AMENDED AND RESTATED CONTRIBUTION AGREEMENT
By and Among
SEABOARD CORPORATION,
SOMERSET LIMITED,
THE SHAREHOLDERS OF ▇▇▇▇▇ INTERNATIONAL LIMITED,
BAARSMA'S HOLDING B.V.,
BARING CENTRAL EUROPEAN INVESTMENTS B.V.
and
EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
Dated as of 29 December , 2000
AMENDED AND RESTATED CONTRIBUTION AGREEMENT
This AMENDED AND RESTATED CONTRIBUTION AGREEMENT (this
"Agreement") is entered into on the "Closing Date" (as defined
in Section 1.02(a)), by and among SEABOARD CORPORATION, a
Delaware corporation ("Seaboard"), SOMERSET LIMITED, a Gibraltar
holding company ("Rousse Holding"), the individuals listed on
Exhibit K hereto (each, a "BI Holder" and collectively the "BI
Holders"), BAARSMA'S HOLDING B.V., a limited liability company
existing under the laws of the Netherlands ("Baarsma"), BARING
CENTRAL EUROPEAN INVESTMENTS B.V., a company duly constituted
under the laws of the Netherlands ("BCEF") (Baarsma and BCEF
sometimes hereinafter referred to collectively as the "Other DB
Shareholders" and, with the BI Holders and Rousse Holding, the
"Contributors") and EUROPEAN BANK FOR RECONSTRUCTION AND
DEVELOPMENT ("EBRD"). Certain capitalised terms used herein but
not otherwise defined herein shall have the respective meanings
ascribed to them in the Charter (as defined below). Certain
capitalised terms used herein are defined in Exhibit D hereto.
RECITALS
WHEREAS, the Contributors intend to form a Luxembourg societe
anonyme (the "Company"), pursuant to Articles of Incorporation in
the form attached hereto as Exhibit A (the "Charter") and for
that purpose entered into a Contribution Agreement dated as of
October 10, 2000 (the "Original Agreement") which set out the
terms and conditions upon which, amongst other things, the
Contributors would contribute certain of their respective assets
and liabilities to the Company in exchange for certain shares in
the capital of the Company;
WHEREAS, pursuant to the Original Agreement the parties thereto
agreed to negotiate with EBRD with a view to obtaining EBRD's
agreement to, amongst other things, contributing the registered
shares in the capital of DB (as defined below) owned by it to the
Company in exchange for certain shares in the capital of the
Company;
WHEREAS, the parties to the Original Agreement have agreed terms,
which are satisfactory to each such party, with EBRD upon which
the Company shall issue shares to EBRD and accordingly such
parties desire to amend and restate the Original Agreement in its
entirety as set out herein;
WHEREAS, pursuant to the Charter, the Company is authorised to
issue Common Shares, Class A Preferred Shares, Class B Preferred
Shares, and Class C Preferred Shares (each having the respective
rights, preferences, privileges and restrictions set forth in the
Charter);
WHEREAS, Seaboard and Vinprom Holdings LLC, a wholly owned
subsidiary of Seaboard ("Vinprom"), together own 100% of the
interests in Rousse Holding;
WHEREAS, Rousse Holding owns 328,398 shares of the capital stock
of Vinprom Rousse, AD, a Bulgarian company (collectively with its
subsidiaries, "Rousse"), and desires to contribute to the Company
all of its assets and liabilities, including such Rousse capital
stock (the "Rousse Shares"), a note payable by Seaboard in the
principal amount of $10,400,000 (the "Seaboard Note"), and
certain indebtedness, in exchange for Common Shares, Class B
Preferred Shares and Class A Preferred Shares;
WHEREAS, BCEF owns 127,500 shares in the registered capital of
Domaine ▇▇▇▇▇ AD, a Bulgarian company (collectively with its
subsidiaries, "DB"), and desires to contribute all of its assets
and liabilities, including the capital stock of DB that it owns,
to the Company in exchange for Common Shares and Class B
Preferred Shares;
WHEREAS, Baarsma owns 34,000 shares in the registered capital of
DB, and desires to contribute all of such shares (together with
the shares of DB owned by BCEF, the "DB Shares") to the Company
in exchange for Common Shares and Class B Preferred Shares;
WHEREAS, the BI Holders own 100% of the issued share capital of
▇▇▇▇▇ International Limited, an English company (collectively
with its subsidiaries (other than DB and DB's subsidiaries),
"BI"), which in turn owns 238,000 shares in the registered
capital of DB, and desire to contribute all of the issued share
capital of BI (the "BI Shares") to the Company in exchange for
Common Shares, Class B Preferred Shares, and $862,981 in
immediately available funds; and
WHEREAS, EBRD owns 34,000 shares in the registered capital of DB,
and desires to contribute to the Company all of such shares in
exchange for Common Shares and Class B Preferred Shares, and,
amongst other things, extend the maturity of a loan made by EBRD
to DB.
NOW, THEREFORE, in consideration of the foregoing recitals and
the mutual covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE 1.
FORMATION OF THE COMPANY; CLOSING
Section 1.01 Formation of the Company
As part of the Closing, and immediately after the execution and
delivery hereof, the Contributors will cause the Company to be
duly incorporated and organised under the laws of Luxembourg,
pursuant to the Charter and any other organisational documents
that they have mutually determined to be necessary and
appropriate in connection with such organisation.
Section 1.02 Closing
(a) The closing of the transactions contemplated hereby (the
"Closing") shall take place at a location in Luxembourg
satisfactory to Rousse Holding, BCEF, EBRD and the BI Holders, or
such other location as is satisfactory to them, simultaneously
with the execution and delivery hereof, on December __, 2000 (the
"Closing Date").
(b) At the Closing, the Company shall issue to Rousse Holding
the number of Common Shares, Class A Preferred Shares, and Class
B Preferred Shares set forth with respect to Rousse Holding in
the Charter, against transfer to the Company of all of Rousse
Holdings' assets and liabilities, including (i) in consideration
for such Common Shares and Class B Preferred Shares, execution
and delivery to the Company by Rousse Holding of a stock
certificate or certificates representing the Rousse Shares, duly
endorsed in blank for transfer, and execution and delivery to the
Company of an instrument transferring to the Company the
indebtedness listed on Schedule 1.02(b) (the "Intercompany
Debt"), which is indebtedness incurred by Rousse to Seaboard and
its affiliates that has been transferred to Rousse Holding (it
being agreed that part of such Common Shares and part of such
Class B Preferred Shares are being issued for the Rousse Shares,
and the remainder of such Common Shares and such Class B
Preferred Shares are being issued for the Intercompany Debt, and
that the relative portions of each correspond to the relative
fair market values of the Rousse Shares and the Intercompany
Debt), and (ii) in consideration for such Class A Preferred
Shares, the transfer by Rousse Holding to the Company of the
Seaboard Note. Immediately prior to the Closing, Samovar
International Finance, Inc. ("SIF") sold the promissory note
identified on Schedule 1.02(b) to the Company for $1000 (the
"Sold Note").
(c) At the Closing, the parties (other than EBRD) will cause
Rousse to pay, using funds generated by the payment at Closing of
the Seaboard Note to the extent necessary, Rousse's indebtedness
to Seaboard in the aggregate amount of $5,561,308.
(d) At the Closing, the Company shall pay to the BI Holders (in
the respective amounts set forth on Exhibit K) an aggregate of
$862,981 in immediately available funds and issue to the BI
Holders and each Other DB Shareholder the number of Common Shares
and Class B Preferred Shares set forth with respect to them in
the Charter, against execution and delivery to the Company by the
BI Holders and the Other DB Shareholders of instruments
transferring to the Company, in the case of the BI Holders, the
BI Shares, in the case of BCEF, all of the assets and liabilities
of BCEF, including the DB Shares owned by BCEF, and in the case
of Baarsma, the DB Shares owned by it, subject only to the liens
listed on Schedule 1.02(d) (the "EBRD Liens").
(e) At the Closing, the Company shall issue to EBRD the number
of Common Shares and Class B Preferred Shares set forth with
respect to EBRD in the Charter, in consideration of execution and
delivery to the Company by EBRD of a stock certificate or
certificates representing the DB Shares, duly endorsed for
transfer.
(f) At the Closing, Seaboard shall pay the Seaboard Note in
full, by wire transfer to the Company of $10,400,000.
(g) At the Closing, the Company shall pay to the individuals
listed on Exhibit K, the respective amounts listed on Exhibit K.
Section 1.03 Additional Transactions
On the Closing Date, (a) the Company shall issue the Company's
authorised Class C Preferred Shares to the persons identified in
the Charter, each of whom shall enter into an agreement in the
form attached as Exhibit O hereto, (b) the Contributors shall
cause BI to enter into agreements with those BI Holders listed on
Schedule 1.03(b), in the form attached as Exhibit M-1, evidencing
BI's indebtedness to such BI Holders in the respective amounts
shown on Schedule 1.03(b) (the "BI Shareholder Payment
Agreements"), (c) the Contributors shall enter into a
shareholders' agreement in the form attached as Exhibit E (the
"Shareholders' Agreement" and, together with this Agreement and
the agreements of which forms are attached as Exhibits C, M and
O, the "Transaction Agreements"), and (d) the Contributors and
EBRD shall cause the Company to enter into the Shareholders'
Agreement. The parties, other than EBRD, shall cause the Company
to use commercially reasonable efforts to cause the employees to
whom Class C Preferred Shares have been issued to execute
statements under section 83(b) of the Internal Revenue Code of
1986, as amended, for the Class C Preferred Shares received at
Closing, and file them within thirty days after Closing with the
Internal Revenue Service Center in Philadelphia, Pennsylvania.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES REGARDING DB
The BI Holders and the Other DB Shareholders (sometimes
hereinafter referred to individually as a "DB Contributor" and
collectively as the "DB Contributors"), jointly and severally,
represent and warrant to Rousse Holding and Seaboard as set forth
below. For the purposes of this Article 2, a DB Contributor or
DB is deemed to have "knowledge" of a matter if and only if at
least one of the individuals listed next to its name on Exhibit G
hereto has actual knowledge of such matter. Except as expressly
set forth in this Agreement, no representation or warranty is
made with respect to DB or its property, assets or stock. For
purposes of this Article 2, "Subsidiary" means each legal entity
in which DB has an equity interest, each of which is listed on
Schedule 2.01, and, unless the context otherwise requires, each
reference to DB is to DB and each of the Subsidiaries. For
purposes of this Article 2, "Material Adverse Effect" means a
material, adverse effect on DB's and the Subsidiaries' financial
condition, results of operation, or business as now conducted,
considered as a whole.
Section 2.01 Organisation; Authority
DB is duly organised, validly existing and in good standing under
the laws of Bulgaria, and has all requisite organisational power
and authority to carry on its business as currently conducted.
Each Subsidiary is duly organised, validly existing and in good
standing under the laws of the jurisdiction of its organisation,
and has all requisite organisational power and authority to carry
on its business as currently conducted. DB is qualified to do
business in each jurisdiction in which the failure to be so
qualified would have a Material Adverse Effect. The governing
instruments of DB are listed on Schedule 2.01, and complete and
correct copies of the same have been provided to Rousse Holding
and Seaboard, the receipt of which is hereby acknowledged.
Section 2.02 Capital Shares
The registered shares in the capital of DB are as set forth on
Schedule 2.02, and all of the registered shares in the capital of
DB are owned by the persons, and in the amounts, set forth on
Schedule 2.02, and the capital contributions in respect of such
shares have been fully paid. There are no subscriptions,
warrants, options, convertible securities or other rights
(contingent or otherwise) to purchase or acquire any shares in
the registered capital of DB authorised or outstanding. Except
as set forth on Schedule 2.02, DB does not have any obligation
(contingent or otherwise) to issue any subscription, warrant,
option, convertible security or other such right. Immediately
following the Closing, the Company will own, directly or
indirectly, all of the registered shares in the capital of DB.
Section 2.03 Consents; No Violation
Except as identified on Schedule 2.03, no consent, authorisation,
order or approval of (or filing or registration with) any
governmental commission, board or other regulatory body or any
other third party is required to be made, obtained or given by DB
in connection with the execution, delivery and performance of
this Agreement and the performance of the transactions
contemplated hereby, if the failure to obtain such consent,
authorisation, or approval, or to make such filing or
registration, would have a Material Adverse Effect. Except as
identified on Schedule 2.03, the execution, delivery and
performance of this Agreement do not and will not, with or
without the giving of notice, lapse of time, or both, (a)
violate, conflict with, or constitute a default under any term or
condition of, (i) the organisational documents of DB, or (ii) any
term or provision of any judgment, decree, order, statute,
injunction, rule or regulation of a governmental unit applicable
to DB, or any agreement, contract, mortgage, indenture, lease or
other arrangement to which DB is a party or by which DB is bound
or to which any of the assets of DB are subject, or (b) result in
the creation of any lien or encumbrance upon any of the assets of
DB, if such violation, conflict, default, lien or encumbrance
would have a Material Adverse Effect.
Section 2.04 Compliance with Laws
DB is and has been in compliance with all laws, regulations and
orders applicable to it, its business, assets, properties and
operations, if the failure to so comply would have a Material
Adverse Effect. Except as set forth on Schedule 2.04, DB has not
been cited, fined or otherwise notified in writing of any
asserted past or present failure to comply with any laws,
regulations or orders that has not been paid or cured, and no
proceeding with respect to any such violation is pending, or to
the knowledge of the DB Contributors or DB, threatened. DB
possesses all licenses and all governmental or official
approvals, permits or authorisations required for its business
and operations as currently conducted, if the failure to do so
would have a Material Adverse Effect.
Section 2.05 Litigation
Except as set forth on Schedule 2.05, there is no action, suit,
investigation or proceeding pending or, to the knowledge of the
DB Contributors or DB, threatened against, involving or affecting
DB or any of its properties, nor is there any judgment, decree,
injunction, rule or order of any court, governmental department,
commission, agency, instrumentality or arbitrator outstanding
against DB. Except as set forth on Schedule 2.05, DB is not a
party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency
or instrumentality. There is no action, suit, proceeding or
investigation by DB currently pending or that DB intends to
initiate.
Section 2.06 Title to Property and Assets
DB has good and marketable title to the properties and assets
reflected in the DB Financial Statements as owned by it, free and
clear of all mortgages, deeds of trust, liens, encumbrances and
security interests, except for the "Permitted Encumbrances" set
forth on Schedule 2.06. With respect to the property and assets
that it leases, DB has valid leasehold interests in such property
and assets and is in compliance with such leases.
Section 2.07 Material Contracts
Schedule 2.07 sets forth an accurate, correct and complete list
of all contracts, instruments, commitments, agreements,
arrangements and understandings, including all amendments and
supplements thereto, to which DB is a party or is bound, or by
which any of the assets of DB is subject or bound, that (i) are
material to the business, operations, assets, liabilities, or
condition (financial or otherwise) of DB, or (ii) otherwise
involve any of the following types of contracts (the items in (i)
and (ii) being collectively referred to herein as the "DB
Material Contracts"):
(a) all raw material supply contracts and any other purchase
orders, agreements or contracts for the purchase of any materials
or services (including utilities) involving an amount in excess
of $50,000 or that were not entered into in the ordinary course
of business;
(b) any sales, license, service or distribution agreements and
contracts, open purchase orders or similar commitments providing
for sales of products in an amount in excess of $50,000;
(c) all real property leases;
(d) all machinery leases, equipment leases and other personal
property leases involving payment obligations over the term of
the lease in excess of $100,000;
(e) all agreements and contracts containing requirements
provisions involving amounts greater than $200,000;
(f) all agreements and contracts with a duration of one year or
more and not cancellable without penalty on 30 days or less
notice involving amounts greater than $100,000;
(g) all agreements and contracts for insurance;
(h) all agreements and contracts with any governmental entities;
(i) all agreements and contracts not to compete or otherwise
restricting activities; and
(j) all agreements and contracts containing a provision to
indemnify any party or assume any tax, environmental or other
liability.
Except as set forth on Schedule 2.07, all DB Material Contracts
are valid, binding and enforceable against DB and, to the
knowledge of the DB Contributors and DB, the other parties
thereto, in accordance with their terms and are in full force and
effect, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganisation, moratorium or similar
laws affecting the enforcement of creditors' rights generally and
general equitable principles, and neither DB, nor, to the
knowledge of the DB Contributors and DB, any other party to any
DB Material Contract, is in breach of, violation of, or in
default under the terms of any such DB Material Contract, if such
breach, violation or default would have a Material Adverse
Effect. Except as set forth on Schedule 2.07, no event has
occurred that with notice or passage of time or both would be
likely to result in a breach of, violation of, or default under,
the terms of any DB Material Contract, if such breach, violation
or default would have a Material Adverse Effect. None of the
existing rights of DB under any DB Material Contract will be
impaired by the consummation of the transactions contemplated by
this Agreement, and all of such rights will be enforceable by DB
after the Closing Date without the consent or agreement of any
other party, including any existing rights to renew the
applicable DB Material Contract.
Section 2.08 Employment Matters
Except as set forth on Schedule 2.08, to the knowledge of the DB
Contributors and DB, none of the officers, directors, and key
employees of DB is obligated under any contract (including
licenses, covenants, or commitments of any nature) or other
agreement, or subject to any judgment, decree or order of any
court or administrative agency, that would conflict with his or
her obligation to use his or her reasonable commercial efforts to
promote the interests of DB and the Company, or that would
conflict with the business of DB or the Company. Except as set
forth on Schedule 2.08, DB is not a party to or bound by any
collective bargaining agreement or any other agreement with a
labor union, and there has been no effort by any labor union
during the 24 calendar months prior to the date hereof to
organise any employees of DB into one or more collective
bargaining units. There is no pending or, to the knowledge of
the DB Contributors and DB, threatened labor dispute, strike or
work stoppage that would have a Material Adverse Effect. Neither
DB nor any agent, representative or employee thereof has
committed any unfair labor practice as defined under applicable
law that would have a Material Adverse Effect. Except as set
forth on Schedule 2.08, to the knowledge of the DB Contributors
and DB, no executive or key employee or group of key employees
has any plans to terminate his, her or their employment with DB
as a result of the transactions contemplated hereby or otherwise.
DB has complied with applicable laws, rules and regulations
relating to employment, civil rights and equal employment
opportunities, if the failure to do so would have a Material
Adverse Effect.
Section 2.09 Employee Plans
Schedule 2.09 lists all employee benefit plans and all severance,
bonus, retirement, pension, profit-sharing, deferred compensation
plans and other similar fringe or employee benefit plans,
programs or arrangements, and all employee or compensation
agreements, written or otherwise, for the benefit of, or relating
to, any employee of DB (collectively, "DB Employee Plans").
Neither DB nor any of its officers or directors has taken any
action, directly or indirectly, to obligate DB or the Company to
adopt any additional DB Employee Plans. DB has complied in all
material respects with all terms and conditions of the DB
Employee Plans, if the failure to do so would have a Material
Adverse Effect.
Section 2.10 Inventory
All of the inventory of DB reflected on the DB Unaudited
Financial Statements (as defined in Section 2.14) is in existence
and is owned by DB, except for inventory sold (i) in the ordinary
course of business consistent with past practices, or (ii)
pursuant to contracts disclosed in Schedule 2.07.
Section 2.11 Receivables
All of the DB Receivables (as defined below) reflected on the DB
Unaudited Financial Statements have been established in
accordance with UK GAAP (as defined in Section 3.14), are valid
and legally binding obligations of the obligor, represent bona
fide transactions and arose in the ordinary course of business of
DB. "DB Receivables" means all receivables of DB, including all
trade account receivables, receivables arising from the provision
of services, sale of inventory, notes receivable, and insurance
proceeds receivable.
Section 2.12 Intellectual Property
Schedule 2.12 sets forth all patents, trademarks (registered or
unregistered), service marks, trade names or brand names, company
names, registered domain names, copyright registrations and any
applications for any of the foregoing or any licenses granted by
or to DB with respect to any of the foregoing (collectively, the
"DB Intellectual Property Rights"). Except as set forth on
Schedule 2.12, DB (a) has, or has the legal enforceable right to
use, all of the DB Intellectual Property Rights, if the failure
to do so would have a Material Adverse Effect, and (b) has not
received any written notice asserting that it is infringing any
proprietary rights of any third party.
Section 2.13 Taxes
Except as set forth on Schedule 2.13, DB has accurately prepared
and timely filed all tax returns and reports required by law to
be filed by it, has paid or made provision for the payment of all
DB Taxes (as defined below) shown to be due and adequate
provision have been made and are reflected in the DB Financial
Statements (as defined in Section 2.14) for all current DB Taxes
and other charges to which DB is subject and that are not
currently due and payable. To the knowledge of the DB
Contributors and DB, such returns are true and correct in all
material respects. There are no additional assessments or
adjustments pending or, to the knowledge of the DB Contributors
and DB, threatened against DB (or any of its predecessors) for
any period, nor any basis for any such assessment or adjustment.
As used herein "DB Taxes" means all national, federal,
provincial, territorial, state, municipal, local, domestic,
foreign or other taxes, imposts, rates, levies, assessments and
other charges including, without limitation, ad valorem, capital,
capital stock, customs and import duties, disability, documentary
stamp, employment, estimated, excise, fees, franchise, gains,
goods and services, gross income, gross receipts, income,
intangible, inventory, license, mortgage recording, net income,
occupation, payroll, personal property, production, profits,
property, real property, recording, rent, sales, severance,
sewer, social security, stamp, transfer, transfer gains,
unemployment, use, value added, water, windfall profits, and
withholding, together with any interest, additions, fines or
penalties with respect thereto or in respect of any failure to
comply with any requirement regarding any tax returns filed by DB
and any interest in respect of such additions, fines or
penalties.
Section 2.14 Financial Statements
Prior to the execution and delivery of the Original Agreement, DB
delivered to Seaboard and Rousse Holding an audited balance sheet
as of March 31, 2000 and the related audited statements of
income, shareholders' equity and cash flows for the 12 month
period ended March 31, 2000 for DB (the "DB Audited Financial
Statements"). DB has delivered to Seaboard and Rousse Holding an
unaudited balance sheet as of October 31, 2000, and the related
unaudited statement of income for the seven month period ended
October 31, 2000, for DB (the "DB Unaudited Financial
Statements," and together with the DB Audited Financial
Statements, the "DB Financial Statements"). The DB Financial
Statements are complete and correct in all material respects, are
consistent with the books and records of DB, fairly present, in
all material respects, the financial position and results of
operations of DB, as of the dates and for the periods indicated,
and have been prepared in all material respects in accordance
with UK GAAP applied on a consistent basis throughout the periods
indicated; provided, however, that no representation is made in
this Section 2.14 regarding accounts receivable or inventory, as
to which the only representations are those made in Sections 2.10
and 2.11. Except as set forth in the DB Financial Statements, DB
has no material liabilities, contingent or otherwise, that are
required, in accordance with UK GAAP, consistently applied, to be
reflected on the DB Financial Statements, other than liabilities
incurred in the ordinary course of business subsequent to October
31, 2000, which are not in the aggregate material.
Section 2.15 Absence of Changes
(a) Since the date of the DB Unaudited Financial Statements,
there has been no change in the business, assets, liabilities,
condition (financial or otherwise), net worth, results of
operations or prospects of DB that would have a Material Adverse
Effect.
(b) Except for the transactions contemplated hereby, which, for
the avoidance of doubt, shall include entry into the EBRD Loan
Amending Agreement in the form set forth in Exhibit F (the "EBRD
Loan Amending Agreement") and the transactions contemplated
thereby, since the date of the DB Unaudited Financial Statements
there has not been:
(i) any damage, destruction or loss, whether or not covered by
insurance, that would have a Material Adverse Effect;
(ii) any waiver by DB of a valuable right or of a material debt
owed to it;
(iii) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by DB, except in the
ordinary course of business and that is not material to the
assets, properties, financial condition, operating results or
business of DB (as such business is presently conducted);
(iv) any material change or amendment to a material contract or
arrangement by which DB or any of its assets or properties is
bound or subject;
(v) receipt of notice that there has been a loss of, or material
order cancellation by, any customer of DB accounting for 15% or
more of DB's revenue in the 12 month period ending October 31,
2000;
(vi) any mortgage, pledge, transfer of a security interest in, or
lien, created by DB, with respect to any of its material
properties or assets, except liens for taxes not yet due or
payable; or
(vii) the acquisition or disposition of any material asset of
DB or any material debt incurred, disposed of or retired by DB.
Section 2.16 No Misrepresentations
The representations and warranties set forth in this Article 2
and the Schedules thereto contain no untrue statement of a
material fact and do not omit to state a material fact necessary
in order to make the representations and warranties made therein,
in the light of the circumstances under which they were made, not
misleading. To the knowledge of the DB Contributors and DB,
there has been disclosed to Rousse Holding and Seaboard, pursuant
to this Agreement or otherwise, all facts and circumstances that
are material to DB's financial condition, results of operation,
and business as now conducted, taken as a whole.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES REGARDING BI
The BI Holders, jointly and severally, represent and warrant to
Rousse Holding, Seaboard, EBRD and the Other DB Shareholders as
set forth below. For the purposes of this Article 3, a BI Holder
or BI is deemed to have "knowledge" of a matter if and only if at
least one of the individuals listed next to its name on Exhibit G
hereto has actual knowledge of such matter. Except as expressly
set forth in this Agreement, no representation or warranty is
made with respect to BI or its property, assets or stock. For
purposes of this Article 3, "Subsidiary" means each legal entity
in which BI has an equity interest (other than DB and DB's
subsidiaries), each of which is listed on Schedule 3.01, and,
unless the context otherwise requires, each reference to BI is to
BI and each of the Subsidiaries. For purposes of this Article 3,
"Material Adverse Effect" means a material, adverse effect on
BI's financial condition, results of operation, or business as
now conducted, considered as a whole.
Section 3.01 Organisation; Authority
BI is a company incorporated under the laws of England and Wales,
and has all requisite organisational power and authority to carry
on its business as currently conducted. Each Subsidiary is duly
organised, validly existing and in good standing under the laws
of the jurisdiction of its organisation, and has all requisite
organisational power and authority to carry on its business as
currently conducted. BI is qualified to do business in each
jurisdiction in which the failure to be so qualified would have a
Material Adverse Effect. The governing instruments of BI are
listed on Schedule 3.01, and complete and correct copies of the
same have been provided to Rousse Holding, Seaboard, EBRD and the
Other DB Shareholders, the receipt of which is hereby
acknowledged.
Section 3.02 Ownership of Capital Shares
The authorised and issued share capital of BI is as set forth on
Schedule 3.02, and all of the issued shares of BI are owned by
the BI Holders, in the respective amounts shown on Schedule 3.02.
Except as set forth in Schedule 3.02, there are no subscriptions,
warrants, options, convertible securities or other rights
(contingent or otherwise) to purchase or acquire any shares of BI
authorised or outstanding. BI does not have any obligation
(contingent or otherwise) to issue any subscription, warrant,
option, convertible security or other such right. Immediately
following the Closing, the Company will own all of the issued
shares of BI.
Section 3.03 Consents; No Violation
Except as identified on Schedule 3.03, no consent, authorisation,
order or approval of (or filing or registration with) any
governmental commission, board or other regulatory body or any
other third party is required to be made, obtained or given by BI
in connection with the execution, delivery and performance of
this Agreement and the performance of the transactions
contemplated hereby, if the failure to obtain such consent,
authorisation, or approval, or to make such filing or
registration, would have a Material Adverse Effect. Except as
identified on Schedule 3.03, the execution, delivery and
performance of this Agreement do not and will not, with or
without the giving of notice, lapse of time, or both, (a)
violate, conflict with, or constitute a default under any term or
condition of, (i) the organisational documents of BI, or (ii) any
term or provision of any judgment, decree, order, statute,
injunction, rule or regulation of a governmental unit applicable
to BI, or any agreement, contract, mortgage, indenture, lease or
other arrangement to which BI is a party or by which BI is bound
or to which any of the assets of BI are subject, or (b) result in
the creation of any lien or encumbrance upon any of the assets of
BI, if such violation, conflict, default, lien or encumbrance
would have a Material Adverse Effect.
Section 3.04 Compliance with Laws
BI is and has been in compliance with all laws, regulations and
orders applicable to it, its business, assets, properties and
operations, if the failure to so comply would have a Material
Adverse Effect. Except as set forth on Schedule 3.04, BI has not
been cited, fined or otherwise notified in writing of any
asserted past or present failure to comply with any laws,
regulations or orders that has not been paid or cured, and no
proceeding with respect to any such violation is pending, or to
the knowledge of the BI Holders or BI, threatened. BI possesses
all licenses and all governmental or official approvals, permits
or authorisations required for its business and operations as
currently conducted, if the failure to do so would have a
Material Adverse Effect.
Section 3.05 Litigation
Except as set forth on Schedule 3.05, there is no action, suit,
investigation or proceeding pending or, to the knowledge of the
BI Holders or BI, threatened against, involving or affecting BI
or any of its properties, nor is there any judgment, decree,
injunction, rule or order of any court, governmental department,
commission, agency, instrumentality or arbitrator outstanding
against BI. Except as set forth on Schedule 3.05, BI is not a
party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency
or instrumentality. There is no action, suit, proceeding or
investigation by BI currently pending or that BI intends to
initiate.
Section 3.06 Title to Property and Assets
BI has good and marketable title to the properties and assets
reflected in the BI Financial Statements as owned by it, free and
clear of all mortgages, deeds of trust, liens, encumbrances and
security interests, except for the "Permitted Encumbrances" set
forth on Schedule 3.06. With respect to the property and assets
that it leases, BI has valid leasehold interests in such property
and assets and is in compliance with such leases.
Section 3.07 Material Contracts
Schedule 3.07 sets forth an accurate, correct and complete list
of all contracts, instruments, commitments, agreements,
arrangements and understandings, including all amendments and
supplements thereto, to which BI is a party or is bound, or by
which any of the assets of BI is subject or bound, that (i) are
material to the business, operations, assets, liabilities, or
condition (financial or otherwise) of BI, or (ii) otherwise
involve any of the following types of contracts (the items in (i)
and (ii) being collectively referred to herein as the "BI
Material Contracts"):
(a) all raw material supply contracts and any other purchase
orders, agreements or contracts for the purchase of any materials
or services (including utilities) involving an amount in excess
of $50,000 or that were not entered into in the ordinary course
of business;
(b) any sales, license, service or distribution agreements and
contracts, open purchase orders or similar commitments providing
for sales of products in an amount in excess of $50,000;
(c) all real property leases;
(d) all machinery leases, equipment leases and other personal
property leases involving payment obligations over the term of
the lease in excess of $100,000;
(e) all agreements and contracts containing requirements
provisions involving amounts greater than $200,000;
(f) all agreements and contracts with a duration of one year or
more and not cancellable without penalty on 30 days or less
notice involving amounts greater than $100,000;
(g) all agreements and contracts for insurance;
(h) all agreements and contracts with any governmental entities;
(i) all agreements and contracts not to compete or otherwise
restricting activities; and
(j) all agreements and contracts containing a provision to
indemnify any party or assume any tax, environmental or other
liability.
Except as set forth in Schedule 3.07, all BI Material Contracts
are valid, binding and enforceable against BI and, to the
knowledge of the BI Holders and BI, the other parties thereto, in
accordance with their terms and are in full force and effect,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganisation, moratorium or similar laws affecting
the enforcement of creditors' rights generally and general
equitable principles, and neither BI, nor, to the knowledge of
the BI Holders and BI, any other party to any BI Material
Contract, is in breach of, violation of, or in default under the
terms of any such BI Material Contract, if such breach, violation
or default would have a Material Adverse Effect. Except as set
forth on Schedule 3.07, no event has occurred that with notice or
passage of time or both would be likely to result in a breach of,
violation of, or default under, the terms of any BI Material
Contract, if such breach, violation or default would have a
Material Adverse Effect. None of the existing rights of BI under
any BI Material Contract will be impaired by the consummation of
the transactions contemplated by this Agreement, and all of such
rights will be enforceable by BI after the Closing Date without
the consent or agreement of any other party, including any
existing rights to renew the applicable BI Material Contract.
Section 3.08 Employment Matters
Except as set forth on Schedule 3.08, to the knowledge of the BI
Holders and BI, none of the officers, directors, and key
employees of BI is obligated under any contract (including
licenses, covenants, or commitments of any nature) or other
agreement, or subject to any judgment, decree or order of any
court or administrative agency, that would conflict with his or
her obligation to use his or her reasonable commercial efforts to
promote the interests of BI and the Company, or that would
conflict with the business of BI or the Company. Except as set
forth on Schedule 3.08, BI is not a party to or bound by any
collective bargaining agreement or any other agreement with a
labor union, and there has been no effort by any labor union
during the 24 calendar months prior to the date hereof to
organise any employees of BI into one or more collective
bargaining units. There is no pending or, to the knowledge of
the BI Holders and BI, threatened labor dispute, strike or work
stoppage that would have a Material Adverse Effect. Neither BI
nor any agent, representative or employee thereof has committed
any unfair labor practice as defined under applicable law that
would have a Material Adverse Effect. Except as set forth on
Schedule 3.08, to the knowledge of the BI Holders and BI, no
executive or key employee or group of key employees has any plans
to terminate his, her or their employment with BI as a result of
the transactions contemplated hereby or otherwise. BI has
complied with applicable laws, rules and regulations relating to
employment, civil rights and equal employment opportunities, if
the failure to do so would have a Material Adverse Effect.
Section 3.09 Employee Plans
Schedule 3.09 lists all employee benefit plans and all severance,
bonus, retirement, pension, profit-sharing, deferred compensation
plans and other similar fringe or employee benefit plans,
programs or arrangements, and all employee or compensation
agreements, written or otherwise, for the benefit of, or relating
to, any employee of BI (collectively, "BI Employee Plans").
Neither BI nor any of its officers or directors has taken any
action, directly or indirectly, to obligate BI or the Company to
adopt any additional BI Employee Plans. BI has complied in all
material respects with all terms and conditions of the BI
Employee Plans, if the failure to do so would have a Material
Adverse Effect.
Section 3.10 Inventory
All of the inventory of BI reflected on the BI Audited Financial
Statements (as defined in Section 3.14) is in existence and is
owned by BI, except for inventory sold (i) in the ordinary course
of business consistent with past practices, or (ii) pursuant to
contracts disclosed in Schedule 3.07.
Section 3.11 Receivables
All of the BI Receivables (as defined below) reflected on the BI
Audited Financial Statements have been established in accordance
with UK GAAP, are valid and legally binding obligations of the
obligor, represent bona fide transactions and arose in the
ordinary course of business of BI. "BI Receivables" means all
receivables of BI, including all trade account receivables,
receivables arising from the provision of services, sale of
inventory, notes receivable, and insurance proceeds receivable.
Section 3.12 Intellectual Property
Schedule 3.12 sets forth all patents, trademarks (registered or
unregistered), service marks, trade names or brand names, company
names, registered domain names, copyright registrations and any
applications for any of the foregoing or any licenses granted by
or to BI with respect to any of the foregoing (collectively, the
"BI Intellectual Property Rights"). Except as set forth on
Schedule 3.12, BI (a) has, or has the legal enforceable right to
use, all of the BI Intellectual Property Rights, if the failure
to do so would have a Material Adverse Effect, and (b) has not
received any written notice asserting that it is infringing any
proprietary rights of any third party.
Section 3.13 Taxes
Except as set forth on Schedule 3.13, BI has accurately prepared
and timely filed all tax returns and reports required by law to
be filed by it, has paid or made provision for the payment of all
BI Taxes (as defined below) shown to be due and adequate
provision have been made and are reflected in the BI Financial
Statements for all current BI Taxes and other charges to which BI
is subject and that are not currently due and payable. To the
knowledge of the BI Holders and BI, such returns are true and
correct in all material respects. There are no additional
assessments or adjustments pending or, to the knowledge of the BI
Holders and BI, threatened against BI (or any of its
predecessors) for any period, nor any basis for any such
assessment or adjustment. As used herein "BI Taxes" means all
national, federal, provincial, territorial, state, municipal,
local, domestic, foreign or other taxes, imposts, rates, levies,
assessments and other charges including, without limitation, ad
valorem, capital, capital stock, customs and import duties,
disability, documentary stamp, employment, estimated, excise,
fees, franchise, gains, goods and services, gross income, gross
receipts, income, intangible, inventory, license, mortgage
recording, net income, occupation, payroll, personal property,
production, profits, property, real property, recording, rent,
sales, severance, sewer, social security, stamp, transfer,
transfer gains, unemployment, use, value added, water, windfall
profits, and withholding, together with any interest, additions,
fines or penalties with respect thereto or in respect of any
failure to comply with any requirement regarding any tax returns
filed by BI and any interest in respect of such additions, fines
or penalties.
Section 3.14 Financial Statements
At the Closing, the BI Holders have delivered to the other
Contributors and to EBRD an audited balance sheet as of March 31,
2000 and the related audited statements of income, shareholders'
equity and cash flows for the 12 month period ended ▇▇▇▇▇ ▇▇,
▇▇▇▇, ▇▇▇ ▇▇ (▇▇▇ "▇▇ Audited Financial Statements"). The BI
Holders have delivered to Seaboard, Rousse Holding, BCEF and EBRD
an unaudited and unconsolidated balance sheet as of October 31,
2000, and the related unaudited and unconsolidated statement of
income for the seven month period ended October 31, 2000, for BI
(the "BI Unaudited Financial Statements," and together with the
BI Audited Financial Statements, the "BI Financial Statements").
The BI Financial Statements are complete and correct in all
material respects, are consistent with the books and records of
BI, fairly present, in all material respects, the financial
position and results of operations of BI, as of the dates and for
the periods indicated, and have been prepared in all material
respects in accordance with accounting principles generally
acceptable in the United Kingdom ("UK GAAP") applied on a
consistent basis throughout the periods indicated; provided,
however, that no representation is made in this Section 3.14
regarding accounts receivable or inventory, as to which the only
representations are those made in Sections 3.10 and 3.11. Except
as set forth in the BI Financial Statements, BI has no material
liabilities, contingent or otherwise, that are required, in
accordance with UK GAAP, consistently applied, to be reflected on
the BI Financial Statements, other than liabilities incurred in
the ordinary course of business subsequent to March 31, 2000,
which are not in the aggregate material.
Section 3.15 Absence of Changes
(a) Since the date of the BI Audited Financial Statements, there
has been no change in the business, assets, liabilities,
condition (financial or otherwise), net worth, results of
operations or prospects of BI that would have a Material Adverse
Effect.
(b) Except for the transactions contemplated hereby, which for
the avoidance of doubt shall include entry into the EBRD Loan
Amending Agreement and the transactions contemplated thereby,
since the date of the BI Audited Financial Statements there has
not been:
(i) any damage, destruction or loss, whether or not covered by
insurance, that would have a Material Adverse Effect;
(ii) any waiver by BI of a valuable right or of a material debt
owed to it;
(iii) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by BI, except in the
ordinary course of business and that is not material to the
assets, properties, financial condition, operating results or
business of BI (as such business is presently conducted);
(iv) any material change or amendment to a material contract or
arrangement by which BI or any of its assets or properties is
bound or subject;
(v) receipt of notice that there has been a loss of, or material
order cancellation by, any customer of BI accounting for 15% or
more of BI's revenue in the 12 month period ending March 31,
2000;
(vi) any mortgage, pledge, transfer of a security interest in, or
lien, created by BI, with respect to any of its material
properties or assets, except liens for taxes not yet due or
payable; or
(vii) the acquisition or disposition of any material asset of
BI or any material debt incurred, disposed of or retired by BI.
Section 3.16 No Misrepresentations
The representations and warranties set forth in this Article 3
and the schedules thereto contain no untrue statement of a
material fact and do not omit to state a material fact necessary
in order to make the representations and warranties made therein,
in the light of the circumstances under which they were made
therein, not misleading. To the knowledge of the BI Holders and
BI, there has been disclosed to Rousse Holding, Seaboard, EBRD
and the Other DB Shareholders, pursuant to this Agreement or
otherwise, all facts and circumstances that are material to BI's
financial condition, results of operation, and business as now
conducted, taken as a whole.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES REGARDING ROUSSE
Rousse Holding and Seaboard each represents and warrants to the
BI Holders, EBRD and the Other DB Shareholders as set forth
below. For the purposes of this Section 4, Rousse Holding,
Seaboard or Rousse is deemed to have "knowledge" of a matter if
and only if at least one of the individuals listed next to its
name on Exhibit G hereto has actual knowledge of such matter.
Except as expressly set forth in this Agreement, no
representation or warranty is made with respect to Rousse or its
property, assets or stock. For purposes of this Article 4,
"Subsidiary" means each legal entity in which Rousse has an
equity interest, each of which is listed on Schedule 4.01, and,
unless the context otherwise requires, each reference to Rousse
is to Rousse and each of the Subsidiaries. For purposes of this
Article 4, "Material Adverse Effect" means a material, adverse
effect on Rousse's financial condition, results of operation, or
business as now conducted, considered as a whole.
Section 4.01 Organisation; Authority
Rousse is duly organised, validly existing and in good standing
under the laws of Bulgaria, and has all requisite organisational
power and authority to carry on its business as currently
conducted. Each Subsidiary is duly organised, validly existing
and in good standing under the laws of the jurisdiction of its
organisation, and has all requisite organisational power and
authority to carry on its business as currently conducted.
Rousse is qualified to do business in each jurisdiction in which
the failure to be so qualified would have a Material Adverse
Effect. The governing instruments of Rousse are listed on
Schedule 4.01, and complete and correct copies of the same have
been provided to the BI Holders, EBRD and each Other DB
Shareholder the receipt of which is hereby acknowledged.
Section 4.02 Ownership of Capital Shares
The registered share capital of Rousse is as set forth on
Schedule 4.02, and (except for 13,684 shares held by the State of
Bulgaria) all of the registered shares in the capital of Rousse
are owned by Rousse Holding, and the capital contributions in
respect of such shares have been fully paid. There are no
subscriptions, warrants, options, convertible securities or other
rights (contingent or otherwise) to purchase or acquire any
shares in the registered capital of Rousse authorised or
outstanding. Rousse has no obligation (contingent or otherwise)
to issue any subscription, warrant, option, convertible security
or other such right. Immediately following the Closing, the
Company will own 328,398 registered shares in the capital of
Rousse, representing approximately ninety-six percent (96%) of
the registered shares in the capital of Rousse.
Section 4.03 Consents; No Violation
Except as identified on Schedule 4.03, no consent, authorisation,
order or approval of (or filing or registration with) any
governmental commission, board or other regulatory body or any
other third party is required to be made, obtained or given by
Rousse in connection with the execution, delivery and performance
of this Agreement and the performance of the transactions
contemplated hereby, if the failure to obtain such consent,
authorisation, or approval, or to make such filing or
registration, would have a Material Adverse Effect. Except as
identified on Schedule 4.03, the execution, delivery and
performance of this Agreement do not and will not, with or
without the giving of notice, lapse of time, or both, (a)
violate, conflict with, or constitute a default under any term or
condition of, (i) the organisational documents of Rousse, or (ii)
any term or provision of any judgment, decree, order, statute,
injunction, rule or regulation of a governmental unit applicable
to Rousse, or any agreement, contract, mortgage, indenture, lease
or other arrangement to which Rousse is a party or by which
Rousse is bound or to which any of the assets of Rousse are
subject, or (b) result in the creation of any lien or encumbrance
upon any of the assets of Rousse, if such violation, conflict,
default, lien or encumbrance would have a Material Adverse
Effect.
Section 4.04 Compliance with Laws
Rousse is and has been in compliance with all laws, regulations
and orders applicable to it, its business, assets, properties and
operations, if the failure to so comply would have a Material
Adverse Effect. Except as set forth on Schedule 4.04, Rousse has
not been cited, fined or otherwise notified in writing of any
asserted past or present failure to comply with any laws,
regulations or orders that has not been paid or cured, and no
proceeding with respect to any such violation is pending, or to
the knowledge of Rousse Holding or Rousse, threatened. Rousse
possesses all licenses and all governmental or official
approvals, permits or authorisations required for its business
and operations as currently conducted, if the failure to do so
would have a Material Adverse Effect.
Section 4.05 Litigation
Except as set forth on Schedule 4.05, there is no action, suit,
investigation or proceeding pending or, to the knowledge of
Rousse or Rousse Holding threatened against, involving or
affecting Rousse or any of its properties, nor is there any
judgment, decree, injunction, rule or order of any court,
governmental department, commission, agency, instrumentality or
arbitrator outstanding against Rousse. Except as set forth on
Schedule 4.05, Rousse is not a party or subject to the provisions
of any order, writ, injunction, judgment or decree of any court
or government agency or instrumentality. Except as set forth on
Schedule 4.05, there is no action, suit, proceeding or
investigation by Rousse currently pending or that Rousse intends
to initiate.
Section 4.06 Title to Property and Assets
Rousse has good and marketable title to the properties and assets
reflected m the Rousse Financial Statements as owned by it, free
and clear of all mortgages, deeds of trust, liens, encumbrances
and security interests, except for the "Permitted Encumbrances"
set forth on Schedule 4.06. With respect to the property and
assets it leases, Rousse has a valid leasehold interest in such
property and assets and is in compliance with such leases.
Notwithstanding the foregoing, no representation or warranty is
made in this Agreement with respect to Korten.
Section 4.07 Material Contracts
Schedule 4.07 sets forth an accurate, correct and complete list
of all contracts, instruments, commitments, agreements,
arrangements and understandings, including all amendments and
supplements thereto, to which Rousse is a party or is bound, or
by which any of the assets of Rousse is subject or bound, that
(i) are material to the business, operations, assets,
liabilities, or condition (financial or otherwise) of Rousse, or
(ii) which otherwise involve any of the following types of
contracts (the items in (i) and (ii) being collectively referred
to herein as the "Rousse Material Contracts"):
(a) all raw material supply contracts and any other purchase
orders, agreements or contracts for the purchase of any materials
or services (including utilities) involving an amount in excess
of $50,000 or that were not entered into in the ordinary course
of business;
(b) any sales, license, service or distribution agreements and
contracts, open purchase orders or similar commitments providing
for sales of products in an amount in excess of $50,000;
(c) all real property leases;
(d) all machinery leases, equipment leases and other personal
property leases involving payment obligations over the term of
the lease in excess of $100,000;
(e) all agreements and contracts containing requirements
provisions involving amounts greater than $200,000;
(f) all agreements and contracts with a duration of one year or
more and not without penalty on 30 days or less notice involving
amounts greater than $100,000;
(g) all agreements and contracts for insurance;
(h) all agreements and contracts with any governmental entities;
(i) all agreements and contracts not to compete or otherwise
restricting activities; and
(j) all agreements and contracts containing a provision to
indemnify any party or assume any tax, environmental or other
liability.
Except as set forth on Schedule 4.07, all Rousse Material
Contracts are valid, binding and enforceable against Rousse, and,
to the knowledge of Rousse Holding and Rousse, the other parties
thereto, in accordance with their terms and are in full force and
effect, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganisation, moratorium or similar
laws affecting the enforcement of creditors' rights generally and
general equitable principles, and neither Rousse, nor, to the
knowledge of Rousse Holding and Rousse, any other party to any
Rousse Material Contract, is in breach of, violation of, or in
default under the terms of any such Rousse Material Contract, if
such breach, violation or default would have a Material Adverse
Effect. Except as set forth on Schedule 4.07, no event has
occurred that with notice or passage of time or both would be
likely to result in a breach of, violation of, or default under,
the terms of any Rousse Material Contract, if such breach,
violation or default would have a Material Adverse Effect. None
of the existing rights of Rousse under any Rousse Material
Contract will be impaired by the consummation of the transactions
contemplated by this Agreement, and all of such rights will be
enforceable by Rousse after the Closing Date without the consent
or agreement of any other party, including any existing rights to
renew the applicable Rousse Material Contract.
Section 4.08 Employment Matters
Except as set forth on Schedule 4.08, to the knowledge of Rousse
Holding and Rousse, none of the officers, directors, and key
employees of Rousse is obligated under any contract (including
licenses, covenants, or commitments of any nature) or other
agreement, or subject to any judgment, decree or order of any
court or administrative agency, that would conflict with his or
her obligation to use his or her reasonable commercial efforts to
promote the interests of Rousse and the Company, or that would
conflict with the business of Rousse and the Company. Except as
set forth on Schedule 4.08, Rousse is not a party to or bound by
any collective bargaining agreement or any other agreement with a
labor union, and there has been no effort by any labor union
during the 24 calendar months prior to the date hereof to
organise any employees of Rousse into one or more collective
bargaining units. There is no pending or, to the knowledge of
Rousse Holding and Rousse, threatened labor dispute, strike or
work stoppage that would have a Material Adverse Effect. Neither
Rousse, nor any agent, representative or employee thereof has
committed any unfair labor practice as defined under applicable
law that would have a Material Adverse Effect. Except as set
forth on Schedule 4.08, to the knowledge of Rousse Holding and
Rousse, no executive or key employee or group of key employees
has any plans to terminate his, her or their employment with
Rousse as a result of the transactions contemplated hereby or
otherwise. Rousse has complied with applicable laws, rules and
regulations relating to employment, civil rights and equal
employment opportunities, if the failure to do so would have a
Material Adverse Effect.
Section 4.09 Employee Plans
Schedule 4.09 lists all employee benefit plans and all severance,
bonus, retirement, pension, profit-sharing, deferred compensation
plans and other similar fringe or employee benefit plans,
programs or arrangements, and all employee or compensation
agreements, written or otherwise, for the benefit of, or relating
to, any employee of Rousse (collectively, "Rousse Employee
Plans"). Neither Rousse nor any of its officers or directors has
taken any action, directly or indirectly, to obligate Rousse or
the Company to adopt any additional Rousse Employee Plans.
Rousse has complied in all material respects with all terms and
conditions of the Rousse Employee Plans, if the failure to do so
would have a Material Adverse Effect.
Section 4.10 Inventory
All of the inventory of Rousse reflected on the Rousse Unaudited
Financial Statements (as defined in Section 4.14) is in existence
and is owned by Rousse, except for inventory sold (i) in the
ordinary course of business consistent with past practice, or
(ii) pursuant to contracts disclosed in Schedule 4.07.
Section 4.11 Receivables
All of the Rousse Receivables (as defined below) reflected on the
Rousse Unaudited Financial Statements have been established in
accordance with International Accounting Standards ("IAS"), are
valid and legally binding obligations of the obligor, represent
bona fide transactions and arose in the ordinary course of
business of Rousse. "Rousse Receivables" means all receivables
of Rousse, including all trade account receivables, receivables
arising from the provision of services, sale of inventory, notes
receivable, and insurance proceeds receivable.
Section 4.12 Intellectual Property
Schedule 4.12 sets forth all patents, trademarks (registered or
unregistered), service marks, trade names or brand names, company
names, registered domain names, copyright registrations and any
applications for any of the foregoing or any licenses granted by
or to Rousse with respect to any of the foregoing (collectively,
the "Rousse Intellectual Property Rights"). Except as set forth
on Schedule 4.12, Rousse (a) has, or has the legal enforceable
right to use, all of the Rousse Intellectual Property Rights, if
the failure to do so would have a Material Adverse Effect, and
(b) has not received any written notice asserting that it is
infringing any proprietary rights of any third party.
Section 4.13 Taxes
Except as set forth on Schedule 4.13, Rousse has accurately
prepared and timely filed all tax returns and reports required by
law to be filed by it, has paid or made provision for the payment
of all Rousse Taxes (as defined below) shown to be due and
adequate provision have been made and are reflected in the Rousse
Financial Statements (as defined in Section 4.14) for all current
Rousse Taxes and other charges to which Rousse is subject and
that are not currently due and payable. To the knowledge of
Rousse Holding and Rousse, such returns are true and correct in
all material respects. Except as set forth on Schedule 4.13, to
the knowledge of Rousse Holding and Rousse, there are no
additional assessments or adjustments pending or threatened
against Rousse (or any of its predecessors) for any period, nor
to the knowledge of Rousse Holding and Rousse, any basis for any
such assessment or adjustment. As used herein "Rousse Taxes"
means all national, federal, provincial, territorial, state,
municipal, local, domestic, foreign or other taxes, imposts,
rates, levies, assessments and other charges including, without
limitation, ad valorem, capital, capital stock, customs and
import duties, disability, documentary stamp, employment,
estimated, excise, fees, franchise, gains, goods and services,
gross income, gross receipts, income, intangible, inventory,
license, mortgage recording, net income, occupation, payroll,
personal property, production, profits, property, real property,
recording, rent, sales, severance, sewer, social security, stamp,
transfer, transfer gains, unemployment, use, value added, water,
windfall profits, and withholding, together with any interest,
additions, fines or penalties with respect thereto or in respect
of any failure to comply with any requirement regarding any tax
returns filed by Rousse and any interest in respect of such
additions, fines or penalties.
Section 4.14 Financial Statements
Rousse Holding has delivered to each other Contributor and to
EBRD an audited balance sheet as of December 31, 1999, and the
related audited statements of income, shareholder's equity and
cash flows for the 12 month period ended December 31, 1999, for
Rousse (the "Rousse Audited Financial Statements"). Rousse
Holding has delivered to each other Contributor and to EBRD an
unaudited balance sheet as of October 31, 2000, and the related
unaudited statement of income, for the seven month period ended
October 31, 2000, for Rousse (the "Rousse Unaudited Financial
Statements," and together with the Rousse Audited Financial
Statements, the "Rousse Financial Statements"). The Rousse
Financial Statements are complete and correct in all material
respects, are consistent with the books and records of Rousse,
fairly present, in all material respects, the financial position
and results of operations of Rousse as of the dates and for the
periods indicated and have been prepared in all material respects
in accordance with IAS applied on a consistent basis throughout
the periods indicated; provided, however, that no representation
is made in this Section 4.14 regarding accounts receivable or
inventory, as to which the only representations are those made in
Sections 4.10 and 4.11. Except as set forth in the Rousse
Financial Statements, Rousse has no material liabilities,
contingent or otherwise, that are required, in accordance with
IAS, consistently applied, to be reflected on the Rousse
Financial Statements, other than liabilities incurred in the
ordinary course of business subsequent to October 31, 2000, which
are not in the aggregate material.
Section 4.15 Absence of Changes
(a) Since the date of the Rousse Unaudited Financial Statements,
there has been no change in the business, assets, liabilities,
condition (financial or otherwise), net worth, results of
operations or prospects of Rousse that would have a Material
Adverse Effect.
(b) Except for the transactions contemplated hereby, which for
the avoidance of doubt shall include entry into the EBRD Loan
Amending Agreement and the transactions contemplated thereby,
since the date of the Rousse Unaudited Financial Statements there
has not been:
(i) any damage, destruction or loss, whether or not covered by
insurance, that would have a Material Adverse Effect
(ii) any waiver by Rousse of a valuable right or of a material
debt owed to it;
(iii) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by Rousse, except in
the ordinary course of business and that is not material to the
assets, properties, financial condition, operating results or
business of Rousse (as such business is presently conducted and
as it is proposed to be conducted);
(iv) any material change or amendment to a material contract or
arrangement by which Rousse or any of its assets or properties
is bound or subject;
(v) receipt of notice that there has been a loss of, or material
order cancellation by, any customer of Rousse accounting for
15% or more of Rousse's revenue in the 12 month period ending
October 31, 2000;
(vi) any mortgage, pledge, transfer of a security interest in, or
lien, created by Rousse, with respect to any of its material
properties or assets, except liens for taxes not yet due or
payable; or
(vii) the acquisition or disposition of any material asset of
Rousse or any material debt incurred, disposed of or retired by
Rousse, except related to Korten.
Section 4.16 No Misrepresentations
The representations and warranties set forth in this Article 4
and the Schedules thereto contain no untrue statement of a
material fact and do not omit to state a material fact necessary
in order to make the representations and warranties made, in the
light of the circumstances under which they were made, not
misleading. To the knowledge of Rousse Holding and Rousse, there
has been disclosed to the BI Holders, EBRD and the Other DB
Shareholders, pursuant to this Agreement or otherwise, all facts
and circumstances that are material to Rousse's financial
condition, results of operation, and business as now conducted,
taken as a whole.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRIBUTORS
Section 5.01 DB Contributors
Each DB Contributor, in respect of itself only, severally and not
jointly with any other DB Contributor, represents and warrants to
Rousse Holding, EBRD and Seaboard as set forth below:
(a) Due Authorisation; Binding Agreement. Such DB Contributor
has full power and authority to execute, deliver and perform its
obligations under the Transaction Agreements to which it is a
party. All corporate action on the part of such DB Contributor
and its officers, directors, employees, members, partners or
shareholders necessary for the authorisation, execution and
delivery of the Transaction Agreements to which it is a party,
and the performance of all obligations of the DB Contributor
thereunder has been taken. Each of the Transaction Agreements to
which it is a party, when executed and delivered by the DB
Contributor, assuming the due execution and delivery thereof by
the other parties thereto, shall constitute a valid and legally
binding obligation of the DB Contributor, enforceable against it
in accordance with its terms, subject to: (a) judicial principles
limiting the availability of specific performance, injunctive
relief and other equitable remedies, and (b) bankruptcy,
insolvency, reorganisation, moratorium or other similar laws now
or hereafter in effect generally relating to or affecting
creditors' rights.
(b) Consents. No consent, authorisation, order or approval of
(or filing or registration with) any governmental commission,
board or other regulatory body or any other third party is
required to be made, obtained or given by such DB Contributor in
connection with the execution, delivery and performance of the
Transaction Agreements to which it is a party and the performance
of the transactions contemplated thereby.
(c) Shares Ownership. Such DB Contributor owns the number of
registered shares in the capital of DB set forth opposite its
name on Schedule 2.02, free and clear of any lien or encumbrance,
other than the EBRD Liens. Immediately following the Closing,
the Company will own all of the registered shares in the capital
of DB previously owned by such DB Contributor, free and clear of
any lien or encumbrance created by such DB Contributor, other
than the EBRD Liens.
(d) No Violation. The execution, delivery and performance of
each of the Transaction Agreements to which it is a party by such
DB Contributor do not and will not, with or without the giving of
notice, lapse of time or both, (i) violate, conflict with or
constitute a default under any term or condition of (A) the
organisational documents of such DB Contributor or (B) any term
or provision of any judgment, decree, order, statute, injunction,
rule or regulation of a governmental unit applicable to such DB
Contributor or any agreement, contract, mortgage, indenture,
lease or other arrangement to which such DB Contributor is a
party or by which such DB Contributor is bound or to which the
assets of such DB Contributor are subject (including, without
limitation, the Shareholders Agreement, dated July 29, 1998, as
amended, among BI, Baarsma, BCEF and EBRD as shareholders of DB),
or (ii) result in the creation of any lien or other encumbrance
upon any of the capital stock of DB owned by such DB Contributor.
(e) Liabilities and Financial Status. Such DB Contributor is
solvent, has not made a general assignment for the benefit of its
creditors, and has not admitted in writing its inability to pay
its debts as they become due, nor has such DB Contributor filed,
nor does such DB Contributor contemplate the filing of, any
bankruptcy, reorganisation, arrangement, insolvency or
liquidation proceeding, or any other proceeding for the relief of
debtors in general, nor has any such proceeding been instituted
by or against such DB Contributor, nor, to the best knowledge of
such DB Contributor, is any such proceeding threatened or
contemplated. As of the Closing Date, BCEF will have no
liabilities.
Section 5.02 BI Holders
Each BI Holder, in respect of such BI Holder only, severally and
not jointly with any other BI Holder, represents and warrants to
Rousse Holding, EBRD and Seaboard as set forth below:
(a) Due Authorisation; Binding Agreement. Such BI Holder has
full power and authority to execute, deliver and perform its
obligations under the Transaction Agreements to which it is a
party. All action on the part of such BI Holder necessary for
the authorisation, execution and delivery of the Transaction
Agreements to which it is a party, and the performance of all
obligations of such BI Holder thereunder has been taken. Each of
the Transaction Agreements to which it is a party, when executed
and delivered by such BI Holder, assuming the due execution and
delivery thereof by the other parties thereto, shall constitute a
valid and legally binding obligation of such BI Holder
enforceable against it in accordance with its terms, subject to:
(a) judicial principles limiting the availability of specific
performance, injunctive relief and other equitable remedies, and
(b) bankruptcy, insolvency, reorganisation, moratorium or other
similar laws now or hereafter in effect generally relating to or
affecting creditors' rights.
(b) Consents. Except as identified on Schedule 5.02, no
consent, authorisation, order or approval of (or filing or
registration with) any governmental commission, board or other
regulatory body or any other third party is required to be made,
obtained or given by such BI Holder in connection with the
execution, delivery and performance of the Transaction Agreements
to which it is a party and the performance of the transactions
contemplated thereby.
(c) Shares Ownership. Such BI Holder owns the number of the
issued shares of BI set forth next to his name on Schedule 3.02,
free and clear of any lien or encumbrance, other than the EBRD
Liens. Immediately following the Closing the Company will own
all of the issued shares of BI owned by such BI Holder, free and
clear of any lien or encumbrance created by such BI Holder, other
than the EBRD Liens.
(d) No Violation. Subject to obtaining the items listed in
Schedule 5.02, the execution, delivery and performance of each of
the Transaction Agreements to which it is a party by such BI
Holder do not and will not, with or without the giving of notice,
lapse of time or both, (i) violate, conflict with or constitute a
default under any term or condition of any term or provision of
any judgment, decree, order, statute, injunction, rule or
regulation of a governmental unit applicable to such BI Holder or
any agreement, contract, mortgage, indenture, lease or other
arrangement to which such BI Holder is a party or by which such
BI Holder is bound or to which the assets of such BI Holder are
subject, or (ii) result in the creation of any lien or other
encumbrance upon any of the capital stock of BI.
(e) Liabilities and Financial Status. Such BI Holder is
solvent, has not made a general assignment for the benefit of his
creditors, and has not admitted in writing his inability to pay
his debts as they become due, nor has such BI Holder filed, nor
does he contemplate the filing of, any bankruptcy,
reorganisation, arrangement, insolvency or liquidation
proceeding, or any other proceeding for the relief of debtors in
general, nor has any such proceeding been instituted by or
against such BI Holder, nor, to the best knowledge of such BI
Holder is any such proceeding threatened or contemplated.
Neither BI or any of its subsidiaries, nor DB or any of its
subsidiaries, is indebted to such BI Holder, except as set forth
on Schedule 1.03(b).
Section 5.03 Rousse Holding and Seaboard
Rousse Holding and Seaboard, severally and not jointly, each
represent to each BI Holder, EBRD and each DB Contributor as set
forth below:
(a) Due Authorisation; Binding Agreement. Rousse Holding has
full power and authority to execute, deliver and perform its
obligations under the Transaction Agreements to which it is a
party. All corporate action on the part of Rousse Holding and
its officers, directors, employees, members, partners or
shareholders necessary for the authorisation, execution and
delivery of the Transaction Agreements to which it is a party,
and the performance of all obligations of Rousse Holding
thereunder has been taken. Each of the Transaction Agreements to
which it is a party, when executed and delivered by Rousse
Holding, assuming the due execution and delivery thereof by the
other parties hereto or thereto, shall constitute a valid and
legally binding obligation of Rousse Holding, enforceable against
it in accordance with its terms, subject to: (a) judicial
principles limiting the availability of specific performance,
injunctive relief and other equitable remedies, and (b)
bankruptcy, insolvency, reorganisation, moratorium or other
similar laws now or hereafter in effect generally relating to or
affecting creditors' rights.
(b) Consents. No consent, authorisation, order or approval of
(or filing or registration with) any governmental commission,
board or other regulatory body or any other third party is
required to be made, obtained or given by Rousse Holding in
connection with the execution, delivery and performance of the
Transaction Agreements to which it is a party, and the
performance of the transactions contemplated thereby.
(c) Shares Ownership; Note. Rousse Holding owns 328,398 Rousse
Shares, representing approximately ninety-six percent (96%) of
the registered shares in the capital of Rousse, free and clear of
any lien or encumbrance. Immediately following the Closing, the
Company will own 328,398 Rousse Shares, representing
approximately ninety-six percent (96%) of the registered shares
in the capital of Rousse, free and clear of any lien or
encumbrance created by Rousse Holding. SIF has transferred to
the Company, with full title guarantee, the Sold Note. Rousse
Holding owns the Seaboard Note, free and clear of any lien or
encumbrance.
(d) No Violation. The execution, delivery and performance of
each of the Transaction Agreements to which it is a party by
Rousse Holding do not and will not, with or without the giving of
notice, lapse of time or both, (i) violate, conflict with or
constitute a default under any term or condition of (A) the
organisational documents ofRousse Holding, or (B) any term or
provision of any judgment, decree, order, statute, injunction, rule
or regulation of a governmental unit applicable to Rousse Holding or
any agreement, contract, mortgage, indenture, lease or other
arrangement to which Rousse Holding is a party or by which Rousse
Holding is bound or to which the assets of Rousse Holding are
subject, or (ii) result in the creation of any lien or other
encumbrance upon any of the capital stock of Rousse owned by Rousse
Holding.
(e) Liabilities and Financial Status. Rousse Holding has no liabilities.
Rousse Holding is solvent, has not made a general assignment for the
benefit of its creditors, and has not admitted in writing its
inability to pay its debts as they become due, nor has Rousse Holding
filed, nor does Rousse Holding contemplate the filing of, any
bankruptcy, reorganisation, arrangement, insolvency or liquidation
proceeding, or any other proceeding for the relief of debtors in
general, nor has any such proceeding been instituted by or against
Rousse Holding, nor, to the best knowledge of Rousse Holding, is any
such proceeding threatened or contemplated.
Section 5.04 Seaboard
Seaboard represents to each BI Holder, EBRD and each DB Contributor
as set forth below:
(a) Due Authorisation; Binding Agreement. Seaboard has full power and
authority to execute, deliver and perform itsobligations under this
Agreement. All corporate action on the part of Seaboard and its
officers, directors, employees, members, partners or shareholders
necessary for the authorisation, execution and delivery of this
Agreement, and the performance of all obligations of Seaboard
hereunder has been taken. This Agreement, assuming the due execution
and delivery hereof by the other parties hereto, constitutes a valid
and legally binding obligation of Seaboard, enforceable against it in
accordance with its terms, subject to: (a) judicial principles
limiting the availability of specific performance, injunctive relief
and other equitable remedies, and (b) bankruptcy, insolvency,
reorganisation, moratorium or other similar laws now or hereafter in
effect generally relating to or affecting creditors' rights. The
Seaboard Note is a valid and binding obligation of Seaboard.
(b) Consents. No consent, authorisation, order or approval of(or filing
or registration with) any governmental commission, board or other
regulatory body or any other third party is required to be made,
obtained or given by Seaboard in connection with the execution,
delivery and performance of this Agreement, and the performance of
the transactions contemplated thereby.
(c) No Violation. The execution, delivery and performance of this
Agreement by Seaboard do not and will not, with or without the giving
of notice, lapse of time or both, violate, conflict with or
constitute a default under any term or condition of (A) the
organisational documents of Seaboard, or, (B) any term or provision
of any judgment, decree, order, statute, injunction, rule or
regulation of a governmental unit applicable to Seaboard or any
agreement, contract, mortgage, indenture, lease or other arrangement
to which Seaboard is a party or by which Seaboard is bound or to
which the assets of Seaboard are subject.
(d) Liabilities and Financial Status. Seaboard is solvent, has not made
a general assignment for the benefit of its creditors, and has not
admitted in writing its inability to pay its debts as they become
due, nor has Seaboard filed, nor does Seaboard contemplate the filing
of, any bankruptcy, reorganisation, arrangement, insolvency or
liquidation proceeding, or any other proceeding for the relief of
debtors in general, nor has any such proceeding been instituted by or
against Seaboard, nor, to the best knowledge of Seaboard, is any such
proceeding threatened or contemplated.
Section 5.05 EBRD
EBRD represents and warrants to Rousse Holding, each DB
Contributor and Seaboard as set forth below:
(a) Due Authorisation; Binding Agreement. EBRD has full
corporate power and authority to execute, deliver and perform its
obligations under this Agreement. All corporate action on the
part of EBRD necessary for the authorisation, execution and
delivery of this Agreement, and the performance of all
obligations of EBRD hereunder has been taken.
(b) Shares Ownership. EBRD owns 34,000 registered shares in the
capital of Domaine ▇▇▇▇▇ AD free and clear of any lien or
encumbrance created by or through it.
(c) No Violation. The execution, delivery and performance of
this Agreement by EBRD do not and will not, with or without the
giving of notice, lapse of time or both, violate, conflict with
or constitute a default under any term or provision of the
agreement establishing EBRD.
ARTICLE 6.
CERTAIN COVENANTS
Section 6.01 Conduct of Business of DB Pending the Closing
All rights and remedies arising under Section 6.01 of the
Original Agreement shall survive and continue as though this
Agreement had not been entered into.
Section 6.02 Conduct of Business of BI Pending the Closing
All rights and remedies arising under Section 6.02 of the
Original Agreement shall survive and continue as though this
Agreement had not been entered into.
Section 6.03 Conduct of Business of Rousse Pending the Closing
All rights and remedies arising under Section 6.03 of the
Original Agreement shall survive and continue as though this
Agreement had not been entered into.
Section 6.04 BCEF Loan; Intercreditor and Subordination
Agreements for BI Holders
At Closing, BCEF shall procure that its affiliate The Baring
Central European Fund, L.P. shall (a) amend and restate its
existing loan to DB, by entering into an agreement with the
Company in the form attached as Exhibit H-1, (b) enter into an
agreement regarding the subordination of such loan in the form of
the agreement attached as Exhibit H-2, and (c) enter into an
intercreditor agreement with Seaboard and the BI Holders in the
form of the agreement attached as Exhibit C. At Closing, the BI
Holders listed on Schedule 1.03(b) shall enter into an
intercreditor agreement in the form of Exhibit C, and shall enter
into an agreement regarding the subordination of the payments
under the BI Shareholder Payment Agreements in the form of
Exhibit M-2.
Section 6.05 Further Assurances
Each of the parties hereto shall execute such documents and take
such further actions as may be reasonably required to carry out
the provisions hereof or to give effect to the Transactions (as
defined in Section 7.01).
Section 6.06 Updated Schedules
The Schedules delivered pursuant hereto by each Contributor
include all modifications, deletions and additions to the
Schedules delivered by such Contributor pursuant to the Original
Agreement (pursuant to Article 2, 3, 4, or 5 thereof, as
applicable) that are necessary in order for such Schedules (a) to
comply with the requirements of the Original Agreement on the
date thereof, or (b) to reflect matters arising after the date
thereof that, had they existed or been known to such Contributor
on the date thereof, would have been required to be reflected on
such Schedules. No amendment described in the foregoing clause
(a) shall limit or affect any of the parties' rights or
obligations under the Original Agreement, which shall be based on
the Schedules as they existed at the date of the Original
Agreement without taking into account any such amendment.
Amendments described in the foregoing clause (b) shall be deemed
to have been made as of the date of the Original Agreement, and
no matter disclosed pursuant to such amendment shall give rise to
any right or remedy hereunder or under the Original Agreement.
ARTICLE 7.
CLOSING MATTERS
Section 7.01 Conditions to Each Party's Obligations
The parties other than EBRD acknowledge that the following
conditions to the respective obligations of each party to
consummate the transactions contemplated hereby (the
"Transactions") have been satisfied:
(a) Injunction. There is no effective injunction, writ or
preliminary restraining order or any order of any nature issued
by a court or governmental agency of competent jurisdiction to
the effect that the Transactions may not be consummated as
provided in this Agreement.
(b) Consents. All consents, authorisations, orders and
approvals of (or filings or registrations with) any governmental
commission, board or other regulatory body and of any other third
party required in connection with the execution, delivery and
performance of this Agreement and the consummation of the
Transactions have been obtained.
(c) Auditors' Certificates. Such auditors' certificate or
certificates as are required under Luxembourg law in connection
with the issuance to the Contributors and to EBRD of Company
Shares in accordance with the terms hereof have been obtained.
(d) Opinion of Luxembourg Counsel. The parties have received,
from ▇▇▇▇▇▇▇▇ Chance, Luxembourg, an opinion in form satisfactory
to them.
Section 7.02 Conditions to Obligations of Rousse Holding
Rousse Holding acknowledges that the conditions in the Original
Agreement to its obligations to consummate the Transactions have
been satisfied or waived.
Section 7.03 Conditions to Obligations of the BI Holders
The BI Holders acknowledge that the conditions in the Original
Agreement to their obligations to consummate the Transactions
have been satisfied or waived.
Section 7.04 Conditions to the Obligations of the Other DB
Shareholders
The Other DB Shareholders acknowledge that the conditions in the
Original Agreement to their obligations to consummate the
Transactions have been satisfied or waived.
Section 7.05 Conditions to Obligations of Seaboard
Seaboard acknowledges that the conditions in the Original
Agreement to its obligations to consummate the Transactions have
been satisfied or waived.
ARTICLE 8.
ADDITIONAL COVENANTS
Section 8.01 Korten
After the Closing Date, Rousse shall continue the defense of the
litigation identified on Schedule 4.05 with respect to the
rightful ownership of Korten (the "Korten Litigation"). In the
event of the entry of a final, non-appealable judgment in the
Korten Litigation that impairs Rousse's good title to Korten or
impairs the use of Korten by Rousse, Seaboard will undertake to
cause such title defect or impairment to be removed, and if it is
not removed within one year from the date of such judgment shall
pay to Rousse any actual damages (not to exceed the depreciated
book value of Korten on the books of Rousse) that Rousse incurs
as a result of such title defect or impairment. If Seaboard and
the Company do not mutually agree to the amount of such damages,
either party may initiate dispute resolution proceedings as
provided in Section 12.02. It is recognised that Rousse will be
leasing from Summit Enterprises AD certain equipment for Korten,
pursuant to a lease having principal economic terms consistent
with those summarised on Schedule 8.01 (the "Korten Equipment
Lease"). If, as a consequence of the matters that are the
subject of the Korten Litigation, Rousse no longer has the right
to operate Korten and Seaboard is not otherwise able to provide
Rousse the benefits of such operation, the Korten Equipment Lease
shall terminate with respect to those assets that are subject to
the Korten Equipment Lease and that the Company cannot use or
reasonably determines that it has no business use for. The
provisions of this Section 8.01 are in lieu of any other right or
remedy hereunder against Seaboard or Rousse Holding in connection
with the Korten Litigation.
Section 8.02 Seaboard Loan
At or prior to the Closing, Seaboard shall make a loan to enable
Rousse to pay off Rousse's drawn indebtedness (excluding any
guarantees) as of the Closing Date to SG Expressbank pursuant to
an agreement in the form of Exhibit N-1, and the Company shall
guarantee the repayment of such loan pursuant to a Guarantee in
the form of Exhibit N-2. Seaboard shall as of the Closing Date
(a) enter into an agreement regarding the subordination of
Rousse's and the Company's indebtedness to Seaboard under such
agreements in the form of the agreement attached as Exhibit N-3,
and (b) enter into an intercreditor agreement with The Baring
Central European Fund, L.P. and the BI Holders in the form of
Exhibit C.
Section 8.03 Withholding Tax
Seaboard shall pay any charges of withholding tax due with
respect to past or pre-Closing Date management fees or
intercompany interest relating to Rousse.
Section 8.04 Temporary Import
Seaboard shall pay any excise taxes, value added taxes or other
charges, related to the temporary import of the wine identified
on Schedule 8.04 by Rousse, in excess of the gross profit
obtained by the Company from the sale of such wine. If the
custom bonds issued by SG Expressbank in favor of Rousse and
guaranteed by Seaboard are drawn against, Seaboard will make the
payments required under its guarantee.
Section 8.05 Certain Rights
The parties acknowledge and agree that all rights and benefits
arising under that certain Agreement, dated August 10, 1998,
between Seaboard and The Bulgarian State (the "Bulgarian
Agreement"), relating to the issuance of Rousse Shares to
Seaboard and assurances regarding the liabilities of Rousse, are
solely for the benefit of Seaboard and that if any benefit
thereunder should accrue to Rousse after the Closing the parties
will take all actions necessary to transfer such benefit to
Seaboard; provided, however, that if Seaboard receives a payment
under the Bulgarian Agreement by reason of a liability to which
Rousse is subject when the Rousse Shares are contributed to the
Company, Seaboard will remit such payment to Rousse when and if
Rousse pays such liability.
ARTICLE 9.
SURVIVAL AND INDEMNIFICATION
Section 9.01 Survival
The representations and warranties in Articles 2, 3 and 4 hereof
shall survive until July 31, 2001, and the representations and
warranties in Article 5 hereof shall survive until the first
anniversary of the Closing Date.
Section 9.02 Indemnification
Each Contributor, Seaboard and EBRD shall indemnify and hold the
Company, the other Contributors and EBRD and their respective
shareholders, members, partners, employees, directors or officers
wholly harmless from and against all expenses (including
reasonable professional fees and expenses), losses, costs,
deficiencies, liabilities and damages (collectively, "Losses")
arising out of or resulting from (i) any breach of a
representation or warranty made by such Contributor (or EBRD or
Seaboard, as the case may be) in Article 5 (and, in the case of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), Section 11.21) hereof (if the claim
for such indemnification is made prior to October 10, 2001), (ii)
any material breach of any covenant of such Contributor (or
Seaboard) herein, and (iii) any capital tax incurred in
Luxembourg in connection with the contribution of such
Contributor or EBRD to the capital of the Company.
Section 9.03 Procedure for Indemnification - Third Party Claims
(a) Promptly after receipt by an indemnified party under Section
9.02 of notice of the commencement of any demand, claim or
proceeding against it, such indemnified party will, if a claim is
to be made against an indemnifying party under Section 9.02, give
notice to the indemnifying party of the commencement of such
claim within 20 days of the notice of such demand, claim or
proceeding, but the failure to notify the indemnifying party will
not relieve the indemnifying party of any liability that it may
have to any indemnified party, except to the extent that the
indemnifying party demonstrates that the defense of such action
is prejudiced by the indemnifying party's failure to give such
notice.
(b) If any proceeding referred to in this Section 9.03 is
brought against an indemnified party and it gives notice to the
indemnifying party of the commencement of such proceeding, the
indemnifying party will be entitled to participate in such
proceeding and, to the extent that it wishes (unless the
indemnifying party is also a party to such proceeding and outside
counsel for the indemnified party reasonably determines in good
faith that joint representation would be inappropriate due to an
actual or potential conflict of interest or differing defenses),
to assume the defense of such proceeding with counsel acceptable
to the indemnified party and, after notice from the indemnifying
party to the indemnified party of its election to assume the
defense of such proceeding, the indemnifying party will not, as
long as it diligently conducts such defense, be liable to the
indemnified party under this Article 9 for any fees of other
counsel or any other expenses with respect to the defense of such
proceeding, in each case subsequently incurred by the indemnified
party in connection with the defense of such proceeding. If the
indemnifying party assumes the defense of a proceeding, (i) no
compromise or settlement of such claims may be effected by the
indemnifying party without the indemnified party's consent unless
(A) there is no finding or admission of any violation of law or
any violation of the rights of any indemnified person and no
effect on any other claims that may be made against the
indemnified party, and (B) the sole relief provided is monetary
damages that are paid in full by the indemnifying party; and (ii)
the indemnified party will have no liability with respect to any
compromise or settlement of such claims effected without its
consent.
(c) Notwithstanding the foregoing, if an indemnified party
determines in good faith that there is a reasonable probability
that a proceeding may adversely affect it or its affiliates other
than as a result of monetary damages for which it would be
entitled to indemnification under this Agreement (or, in the case
of EBRD, for any reason in its sole discretion), the indemnified
party may, by notice to the indemnifying party, assume the
exclusive right to defend, compromise, or settle such proceeding.
The indemnifying party will not be bound by any determination of
a proceeding so defended nor any compromise or settlement
effected without its consent (which may not be unreasonably
withheld).
Section 9.04 Procedure for Indemnification- Other Claims
A claim for indemnification for any matter not involving a third-
party claim may be asserted by notice to the party from whom
indemnification is sought.
ARTICLE 10.
ADJUSTMENTS IN CERTAIN CIRCUMSTANCES
Section 10.01 Definition and Purpose
For the purpose of this Article 10, "Contributed Company" means
BI, DB or Rousse. For the purposes only of this Article 10 EBRD
shall be treated as if a "Contributor". The adjustments provided
for in this Article 10 constitute liquidated damages agreed to by
the parties. The method of adjustment provided in this Section
is not intended by the Contributors to imply a fair market value
for the Company on the Closing Date.
Section 10.02 Adjustments for Misrepresented Share Ownership
(a) If anything shall come to the attention of a Contributor
that causes such Contributor to believe that the capital stock of
a Contributed Company was not owned on the date hereof as
represented herein, or contributed to the Company as required
hereby, then such Contributor may give notice thereof to the
other Contributors. Such notice must be given before the first
anniversary of the Closing Date.
(b) If it is established, by unanimous agreement of the parties
or by mediation or arbitration pursuant to Section 11.02, that a
Contributor (or BI with respect to the shares of DB held by it)
did not own, or did not contribute to the Company, free and clear
of all liens and encumbrances (other than the EBRD Liens), the
registered shares or authorized and issued shares, as the case
may be, in the capital of a Contributed Company (representing the
percentage ownership of such Contributed Company) that such
Contributor (or BI with respect to the shares of DB held by it)
represented herein was owned by it and that such Contributor was
required to contribute to the Company, and has not cured such
failure or provided to the Company the beneficial ownership of all
such shares, then the number of Common Shares to be issued or that
have been issued to such Contributor shall be reduced, pursuant to
the methodology set forth on Exhibit J hereto. Such reduction shall
be effective as of the time the required adjustment is established.
In the event that any Adjustment Shares are required to be
transferred by the BI Holders, such obligation shall be joint and
several.
Section 10.03 Adjustments for Business Misrepresentations
(a) If anything shall come to the attention of a Contributor that causes
such Contributor to believe that facts or circumstances existed at
the Closing Date that caused one or more of the representations and
warranties of another Contributor in Articles 2, 3 or 4 hereof not to
be true and correct on the Closing Date, and that such facts and
circumstances, considered in the aggregate, are reasonably likely to
result in costs, expenses or liabilities to the Company, BI, DB, and
Rousse, taken as a whole, that exceed, by at least $1,000,000, the
costs, expenses and liabilities disclosed by such other Contributor
herein with respect to a Contributed Company (subject to Section
10.03(c) in the case of BI as a Contributed Company), then the
Contributor having such belief shall give notice thereof to the other
Contributors. Such notice must be given before July 31, 2001, and is
referred to as an "Adjustment Notice."
(b) To the extent that it is established, by unanimous agreement of the
parties, or by mediation or arbitration pursuant to Section 11.02,
that, as asserted in an Adjustment Notice, a Contributed Company has
undisclosed costs, expenses and liabilities in excess of $1,000,000
($1,000,000 plus the amount of such excess being referred to as the
"Loss," for that Contributed Company, except (i) that in no event
shall the aggregate Loss with respect to a Contributed Company exceed
$5,000,000, and (ii) as provided in Section 10.03(c) with respect
to BI), and such Loss has not been cured or alleviated by the
Contributor making the misrepresentation to the reasonable
satisfaction of the other Contributors, then the number of Common
Shares to be issued or that have been issued to the Contributor or
Contributors making the misrepresentation shall be reduced by a
number of Common Shares (the "Adjustment Shares") determined by
dividing the Loss by US $50 million and multiplying the result by
5,000,000 (with the number 5,000,000 in the foregoing being adjusted
proportionally upon any stock split, stock dividend, or reverse stock
split of the Company's Common Shares).
(c) With respect to BI as a Contributed Company, the following shall
apply:
(i) "BI Parent" means BI disregarding BI's "Subsidiaries"
(as defined in Article 3); "BI Subs" means BI's "Subsidiaries"
(as defined in Article 3); and "Undisclosed Items" means
undisclosed costs, expenses and liabilities.
(ii) An Adjustment Notice may be given if a Contributor believes
the Undisclosed Items of the BI Subs exceed $100,000.
(iii) If, as established pursuant to Section 10.03(b), the
Undisclosed Items of the BI Subs are in excess of $100,000,
then $100,000 plus the amount of such excess shall be a
"Loss" for BI,regardless of the Undisclosed Items of BI Parent.
(iv) For the avoidance of doubt, the following table shows examples
of the operation of the foregoing:
Aggregate Loss
BI Subs BI Parent Used in
Undisclosed Undisclosed Adjustment
Items Items Formula for BI
as a Contributed
Company
$ 90,000 $ 900,000 -0-
$200,000 -0- $ 200,000
$ 90,000 $1,010,000 $1,100,000
$200,000 $ 900,000 $1,100,000
(a) The Adjustment Shares shall be distributed to the
Contributors other than the Contributor or Contributors making
the misrepresentation in the ratios set out in the following
table taken from the column corresponding to the Contributed
Company incurring the Loss. In the event that any Adjustment
Shares are required to be transferred by the BI Holders, such
obligation shall be joint and several.
Ratio In Which to Apportion
Adjustment Shares in Event of a Loss at:
BI Rousse ▇▇
▇▇▇▇▇▇ Holdings 44.90% 76.54%
BI Holders (in respect of DB) 27.74% 40.28%
BI Holders (in respect of BI) 19.99% 23.46%
BCEF 17.84% 25.91%
EBRD 4.76% 6.91%
Baarsma 4.76% 6.91%
100.00% 100.00% 100.00%
Adjustments hereunder affecting the BI Holders shall be
apportioned among them in proportion to their holdings of BI
Shares immediately prior to the Closing. In the event of a Loss
relating to DB, the adjustments hereunder will be apportioned
among the DB Contributors in proportion to their respective
direct and indirect interests in DB immediately prior to the
Closing.
Section 10.04 Adjustments for Certain Matters Relating to BI
(a) For the purposes hereof, all expenses (including reasonable
professional fees and expenses), losses, costs, deficiencies,
liabilities and damages incurred by the Company or any of its
subsidiaries by reason of either or both of the following matters
are referred to collectively as "Special BI Losses":
(i) The litigation involving Mr. Tiko Alalouff referred to on
Schedule 3.05, and any matters relating thereto, but only if (x)
judgment is given in favor of Mr. Alalouff, or (y) Mr.
Alalouff's claim is settled on terms that involve the payment
to him in respect of his claim of an amount that exceeds
$30,000.
(ii) Capital gains tax due in respect of any disposal or deemed
disposal of shares in connection with the reorganization of BI
and the creation of DB that occurred in July and August of 1998.
(b) Upon each incurrence of a Special BI Loss, the number of
Common Shares to be issued or that have been issued to the BI
Holders shall be reduced by a number of Common Shares (the
"Special BI Adjustment Shares") determined by dividing such
Special BI Loss by US $50 million and multiplying the result by
5,000,000 (with the number 5,000,000 in the foregoing being
adjusted proportionally upon any stock split, stock dividend, or
reverse stock split of the Company's Common Shares).
(c) The Special BI Adjustment Shares shall be distributed to the
other Contributors in the ratios set out in the table in Section
10.03(d) in the applicable column for BI. In the event that any
Special BI Adjustment Shares are required to be transferred by
the BI Holders, such obligation shall be joint and several.
(d) Adjustments hereunder shall be apportioned among the BI
Holders in proportion to their holdings of BI Shares immediately
prior to the Closing.
ARTICLE 11.
MISCELLANEOUS
Section 11.01 Governing Law
This Agreement shall be governed by and construed in accordance
with the laws of England.
Section 11.02 Dispute Resolution
Each of the parties hereto agrees that any claim or controversy
arising out of or relating to this Agreement shall be resolved
pursuant to the procedures in Exhibit I hereto.
Section 11.03 EBRD's Privileges and Immunities
Nothing in this Agreement or any agreement contemplated hereby
shall be construed as a waiver, renunciation or other
modification of any immunities, privileges or exemptions of EBRD
accorded under the Agreement Establishing European Bank for
Reconstruction and Development, international convention or any
applicable law.
Section 11.04 Successors and Assigns
The provisions of this Agreement shall inure to the benefit of,
and be binding upon, the successors and permitted assigns of the
parties hereto, and the rights, remedies and entitlements of the
parties under this Agreement may not be assigned in full or in
part without the consent of the other parties.
Section 11.05 Entire Agreement
This Agreement (including the Exhibits and Schedules attached
hereto), the other Transaction Agreements and the other documents
delivered pursuant hereto constitute the full and entire
understanding and agreement among the parties with regard to the
subjects hereof and thereof and supersede all prior agreements
and understandings (oral or written) between or among the parties
with respect to such subject matter.
Section 11.06 Amendment
This Agreement may not be modified, amended, supplemented,
cancelled or discharged, except by written instrument executed by
the parties. No party has entered into this Agreement in
reliance on any representation or warranty, except as set forth
in this Agreement. No failure to exercise, and no delay in
exercising, any right, remedy, power or privilege under this
Agreement shall operate as a waiver and no single or partial
exercise of any right, remedy, power or privilege hereunder shall
preclude the exercise of any other right, remedy, power or
privilege nor shall it exhaust the same or constitute a waiver of
any other right, remedy, power or privilege provided herein.
Section 11.07 Notices
All notices and other communications required or permitted
hereunder shall be given in writing and shall be deemed
effectively given upon personal delivery, or delivery by a
recognized international courier service, or otherwise delivered
by hand or by messenger, addressed as set forth on Schedule 11.07
attached hereto with respect to each of the parties.
Section 11.08 Payment of Fees and Expenses
Subject to Section 5.13 of the Amended and Restated Loan
Agreement attached hereto at Exhibit F, the parties and BI shall
pay their own fees and expenses, including their own professional
fees, incurred in connection with the Transactions; provided,
however, that promptly following the Closing Date, the Company
(a) shall pay BCEF an aggregate amount of $100,000, as
reimbursement for its transaction costs and a fee, and (b) shall
pay to BCEF the reasonable costs of its advisors in connection
with the services performed by or coordinated through the London
office of PricewaterhouseCoopers for tax, structuring and
corporate advice for the benefit of all parties (including the
advice of Luxembourg counsel). To the extent the amount paid by
BI for professional fees, costs, expenses and disbursements,
including value added tax ("VAT") payable thereon (less VAT
credit received by BI) exceeds $100,000, the amount of the excess
shall reduce the aggregate amount payable under Section 2(d) of
the BI Shareholder Payment Agreements.
Section 11.09 Construction of Certain Terms
The titles of the articles, sections, and subsections of this
Agreement are for convenience of reference only and are not to be
considered in construing this Agreement. Wherever the words
"including," "include" or "includes" are used in this Agreement,
they shall be deemed followed by the words "without limitation."
References to any gender shall be deemed to mean any gender.
Section 11.10 Counterparts
This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together
shall constitute one instrument.
Section 11.11 Remedies Cumulative; Waiver
Except as provided in Section 8.01, no right or remedy referred
to herein or in any exhibit hereto is intended to be exclusive,
but each shall be cumulative and in addition to any other right
and remedy referred to above or otherwise available to a party at
law or in equity; provided, however, that the provisions of
Article 10 hereof are the sole remedies hereunder for breaches of
the representations and warranties in Articles 2, 3 and 4 hereof,
and any right of rescission arising therefrom or any right to
claim damages or other relief in equity, tort, contract and/or
under the ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (save in the case of fraud)
is expressly waived. No express or implied waiver by any party
of any default shall be a waiver of any future or subsequent
default.
Section 11.12 No Partnership or Agency
Nothing contained in this Agreement is to be construed as
creating a partnership between any of the parties. Save as
provided in Section 11.22 nothing contained in this Agreement is
to be construed so as to constitute any party the agent of the
other for any purpose.
Section 11.13 Joint and Several Obligations
Save as otherwise provided herein, all obligations in this
Agreement are several and not joint.
Section 11.14 English Language
This Agreement is drawn up in the English language. If this
Agreement is translated into another language, the English
language text prevails.
Section 11.15 Third Party Rights
A person who is not a party to this Agreement has no right under
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any
terms of this Agreement.
Section 11.16 Severability
Should any provision of this Agreement, for any reason be
declared invalid or unenforceable, such decision shall not affect
the validity or enforceability of any of the other provisions of
this Agreement, which remaining provisions shall remain in full
force and effect and the application of such invalid or
unenforceable provision to any party or circumstances other than
those as to which it is held invalid or unenforceable shall be
valid and enforced to the fullest extent permitted by law.
Section 11.17 Timely Performance
Time is of the essence as to the performance of the obligations
required of the respective parties under this Agreement.
Section 11.18 United States Dollars
All references to "dollars" or "($)" in this Agreement are to
United States dollars.
Section 11.19 Disclosure
Any matter disclosed on any Schedule delivered pursuant to
Article 2, 3, or 4 hereof shall be deemed disclosed for purposes
of all of the representations and warranties in that Article.
Each Contributor and Seaboard shall be deemed to have disclosed,
pursuant to Sections 2, 3, 4 or 5 as applicable, to each other
Contributor (and to Seaboard, whether or not it is a Contributor)
and to EBRD all matters of which any employee, counsel or
financial advisor of such other Contributor has knowledge.
Section 11.20 Publicity
The parties agree that any public announcement or other
disclosure to a third party regarding this Agreement shall be
subject to the prior written approval of Rousse Holding, EBRD,
▇▇▇▇▇▇▇ and BCEF, provided that (i) BCEF shall be entitled to
disclose the contents of this Agreement to its investors (subject
to confidentiality restrictions), (ii) each of the parties shall
be entitled to disclose the contents of this Agreement to parties
with a legitimate interest who have executed a confidentiality
agreement, and (iii) EBRD may disclose such documents,
information and records regarding the Company (and its
subsidiaries) and this transaction as EBRD reasonably deems
appropriate in connection with any dispute involving the Company
or the other parties to preserve or enforce any of EBRD's rights
under this Agreement or any agreement contemplated hereby and on
a confidential basis to EBRD's directors, officers, staff and
advisors.
Section 11.21 Action by BI Holders
Every decision to be made, or waiver, approval or agreement to be
given, by the BI Holders under this Agreement shall be deemed
made or given unanimously by them, and shall bind all of them, if
and only if made or given by ▇▇▇▇▇▇▇. Without limiting his
representations and warranties in Section 12.16 of the Original
Agreement, or any right or remedy in the Original Agreement with
respect thereto, all of which shall continue to have the effect
provided for in the Original Agreement, as though this Agreement
had not been entered into, by his execution and delivery hereof
▇▇▇▇▇▇▇ represents and warrants to all the parties hereto that he
has been duly authorized, by one or more instruments (duly
executed original copies of which had been delivered to the
Contributors), to execute and deliver this Agreement on behalf of
each BI Holder, and that, upon his execution and delivery hereof
on their behalf, this Agreement is the valid and legally binding
obligation of the BI Holders.
IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Contribution Agreement on the Closing Date.
SOMERSET LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-Fact
BARING CENTRAL EUROPEAN
INVESTMENTS B.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-Fact
BAARSMA'S HOLDING B.V.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ TODROV
Title: Attorney-in-Fact
SEABOARD CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-Fact
EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT
By: /s/ SHEVKI ACUNER
Name: SHEVKI ACUNER
Title: Authorized Signer
(signatures for BI Holders on attached page(s))
Signature Page to Amended and Restated Contribution Agreement, dated
December 29, 2000, Among Seaboard Corporation, Somerset Limited, The
Shareholders of ▇▇▇▇▇ International Limited, Baarsma's Holding B.V.,
Baring Central European Investments B.V., and European Bank for
Reconstruction and Development
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, individually and as attorney
or each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ichpekov, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Beshkov, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Boninski,
▇▇▇▇▇▇ ▇▇▇▇▇▇ Karabaliev, ▇▇▇▇▇ ▇▇▇▇▇▇▇ Fakirev,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Radichev, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Avramov,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The following Exhibits and Schedules to the Amended and Restated
Contribution Agreement have been omitted. The Company agrees to
furnish to the Commission supplementally a copy of any such
omitted Exhibit or Schedule upon request.
LIST OF EXHIBITS
Exhibit A Charter
Exhibit B Omitted
Exhibit C Form of Intercreditor Agreement
Exhibit D Certain Definitions
Exhibit E Form of Shareholders' Agreement
Exhibit F EBRD Loan Agreement and Restatement Agreement
with Amended and Restated EBRD Loan Agreement
as Schedule [ ] thereto.
Exhibit G Knowledge
Exhibit H-1 Form of BCEF Loan Agreement
Exhibit H-2 Form of BCEF Subordination Agreement
Exhibit I Arbitration Procedures
Exhibit J Adjustment Methodology
Exhibit K BI Holders
Exhibit L Omitted
Exhibit M-1 Form of BI Shareholder Payment Agreement
Exhibit M-2 Form of BI Holder Subordination Agreement
Exhibit N-1 Form of Seaboard Loan Agreement
Exhibit N-2 Form of Guarantee of Seaboard Loan Agreement
Exhibit N-3 Form of Seaboard Subordination Agreement
Exhibit O Form of Class C Repurchase Agreement
Exhibit P Form of Expense Letter
LIST OF SCHEDULES
SCHEDULE DOCUMENT DESCRIPTION
Schedule 1.02(b) Intercompany Debt"
Schedule 1.02(d) EBRD Liens.
Schedule 1.03(b) Payees and Amounts Under ▇▇▇▇▇ International
Shareholder Payment Agreements
Schedule 2.01 - 2.13 Domaine ▇▇▇▇▇ Disclosure Schedules
Schedule 3.01 - 3.15 ▇▇▇▇▇ International Disclosure Schedules
Schedule 4.01 - 4.13 Vinprom Rousse Disclosure Schedules
Schedule 8.01 Korten Equipment Lease
Schedule 8.04 Seaboard tax obligations related to the temporary
import of the wine by Rousse, in excess of the
gross profit obtained by the Company from the sale
of such wine
Schedule 11.07 Notice Addresses