii) requiring material new investments.
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4.11 TECHNICAL INSTALLATIONS AND EQUIPMENT
(a) Schedule 4.11(a) sets forth a true and complete list of all material
technical installations and equipments owned or leased by each of the
Companies as at July 1, 2000, by location together with all changes in
that list since that date. No technical installations and equipment is
owned by the Seller's Group other than the Companies which is currently
used by the Companies in order to conduct their business as currently
conducted. Subject to Schedule 4.10(b), the technical installations and
equipment held by the Companies are, reasonable wear and tear excepted, in
good order and repair, and conform in all respects to the regulations that
apply to them, notably in environmental and security matters.
(b) Except as set forth in Schedule 4.11(b), the Companies have not incurred
any liability with respect to safety, hygiene or public health matters
which is insufficiently provided for in the Financial Statements.
4.12 ENVIRONMENTAL MATTERS
Except as set forth in Schedule 4.12.1 and except as regards the sites of
▇▇▇▇▇▇▇▇▇ and ▇▇▇ d'Ajol mentioned in the environmental indemnity and
remediation agreement mentioned in Section 2.1.(xv),
(a) The Companies and their respective operations have obtained and maintained
in effect and currently hold all licenses, permits and other
authorizations required under all applicable laws, regulations and other
requirements of governmental or regulatory authorities relating to
pollution or to the protection of the environment and to health and
safety, including general provisions of the French civil code and others
("Environmental Laws") and have carried out all the formalities required
under all Environmental Laws. A list of the relevant authorizations and
declarations made within the framework of the law of July 19, 1976 is
attached hereto as Schedule 4.12.2(a). The Companies have been operated in
and are currently in compliance with all Environmental Laws and with all
such licenses, permits and authorizations. None of the Companies has ever
been subject to any inquiry, order, claim, injunction, complaint, sanction
or penalty in connection with any Environmental Laws or any such license,
permit or authorization. None of the Companies has performed or suffered
any act which could give rise to, or has otherwise incurred or is subject
to, liability to any person (governmental or not) under any Environmental
Laws, nor have any of the Companies received notice of such liability or
any claim therefor or submitted notice to any governmental agency with
respect to any of their respective assets.
(b) There is no prohibition, injunction, restriction or limitation whatsoever,
whether administrative or judicial, with regard to any Environmental Law,
limiting the free disposal of the Companies' tangible personal or real
property. There is no fact or circumstance likely to constitute the basis
of such a prohibition, injunction, restriction or limitation.
(c) None of the property of the Companies has been used to treat or store any
waste or substance on it and, in particular, no underground storage tanks
have ever been located on any such property.
(d) None of the Companies has ever transported, or caused to be transported,
waste in a place or to a destination which might incur its liability or
that of the beneficiary, or which might
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result in clean-up or refurbishment expenses of the sites or which, more
generally, might result in damage to the environment or injury to persons.
(e) None of the Companies has exposed any person or assets to hazardous
materials, nor caused or allowed the emission, dispersion, discharge or
deposit of any solid, liquid or gaseous substance causing a nuisance or
pollution to the atmosphere, water, ground and subsoil, and to the fauna
and flora nor the production of odors, noise, vibrations, waves, radiation
or temperature variations.
(f) None of the Companies is the subject of any complaint or of any judicial
action or any judgment in the matter of damage to the environment
currently pending or threatened before French, European Community and
international courts, whether civil, administrative or criminal.
(g) There are no polychlorinated biphenyls ("PCB's") in or at any property
owned, leased, controlled or operated by the Companies.
(h) None of the real properties owned, leased, controlled or operated by the
Companies has never had any friable asbestos or asbestos containing
material in or on it.
(i) AIMDF has applied for due-qualification ISO 14001; all documents
pertaining to such applications, including all reports from ERM, have been
delivered to the Purchaser.
4.13 INVENTORY AND GOODS SOLD
(a) The inventories of the Companies reflected on the Financial Statements are
carried at not in excess of the lower of cost or net realizable value, and
do not include any inventory which is obsolete, surplus or not usable or
saleable in the lawful and ordinary course of business of the Companies as
heretofore conducted, in each case net of reserves provided therefor on
such Financial Statements. As used herein, "obsolete inventory" is
inventory which, at the balance sheet date, was not usable or saleable,
because of legal restrictions, failure to meet specifications, loss of
market, damage, physical deterioration or for any other cause; and
"surplus inventory" is inventory that, at the balance sheet date, exceeded
known or anticipated requirements.
(b) Except as set forth in Schedule 4.9(b), all products sold by the Companies
conform to specifications contractually imposed by clients. No event or
incident related to the products has occurred which may create a liability
for the Companies.
(c) Any warranties (other than warranties which apply by operation of law)
granted to the customers with respect to the products sold by the
Companies are set forth in Schedule 4.13(c). None of the Companies has
decided to recall or modify, and no customer has decided to recall or
modify, for any alleged material hazard or alleged defect in design,
manufacture or workmanship, any product which has been assembled or
manufactured by any of the Companies before the present date and no
customer has announced any recall or modification of any products
involving any products manufactured or assembled by any of the Companies.
There are adequate reserves in the Financial Statements for liabilities
which may arise pursuant to the warranties granted by the Companies to
their customers. Neither the Seller nor the Companies has any knowledge of
a warranty claim, default or recall by a customer or any basis therefor.
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4.14 INTANGIBLE PROPERTY RIGHTS
(a) Business ("Fonds de Commerce"). The "fonds de commerce" operated by the
Companies are fully owned by them. It has been lawfully and validly
created, purchased or contributed and, except as set forth in Schedule
4.14(a) hereof, is free from any pledge, security, privilege or any other
similar third party rights of any kind (it being specified however that
the content of such Schedule 4.14(a) is provided hereunder solely for
information purposes which, inter alia, means that Seller shall indemnify
the Purchaser for any Damages incurred by the Companies and/or the
Purchaser arising from and/or in connection with the item set forth in
such Schedule 4.14(a) as if such item disclosed had not appeared in such
Schedule). None of the Companies has leased any business pursuant to a
"location gerance".
(b) Intellectual Property Rights. (i) All patents, patent applications,
trademarks, trademark applications and registered copyrights ("IP Rights")
which are owned by or licensed to each of the Companies are listed in
Schedule 4.14(b)(1). (ii) The IP Rights owned by each of the Companies are
valid in the countries where registered and have been duly registered with
the offices as identified in Schedule 4.14(b)(1) and have been properly
maintained and renewed in accordance with all provisions of applicable law
and regulations. (iii) Each of the Companies owns or has a valid license
(for the territory stated in the license) to use the IP Rights needed to
conduct its business as currently conducted. (iv) There are no claims or
demands which have been asserted in writing by any third party to any of
the Companies with respect to the IP Rights. (v) Except as described in
Schedule 4.14(b)(2), none of the Companies has any obligation to pay
royalties or other fees to third parties with respect to such intellectual
property rights.
4.15 OWNERSHIP AND SECURITY INTERESTS
Except for the Liens as set forth in Schedule 4.15 (a), all of the inventory and
assets of the Companies reflected in the Financial Statements are free from any
Liens, and the Companies have full ownership rights over them. Except as set
forth in Schedule 4.15 (b), all of the Liens set forth in Schedule 4.15(a) will
be fully discharged at the latest on the Closing Date.
The assets utilized by the Companies currently and/or upon the Closing Date to
operate the business of the Companies as currently conducted are either owned by
or leased to the Companies.
4.16 CUSTOMER RECEIVABLES; LOANS
(a) All accounts receivable payable to or for the benefit of the Companies
reflected on the Financial Statements have been collected or are current
and collectible in amounts not less than the aggregate amount thereof (net
of reserves established in accordance with the relevant general accounting
principles and/or standards described in Section 4.5(b) and with prior
practice and subject to debit memos from vehicle manufacturers with
respect to the Companies' products delivered to those vehicle
manufacturers) carried on the books of the Companies, and are not subject
to any counterclaims or set-offs. Anything in the foregoing
notwithstanding, in no event shall the above mentioned debit memos exceed
an average of 1.5 % of the face amounts of such accounts receivable.
(b) Schedule 4.16 (b) contains a complete list of the outstanding loans and
lines of credit granted to the Companies as well as the name and address
of all financial institutions with
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which the Companies have an account, indicating in each case the persons
having the authority to draw on these lines of credit or use the accounts.
The Companies have not been and are not in default under such loans or
lines of credit, nor have any events occurred which would, with the
passage of time, have constituted or constitute defaults under such loans
or lines of credit.
(c) Except as set forth in Schedule 4.16 (c), none of the Companies has
transferred by way of the Dailly procedure or has otherwise transferred or
factored its receivables.
4.17 SUPPLIERS AND CUSTOMERS
Schedule 4.17 lists for the financial year ending December 31, 1999 the ten (10)
main suppliers and ten (10) main customers of the Companies, excluding entities
directly or indirectly owned by the Seller or the Seller's Group. None of these
suppliers or customers have broken off or interrupted, or threatened in writing
to break off or interrupt, relations with the Companies, and none of these
customers have reduced or threatened to reduce their orders significantly.
Neither any member of the Seller's Group, nor any of the Companies has granted
or committed itself, whether orally or in writing, to grant any discounts or
rebates to any customers other than as described in Schedule 4.17 hereof.
4.18 MANAGERS AND KEY EMPLOYEES
Schedule 4.18 sets forth (i) the name and total remuneration (including in-kind
benefits) of the ten (10) most highly remunerated managers, employees and
representatives ("VRP") of each Company and (ii) all the agreements and labor
conventions with these persons. None of these persons has threatened in writing
to end his or her position or relationship with the one of the Companies, and
the Seller has no knowledge of any reason that could warrant the revocation of
these managers for misconduct or termination of these employees or
representatives for "faute grave" or "faute lourde".
4.19 EMPLOYEES
(a) Schedule 4.19(a) contains a true and complete list of all Collective
Bargaining Agreements (conventions collectives et accords d'entreprises ou
conventions d'usages) by which the members of the personnel of the
Companies are governed. No collective dismissals of the personnel have
been notified to any of the employees of the Companies. The personnel of
the Companies are not on strike and have not advised in writing that they
intend to strike.
(b) Except as set forth in Schedule 4.19(b), the employees and managers of the
Companies are not entitled to receive any indemnities (such as termination
indemnities, retirement indemnities or end of work indemnities) which
exceed the indemnities required by the laws, regulations and Collective
Bargaining Agreements ("convention collectives") which apply to the
Companies, and no employees are entitled to participate in the Companies'
profits or to participate in retirement or life insurance plans or funds
which are not required by the laws, regulations or Collective Bargaining
Agreements which apply to the Companies.
(c) Except as set forth in Schedule 4.19(c) and as required by applicable
laws, regulations and Collective Bargaining Agreements, the Companies have
not contracted any
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obligation nor are bound by any obligation towards members of their former
personnel or their heirs, in particular pursuant to a pension or
complementary retirement scheme.
4.20 SUBSIDIES AND GOVERNMENTAL ASSISTANCE
Schedule 4.20 hereto enumerates the governmental subsidies, be they national,
regional, departmental or other, as well as the leases and other contracts and
preferential conditions granted by a governmental authority be they national,
regional, departmental or other, to one of the Companies and from which the
Companies currently benefit or have benefited since their incorporation. The
Companies have satisfied all material conditions which have to be satisfied in
connection with the subsidies they received. In particular, the Companies will,
in no event, be required to reimburse for any reason whatsoever the subsidies
already received, which are non-reimbursable subsidies. Subsidies which are
reimbursable will not be accelerated for any reason whatsoever, and none of the
Companies will be required to pay any indemnity or penalty of any nature
whatsoever (including in the form of an increase in any applicable interest
rate) in connection with any reimbursable subsidy already directly or indirectly
received.
4.21 INSURANCE
Schedule 4.21 lists all policies of title, liability, fire, casualty, business
interruption, and other forms of insurance insuring the properties, assets and
operations of business of the Companies. All such policies are in full force and
effect, comply with all applicable requirements of law imposed on the Companies
in respect of insurance and will not in any way be affected by or terminated or
lapsed by reason of the consummation of the transactions contemplated by this
Agreement. None of the Companies is in material default under any provisions of
any such policy of insurance and has not received notice of cancellation of any
such insurance. There is no claim by the Companies pending under any of such
policies as to which coverage has been questioned, denied or disputed by the
underwriters of such policies. None of the Companies has received any written
notice from or on behalf of any insurance carrier issuing such policies, that
insurance rates will hereafter be substantially increased (except to the extent
that insurance rates may be increased for all similarly situated risk); that
there will hereafter be a cancellation, or an increase in a deductible (or an
increase in premiums in order to maintain an existing deductible) or non-renewal
of existing policies, or that alteration of any equipment or an improvement to
real estate occupied by or leased to or by the Companies, purchase of additional
equipment, or modification of any of the methods of doing business of the
Companies, will be required or suggested. The coverage which the policies insure
is normal and prudent in the industry relating to the specific activities
exercised by the Companies.
4.22 GUARANTEES AND OFF-BALANCE SHEET UNDERTAKINGS
Except as set forth in Schedule 4.22, the Companies are not bound by any third
party guarantees, "cautions", warranty certificates, performance bonds or
similar instruments or undertakings or other off-balance-sheet undertakings
("engagements hors bilan") (it being understood that the term guarantees does
not cover product warranties). The amounts indicated in the annexes to the
Financial Statements with respect to all off-balance sheet items (including
without limitation retirement indemnities (indemnites de depart a la retraite))
are accurate and complete. There are no other contingent claims or liabilities
of any kind or nature against the Companies which are required to be set forth
by the French GAAP in the Financial Statements.
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4.23 YEAR 2000 AND EURO COMPLIANCE
Except as set forth in Schedule 4.23, all hardware and software, whether owned
or leased or used by the Companies; (i) have performed the same functions
without date-related errors through the Year 2000 to date; and (ii) will perform
the same functions through the passage to Euro, as either such hardware or
software performed on the date hereof, without conversion-related errors.
4.24 BROKERS AND ADVISERS
(a) All negotiations pertaining to the sale of the Shares and the agreements
relating to such sale have been carried on in such a manner that no broker
or other person acting on behalf of the Seller or the Seller's Group shall
have a valid claim against any of the Companies or against Purchaser and
its shareholders for any broker's fee or finder's fee or similar
compensation.
(b) Without limiting the representations and warranties in paragraph 4.24(a)
above, the Seller has paid all costs incurred with respect to the
transaction contemplated by the Agreement for lawyers, investment bankers
and accountants.
4.25 AUTHORIZATION AND VALIDITY
The execution and delivery of this Agreement by the Seller and the performance
by the Seller of the transactions contemplated herein have been duly authorized
by all actions (including any corporate actions) on behalf of the Seller. This
Agreement has been duly executed and delivered by the Seller and, assuming the
due Authorisation, execution and delivery of this Agreement by the Purchaser,
constitutes a valid and binding obligation of the Seller, enforceable against it
in accordance with its terms. No consent of any third party (whether
governmental or otherwise) is required by the Seller to consummate the
transactions contemplated by this Agreement.
4.26 NO CONFLICT OR VIOLATION
Neither the execution of this Agreement nor the performance of the transactions
contemplated herein will violate or constitute a default under any material
contract to which the Seller or a member of the Seller's Group is a party or by
which their assets or property are bound or any law or any order, judgment or
rule of any governmental authority which is applicable to the Seller or the
Seller's Group or their assets or property.
4.27 ACCURACY OF INFORMATION
None of the information or documents provided to the Purchaser by the Seller in
connection with the Purchaser's due diligence review of the Companies contain
any untrue statement of material fact or omits to state any material fact
necessary in order to make any of such information and documents not misleading.
All information relating to the Companies which is known or would on reasonable
inquiry be known to the Seller or the Seller's Group and which may be material
to a purchaser for value of the shares of the Companies has been disclosed in
writing to the Purchaser and any such information arising on or before the
Closing Date will forthwith be disclosed in writing to the Purchaser. Without
limiting the foregoing, all information provided to the Purchaser by the Seller
and/or the Companies with respect to quotes to customers is true and accurate.
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4.28 TRANSFER OF REAL PROPERTIES UNDER THE REAL ESTATE FINANCE LEASE WITH
BATICAL
The Seller shall use its best efforts promptly to cause the real properties
contemplated by the credit-bail with Batical dated June 25, 1987, as amended, to
be fully transferred as soon as possible after the Closing Date, from the
lessors under such finance lease to AIMDF. The purchase price for such
properties shall be allocated between the Seller and AIMDF prorata according to
the property to be transferred to the Seller as contemplated in the promise to
purchase the site of ▇▇▇▇▇▇▇▇▇ mentioned in Section 2.1 (xiv) and the property
to be retained by AIMDF. The Seller will advance its prorata portion of the
purchase price to AIMDF to permit it to purchase the properties at no interest
or cost to AIMDF. Upon the purchase by the Seller of the property to be
transferred to it, the purchase price therefor shall be equal to the amount of
the advance previously made to AIMDF for the purchase of such property. All
liabilities and obligations of AIMDF in respect of such real property to be
transferred to the Seller shall be automatically transferred to the Seller in
the framework of the purchase by the Seller in connection with the promise to
purchase as attached in EXHIBIT XI.I.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Seller as follows:
5.1 ORGANIZATION
Purchaser is a societe par actions simplifiee in formation under the laws of
France. Purchaser will be registered at the Corporate and Commercial Register of
Versailles promptly following the date hereof, and has all requisite corporate
power and authority to enter into this Agreement and to perform its obligations
hereunder.
5.2 AUTHORISATION AND VALIDITY
The execution and delivery of this Agreement by the Purchaser and the
performance by Purchaser of the transactions contemplated herein have been duly
authorized by all corporate actions on behalf of the Purchaser. This Agreement
has been duly executed and delivered by Purchaser and, assuming the due
authorization, execution and delivery of this Agreement by the Seller,
constitutes a valid and binding obligation of the Purchaser, enforceable against
it in accordance with its terms. No consent of any third party (whether
governmental or otherwise) is required by the Purchaser to consummate the
transactions contemplated by this Agreement.
5.3 NO CONFLICT OR VIOLATION
Neither the execution of this Agreement nor the performance of the transactions
contemplated herein will (i) violate or conflict with the Organizational
Documents of the Purchaser or (ii) violate or constitute a default under any
material contract to which the Purchaser is a party or by which its assets or
property are bound or any law or any order, judgment or rule of any governmental
authority which is applicable to the Purchaser or its assets or property.
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5.4 BROKERS
All negotiations pertaining to the sale of the Shares and the agreements
relating to such sale have been carried on in such a manner that no broker or
other person acting on behalf of the Purchaser shall have a valid claim against
the Seller for any broker's fee or finder's fee or similar compensation.
5.5 INDEMNITY
The Purchaser undertakes to indemnify the Seller from and against and agrees to
hold the Seller harmless from any and all action, judgment, damage, loss,
liability and expense incurred by the Seller as a result of any breach or
incorrectness of any representation and warranty of the Purchaser pursuant to
this Article V up to a maximum amount of fifteen million French francs (FF
15,000,000); it being agreed that any claim for indemnification made by the
Seller against the Purchaser under this Article V and related payments shall be
subject to the application of the same limitations as those set forth in Section
6.3 (a) (i) and 6.3 (a) (ii) regarding indemnification by the Purchaser against
the Seller which shall apply mutatis mutandis.
ARTICLE VI
INDEMNIFICATION AGREEMENT; SET OFF
The Seller hereby undertakes to indemnify and hold harmless the
Purchaser as set forth in this Article VI. It is agreed between the Parties that
any amounts payable by the Seller pursuant to this Article VI shall constitute
first a reduction in the Shares Purchase Price.
6.1 INDEMNIFICATION
The Seller undertakes to indemnify the Purchaser in accordance with the terms
and conditions of the Article VI from and against and agrees to hold the
Purchaser harmless from any and all action, claim, demand, cause of action,
judgment, damage, loss, liability and expenses (including any diminution in
value, Tax liabilities, withholding or other Taxes on any payments in this
Article VI, reasonable attorney's fees and expenses in connection with any
action, suit or proceeding) (collectively "Damages") incurred by the Companies
and/or the Purchaser arising from and/or in connection with:
(i) any violation, contravention or breach of any covenant, agreement or
obligation of the Seller under or pursuant to this Agreement; and/or
(ii) any incorrectness in, or breach of, any representation or warranty made by
the Seller in this Agreement, the Exhibits and the Schedules annexed
hereto or in any certificate or other document delivered or given pursuant
to this Agreement, whether or not the Purchaser relied thereon or had
knowledge thereof; and/or
(iii) any liability of any of the Companies and/or the Purchaser relating and/or
in connection with any of the Excluded Liabilities as defined hereafter;
it being specified and agreed that, notwithstanding any provision in this
Agreement, the Seller represents and warrants to the Purchaser (and
undertakes to indemnify the Purchaser against any related Damages,
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without any limitation or any restriction as to the amount of such
indemnification) that none of the Companies (nor the Seller on behalf
thereof) has incurred or shall incur prior to the Closing Date any
liability for indebtedness for borrowed money other than Financial
Indebtedness (collectively the "Excluded Liabilities").
The amount of any increase in the liabilities or decrease in the assets of the
Companies resulting from the inaccuracy or breach of any representation or
warranty of the Seller, will subject to the other provisions of this Agreement,
be deemed to be Damages of the Purchaser.
Regarding Tax Damages that might appear for example following a tax inspection,
the indemnity will cover the decrease in the net asset value position resulting
from any assessment or adjustment, including any interest and penalties, that
give rise to an increase in the liabilities of the Companies which would not
have been reserved against in the Financial Statements.
The Purchaser may not receive indemnification more than once for the same
Damages pursuant to this Article VI.
Without limiting the foregoing, if and to the extent a given Damage shall have
been specifically reflected on a 1FF for 1 FF basis in any final adjustment
pursuant to sections 1.2.2 or 1.2.3, then the portion of such Damage so
specifically reflected shall not be the subject of indemnification pursuant to
this Article VI.
For purpose of calculation of any indemnification hereunder, it is expressly
understood that the following shall not be taken into account and shall not
reduce the amount of indemnification or otherwise affect the rights of the
Purchaser hereunder: tax reductions, savings or credits resulting directly or
indirectly from any Damages other than in accordance with the following
paragraph, full or partial write-off of any provision recorded in the Financial
Statements or other balance sheet reserves, amount of any decrease in the
liabilities or any increase in the assets of the Companies nor any
indemnification under any insurance policy.
The parties agree that any indemnification hereunder shall not take into account
the tax reductions, savings or credits resulting directly or indirectly from any
Damages other than by the refund by the Purchaser to the Seller of such portion
of a given indemnified Damage in accordance with this Article VI which shall
correspond to the tax impact of such item of Damage on the consolidated income
tax liability of the ultimate tax paying entity of the Purchaser's Group in
France provided that nothing shall limit or otherwise restrict the Purchaser or
any member of the Purchaser's Group from accelerating losses, using NOLs or from
making any other decisions in order to reduce the overall tax rate of the
Purchaser's Group in France irrespective of the individual tax rate of the
Companies.
6.2 CLAIM PROCEDURE
All claims by the Purchaser under this Article VI shall be asserted as follows:
(a) in the event that (A) any claim, demand or proceeding is asserted or
instituted by any party other than the Purchaser hereto which could
give rise to Damages for which the Seller would be liable to the
Purchaser hereunder (such claim, demand or proceeding, a "Third
Party Claim"), or (B) the Purchaser shall have a claim to be
indemnified by the Seller which does not involve a Third Party
Claim, the Purchaser shall (x) in the case of a Third Party Claim,
within fifteen
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(15) Business Days of the Companies' receiving notice in writing of
such Third Party Claim (unless failure to notify the Seller within
such period would not materially prejudice the Seller's interests,
in which case, the Purchaser shall with reasonable promptness), and
(y) in the case of any other claim, with reasonable promptness, send
to the Seller a written notice setting forth the nature of such
claim or demand and the amount or estimated amount (which estimate
shall not be conclusive of the final amount of such claim or demand)
together with copies of reasonable supporting documents in the
possession of the Purchaser (a "Claim Notice").
(b) In the event of a Third Party Claim:
(i) the Seller shall have the right, if it so notifies the
Purchaser with sufficient promptness after the sending of the
Claim Notice in order not to compromise the position of the
Purchaser or the Companies, to defend the action or to pursue
the claim.
(ii) If the Seller has notified the Purchaser that it wishes to
defend the action or to pursue the Third Party Claim, it will
pursue the defense and claim reasonably and prudently and be
assisted by counsel reasonably acceptable to the Purchaser.
The Seller will regularly inform the Purchaser of the progress
of such defense or such claim and, on request, shall provide
it with all information or documentation as is necessary to
enable it to consider the position. From and after the
delivery of a Claim Notice hereunder, at the reasonable
request of the Seller, the Purchaser shall grant the Seller
and its representatives reasonable access to the books,
records, properties and, subject to prior written consent of
the Purchaser, which consent shall not be unreasonably
withheld, and under circumstances reasonable in the
Purchaser's judgment, the personnel of the Companies to the
extent related to the matters to which the Claim Notice
relates. The Seller will not, and shall require that its
representatives do not, use or disclose to any third person
other than its representatives (except in connection with such
Claim Notice) any information obtained pursuant to this
Section 6.2 which is designated as confidential by the
Purchaser. If the Seller has notified the Purchaser that it
will defend the action or pursue the claim, the Seller shall
bear all costs and fees (including without limitation
attorney's fees and expenses) it shall incur in respect of
such defense or such claim.
(iii) If the Seller notifies the Purchaser that the Seller does not
wish to defend the action or pursue the claim or fails to do
so in accordance with Section 6.2(b)(i) above, the Purchaser
shall defend the action or pursue the claim on its own and
shall pursue the defense or claim reasonably and prudently and
be assisted by counsel reasonably acceptable to the Seller;
the Seller shall bear all attorney's fees and expenses in
respect of such defense or such claim.
(iv) The Seller or the Purchaser, depending on which of them
defends the action or pursues the claim, shall allow the other
Party and its counsel to participate in the elaboration of the
arguments which may need to be put forward and in the
negotiations which may take place to reach an out-of-court
settlement, it being understood that such other Party shall
bear all fees and expenses of such additional counsel.
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(v) No compromise or settlement of a Third Party Claim shall be
made without the prior written consent of both the Purchaser
and the Seller, such consent not being unreasonably refused or
delayed.
(c) The liability of the Seller to the Purchaser in respect of Damages
resulting from a Third Party Claim shall be indemnified pursuant to
Section 6.1 regardless of which Party defends the action or pursues
the claim.
(d) In the event of a claim between the Parties which does not involve a
Third Party Claim, the Party against which a definitive judgment is
rendered in connection with such claim shall bear all costs and
expenses of counsel of both Parties incurred in connection with such
claim.
6.3 LIMITATIONS ON CLAIMS
(a) No claim for indemnification may be made by the Purchaser against
the Seller, and no payment in respect thereof shall be required,
unless and only to the extent that:
(i) the amount of Damages in respect of which the Seller is
obligated to indemnify the Purchaser in respect of any such
claim exceeds FF 150,000 (the "Minimum Claim Amount") (it
being understood that if the amount of such Damages shall
exceed FF 150,000, the Seller's obligation to indemnify the
Purchaser shall extend to the entire amount of such Damages,
including the amount up to FF 150,000 subject however to
clause (ii) below), and
(ii) the cumulative and aggregate amount of all Damages in respect
of which the Seller is obligated to indemnify the Purchaser
under Section 6.3(a)(i) shall exceed the sum of FF 2,000,000
in the aggregate (it being understood that if the amount of
such Damages shall exceed FF 2,000,000, the Seller's
obligations to indemnify the Purchaser shall extend to the
entire amount of such Damages, including the amount of FF
2,000,000);
provided, however, that for the purposes of Section 6.3(a)(i) above,
in the event of a series of related claims based on the same or a
similar set of facts or circumstances, the aggregate total of the
Damages resulting from such series of claims shall be used only one
time to determine whether the Minimum Claim Amount has been
exceeded, whether or not the Damages resulting from an individual
claim would be less than the Minimum Claim Amount.
(b) Notwithstanding any other provisions of this Agreement (but subject
to Section 6.3(c) hereof), the maximum amount of Damages for which
the Seller may be liable under this Agreement in respect of claims
shall not exceed FF 150,000,000, except with respect to the matters
in Sections 4.12, 6.7.1 and 6.7.2 there shall be an additional FF
25,000,000.
(c) Notwithstanding the provisions of Sections 6.3(a) and 6.3(b), such
Sections 6.3(a) and 6.3(b) shall not apply in the case of claims
made in respect of Sections 4.2(a) and (c), and 4.24(b) in respect
of any of the Excluded Liabilities, in respect of Section 6.7, in
respect of any payment obligations of the Seller pursuant to
Sections 1.2.1 and 1.2.6 of the Agreement and/or in
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respect of the environmental indemnity and remediation agreement
mentioned in Section 2.1(xv).
6.4 INDEMNITY PAYMENT
Any indemnity set forth in this Article VI other than in Section 6.7 will
(subject to the next paragraph) be due by the Seller within thirty days after
the Purchaser has sent a Claim Notice, provided that, in the event of a third
party claim, the indemnity will be due as of the time any Company is obligated
to pay under the terms of the contract, applicable legislation or of a judgment.
In the case of disagreement between the Parties in respect of any indemnity
pursuant to this Article VI, the indemnity will be due by the Seller as of the
time the liability has (i) been agreed in writing by the Parties or (ii) has
been determined by a court decision in accordance with Section 7.13 hereof and
the judgment provides for immediate execution.
Any payment of an indemnity under this Article VI shall give rise to an interest
charge computed at a rate of three month EURIBOR plus 10% per annum but in no
event more than the maximum interest rate permitted under French Law as from the
later of (i) 30 days after the date the Claim Notice was received by the Seller
or (ii) the date on which the damage giving rise to the indemnity was incurred.
6.5 SURVIVAL
The representations and warranties of the Parties hereto contained in this
Agreement or in any certificate or other writing delivered pursuant hereto or in
connection herewith shall survive the Closing until twenty four (24) months
after the Closing Date; provided that: (a) the representations and warranties
contained in Sections 4.2(a) and 4.2(c) or as to which a claim for fraud is made
as well the representations and warranties contained in Article IV relating to
Section 4.7 and 4.19 and to environmental matters, shall survive the Closing
until the sixth month following the expiration of the applicable statute of
limitation, provided that Sections 4.12, 6.7.1 and 6.7.2 shall survive for a
period of ten (10) years after Closing, and (b) representations and warranties
and other obligations of the Seller regarding Excluded Liabilities shall survive
the Closing until the sixth month following the expiration of the applicable
statute of limitations in respect of each of such Excluded Liabilities.
6.6 [DELETED]
6.7 SPECIFIC INDEMNITY
In addition to any amount which may otherwise be due by the Seller pursuant to
this Agreement, and without the sums that may be due under the following
indemnification being imputable against the amount set forth in Section 6.3(b)
hereto, the Parties hereby agree on the following environmental indemnity upon
the basis of the Dames & ▇▇▇▇▇ report attached in Schedule 4.12.1 hereto (the
"Dames & ▇▇▇▇▇ Report"), which report shall constitute the document of reference
with respect to any environmental matters for the purposes hereof. If and for so
long as the Seller fully performs its obligations under the environmental
indemnity and remediation agreement mentioned in Section 2.1(xv) and under this
Section 6.7, then the Purchaser shall not make any claim pursuant to Section
4.12 with respect to the indemnified matters covered by the environmental
indemnity and remediation agreement mentioned in Section 2.1 (xv) and this
Section 6.7. The full amount of Damages relating to any matter
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which is not covered by Sections 6.7.1 and 6.7.2, shall be dealt with in
accordance with the other sections of this Article VI.
6.7.1 GENERAL ENVIRONMENTAL INDEMNITY
The Purchaser will undertake to make the compliance corrections or take actions
so as to remedy matters identified in the Dames & ▇▇▇▇▇ Report (other than the
items appearing in such report under the heading "Soil and Groundwater" which
will be dealt with in accordance with Section 6.7.2 hereof) (the "Compliance
Items") at its cost up to a maximum amount of FRF 14,600,000. Such actions by
the Purchaser will be for the purpose of complying with applicable Environmental
Laws and sound environmental practices generally employed by responsible French
companies (the "Remediation Standards"). To the extent the costs to meet the
Remediation Standards exceed FRF 14,600,000, the Seller will from the Closing
Date indemnify and hold the Purchaser and/or the Companies harmless from and
against any Damages (including, without limitation, any attorney or consultants
fees) incurred by the Purchaser and/or the Companies if and to the extent that
the aggregate total of such Damages exceeds FRF 14,600,000 with respect to the
Compliance Items, taken together without any limitations as to amounts except as
provided by Section 6.3(b).
6.7.2 SOIL AND GROUNDWATER ENVIRONMENTAL INDEMNITY
With respect to all matters appearing in Schedule 4.12.1 hereto under the
heading "Soil and Groundwater" in the Dames & ▇▇▇▇▇ Report, the Purchaser
commits to have Dames & ▇▇▇▇▇ perform phase II (drillings) and other appropriate
studies when recommended by Dames & ▇▇▇▇▇ in respect of such matters within a
period of time of two years following the Closing Date, as such period may be
extended by mutual agreement of the Parties or as provided below. Prior to the
end of such period and based upon the findings of Dames & ▇▇▇▇▇ in light of
Environmental Laws as well as sound environmental practices generally employed
by responsible companies in France after reviewing the results of the phase II
studies and other studies that Dames & ▇▇▇▇▇ may recommend, which
recommendations shall be reasonably acceptable to the Parties in view of
Environmental Laws as well as sound environmental practices generally employed
by responsible companies in France the Purchaser commits to obtain and notify
the Seller of estimates (devis) from third party contractors to perform the
remediation work as recommended by Dames & ▇▇▇▇▇ (which work will include all
work to be in compliance with environmental Laws as well as other works
recommended by Dames & ▇▇▇▇▇, as the case may be, as advisable to respect sound
environmental practices generally employed by responsible companies in France);
it being specified that in the event that the Seller disputes or disagrees with
any recommendation of Dames & ▇▇▇▇▇ which the Seller shall have to notify to the
Purchaser within 20 Business Days as from the communication to it of such
recommendations, the above mentioned period of time of two years following the
Closing Date shall be suspended until final settlement of any such dispute or
disagreement and shall therefore be extended by the period of time from the date
of such notice until the date of such final settlement. The Parties agree that
they will, when applicable, jointly conduct any relevant negotiations with any
relevant authorities regarding the above mentioned recommendations in a manner
consistent with Environmental Laws as well as sound environmental practices
generally employed by responsible companies in France. Failing an agreement of
the Parties upon which third party contractors to retain within 20 Business Days
of Purchaser's notice referred to above, each party shall be free to request
Dames & ▇▇▇▇▇ to make a final, binding and prompt determination in this respect.
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The Seller shall indemnify the Purchaser from and against and agrees to hold the
Purchaser harmless from any and all Damages (including, without limitations, any
attorney or consultants fees) with respect to any soil and groundwater matter
related to non compliance with any Environmental Laws as well as sound
environmental practices generally employed by responsible companies in France.
If, in respect of any situation having its source prior to the Closing Date, at
any moment following the signature of this Agreement until the sixth month
following the expiration of the applicable statute of limitation, any
administrative authority, including any Prefet, were to request any study in
respect of any site of the Companies owned by or leased to the Companies at the
Closing Date in connection with soil and/or groundwater on such site(s) (such as
a risk assessment), the Parties agree that such studies will be performed by
Dames & ▇▇▇▇▇ (or such other company as the Parties may mutually select) and
paid or reimbursed by the Seller and that any work to be carried out following
such studies (or absent such studies) at the request of any administrative
authority will be performed at the cost and expense of the Seller (including,
without limitations, reasonable attorney and/or consultants' fees),
notwithstanding the absence of exhaustion of all applicable remedies. If the
Parties do not agree on the estimates of the contractors to be retained for such
purposes, each party shall be free to request Dames & ▇▇▇▇▇ to make a final,
binding and prompt determination in this respect.
The foregoing Sections 6.7.1 and 6.7.2 do not apply to the ▇▇▇▇▇▇▇▇▇ and ▇▇▇
d'Ajol sites, which shall be the subject of a separate agreement in the form of
Exhibit XII hereto.
[other specific indemnities to be determined in light of the due diligence]
6.8 SET-OFF
The Parties agree that the Purchaser will be entitled to set-off any amount it
may have to pay in relation to the Deferred Consideration against all or part of
the amounts that the Seller may have to pay to the Purchaser under this
Agreement, it being understood that, in the event that the amount of such
set-off does not cover all the amounts payable by the Seller to the Purchaser
under the Agreement, the Seller shall remain liable for the balance of such
liability. The Purchaser shall provide at the time of any such set-off an escrow
arrangement, bank guarantee, letter of credit or bond or other appropriate
security reasonably acceptable to the Seller for the amount of such set-off.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 AGREEMENT INTEGRATION
The present Agreement, the Recitals, the Schedules and the Exhibits hereto
constitute the entire agreement between the Parties and their respective groups
concerning the subject matter hereof and supersedes all prior and
contemporaneous agreements, undertakings, negotiations, discussions or
representations of any kind whatsoever, whether oral or written, of the Parties
and their respective groups and the representatives thereof. The present
Agreement may not be modified except by written agreement which carries a date
subsequent to the date of the present Agreement and is duly signed by the
parties hereto.
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7.2 NOTICES
All notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been given or made if delivered personally
or sent by registered mail return receipt requested or by telegram or by
facsimile transmission confirmed by registered mail return receipt requested to
the parties at the following addresses:
(a) If to the Seller Aries Industries
▇-▇▇, ▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: President Directeur General
Fax: (▇▇) ▇ ▇▇ ▇▇ ▇▇ ▇▇
with a copy to: ▇▇▇▇▇▇▇, Dunaud, Mercadier & ▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇) ▇.▇▇.▇▇.▇▇.▇▇
(b) If to the Purchaser: Oxford Automotive Mecanismes et Decoupage Fin II
Parc d'activites la Cle de Saint-Pierre,
rue du Marechal de Lattre de Tassigny,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
Attention: President Directeur General
Fax: (▇▇) ▇ ▇▇ ▇▇ ▇▇ ▇▇
with a copy to: Salans ▇▇▇▇▇▇▇▇▇ & Heilbronn
▇, ▇▇▇ ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇) ▇.▇▇.▇▇.▇▇.▇▇
(c) If to Oxford Automotive France: Oxford Automotive France
Parc d'activites la Cle de Saint-Pierre,
rue du Marechal de Lattre de Tassigny,
78990 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇
Page 47
Attention: President Directeur General
Fax: (▇▇) ▇ ▇▇ ▇▇ ▇▇ ▇▇
with a copy to: Salans ▇▇▇▇▇▇▇▇▇ & Heilbronn
▇, ▇▇▇ ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇) ▇.▇▇.▇▇.▇▇.▇▇
(d) If to ASA Aries
▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
Attention: President Directeur General
Fax (▇▇) ▇ ▇▇ ▇▇ ▇▇ ▇▇
with a copy to: ▇▇▇▇▇▇▇, Dunaud, Mercadier & ▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇) ▇.▇▇.▇▇.▇▇.▇▇
(e) If to AIS Aries Industries Structure
▇-▇▇, ▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: President Directeur General
Fax: (▇▇) ▇ ▇▇ ▇▇ ▇▇ ▇▇
with a copy to: ▇▇▇▇▇▇▇, Dunaud, Mercadier & ▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇) ▇.▇▇.▇▇.▇▇.▇▇
(f) If to AFSA Aries Finance
▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
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75008 Paris
Attention: President Directeur General
Fax: (▇▇) ▇ ▇▇ ▇▇ ▇▇ ▇▇
with a copy to: ▇▇▇▇▇▇▇, Dunaud, Mercadier & ▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇) ▇.▇▇.▇▇.▇▇.▇▇
or to such other persons or at such other addresses as shall be furnished by any
party by like notice to the others. No change in any of such addresses shall be
effective insofar as notice under this Section 7.2 are concerned unless notice
of such changes shall have been given to such other parties hereto as provided
in this Section 7.2.
7.3 TERMINATION
(a) This Agreement may be terminated at any time prior to the Closing:
(i) by written agreement of the Seller and the Purchaser;
(ii) by either the Seller or the Purchaser if the Closing shall not have
been consummated on or before August 2nd, 2000 and such failure to
consummate is not the result of a breach of this Agreement by the
terminating party or the failure of the terminating party to fulfill
a condition to Closing; or
(iii) by either the Seller or the Purchaser if there shall be any law that
makes consummation of the transactions contemplated hereby illegal
or otherwise prohibited or if consummation of the transactions
contemplated hereby would violate any non appealable final order,
decree or judgment of any court or governmental body having
competent jurisdiction; or
by the Purchaser in accordance with the provisions of Section
1.2.6.1 (a) and/or at any time in the event that the results of the
Purchaser's due diligence review of the Companies are not
satisfactory to the Purchaser in its sole discretion, including
without limitation, in the event that the Purchaser becomes aware of
material adverse differences in the financial or business situation
or assets or liabilities of the Companies as compared to the
situation of such Companies as disclosed by the Seller in writing to
the Purchaser through the date hereof notably the realization of the
projections presented by the Seller to the Purchaser relating to
AIMDF's 1999 operating results, the confirmation of the growth
prospects of AIMDF presented by the Seller and the Seller's business
forecasts for Companies for fiscal years 2000 to 2004.
The Party desiring to terminate this Agreement pursuant to clauses 7.3(a)(ii) or
7.3(a)(iii) shall give notice to the other Party.
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(b) Neither Party nor their respective groups shall have any liability to the
other as a result of termination of this Agreement pursuant to this
Section 7.3, except (i) any such liability resulting from a voluntary
breach of a representation, warranty or covenant by either Party pursuant
to this Agreement which is applicable to such Party prior to Closing and
(ii) any cost reasonably incurred by the non terminating Party through the
date of termination.
7.4 COSTS AND EXPENSES
Subject to Section 1.5 hereof, each party shall pay its own costs and expenses
(including without limitation any and all taxes, professional fees and expenses)
in relation to the negotiation, preparation, execution and carrying into effect
of this Agreement (whether or not the transactions contemplated hereunder are
consummated) and any other agreements relating to the sale of the Shares
(whether or not the transactions contemplated hereunder are consummated), and
shall not seek or be entitled to reimbursement of any such costs and expenses
from the other party. The cost of all environmental studies undertaken after May
25, 2000 in connection with the transactions contemplated by this Agreement
shall be shared equally by the Seller and the Purchaser which shall not exceed
FF 300,000.
7.5 ASSIGNMENT
This Agreement may not be assigned by either party hereto without the prior
written consent of the other parties; provided, however, that this Agreement
(including one or more of the other agreements contemplated hereby) may be
assigned, in whole or in part, by Purchaser without the prior written consent of
Seller to a majority-owned direct or indirect subsidiary of Oxford Automotive
Inc. This Agreement shall be binding upon, and, subject to the terms of the
foregoing sentence, inure to the benefit of, the parties, their successors,
legal representatives and assigns. Any assignment in violation of this Article
7.5 shall be null and void.
7.6 POST CLOSING COOPERATION
As from the Closing Date, the Parties shall use their best efforts to take, or
cause to be taken, all such further actions and to do, or cause to be done, all
such additional things necessary, proper or advisable consistent with all
applicable Laws to ensure that any sums due to the Companies by any customer and
collected by any member of the Seller's Group are remitted to the Companies in
question without delay. As from the Closing Date, any sums due to the Companies
except as otherwise specifically provided in the Transition Services Agreement
which shall govern the remittance of such sums and collected by any such other
member of the Seller's Group shall be remitted to the Purchaser within five (5)
days and shall bear interest payable to the Companies and computed at a rate of
one month EURIBOR, plus twenty-five percent 25% per annum but in no event more
than the maximum interest rate permitted under French Law as from their date of
collection by any such other member of the Seller's Group through their date of
remittence to the Companies. In connection therewith, the Purchaser and the
Purchaser's Accountants shall at all time have reasonable access to the
accounting and other records, and to the personnel employed by or others working
on behalf of the Seller's Group and to the work papers of the accountants
thereof in order to audit and verify that any and all amounts due to the
Companies and collected by any other member of the Seller's Group are remitted
to the Companies in compliance with the provisions of this Section. In addition,
the Seller shall upon Closing cause all customers to be informed that all
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payments due to the Companies should be remitted directly to the relevant
Companies as from the Closing Date.
The Seller shall also use its best efforts to ensure that all outstanding
contracts which have been entered into by the Seller with third parties for the
provision of services or products to the Companies shall be transferred to the
relevant Companies prior to the Closing Date at no additional cost or charge for
the Companies. Should such transactions not be completely carried out prior or
on the Closing Date in accordance with the preceding sentence, the Seller shall
use its best efforts to obtain such transfers within a reasonable time
thereafter.
In addition, if at the Closing Date the Seller has not been able to deliver to
the Purchaser the share in SMBI currently held by ▇. ▇▇▇▇▇▇▇ Doare, then, as
from the Closing Date until effective delivery of such share to Purchaser, the
Seller shall use its best efforts to obtain the transfer of such share to the
Purchaser, at no cost for the latter, as soon as possible after the Closing
Date.
Without prejudice to any right of the Purchaser hereunder and in particular
without affecting in any way the representations and warranties of the Seller
pursuant to Article IV concerning the June 30, 2000 Financial Statements which
will based on such June 30, 2000 Financial Statements as they appear in Schedule
4.5(a), and for the purpose of its own information only, the Seller shall be
allowed to conduct a limited audit and to complete and finalize the financial
statements of the Companies for the period ended on June 30, 2000 at no cost or
expense for the Purchaser and/or the Companies; for such purpose, the Seller and
the Seller's Accountants shall have reasonable access to the related Companies'
working papers and, subject to prior written consent of the Purchaser, which
consent shall not be unreasonably withheld, and under circumstances reasonable
in the Purchaser's judgment, to the personnel of the Companies to the extent
related to the matters concerned.
The Seller shall cause Aries Industries Araba Dis Techizat Uretimi Sanayi ve
Ticaret A.S. (AIT) to cooperate with CAE after the Closing to define and enter
into a written agreement in accordance with Schedules 4.4 (a), 4.6 (i) and 4.10
(a)(i) as soon as possible subject to Purchaser's prior written approval of such
agreement.
7.7 PREAMBLE - SCHEDULES - EXHIBITS
The provisions contained in the Recitals hereto and the Schedules and the
Exhibits hereto (including the executed versions thereof) form an integral part
of this Agreement.
7.8 WAIVER
No refusal or delay on the part of one party to exercise its rights under this
Agreement shall be considered to be a waiver of such rights or other rights in
the future.
7.9 CONFIDENTIALITY
During the period from the date hereof through the Closing Date, the Parties
(including in the case of the Seller, the Seller's Group) and their respective
advisers shall maintain confidential the non public information communicated
between them in connection with this Agreement.
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If any disclosure of such information is required by applicable Laws, the Party
required to make the disclosure will notify the other immediately and the
Parties will consult in good faith as to the steps which may be taken to prevent
or limit the effects of such disclosure.
Notwithstanding the foregoing, each Party will have the right to disclose and
any such information obtained by such Party in connection herewith, in
connection with its defense of its interests in any litigation with the other
Party under this Agreement.
7.10 STOCK EXCHANGE AUTHORITIES
Except as required by law or regulation in the U.S. or France, the Parties agree
that any announcement with respect to the transactions contemplated in this
Agreement shall be mutually agreed upon between the Parties before issuance.
7.11 VALIDITY
The terms and conditions of this Agreement reflect the intentions of the Parties
hereto in respect of the subject matter hereof. The invalidity, illegality or
unenforceability of any provision of this Agreement shall not affect or impair
the continuation in force of the remainder of this Agreement. Furthermore, in
lieu of any such invalid, illegal or unenforceable term or provision, the
Parties hereto intend that there shall be added as a part of this Agreement a
provision as similar in terms to such invalid, illegal or unenforceable
provision as may be possible and be valid, legal and enforceable. Without
limiting the foregoing, if any covenants contained in this Agreement, or any
part thereof, is held to be invalid, illegal or unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall have the power to reduce the duration
and/or geographic area of such provision and, in its reduced form, said
provision shall then be valid, legal and enforceable.
7.12 GOVERNING LAW; LITIGATION
This Agreement shall be governed by French law, without application of its
conflict of law principles.
All disagreement or difficulties arising between the parties relative to the
validity, interpretation or execution of the Agreement shall be submitted to the
commercial courts of Paris, France.
Signed in six originals
In Paris,
on August 2, 2000
ARIES INDUSTRIES SA OXFORD AUTOMOTIVE MECANISMES ET
DECOUPAGE FIN II SAS
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------ -----------------
By: ▇▇.▇▇▇▇▇ ▇▇▇▇▇▇ By: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
President Duly authorized
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ARIES SA OXFORD AUTOMOTIVE FRANCE SAS
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇-▇▇▇▇▇▇▇▇ Constant
----------------- --------------------------
By: ▇▇.▇▇▇▇▇ ▇▇▇▇▇▇ By: Mr. ▇▇▇▇-▇▇▇▇▇▇▇▇ Constant
President President
ARIES INDUSTRIES STRUCTURE SA
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
By: ▇▇.▇▇▇▇▇ ▇▇▇▇▇▇
President
ARIES FINANCE SA
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
By: ▇▇.▇▇▇▇▇ ▇▇▇▇▇▇
Duly authorized
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LIST OF EXHIBITS
Exhibit I - Shareholding of the Companies at the closing date AIMDF MURAT SMBI
Exhibit II - Accounting Principles
Exhibit III - Escrow Agreement [Deleted]
Exhibit IV - List of documents to be provided by the Seller at closing as
conditions precedent to obligations of the Purchaser under Section 2.1 of the
Share Purchase and Sale Agreement
Exhibit V - List of documents to be provided by the Purchaser at closing as
conditions precedent to obligations of the Seller under Section 2.2 of the Share
Purchase and Sale Agreement
Exhibit VI.1 - List of financing agreements with the obligations of which the
Companies must comply at the closing date
Exhibit VI.2 - List of guarantees issued by the Seller in connection with any of
the financing agreements referred to under Exhibit VI.1
Exhibit VII - Certificate delivered by the Seller relative to the truefulness
and correctness of all representations and warranties made by him under the
Share Purchase and Sale Agreement
Exhibit VIII - Certificate delivered by the Seller relative to the performance
and compliance by him with all agreements and covenants required by the Share
Purchase and Sale Agreement
Exhibit IX - List of persons who have tendered their resignations from their
respective offices at the Closing
Exhibit X - Certificate delivered by the Seller relative to the release and
discharge of the Companies from all obligations or liabilities regarding all
Financial Indebtedness of the Companies toward the Seller and its Affiliates
Exhibit XI.1 - Promise to purchase the site of ▇▇▇▇▇▇▇▇▇ entered into between
the SCI du lieudit "le village" and AIMDF
Exhibit XII - Environmental indemnity and remediation agreement concerning the
sites of ▇▇▇▇▇▇▇▇▇ and Val d'Ajol
Exhibit XIII - Transition Services Agreement between the Seller and AIMDF
Exhibit XIV - List of contracts the Companies still is a party to or is be bound
by, or have any obligations or other liability under, with or in favor of the
Seller or any of its Affiliates other than the Companies, as from the Closing
Exhibit XV - List of the matters to be included in the agenda of the special
meeting of the shareholders of each of the Companies called by the Seller for
the Closing Date
Exhibit XVI - List of certificates, instruments and documents to be delivered by
the Seller and list of actions to be taken by the Seller, at the latest by the
Closing, to consummate and make effective the transactions contemplated by the
Share Purchase and Sale Agreement
Exhibit XVII - Territory within which the Seller undertakes not to carry on or
be engaged in any Restricted Business for a period of three years from the
Closing Date
Exhibit XVIII - AE and COMIREG form Guarantee and Undertakings
