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EXHIBIT 2
AGREEMENT FOR THE SALE, PURCHASE AND ASSIGNMENT
OF THE ENTIRE SHARE CAPITAL OF
HARTEK BEVERAGE HANDLING GmbH
AND
HARTEK-AWAGEM VERTRIEBGES. m.b.H.
1. Mr E. Hartwall, identified through his passport, acting not in his own
name but as director of HARTEK BEVERAGE HANDLING BV, which has its registered
offices at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, and is registered in the
Commercial Register of the Chamber of Industry and Commerce for Central Holland
under file number 37302 (hereinafter referred to as THE VENDOR). A copy of an
extract from the Commercial Register of the Vendor is attached as APPENDIX 1.
2. ▇▇ ▇. ▇▇▇▇▇▇, identified through his passport, acting not in his own
name but as authorized agent for SCOTSMAN GROUP, INC., which has its registered
office at Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ (hereinafter referred to as THE PURCHASER), pursuant to the Power of
Attorney, a copy of which is attached hereto as APPENDIX 2.
3. Mr E. Hartwall, identified through his passport, acting not in his own
name but as director of HARTWALL BOLAGEN AB, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (hereinafter referred to as HARTWALL BOLAGEN).
4. ▇▇ ▇. ▇▇▇▇▇▇, identified through his passport, acting not in his own
name but as authorized agent for SCOTSMAN INDUSTRIES, INC., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ (hereinafter referred to as SCOTSMAN),
pursuant to the Power of Attorney, a copy of which is attached hereto as
APPENDIX 3.
The above-named parties represented by the above-named individuals hereby
conclude the following:
2
AGREEMENT FOR THE SALE, PURCHASE AND ASSIGNMENT
OF SHARES
PREAMBLE
A. The Vendor is the sole shareholder, and HARTWALL BOLAGEN is the
ultimate parent company of HARTEK BEVERAGE HANDLING GmbH, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, which is registered in the Commercial Register of
▇▇▇▇▇▇▇▇▇▇▇ under file number HRB 1361 (hereinafter referred to as HARTEK), and
of HARTEK AWAGEM VERTRIEBSGES. m.b.H., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ (hereinafter referred to as HARTEK AWAGEM) which is registered in the
Commercial Register of Vienna under file number BP360B/FN64432d.
B. Copies of the following documents are attached to this Agreement as
Appendices:
(a) extracts from the Commercial Registers relating to Hartek dated 10
November 1995 and relating to Hartek Awagem dated 19 December 1995
showing all matters requiring registration as of the date of this
Agreement (APPENDIX 4);
(b) the Articles of Association of the Companies as last amended (in der
zuletzt beschlossenen Fassung) (APPENDIX 5).
C. The Vendor intends to sell to the Purchaser and the Purchaser intends
to acquire from the Vendor all of the Shares in the Companies as going concerns
in accordance with the terms and conditions of this Agreement.
D. Hartwall Bolagen intends to guarantee the fulfillment of certain
obligations of the Vendor under this Agreement, and Scotsman intends to
guarantee the fulfillment of certain obligations of the Purchaser under this
Agreement.
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, except so far as the context otherwise requires, the
following terms shall have the following meanings:
ACCOUNTS means:
(a) the audited balance sheets of Hartek and Hartek Awagem as at the
Accounts Dates; and
(b) the audited profit and loss accounts of Hartek and Hartek Awagem as at
the Accounts Dates,
together with any notes, reports, statements or documents permitted or required
by German law in relation to Hartek and by Austrian law in relation to Hartek
Awagem to be made thereon or annexed or attached thereto;
ACCOUNTS DATE means the last day of the financial years of Hartek and Hartek
Awagem;
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ADDITIONAL CONSIDERATION has the meaning given in clause 4.3;
ATS means Austrian Schillings;
AUSTRIAN ACCOUNTING PRINCIPLES means generally accepted accounting principles in
Austria;
BUILDINGS means all buildings and constructions existing on the Plant Premises
at the time of signature of this Agreement;
CASCADE means Hartek Cascade GmbH, ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇;
CASCADE PROFIT AND LOSS PARTICIPATION AGREEMENT means the domination and profit
and loss participation agreement between Hartek and Cascade dated 26 February
1993;
CASH BALANCE means the aggregate amount of Hartek and Hartek Awagem's cash
reserves as at the Transfer Date;
COMPANY OR THE COMPANIES means Hartek and Hartek Awagem singly and collectively;
COMPLETION ACCOUNTS means the consolidated balance sheet and consolidated profit
and loss statements for both Hartek and Hartek Awagem as at the Transfer Date to
be established in accordance with clauses 5.1 to 5.5;
DATE OF RECEIPT OF THE COMPLETION ACCOUNTS has the meaning given in clause
5.5.2;
ESCROW ACCOUNT (Notar-Anderkonto) means an escrow account established or to be
established with the Escrow Agent at such bank and account as he may specify for
the purpose;
ESCROW AGENT means ▇▇▇▇ J. Schaudinn, Frankfurt, being a German notary public;
ESCROW AMOUNT means DM 1,500,000 (one million five hundred thousand
deutschmarks);
ESCROW GUARANTEE means an unconditional guarantee up to the Escrow Amount
payable upon the first written demand of the Purchaser issued by a first class
bank in Finland in favor of the Purchaser in form and substance reasonably
satisfactory to the Purchaser pursuant to clause 4.6;
ESTIMATED FUNDING COST DIFFERENCE means DM600,000 (six hundred thousand
deutschmarks);
ESTIMATED MONETARY DEBTS means DM7,500,000 (seven million, five hundred thousand
deutschmarks);
EXPERTS means an independent firm of internationally recognized chartered
accountants to be agreed upon by the Vendor and the Purchaser pursuant to clause
5.4 or, failing Agreement between the Vendor and the Purchaser pursuant to
clause 5.4, to be selected by the president for the time being of the
Industrie-und Handelskammer in Dusseldorf;
FUNDING COST DIFFERENCE means the amount by which the aggregate projected cost
to Hartek of borrowing the Monetary Debts from the Transfer Date to their
respective maturities exceeds the aggregate projected
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cost which Scotsman would incur if it borrowed an amount equal to the Monetary
Debts for such period, discounted forwards at the rate per annum which is
Scotsman's cost of borrowing (as aforesaid) and determined in accordance with
clause 5.6.8;
GERMAN ACCOUNTING PRINCIPLES means accounting principles in accordance with
ss.246 et sequ. of the German Commercial Code and generally accepted in Germany
(Grundsatze ordnungsmassiger Buchfuhrung und Bilanzierung);
GROUP COST AGREEMENT means the agreement dated 23 November 1995 made between
Hartek Invest OY AB and Hartek;
HARTEK means Hartek Beverage Handling GmbH, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇▇;
HARTEK AWAGEN means Hartek Awagem Vertriebsges.m.b.H., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇-▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
HARTEK AWAGEM BUSINESS means the trading with goods of all kinds, especially
drink dispensing systems and catering equipment, as well as the planning,
installation and servicing of such equipment;
HARTEK AWAGEM SHARES means all shares in Hartek Awagem;
HARTEK AWAGEM SHARE CAPITAL means the registered share capital (Stamnikapital)
of Hartek Awagem amounting to ATS 1,500,000;
HARTEK BUSINESS means the manufacturing and sale of equipment and components for
the storage, the cooling and the dispensing of beverages of all kinds as well as
of similar devices, especially the manufacturing and sale of beverage dispensing
systems;
HARTEK SHARES means all shares in Hartek;
HARTEK SHARE CAPITAL means the registered share capital (Stamnikapital) of
Hartek amounting to DM1,150,000;
HARTWALL BOLAGEN means Hartwall Bolagen AB, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇;
INDUSTRIAL PROPERTY RIGHTS means all industrial property rights including, in
particular, patents (Patente), marks (▇▇▇▇▇▇), brand names, copyrights and
design rights (Gebrauch- und Geschmacksmuster);
KALL means Kall GmbH;
KALL PROFIT AND LOSS PARTICIPATION AGREEMENT means the domination and profit and
loss participation agreement between Hartek and ▇▇▇▇ dated 18 July 1991;
LEASED PREMISES means all real property on which the Companies operate or of
which they otherwise make use other than the Plant Premises;
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LICENSES means all licenses and permits (Erlaubnisse und Genehmigungen) required
by any of the Companies for carrying on its business effectively in the places
and in the manner in which it is carried on as at the date of signature of this
Agreement;
MAIN AMOUNT means DM5,400,000 (five million four hundred thousand deutschmarks);
MONETARY DEBTS means all interest bearing bank debts of the Companies on a
consolidated basis as at the Transfer Date;
NET EQUITY means (in the sense of section 266 paragraph 3 lit. A of the German
Commercial Code -Handelsgesetzbuch, HGB) the monetary figure expressed in DM for
Hartek and Hartek Awagem on a consolidated basis as shown in the Completion
Accounts which results from the following calculation:
subscribed capital (geszeichnetes Kapital)
plus capital reserve (Kapitalucklage)
plus profit reserves (Gewinnrucklage)
plus profit carry forward/minus loss carry forward
(Gewinnvortrag/Verlustvortrag)
plus profit for 1995/minus loss for 1995 (Jahresuberschuss
1995/Jahresfehlbetrag 1995).
NET EQUITY SHORTFALL means the amount by which actual Net Equity (as determined
by reference to the Completion Accounts) falls short of DM8,300,000 (eight
million three hundred thousand deutschmarks) as at the Transfer Date;
PLANT PREMISES means the Companies' real estate listed in APPENDIX 6;
POLICIES means the insurance policies taken out by the Companies as at the date
of signature of this Agreement;
PURCHASE PRICE means DM 15,000,000 (in words: fifteen million deutschmarks) less
the aggregate of:
(a) the Monetary Debts; and
(b) the Funding Cost Difference,
as adjusted pursuant to the terms of this Agreement;
PURCHASER means Scotsman Group, Inc.;
PURCHASER'S ACCOUNTANTS means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. GmbH,
Wirtschaftsprufungsgesellschaft, Steuerberatungsgesellschaft/Koln und
Dusseldorf;
SCOTSMAN means Scotsman Industries, Inc.;
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SHARES means singly and collectively the Hartek Shares and the Hartek Awagem
Shares;
STATEMENTS means the statements contained in clauses 9.2 to 9.28;
TAX shall have the meaning set out in clause 7.2.1;
TAX LIABILITY shall have the meaning set out in clause 7.2.2;
TRANSFER DATE means 31 December 1995, 24.00 hrs;
VENDOR means Hartek Beverage Handling BV;
VENDOR'S ACCOUNTANTS means KPMG Peat Marwick, Dusseldorf;
VENDOR'S BEST KNOWLEDGE means the best knowledge of any current directeur of the
Vendor, member of the board of directors of Hartwall Bolagen, or Geschaftsfuhrer
of Hartek or Hartek Awagem, together with the best knowledge of Frau Loffler, as
the case may be;
VENDOR GROUP means the group of companies affiliated with the Vendor or Hartwall
Bolagen (verbundene Unternehmen) within the meaning of section 15 of the German
Stock Corporation Act).
1.2 In this Agreement, unless the context otherwise requires:
(a) words denoting any gender shall include all genders;
(b) words denoting the singular shall include the plural and vice versa;
(c) the headings are inserted for convenience only and shall not affect the
construction of this Agreement;
(d) references to the Preamble, clauses and Appendices and subdivisions
thereof are to the Preamble and clauses of and Appendices to this
Agreement and subdivisions thereof respectively.
1.3 The Preamble and Appendices hereto form part of this Agreement and
shall have the force and effect as expressly set out in the body of this
Agreement. Accordingly, any reference to "this Agreement" shall include the
Preamble and Appendices hereto.
SALE AND ASSIGNMENT OF SHARES
2.1.1 The Hartek Share Capital amounts to DM 1,150,000 consisting of one
share in a nominal amount of DM 1,150,000.
2.1.2 The Hartek Awagem Share Capital amounts to ATS 1,500,000 consisting one
share in a nominal amount of ATS 1,500,00.
2.2 The Hartek Shares represent 100% of the Hartek Share Capital and the
Hartek Awagem Shares represent 100% of the Hartek Awagem Share Capital.
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2.3 The Vendor hereby offers to sell and assign the Shares including all
ancillary rights and claims attaching thereto to the Purchaser. The Purchaser
hereby accepts this offer. The assignment will be effected by notarized
contracts which will be concluded by the Parties immediately after the signing
of this Agreement. Such notarization will cure the formal deficiencies of this
Agreement in accordance with Article 15 paragraph (4) of the German GmbH Act.
2.4 The Shareholders Meeting of Hartek has by way of shareholders'
resolution, which is attached as APPENDIX 7, granted its consent to the sale and
assignment of the Hartek Shares to the Purchaser.
PROFITS
3. For the avoidance of doubt, any right to the profit of the Companies
during their current financial year ending on 31 December 1995 shall accrue to
the Purchaser.
CONSIDERATION FOR THE SHARES
4.1 The consideration for the Shares shall consist of the Purchase Price
and the Additional Consideration.
PAYMENT OF THE PURCHASE PRICE
4.2 The Purchaser shall:
(a) within two business days after the date of this Agreement remit the
Main Amount and the Escrow Amount to a bank account of Freshfields,
Frankfurt, legal advisers to the Purchaser, and provide the Vendor with
a fax copy of the remittance instruction to its bank and the
instructions to Freshfields to remit such amounts in accordance with
paragraph (b) below;
(b) subject to the satisfaction (or waiver by the Purchaser) of the
undertakings set out in paragraphs (c), (d), (e), (f) and (g) of clause
6.1, on or before the Transfer Date, pay:
(i) the Main Amount to the Vendor to such bank and account as the
Vendor shall notify for the purpose; and
(ii) the Escrow Amount by remittance into the Escrow Account or, if
the Escrow Guarantee has been established on or before the
Transfer Date pursuant to clause 4.6, to the Vendor together
with the Main Amount in accordance with paragraph (i) above.
The Escrow Account shall be operated in accordance with clause 4.5. The Escrow
Guarantee may be established in accordance with clause 4.6.
THE ADDITIONAL CONSIDERATION
4.3.1 The Additional Consideration (the ADDITIONAL CONSIDERATION) shall
consist of 75% of the actual amount of any tax saving realized by Hartek in
respect of each of its financial years ended on 31 December 1996, 1997 and 1998
through the use of the amount of any tax loss carry forward available to Hartek
as at the Transfer Date in reduction of taxable profits for those financial
years Provided that
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the Additional Consideration shall not exceed in aggregate DM 2.2 million (the
MAXIMUM ADDITIONAL CONSIDERATION).
4.3.2 Subject to clause 4.3.3, the Additional Consideration shall be paid by
the Purchaser to the Vendor within four (4) weeks after Hartek's audited
statutory annual accounts for each relevant financial year have been determined
(festgestellt) by Hartek's shareholders' meeting pursuant to section 42a of the
German law concerning companies with limited liability (Gesetz betreffend die
Gesellschaften mit beschrankter Haftung-GmbHG).
4.3.3 If the sum of the payments made pursuant to clause 4.3.2 has reached
the Maximum Additional Consideration, then the Purchaser shall have no
obligation to pay any further Additional Consideration to the Vendor. If the use
of any tax loss carry forward in respect of which Additional Consideration has
been paid to the Vendor pursuant to clause 4.3.2 is not permitted by any
relevant German tax authority with the result that tax is paid by Hartek, then
the Vendor shall, on or before the date such tax is payable by the Purchaser,
repay the amount of that Additional Consideration to the Purchaser. If such tax
payment is successfully appealed then the Additional Consideration shall be
repaid to the Vendor.
4.3.4 The Purchaser undertakes with the Vendor that it will not carry out any
restructuring or other change to the business or operating methods of Hartek or
its accounting principles as at the Transfer Date whose sole or main purpose is
to avoid the payment of Additional Consideration to the Vendor or to reduce the
amount which would, but for such restructuring or other change, have otherwise
been payable.
BANK ACCOUNTS
4.4 All payments to be made to the Vendor or Purchaser under this
Agreement, other than the payments into the Escrow Account, shall be made into
the account of the Vendor or the Purchaser to such bank and account as each may
specify for the purpose.
THE ESCROW ACCOUNT
4.5 The funds in the Escrow Account shall be held on the following terms:
(a) any bank or other charges arising on the Escrow Account shall be
charged to the Escrow Account;
(b) any interest or profit generated on the Escrow Account (subject to any
deduction of tax at source or any bank or other charges properly
charged to the Escrow Account) (the INCOME) shall accrue to and form
part of the Escrow Account. Each time part of the funds in the Escrow
Account is paid out it shall have added to it the corresponding
proportion of the Income;
(c) subject to paragraphs (d) and (e) below, the funds in the Escrow
Account shall be retained for a period of 12 months from the Transfer
Date (the ESCROW PERIOD). At the end of the Escrow Period (subject to
paragraphs (e) and (f) below) the Escrow Agent shall release to the
Vendor the funds in the Escrow Account (together with any Income);
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(d) immediately upon final determination of any amount payable pursuant to
clause 5.6, the Purchaser and the Vendor shall issue joint written
instructions to the Escrow Agent to release such amount from the Escrow
Account to the Purchaser or the Vendor, as the case may be;
(e) to the extent that, prior to the expiry of the Escrow Period, the
Purchaser shall have notified the Vendor and the Escrow Agent of any
other claim arising under this Agreement (including, without
limitation, pursuant to clause 6, 7, 8, 9 or 10) and the amount of any
such claim shall have been agreed by the Vendor and the Purchaser or
determined in accordance with clause 21.2 the Escrow Agent shall
immediately upon such agreement or determination pay the amount of such
claim from the Escrow Account to the Purchaser;
(f) to the extent that the liability for or the quantum of any claim or
claims notified under (e) above shall not have been agreed or
determined (as described above) by the expiry of the Escrow Period, the
amount claimed (together with any interest thereon) shall continue to
be held in the Escrow Account after expiry of the Escrow Period pending
agreement or determination; immediately upon such agreement or
determination the Escrow Agent shall pay the amount of any claim from
the Escrow Account to the Purchaser and, immediately all such claims
have been so agreed or determined, the balance (if any) remaining in
the Escrow Account shall be paid to the Vendor.
THE ESCROW GUARANTEE
4.6.1 The Vendor shall be entitled on or before the Transfer Date or by not
less than thirty (30) days notice to the Purchaser at any time during the Escrow
Period to provide an Escrow Guarantee for the Escrow Period in favor of the
Purchaser for the Escrow Amount in substitution for operation of the Escrow
Account pursuant to clause 4.5
4.6.2 Upon delivery of the Escrow Guarantee to the Purchaser, the Purchaser
and the Vendor will instruct the Escrow Agent to pay the full amount then
standing to the credit of the Escrow Account to the Vendor LESS the amount (if
any) of any claim or claims which have been made but not agreed or determined as
referred to in clause 4.5(f) which shall remain in such Escrow Account in
accordance with that paragraph and LESS any amounts which are to be paid to the
Purchaser pursuant to clause 4.5(d) or (e) which shall be remitted to the
Purchaser.
4.6.3 The Purchaser shall be entitled to demand payment under the Escrow
Guarantee to the Escrow Agent into the Escrow Account on or before expiry of the
Escrow Period of the amount of any claim to be held thereafter in accordance
with clause 4.5(f).
COMPLETION ACCOUNTS
COMPLETION ACCOUNTS
5.1.1 The Vendor and the Purchaser shall use all reasonable endeavours to
procure that, promptly after the Transfer Date, the Completion Accounts for the
Companies are prepared and consolidated on the basis of German Accounting
Principles.
5.1.2 For the purposes of the Completion Accounts, the stocks and the
inventory of the Companies shall be valued in accordance with the following
rules and principles. The value of the stocks and the
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inventory shall be determined, based on a physical inventory at the Transfer
Date, at the respective Company's average costs as presently applied. The value
so determined shall then be adjusted for any excess or obsolete inventory or
stocks, which shall be determined according to the following guidelines:
(a) raw materials (including purchased parts) or work in progress acquired
for use in a product not currently offered for sale by any of the
Companies, even if such product is listed in the respective Company's
most recent catalogue, shall be valued at one DM;
(b) finished goods not currently offered for sale by any of the Companies,
even if such products are listed in the respective Company's most
recent catalogue, shall be valued at one DM;
(c) any inventory or stocks (except products which have been introduced
into the market by the respective Company during the last six months
prior to the Transfer Date) which could not be expected to be consumed
within:
(i) six months (but less than one year) shall be subject to a
discount of 25%;
(ii) one year (but less than 18 months) shall be subject to a
discount of 50%;
(iii) 18 months (but less than 2 years) shall be subject to a
discount of 75%;
(iv) two years or more shall be discounted to one DM (such time
periods being based on the rate of sales for (or in the case
of raw materials, usage of) those products during the year
preceding the Transfer Date);
(d) items of inventory or stock which are damaged and are not economically
repairable, shall be valued at one DM; and
(e) returned goods which are not re-saleable in accordance with customary
industry practice at or above the inventory value that would otherwise
have been attributed thereto, shall be valued at one DM.
PREPARATION OF DRAFT COMPLETION ACCOUNTS
5.2 The Purchaser shall arrange for draft Completion Accounts to be
prepared by the Companies, and the Purchaser and the Vendor shall arrange that
the draft Completion Accounts be jointly reviewed by Purchaser's Accountants and
Vendor's Accountants with a view to such reviewed draft Completion Accounts
being delivered to the Purchaser and the Vendor within 45 days after the
Transfer Date. The Purchaser shall use all reasonable endeavours to ensure that
the Companies provide the Purchaser's Accountants and the Vendor's Accountants
with such access to such accounts, working papers and other financial
information of the Companies as is reasonably necessary for the purpose of their
review of the draft Completion Accounts.
NOTIFICATION
5.3 The Purchaser and the Vendor shall notify each other in writing within
30 days of receipt of such draft Completion Accounts if either of them or both
do not accept them for the purposes of this
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Agreement. If the Purchaser and/or the Vendor notifies the other that it does
not accept such draft Completion Accounts:
(a) it shall set out in detail its reasons for such non-acceptance and
specify the adjustments (and provide appropriate supporting evidence
for each such adjustment) which, in its opinion, should be made to the
draft Completion Accounts in order to comply with the requirements of
this Agreement; and
(b) the parties shall use all reasonable endeavours to meet and discuss the
objections of the Purchaser and/or the Vendor and to reach Agreement
upon the adjustments (if any) required to be made to the draft
Completion Accounts.
RESOLUTION OF DISPUTES
5.4 If the Vendor and the Purchaser do not reach Agreement within 30 days
of the Purchaser's and/or Vendor's notice of non-acceptance under clause 5.3,
whichever is earlier, then the matters in dispute shall be referred, on the
application of either party, for determination by the Experts, to be agreed upon
between the Purchaser and the Vendor or failing agreement between the Vendor and
the Purchaser within 14 days from the said application, to be selected by the
president for the time being of the Industrie- und Handelskammer in Dusseldorf.
The following terms of reference shall apply:
(a) the Purchaser's Accountants and the Vendor's Accountants shall
each promptly prepare a written statement on the matters in
dispute which (together with the relevant documents) shall be
submitted to the Experts;
(b) in giving such determination, the Experts shall state what
adjustments (if any) are necessary to the draft Completion
Accounts in respect of the matters in dispute (but in so doing
shall not exceed the scope of any such matters referred to
them for determination) in order to comply with the
requirements of this Agreement;
(c) the Experts shall act as an expert (Schiedsgutachter) (and not
as an arbitrator (Schiedsrichter)) in making any such
determination which shall be final and binding on the parties;
and
(d) the Experts' expenses shall be borne between the Vendor and
the Purchaser in such proportions as the Experts shall
determine by applying ▇▇.▇▇. 91 et seq. of the German Code on
Civil Procedure.
FINAL DETERMINATION
5.5.1 If the Vendor and the Purchaser reach Agreement on the draft Completion
Accounts or the draft Completion Accounts are finally determined by the Experts
or the Purchaser and the Vendor have not notified the other pursuant to clause
5.3 of any objections to the draft Completion Accounts:
(a) the draft Completion Accounts as so agreed, determined or (as the case
may be) non-objected shall be the Completion Accounts for the purposes
of this Agreement and shall be final and binding on the parties; and
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(b) the amount of the Net Equity, Cash Balance and Monetary Debts (and the
amount payable pursuant to clause 5.6.5) shall be derived from the
Completion Accounts.
5.5.2 The Experts shall send the Completion Accounts immediately after their
determination to the Vendor and to the Purchaser, notifying the Vendor and
Purchaser by fax of such dispatch. and the Vendor and the Purchaser shall be
deemed to have received such Completion Accounts two working days later (the
DATE OF RECEIPT OF THE COMPLETION ACCOUNTS). If the draft Completion Accounts
become the Completion Accounts by Agreement of the Vendor and the Purchaser
pursuant to clause 5.5.1(a) or by non-objection pursuant to clause 5.5.1 (a),
then such events shall also constitute Dates of Receipt of the Completion
Accounts for the purposes of this Agreement.
ADJUSTMENT OF PURCHASE PRICE
5.6.1 If the Completion Accounts show a Net Equity Shortfall, then the
Purchase Price shall be reduced by an amount equal to such Net Equity Shortfall.
5.6.2 If the Monetary Debts are less than the Estimated Monetary Debts, the
Purchase Price shall be increased by the amount of such shortfall. If the
Monetary Debts are greater than the Estimated Monetary Debts, the Purchase Price
shall be reduced by the amount of such excess except and to the extent that the
Cash Balance exceeds DM1,000,000 (one million deutschmarks).
5.6.3 If the Cash Balance is less than DM1,000,000 (one million
deutschmarks), the Purchase Price shall be reduced by the amount of such
shortfall.
5.6.4 If the Funding Cost Difference is less than the Estimated Funding Cost
Difference, the Purchase Price shall be increased by the amount of such
shortfall. If the Funding Cost Difference is greater than the Estimated Funding
Cost Difference, the Purchase Price shall be reduced by the amount of such
shortfall.
5.6.5 The net amount of any increase or decrease (as the case may be) of the
Purchase Price pursuant to clause 5.6.1, 5.6.2 and 5.6.3 shall be paid to the
Vendor or the Purchaser (as the case may be) within ten (10) days of
determination thereof and, (if relevant) notification pursuant to clause 5.7.1.
5.6.6 The amount of any increase or decrease (as the case may be) of the
Purchase Price pursuant to clause 5.6.4 shall be paid to the Vendor or the
Purchaser (as the case may be) within ten (10) days of notification to the
Vendor of the amount of the Funding Cost Difference pursuant to clause 5.6.8.
5.6.7 If the Escrow Amount is not sufficient to cover the adjustment pursuant
to this clause 5.6 then, subject to clause 5.7.2, the Vendor shall pay to the
Purchaser the amount not so covered within ten (10) days upon the Purchaser's
written request.
5.6.8 The Purchaser shall, during the period of thirty (30) days of the
Transfer Date, with the assistance of the Vendor, use its reasonable endeavours
to renegotiate the terms and conditions of the Monetary Debts and shall use its
best efforts (including the offer of sufficient Scotsman guarantees) to release
existing Vendor Group guarantees for the Monetary Debts in each case so as to
reduce the Funding Cost Difference. If the terms and conditions have been
renegotiated they shall be used as the basis for calculating the Funding Cost
Difference. The amount of the Funding Cost Difference shall be determined
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(in consultation with the Vendor) by the Purchaser and notified to the Vendor
within three (3) months of the Transfer Date.
NOTIFICATION AND RIGHT TO WITHDRAW
5.7.1 The Purchaser shall notify the Vendor of a claim arising under clause
5.6.1, 5.6.2 or 5.6.3 within thirty (30) days of the Date of Receipt of the
Completion Accounts.
5.7.2 If the amount claimed by the Purchaser pursuant to clause 5.61 exceeds
DM3,000,000 (three million deutschmarks) then the Vendor shall have the option
to withdraw from this Agreement without liability (other than to transfer to the
Vendor such title to the Shares as the Purchaser received from the Vendor) on
the part of the Purchaser.
5.7.3 If the Vendor wishes to exercise the option referred to in clause 5.7.2
it shall do so by notice to the Purchaser within ten (10) days of notification
by the Purchaser of the amount claimed from the Vendor pursuant to clause 5.6
and the transfer referred to in clause 5.7.2 shall be conditional upon repayment
in full by the Vendor of the Main Amount and release by the Vendor of the full
Escrow Amount to the Purchaser, in each case together with interest thereon.
UNDERTAKINGS
PRE-COMPLETION UNDERTAKINGS
6.1 The Vendor undertakes to the Purchaser that on or prior to the Transfer
Date it will procure:
(a) the prompt repayment of all debts then owed to the Companies by the
Vendor or Hartwall Bolagen or any company within the Vendor Group
provided, however, that intercompany debts between Hartek and Hartek
Awagem are not subject to such repayment obligation;
(b) the prompt release of the Companies from any intra-group guarantees
and, pending such release, to indemnify the Companies from all claims,
losses and liabilities arising thereunder;
(c) each of the Kall Profit and Loss Participation Agreement and the
Cascade Profit and Loss Participation Agreement will have been
terminated;
(d) the entire issued share capital of each of Cascade and Kall has been
sold by Hartek (and all of the shares in each of Kall and Cascade
assigned to a third party) for cash without any liability whatsoever on
the part of Hartek at a price in the case of Kall which is not less
than the value attributed to it in the 1994 Accounts of Hartek and in
the case of Cascade, at a price of DM100,000 in accordance with
paragraph (g) below;
(e) the delivery to the Purchaser of a Control Power of Attorney duly
executed by the Vendor in the form set out in APPENDIX 8;
(f) the delivery to the Purchaser of a waiver by the lenders of the
Monetary Debts of any right to require repayment of all or any part of
the Monetary Debts by reason of the sale of the Shares by the Vendor to
the Purchaser in the form attached as APPENDIX 9;
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(g) that Hartwall Bolagen shall purchase from Hartek for cash at face
value, the debt in the amount of DM1,500,000 owed to Hartek by Cascade.
Hartek shall utilize the purchase proceeds in part repayment of the
debt of DM1,600,000 owed to Cascade by Hartek and shall repay the
balance of such debt from its own funds. Hartwall Bolagen shall acquire
all the shares in Cascade from Hartek for cash pursuant to paragraph
(d) above, for a purchase price of DM100,000;
(h) all the members of the board (Beirat) of Hartek will resign without any
claim for compensation.
POST-COMPLETION UNDERTAKINGS
6.2.1 The parties agree that Hartwall Bolagen and the Purchaser on behalf of
the Companies or the Companies directly with Hartwall Bolagen shall from time to
time negotiate at regular intervals over a three-year period from the Transfer
Date for continued sales by the Companies on arms-length terms of such
proportion of the Vendor Group's requirements of the Companies' products as may
be appropriate having regard to market conditions and to the extent that it
shall be lawful to do.
6.2.2 If after the Transfer Date a creditor of Cascade or Kall requires
Hartek pursuant to Section 303 (1) of the German Stock Corporation Act to
provide to it collateral in respect of a claim it has or alleges it has
against Cascade or Kall, the Purchaser shall notify the Vendor thereof
whereupon the Vendor shall promptly provide or make available to that creditor
collateral within the meaning of Section 303 (1) of the Stock Corporation Act.
The Vendor undertakes to indemnify Hartek or the Purchaser (as the Purchaser
may elect) on first written demand against any costs or losses Hartek may incur
as a result of a creditor making any such claim against Hartek or of Cascade or
Kall making any claim against Hartek under the Cascade Profit and Loss
Participation Agreement or Kall Profit and Loss Participation Agreement (or any
third party making a claim deriving therefrom).
6.2.3 The Vendor shall, within thirty (30) days of notice from the Purchaser,
reimburse the Purchaser for any accounts receivable of the Companies shown in
the Completion Accounts which remain unpaid 180 days after the Transfer Date to
the extent that the aggregate amount remaining unpaid exceeds the provision for
bad debts contained in the Completion Accounts. The maximum liability of the
Vendor under this clause 6.2.3 shall not exceed DM 500,000 (five hundred
thousand deutschmarks) in aggregate.
TAX
TAX INDEMNITY
7.1 The Vendor shall indemnify the Companies from, and hold the Companies
harmless in respect of any Tax Liability (as defined in clause 7.2.2 below)
which exists on the Transfer Date, or which arises from or relates to acts,
omissions or circumstances in the period prior to the Transfer Date except to
the extent that provisions in respect of the Tax Liability (as defined in clause
7.2.2 below) have been made in the Completion Accounts.
DEFINITIONS
7.2 For the purposes of this Agreement, the following terms shall have the
following meaning:
7.2.1 TAX shall include:
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(a) any tax (Steuern) within the meaning of ss.3 sub-paragraphs (1) and (2)
of the German Tax Procedure Act (Abgabenordnung);
(b) social security payments (Sozialversicherungsbeitrage);
(c) payments to the Association for the Guaranty of Pensions in Cases of
Bankruptcy (Pensionssicherungsverein),
together with any payment relating to any of the above including interest,
costs, penalties, late payment charges, late filing charges and any comparable
obligations (steuerliche Nebenleistungen) within the meaning of ss.3
sub-paragraph (3) of the German Tax Procedure Act.
7.2.2 For the purposes of this Agreement TAX LIABILITY shall mean:
(a) any liability of any of the Companies to make a payment of or relating
to Tax (in this event the Tax Liability shall be equal to the amount so
payable); and
(b) the loss (full or partial) of
(i) any right to repayment in respect of Tax (or the right to set
off any right to repayment of Tax against any Tax Liability)
to the extent such right is included in the Completion
Accounts (in this event the Tax Liability shall be equal to
the amount of the right so lost); and
(ii) any allowance, depreciation (Abschreibung), credit, deduction
or exemption relevant to the computation of any income,
profits or gains and net worth (Vermogen) for the purposes of
any Tax payable by any of the Companies (in this event the Tax
Liability shall be calculated on the assumption that the
allowance, credit or exemption can be used immediately)
by any of the Companies; and
(c) any disadvantage of any of the Companies relating to Tax which results
from an assessment of the equity breakdown (Bescheid uber die
Feststellung des verwendbaren Eigenkapitals) of the respective Company
deviating from that shown in the tax return of that Company for the
financial year ending as at 31 December 1994 (in this event the Tax
Liability shall be calculated on the assumption that such disadvantage
materializes immediately).
NOTIFICATION OF CLAIMS AND CONDUCT OF DISPUTES
7.3 If the Purchaser becomes aware that any Tax Liability will give rise to
a claim against the Vendor under clause 7.1 above, the Purchaser shall notify
the Vendor thereof without undue delay (unverzuglich) and shall take such action
as the Vendor may request to dispute the relevant assessment of Tax. The
Purchaser shall, however, only be obliged to take such action if he is promptly
indemnified from or secured to his reasonable satisfaction by the Vendor against
all losses, costs, damages and expenses that may result from such action.
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TAX AUDIT/RIGHT OF INSPECTION
7.4 The Purchaser shall inform the Vendor in due course of any impending
tax audit relating to financial years of any of the Companies ending on or
before the Transfer Date and the Vendor shall be entitled to inspect all tax
audit reports and to participate in all discussions with tax auditors relating
to such financial years.
TAX REPAYMENTS
7.5 If, in respect of any financial period of either of the Companies
expiring on or prior to the Transfer Date either of the Companies receives after
the Transfer Date a repayment in respect of Tax then, except to the extent a
right to receive such repayment was included in the Completion Accounts, the
Purchaser shall pay to the Vendor an amount equal to the actual repayment
received by either of the Companies within thirty (30) days of receipt thereof.
NON-COMPETE
RESTRICTION ON COMPETITION
8.1 During a period of five (5) years from the Transfer Date, the Vendor
shall not and shall procure that each other member of the Vendor Group shall not
(whether directly or indirectly) carry on or be engaged in or (except as the
owner for investment purposes of securities listed on a stock exchange and not
exceeding three (3) per cent in nominal value of the securities of the listed
issuer in question) be interested in any business:
(a) which competes, directly or indirectly, with the Hartek Business and/or
the Hartek Awagem Business; and
(b) which is carried on in the Federal Republic of Germany and/or Austria.
NO SOLICITATION
8.2 The Vendor shall not (and shall procure that each other member of the
Vendor Group shall not) within a period of three (3) years after the Transfer
Date, directly or indirectly, solicit or endeavour to entice away from the
Companies any person who was employed by any of the Companies in skilled or
managerial work at any time during the three (3) years prior to the Transfer
Date.
PENALTY
8.3 The Vendor shall pay to the Purchaser for each case of a breach of:
(a) clause 8.1 an amount equal to 10% of the turnover generated by the
activity carried out in breach of such provision, but in any case a
minimum amount of DM 100,000. In the event of a recurring breach, a
minimum penalty in the amount of DM 100,000 will be payable for each
week of the breach;
(b) clause 8.2 an amount equal to the sum of five times the aggregate of
the annual salary and the value in Deutschmarks of any fringe benefits
of the respective person.
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The right to claim damages or to demand specific performance in the event of a
breach of this clause 8 remains with the Purchaser.
GUARANTEES
GUARANTEE
9.1 The Vendor and the Guarantor jointly and severally represent, warrant
(sichern zu) and guarantee (garantieren) to the Purchaser as an independent
contractual obligation (im Wege eines selbstandigen Garantievertrages) that the
statements (the Statements) contained in clauses 9.2 to 9.28 below are correct
and not misleading as of the date of signing of this Agreement and as of the
Transfer Date (with reference to the facts then existing).
RECITALS, APPENDICES
9.2 The information contained in the Preamble and Appendices to this
Agreement is complete and correct in all material respects. Appendices to this
Agreement are true and complete copies of the documents in question.
CORPORATE
SHARES
9.3 The Vendor is the sole owner of the Shares. The Shares are in good
legal standing and have no defect in title (Rechtsmangel). The Shares (and all
other equity shares in either of the Companies which have been issued in the
past, whether or not still in existence) have been fully paid up in cash and
have not been repaid in whole or in part. The Shares carry full dividend
entitlement as at 1 January 1995. No obligation exists in respect of the Shares
or otherwise to pay in further capital. There are no rights or claims to issue
or grant any shares or equity interests in the Companies.
RIGHTS OF THIRD PARTIES
9.4 The Shares are free from any rights or claims of third parties and are
not subject to any option, preemption right or right of first refusal. The
Vendor is entitled to transfer the Shares as contemplated by this Agreement to
the Purchaser without any third party's consent. The Shares do not represent all
or substantially all of the Vendor's assets within the meaning of Section 419 of
the German Civil Code.
ENTERPRISE AGREEMENTS
9.5 None of the Companies is party to, or committed to enter into, any
enterprise agreement. The Group Cost Agreement will end on the Transfer Date.
BOOKS AND RECORDS
9.6 To the Vendor's Best Knowledge, all books and records of the Companies
are complete and correct, have been maintained with the care of a conscientious
businessman and the principle of proper bookkeeping.
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FINANCIAL
ACCOUNTS
9.7.1 Subject to clause 9.7.2, the Accounts of Hartek and Hartek Awagem for
the financial years ▇▇▇▇ (▇▇▇▇▇▇▇▇ ▇▇), ▇▇▇▇ (▇▇▇▇▇▇▇▇ 11) and 1994 (APPENDIX
12) have been prepared on the basis of proper bookkeeping (aufgrund
ordnungsgemasser Buchfuhrung) and in relation to Hartek in accordance with the
German Accounting Principles and in relation to Hartek Awagem in accordance with
the Austrian Accounting Principles and, in each case, have been prepared
consistently, both in form and substance with the accounts for the relevant
preceding financial year of the Companies. The Accounts give a true and fair
view of the net worth (Vermogenslage), financial position (Finanzlage) and the
results (Ertragslage) of the Companies (in relation to Hartek within the meaning
of ss. 264 sub-paragraph (2) of the German Commercial Code and in relation to
Hartek Awagem within the meaning of the equivalent terms of the Austrian
Accounting Law (Rechnungslegungsgesetz)) as at, and for the financial year
ending on the respective Accounts Date. As at the relevant Accounts Date, none
of the Companies had liabilities, actual or contingent, known or unknown, and
whether or not already existing, other than those shown in the said Accounts.
The results of none of the Companies have been affected by any extraordinary
profits in relation to Hartek within the meaning of ss. 277 sub-paragraph (4) of
the German Commercial Code and in relation to Hartek Awagem, other than as is
expressly disclosed in the Accounts affected thereby.
9.7.2 For the avoidance of doubt, the Purchaser acknowledges for the purposes
of clause 9.7.1 that each of the Companies has been restructured since the
respective Accounts Dates and that such Accounts do not reflect the effects of
any restructuring which has taken place after the Accounts Date to which they
relate. The Vendor has disclosed to the Purchaser full particulars of all such
restructurings.
WORKING CAPITAL/CASH
9.8 The Companies have cash reserves of DM1,000,000 (one million
deutschmarks) on a consolidated basis as at the Transfer Date as shown in the
Completion Accounts.
DEBTS
9.9 There are no debts owing to any of the Companies other than trade debts
incurred in the ordinary and usual course of business of the Companies.
ACCOUNTS RECEIVABLE, BORROWINGS
9.10.1 None of the Companies has outstanding any borrowing or indebtedness in
the nature of borrowing other than moneys borrowed from Deutsche Bank and
Volksbank Remscheid eG which do not exceed DM10,000,000 and certain details of
which are set out in APPENDIX 13.
9.10.2 None of the Companies has received any notice to repay under any
Agreement relating to any borrowing or indebtedness in the nature of borrowing
which is repayable on demand.
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GUARANTEES, COMFORT LETTERS
9.11 None of the Companies has issued any guarantees and/or letters of
comfort or similar instruments securing the payment of monies by third parties.
ASSETS
ASSET OWNERSHIP
9.12 Other than in the ordinary course of business, except for the assets
listed in APPENDIX 14 all assets included in the Completion Accounts are fully
and solely owned by the Companies and free of any rights of third parties.
POSSESSION
9.13 Other than consignment stock as listed in APPENDIX 15 (as at 30
November 1995) and items possessed by third parties in the ordinary cause of
business, all of the assets owned by the Companies, or in respect of which the
Companies have a right of use, are in the possession of the Companies.
DEPENDENCY
9.14 To the Vendor's Best Knowledge the assets of the Companies and the
facilities and services to which the Companies have a contractual right include
all rights, properties, assets, facilities and services relevant to the carrying
on of the business of the Companies in the manner in which it is currently
carried on. Where any assets are used but not owned by the Companies or any
facilities or services are provided to the Companies by any third party, they
are provided on the basis of arm's length agreements.
CONDITIONS OF ASSETS
9.15 All the plant, machinery, equipment and vehicles used by the Companies:
(a) are in a good state of repair and have been regularly and properly
maintained in accordance with all relevant technical specifications,
safety regulations and the terms and conditions of any applicable
agreement, provided, however, that normal wear and tear as well as past
depreciation and actual book value will be taken into consideration;
(b) are capable of being efficiently and properly used for the purposes
(pound)or which they were acquired or are retained.
PLANT REGISTER
9.16 The plant registries of the Companies comprise a complete and accurate
record of all the plant, machinery, equipment and vehicles owned or possessed by
the Companies.
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REAL PROPERTY
9.17.1 The Companies have sole and unrestricted title to, and sole possession
of, the Plant Premises. Up-to-date extracts from the relevant Land Registers in
respect of the Plant Premises are attached as APPENDIX 16. The Companies have
not sold, and are not committed to transfer, any or all of the Plant Premises.
None of the Companies owns any real property other than the Plant Premises. The
Leased Premises are listed in APPENDIX 17. The Leased Premises are used on the
basis of valid lease agreements and all buildings thereon are in such condition
as corresponds to the relevant lease Agreement.
9.17.2 The Companies have neither granted nor have they committed to grant any
encumbrances, restrictions or rights of third parties in relation to the Plant
Premises, except for those shown in the extracts from the relevant Land
Registers attached as APPENDIX 16. All mortgages (Grundschulden, Hypotheken)
listed in relation to Hartek in Part III of the Land Register extracts (APPENDIX
16) secure only liabilities of the Companies which will be fully shown in the
Completion Accounts. The Companies have an unconditional right to require the
release of any such mortgage or encumbrance if and when the liability secured
ceases to exist.
9.17.3 To the Vendor's Best Knowledge, the Buildings do not encroach on
property owned by third parties and all permits, licenses etc. required in
relation to the Buildings have been properly granted, are of unlimited term and
in full force and effect and all conditions attaching to them are, and always
have been, duly complied with in all material respects. To the Vendor's Best
Knowledge, the condition and the present use of the Plant Premises including the
Buildings do not violate any zoning plans, building regulations or other legal
provisions.
CONNECTED PARTIES
9.18.1 Except as listed in APPENDIX 18 the Companies have no liabilities to,
or for the benefit of, any member of the Vendor Group.
9.18.2 No member of the Vendor Group, at the time of signing of this
Agreement, holds an interest in an enterprise which is engaged in the same area
of activity as the Companies in the Federal Republic of Germany/Austria.
9.18.3 None of the Companies has any subsidiary or holds any majority or
minority interest in another company or enterprise. Hartek's former interests in
Cascade and Kall have been (or will have been, not later than the Transfer Date)
sold by Hartek at book value and the Cascade Profit and Loss Participation
Agreement as well as the Kall Profit and Loss Participation Agreement have been
(or will have been, not later than the Transfer Date) validly and irrevocably
terminated.
9.18.4 Hartek is not subject to any liabilities resulting from the Cascade
Profit and Loss Participation Agreement and/or the Kall Profit and Loss
Participation Agreement nor from the former domination and profit and loss
participation agreements between Hartek and ▇▇▇▇ Schankanlagen GmbH and/or
between Hartek and Kall Mix-Drink-GmbH.
ENVIRONMENT
9.19.1 To the Vendor's Best Knowledge there is not currently and there has not
been on, into or from any of the Plant Premises or Leased Premises any spill,
leakage, discharge, release, emission, injection,
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escape or deposit of any kind (whether to air, water (including underground
water), sewage systems or land or a combination of these) of any substance or
energy which may require investigation or remediation and which may result in
any liability of any of the Companies or inhibit, restrict or make materially
more costly any redevelopment of any of the Plant Premises or Leased Premises or
any part thereof.
9.19.2 To the Vendor's Best Knowledge and except as listed in APPENDIX 19
there are no underground storage tanks or vessels (whether used or disused)
located on any of the Plant Premises or Leased Premises.
9.19.3 To the Vendor's Best Knowledge none of the Companies has any obligation
or liability, absolute or contingent, known or unknown, with respect to the
storage, treatment, clean-up, disposal, containment or other remediation of any
land, building, water or substance.
9.19.4 All environmental audits and reviews of each of the Companies, its
business or the Plant Premises or the Leased Premises have been fully disclosed
to the Purchaser.
9.19.5 There has not been on, into or from the former premises at
▇▇▇▇-▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ any spill, leakage,
discharge, release, emission, injection, escape or deposit of any kind (whether
to air, water (including underground water), sewage systems or land or a
combination of these) of any substance or energy which may require investigation
or remediation and which may result in any liability of any of the Companies.
INDUSTRIAL PROPERTY RIGHTS
9.20.1 The Companies do not own any Industrial Property Rights. To the
Vendor's Best Knowledge none of the Companies intends to use or requires the use
of any Industrial Property Rights. To the Vendor's Best Knowledge, none of the
Companies infringes any Industrial Property Rights (or use any confidential
information) of third parties.
9.20.2 No third party has been granted by any of the Companies a right to use
any Industrial Property Right or the firm name of any of the Companies or any
destined part thereof other than as set out in APPENDIX 20.
9.20.3 To the Vendor's Best Knowledge, there is no liability of any of the
Companies (actual or contingent) under any statutory employee inventor
compensation provision (including, in particular, the
Arbeitnehmererfindungsgesetz), or like employee inventor compensation provision,
in any jurisdiction.
COMPLIANCE
9.21.1 To the Vendor's Best Knowledge:
(a) each of the Companies has obtained all Licenses;
(b) the Licenses are in full force and effect, are not limited in duration
and not subject to any unusual or onerous conditions;
(c) the Licenses are (and have always been) complied with in all material
respects;
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(d) there are no circumstances which indicate that any of such Licenses may
be revoked or not renewed, in whole or in part, in the ordinary course
of events (whether as a result of the acquisition of the Shares or
otherwise); and
(e) the supply of water and energy is sufficient for the Companies's
current requirements and any planned increases of production and the
disposal of waste water is assured to the same degree.
9.21.2. The business operation of the Companies does not infringe any statutory
provisions or rights of third parties and the Companies have complied with all
their statutory obligations.
9.21.3 To the Vendor's Best Knowledge:
(a) none of the Companies has manufactured, sold or supplied any product or
service which is, or will become faulty (fehlerhaft) where the
respective Company does not have a valid and enforceable claim for
indemnification from any claim and liability resulting therefrom under
product liability insurance;
(b) all products manufactured or distributed by any of the Companies comply
with all relevant legal provisions and technical standards (such as
DIN); and
(c) no change or amendment to any such legal provision or technical
standards is currently planned which (once in force) will have the
result that the products currently manufactured or distributed by any
of the Companies would not comply with such standards and requirements
as so amended.
EMPLOYMENT, PENSIONS
9.22.1 APPENDIX 21 sets forth a list of all employees of the Companies with
aggregate annual compensation including fringe benefits and bonuses in excess of
DM100,000 containing information as to the name, position, date of commencement
of employment, salary, date of birth, notice period as well as all other
remuneration, bonuses and benefits. None of the Companies has agreed to any
variation of the terms of any employment or service Agreement. The Companies do
not have any standard terms of employment. All shop agreements
(Betriebsvereinbarungen) and other commitments and practices (Betgriebliche
Ubung) applicable to any of the Companies or its employees (in whole or in part)
are listed or contained in APPENDIX 22. The Companies may at any time
discontinue their operations at certain locations, reduce their workforce, cease
to employ employees and to implement operational changes (in relation to Hartek
within the meaning of Section 111 of the Shop Constitution Act) subject only to
the restrictions under applicable statutory law and collective bargaining
agreements.
9.22.2 None of the Companies has any absolute or contingent liabilities
arising from termination of employment or service agreements, early retirement
or pension contracts, commitments or schemes (including any direct pension
promise, direct insurance or through the setting up of a support fund or pension
fund) other than as listed in APPENDIX 23.
9.22.3 The provisions (Ruckstellungen) made in the Completion Accounts for
pension obligations of the Companies are correct and sufficient to cover all the
respective pension obligations of the Companies under agreements to which any of
the Companies is a party at the Transfer Date.
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9.22.4 APPENDIX 24 contains a list of all powers of attorney (including
Prokura und Handlungsvollmachten) as well as charts of all signatory authorities
(Zeichnungsberechtigung) granted by the Companies.
9.22.5 To the best knowledge of the Vendor and Hartwall Bolagen, ▇▇ ▇▇▇▇▇ does
not intend to resign and to the Vendor's Best Knowledge, no senior employee of
the Companies intends to resign in either case as a result of the acquisition of
the Shares by the Purchaser or other performance of the terms of this Agreement.
INSURANCES
9.23 The Policies are in full force and effect and will remain so for a
period of not less than two (2) months following the Transfer Date. All premiums
payable under the Policies on or prior to the Transfer Date have been or will be
paid when due.
OPERATION OF BUSINESS
9.24 None of the Companies is restricted in the operation of its business to
compete with other parties or in the purchasing or acquiring assets other than
as provided under applicable statutory law.
CONTRACTUAL MATTERS
9.25.1 Except as specified in APPENDIX 25 there is no Agreement to which any
of the Companies is a party:
(a) which, by virtue of the sale and transfer of the Shares or other
performance of the terms of this Agreement, may be adversely affected;
(b) entered into otherwise than by way of a bargain at arm's length or is
otherwise of an unusual or uncommon nature;
(c) is not enforceable by the Companies in accordance with its terms and
conditions;
(d) which upon termination will result in a liability of any of the
Companies to make a compensation, penalty or termination payment;
(e) which involves or is likely to involve expenditure by, or income of any
of the Companies in excess of DM 250,000 or, in the case of long-term
agreements, DM 250,000 per annum.
9.25.2 To the Vendor's Best Knowledge, neither the Companies nor a party with
whom any of the Companies has entered into any Agreement, is in material default
under such Agreement and there are no circumstances likely to give rise to any
such default, provided that this clause 9.25.2 shall only relate to agreements
of material and essential nature to the operations and/or conduct of business of
any of the Companies.
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INSOLVENCY/LITIGATION
9.26.1 None of the Companies is insolvent (in relation to Hartek within the
meaning of Section 102 of the German Bankruptcy Code and in relation to Hartek
Awagem within the meaning of the corresponding Austrian statutes) or
over-indebted (in relation to Hartek within the meaning of Section 64
subparagraph 1 sentence 2 of the GmbHG and in relation to Hartek Awagem within
the meaning of the corresponding Austrian statutes). No application for the
opening of a bankruptcy proceeding (Konkursverfahren) or composition proceeding
(Vergleichsverfahren) in respect of any of the Companies has been filed.
9.26.2 To the Vendor's Best Knowledge, none of the Companies is a plaintiff or
defendant in or otherwise a party to any litigation, arbitration or
administrative proceedings nor are there any litigation, arbitration or
administrative proceedings threatened and there are no circumstances likely to
give rise to any such proceedings, provided that this clause 9.26.2 shall only
apply to litigious or other proceedings which are outside the ordinary course of
business of any of the Companies.
RECENT EVENTS
9.27 Since 31 December 1994
(a) subject to the merger between Hartek and ▇▇▇▇-Mix-Drink GmbH in 1995,
each of the Companies has carried on its business only in the ordinary
and regular course (gewohnlicher und ordnungsgemasser
Geschaftsbetrieb), on an arm's length basis and without interrupting or
changing its nature, scope or manner;
(b) none of the Companies has transferred to any third party any part or
line of its business or any business opportunities;
(c) there has been no material deterioration in the prospects or (except in
the case of Hartek Awagem which anticipates a temporary shortfall in
profits for the financial period ending on the Transfer Date) in the
financial or business position or prospects or turnover of any of the
Companies;
(d) no event of damage has arisen which affects the value of any of the
Companies' assets or the operation of their business to a material
extent; and
(e) no significant customer of or supplier to any of the Companies has
ceased, or has indicated an intention to cease to deal (or to deal on a
materially smaller scale) with the respective Company and, to the Best
Knowledge of the Vendor, no such person is likely to do so.
DISCLOSURE
9.28 To the Vendor's Best Knowledge, all facts and circumstances material to
the assets, business, operations, financial condition or prospects of any of the
Companies have been disclosed to the Purchaser in this Agreement.
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PURCHASER'S RIGHTS
BREACH OF GUARANTEES
10.1. If any of the Statements is wholly or partly incorrect, incomplete or
misleading, the Vendor and the Guarantor shall jointly and severally indemnify
and hold the Purchaser or, if the Purchaser so elects, any of the Companies or
both harmless in respect of all liabilities, losses or damages resulting
therefrom and in any case pay to the Purchaser or the Company or Companies, as
the Purchaser elects, a sum equal to the amount which is necessary to put the
Purchaser and the Company or Companies, as the case may be, into the position
they would have been in had the Statements been correct, complete and not
misleading (positives Interesse).
PURCHASER'S KNOWLEDGE
10.2 Any investigation made by, or knowledge of, the Purchaser and/or any of
its advisers and/or any Managing Director or employee of any of the Companies
shall not affect any rights and claims the Purchaser or any of the Companies may
have against the Vendor.
LIMITATIONS
TIME LIMITATION
11.1 The Vendor shall not be liable in respect of any claims arising under
clauses 7.1 or 10.1, unless the Purchaser has given notice in writing of the
alleged claim to the Vendor:
(a) in the case of clause 7.1 above, within a period of four (4) months
following the date of the assessments (or amended assessments) or the
relevant administrative decisions or other measures of the tax or other
authorities which result in any Tax Liability becoming unappealable
(unanfechtbar wird); and
(b) in the case of clause 10.1 above within a period of eighteen (18)
months beginning on the Transfer Date.
OTHER LIMITATIONS
11.2.1 Claims under clause 10 and clause 17 can be made only:
(a) if the amount of the particular claim resulting from a certain set of
facts exceeds DM 50,000;
(b) if the total amount of claims exceeding DM 50,000 exceeds an aggregate
of DM 200,000 it being understood that if such threshold is exceeded,
not only the amount of the claims exceeding such threshold but all
claims can be made; and
(c) to the extent that the total amount of claims will not exceed DM
8,000,000 (eight million deutschmarks).
11.2.2 Claims may be brought under clause 10 and clause 17 only to the extent
that the matter is not specifically provided or reserved for in the Completion
Accounts.
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NON-APPLICABILITY OF LIMITATIONS
11.3 None of the limitations or exclusions of rights contained in clauses
11.1 and 11.2 above shall apply to a claim which is the result of fraud or
wilful concealment on the part of the Vendor.
INTERIM PERIOD
12. In the period from the date hereof to the Transfer Date, the Vendor
shall ensure (except to the extent otherwise agreed in writing with the
Purchaser) that:
(a) the Companies shall carry on their business only in the ordinary and
usual course and on arm's length terms;
(b) the Purchaser's representatives shall be allowed, upon reasonable
notice and during normal business hours, access to the books and
records of the Companies together with the right to take copies;
(c) no steps are taken or omissions made by it or the Companies which would
result in any Statement being incorrect, incomplete or misleading if
the Statement was repeated on or at any time before the Transfer Date
by reference to the facts and circumstances then existing;
(d) none of the Companies enters into any commitment (or makes an offer
which may lead to a contract or commitment) having a value or involving
expenditure in excess of DM 200,000 or which is of a long term or
unusual nature or which could involve an obligation of a material
nature or which may result in any material change in the nature or
scope of its operations; and
(e) none of the Companies acquires or disposes of, or agrees to acquire or
dispose of; any business or any asset having a value in excess of DM
200,000 or enters into any Agreement, contract, arrangement or
transaction (whether or not legally binding) other than in the ordinary
and usual course of business.
RIGHT TO NAME
13. The Vendor agrees that the Companies and any enterprise from time to
time connected with them within the meaning of Section 15 of the German Stock
Corporation Act shall continue to be entitled to use the Companies' current firm
names or similar names as part of their firm names after the Transfer Date.
PUBLICITY
14. Except as may be required by any applicable law or regulations
(including those of stock exchanges in the U.S.A. and Finland), no announcement
or disclosure in connection with the subject-matter or about any terms or
conditions of this Agreement shall be made by any party hereto without the prior
written consent of the other parties.
CONFIDENTIALITY
15. The Vendor shall, and shall ensure that all members of the Vendor Group
(including all of their respective employees, advisers etc.) keep confidential
and shall not, without the express written
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permission of the Purchaser, use at any time to the detriment of the Companies
or the Purchaser any business secrets or other confidential information in
respect of the Companies. For each case of a breach of this provision, the
Vendor shall pay to the Purchaser a penalty in the amount of DM 100,000.00 (in
words: one hundred thousand deutschmark). The provisions of this clause 15 shall
be without prejudice to any rights the Purchaser may have to claim damages or to
demand specific performance. Notwithstanding the first sentence of this clause
15, the Vendor shall be under no duty of confidentiality in respect of
information which they can demonstrate:
(a) is, at the time of disclosure, in the public domain; or
(b) has been lawfully disclosed by third parties who did not impose any
restrictions on its further disclosure or use; or
(c) is required to be disclosed under any law, rule or regulation, or by
any judgement, or order of any court or governmental body or agency
having jurisdiction over the Vendor.
PARENT COMPANIES GUARANTEES
16.1 Hartwall Bolagen hereby unconditionally and irrevocably guarantees as
an independent contractual obligation (im Wege eines selbstandigen
Garantievertrages) the proper and punctual performance by the Vendor of all its
obligations under or pursuant to this Agreement.
16.2 Scotsman hereby unconditionally and irrevocably guarantees as an
independent contractual obligation (im Wege eines selbstandigen
Garantievertrages) the proper and punctual performance by the Purchaser of all
its obligations under or pursuant to this Agreement.
OTHER REMEDIES
17. The remedies stipulated in this Agreement for the breach of any
warranty, guarantee or other obligation of any of the parties hereto shall not
exclude the application of any further remedy provided for under German or
Austrian law in relation to the fulfillment or breach of any obligation
hereunder Provided however that any right of the Purchaser to withdraw from the
Agreement (Rucktrittsrecht) is expressly excluded and the provisions of clause
11.2.1(c) shall apply (mutatis mutandis) to remedies under this clause 17.
COSTS
18. Each party shall bear its own costs (in each case including the costs
of legal, financial and other advisers) incurred in connection with the
negotiation, preparation and implementation of this Agreement. The Purchaser
shall bear the costs incurred in connection with the notarization of this
Agreement.
NOTICES
WRITTEN NOTICES
19.1 Any notice or other communication to be given under this Agreement
shall be in writing and signed by or on behalf of the party giving it and may be
served by sending it by fax or registered post to the address and for the
attention of the relevant party set out in clause 19.2 (or as otherwise notified
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from time to time hereunder). Any notice so served by fax or post shall be
deemed to have been received:
(a) in the case of fax, twelve (12) hours after the time of despatch;
(b) in the case of registered post, three days (3) from the date of
posting.
ADDRESSES
19.2 The addresses of the parties for the purpose of clause 19.1 are as
follows:
(a) THE VENDOR:
Address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
For the attention of: Mr E. Hartwall
(b) THE PURCHASER:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
For the attention of: ▇▇ ▇. ▇▇▇▇▇▇
Fax: 001 708 634 8823
(c) HARTWALL BOLAGEN:
Address: 00390 ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇
For the attention of: Mr E. Hartwall
Fax: 00358 054 02420
(d) SCOTSMAN:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
For the attention of: ▇▇ ▇. ▇▇▇▇▇▇
Fax: 001 708 634 8823
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SEVERABILITY, ENTIRE AGREEMENT, VARIATION
SEVERABILITY
20.1 If any provision of this Agreement (or any part thereof) is or becomes
invalid, unenforceable or impracticable in whole or in part, the other
provisions of this Agreement shall not be affected thereby. The invalid,
unenforceable or impracticable provision shall be deemed to be replaced by a
valid, enforceable and practicable provision the effect of which is as close as
possible to the intended effect of the invalid, unenforceable or impracticable
provision.
ENTIRE AGREEMENT
20.2 This Agreement sets forth the entire understanding between the parties
regarding the subject-matter hereof Modifications or supplements to this
Agreement are not binding unless they are executed in the legally required form
and in any case in writing. The same applies to any modification or waiver of
the requirements of this clause 20.2.
GOVERNING LAW, ARBITRATION, MISCELLANEOUS
GOVERNING LAW
21.1 This Agreement shall be governed by the laws of the Federal Republic of
Germany and in relation to the assignment (dinglicher Rechtsubergang) of the
Hartek Awagem Shares by the relevant mandatory provisions of Austrian law.
ARBITRATION
21.2 All disputes arising in relation to or in connection with the present
Agreement, or for the breach thereof, shall be finally settled under the then
valid Rules of Conciliation and Arbitration of the International Chamber of
Commerce by three arbitrators appointed in accordance with the said Rules. The
arbitration shall take place in Dusseldorf, Germany and shall be conducted in
the English language. The Vendor and Hartwall Bolagen shall be jointly entitled
to appoint not more than one arbitrator. The Purchaser and Scotsman shall be
jointly entitled to appoint not more than one arbitrator.
ANCILLARY ACTS
21.3 The Vendor shall take all such measures as the Purchaser may from time
to time reasonably require for the purpose of making the transfer of the Shares
effective. The Vendor shall, upon reimbursement of reasonable costs and expenses
incurred in connection therewith, assist the Purchaser in the enforcement of any
rights against third parties, and in the defence of any claims brought by third
parties, in relation to the Companies.
TRANSFER OF RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT
21.4 The Purchaser shall be entitled, after payment of the Purchase Price in
accordance with clause 4.2, to transfer all rights and obligations under this
Agreement to any of its affiliates (Vertragsubernahme) and the Vendor hereby
irrevocably consents to any such transfer.
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RIGHT OF CLAIM
21.5 Any of the Companies may bring claims against the Vendor under all
provisions in this Agreement which operate to the benefit of the Companies
and/or their affairs (Vertrag zu Gunsten Dritter) provided the Purchaser has
given its consent thereto.
Frankfurt am Main, 21 December 1995
/s/ E. Hartwall /s/ ▇. ▇▇▇▇▇▇
--------------------------------- ------------------------
HARTEK BEVERAGE HANDLING B.V. SCOTSMAN GROUP INC.
AS VENDOR AS PURCHASER
/s/ E. Hartwall /s/ ▇. ▇▇▇▇▇▇
--------------------------------- ------------------------
HARTWALL BOLAGEN AB SCOTSMAN INDUSTRIES INC.
AS GUARANTOR AS GUARANTOR
The above Agreement is hereby confirmed by the Parties to it after the
assignment of the Shares in notarized form on 21 December 1995 at 3.48 pm.
/s/ E. Hartwall /s/ ▇. ▇▇▇▇▇▇
--------------------------------- ------------------------
HARTEK BEVERAGE HANDLING B.V. SCOTSMAN GROUP, INC.
AS VENDOR AS PURCHASER
/s/ E. Hartwall /s/ ▇. ▇▇▇▇▇▇
--------------------------------- ------------------------
HARTWALL BOLAGEN AB SCOTSMAN INDUSTRIES INC.
AS GUARANTOR AS GUARANTOR
The above Agreement is hereby confirmed by the Parties to it again after the
assignment of the Shares (including the notarization of assignment of the Hartek
Awagem Shares) at 4.30 p.m.
/s/ E. Hartwall /s/ ▇. ▇▇▇▇▇▇
--------------------------------- ------------------------
HARTEK BEVERAGE HANDLING B.V. SCOTSMAN GROUP, INC.
AS VENDOR AS PURCHASER
/s/ E. Hartwall /s/ ▇. ▇▇▇▇▇▇
--------------------------------- ------------------------
HARTWALL BOLAGEN AB SCOTSMAN INDUSTRIES INC.
AS GUARANTOR AS GUARANTOR
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