Calgon Carbon Investments, Inc. 3000 GSK Drive, Moon Township PA 15108 USA Calgon Carbon Corporation 3000 GSK Drive, Moon Township PA 15108 USA

---

4                 Note : to be updated with the list as of the 5th Business Day preceding the date of signing of this Agreement.

 

 

(b)         Except as disclosed on Schedule 4.18(b) to the Disclosure Letter, as at the date hereof, all Contracts with any of the corporate directors and officers of the Company or the Transferred Employees are valid, binding and enforceable.

 

(c)         Except as disclosed on Schedule 4.18(c) to the Disclosure Letter, since January 1, 2016, none of the Company or CECA (in respect of the Business) has paid or agreed to pay any bonuses, granted or agreed to grant any profit-sharing or supplementary pensions or other individual advantage, or made or agreed to make any material increase in the rate of wages, salaries or other remuneration of any of its corporate directors and officers or the Anticipated Transferred Employees, other than in the ordinary course of business and in a manner consistent with past practice or as dictated by applicable Law or the applicable Collective Bargaining Agreements or employment agreement.

 

(d)         Except as disclosed on Schedule 4.18(d) to the Disclosure Letter, none of the Company or CECA (in respect of the Business) is bound by or sponsors or maintains:

 

  (i)           any severance agreements or other Contracts providing for compensation of its corporate directors and officers, and Anticipated Transferred Employees in case of termination of employment or completion of the transactions contemplated by this Agreement, or

 

  (ii)          any (t) bonus or profit sharing plans or agreement or arrangements, (u) company savings plans or agreement or arrangements, (v) stock purchase or stock option plans or other forms of supplemental, complementary or incentive compensation or deferred compensation or agreement or arrangements, (w) pension or retirement (whether pre- or post-retirement) plans or anticipated exemption from work until retirement (cessation anticipée d'activité) plans or agreement or arrangements, or (x) other employee funds or similar employee benefit plans or agreement or arrangements, (y) insurance coverage or medical or health benefits or disability benefits or agreement or arrangements, (z) vacation benefits or employee benefits including benefits in kind (other than phone and IT equipment), providing for advantages and benefits to its former or present corporate directors and officers or to the Anticipated Transferred Employees,

 

which are more favorable to its employees than any mandatory plan, arrangement or fund provided by applicable labor Law or applicable Collective Bargaining Agreements.

 

(e)         Each of the Company and CECA (in respect of the Business) (i) is in compliance in all material respects with all applicable statutory, regulatory or contractual requirements or Collective Bargaining Agreements with respect to their former and present corporate directors, officers or Anticipated Transferred Employees, including notably when applicable and without limitation, remuneration, working conditions, working time, health and safety, disability, protection of personal data, social security, personnel representation Laws, (ii) has in all material respects duly and timely fulfilled all payment and withholding obligations to its former and present employees, corporate directors and officers and when applicable to social security administration and tax administration, including without limitation all salaries, fees, commissions, bonuses, overtime pay, social security and tax contributions, retirement and pension benefits, holiday pays, other applicable contributions and benefits for all period (or portions thereof) ending on or prior to the Closing Date; and (iii) are not currently involved in any claim for social security matters and have not received any written assessment, injunction, or request for payment from any social security authority or other Governmental Authority in relation to social security matters that are still pending, other than for negligible amounts.

 

 

(f)        Schedule ‎4.18(f) to the Disclosure Letter contains a true and complete list of all Collective Bargaining Agreements.

 

(g)       Except as disclosed on Schedule ‎‎4.18(g) to the Disclosure Letter, as at the date hereof, there are no anticipated asbestos retirement over the 10 past years, lawsuit, arbitration, settlement proceeding, claim for or written notification pertaining to occupational accidents and/or illnesses, the recognition of occupational accidents and/or illnesses, the recognition of an inexcusable fault of the Company or CECA (in respect of the Business), the increase of disability/incapacity rates, death, anxiety, injury, illness or harassment claims against the Company or CECA (in respect of the Business) and no investigations by Governmental Authorities are pending or existing or, to the Knowledge of the Sellers, threatened in writing in relation to such matters.

 

(h)       Except as disclosed on Schedule ‎4.18(h) to the Disclosure Letter, the Company and CECA (in respect of the Business) have not terminated any of their employees in violation of applicable labor Laws or Collective Bargaining Agreements; there are no written complaints, or written claims (including from any Governmental Authorities) against the Company and CECA (in respect of the Business) from any of its former or present corporate directors and officers or Anticipated Transferred Employees, including but not limited to any employment status claim from any person working for the Company or CECA (in respect of the Business) under a non employment status.

 

(i)        All Employee Plans in which the Company and CECA (in respect of the Business) participate are listed in Schedule ‎‎4.18(i) to the Disclosure Letter.  There are no unpaid amounts past due in respect of any Employee Plans in which the Company and CECA (in respect of the Business) participate.  All Liabilities with regard to such Employee Plans (including Pension Liabilities) as at the Closing Date, have been properly accounted for by the Company and CECA (in respect of the Business) in accordance with the Accounting Principles.

 

(j)         Except as disclosed on Schedule ‎4.18(j) to the Disclosure Letter, as at April 13, 2016, there are no trade union disputes pending or existing and in the three (3) years preceding April 13, 2016 there have been no strikes, slowdowns, picketing or work stoppages and, to the Knowledge of the Sellers, none of the above have been expressly threatened as at April 13, 2016.

 

(k)        Except as disclosed on Schedule 4.18(k) to the Disclosure Letter, in the three (3) years preceding April 14, 2016 the Company has not entered into, nor has it made any application in respect of, any lay-off procedure or subsidized employment procedure (such as with regard to the Company "cassa integrazione" or "mobilità" or "contratto di solidarietà") or similar procedures concerning the Transferred Employees.

 

(l)         The severance indemnity (with regard to the Company, "trattamento di fine rapporto") due to the Anticipated Transferred Employees of the Company has been regularly set aside or paid in accordance with applicable Laws and, if set aside, is properly entered in the Financial Statements in accordance with applicable Accounting Principles.

 

(m)        In the past three (3) years, none of the former or present Consultants of the Company or CECA (in respect of the Business), nor any other Person, has successfully claimed, or can successfully claim, to be characterized as an employee to be employed by the Company or CECA (in respect of the Business) on an indefinite term basis and no such claim is currently pending or, to the Sellers' Knowledge, threatened.

 

 

4.19     Personal Property.  Except as set forth on Schedule 4.19(i) to the Disclosure Letter, the Company and CECA or Arkema Shanghai (in respect of the Business) have good title to (free and clear of all Encumbrances except for Permitted Encumbrances), or hold by valid and existing lease or license, all the tangible personal property assets (excluding for the avoidance of doubt any real property or buildings) which are primarily or exclusively used or held for use for the conduct of its business as currently conducted. To the Knowledge of the Sellers, and except as set forth in Schedule 4.19(ii) to the Disclosure Letter, all such assets other than the Inventory (excluding for the avoidance of doubt tangible personal property which is no longer in use for the operation of the business of the Company) are in reasonable good maintenance, operating condition and repair within the standards applicable to the industry of the Business, normal wear and tear excepted, not in need of maintenance or repair, except for ordinary maintenance or repairs, maintenance capital expenditures or periodic shutdowns in the ordinary course. Except as set forth in Schedule 4.19(iii) to the Disclosure Letter and taking into account (i) the Excluded Assets, (ii) the rights, licenses, services and benefits to be provided to Purchaser pursuant to the Transaction Documents and (iii) the agreement and arrangements to be terminated at the Closing Date in accordance with Section 6.6, the Transferred Assets constitute all the assets, rights, licenses and services required or used to conduct the Business in all material respects as conducted during the fiscal year 2015 by the Sellers.

 

4.20     Affiliate Transactions.  Schedule 4.20 to the Disclosure Letter sets forth a list of all agreements involving expenditures in a yearly amount in excess of fifty thousand (50,000) euro between the Sellers' Group on the one hand, and the Company, or, to the extent such agreement is exclusively related to the Business, CECA, on the other hand.

 

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE PURCHASER

 

The Purchaser hereby represents and warrants to the Sellers that:

 

5.1       Organization and Due Authorization.

 

(a)       The Purchaser is a company (corporation) duly organized and validly existing under the laws of the State of Delaware (USA).  The Purchaser has the corporate capacity and right to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.

 

(b)       The entering into of this Agreement and the performance of the Purchaser's obligations hereunder have been authorized by all necessary corporate action and proceedings on the part of the Purchaser.  This Agreement has been duly signed by the Purchaser and constitutes a legal, valid and binding obligation of the Purchaser, enforceable against it in accordance with its terms.

 

(c)       Neither the entering into of this Agreement, nor the performance by the Purchaser of its obligations hereunder, nor the consummation of the transactions provided for hereby does or will:

 

(i)           conflict with or violate any provision of the Organizational Documents of the Purchaser;

 

(ii)          subject to obtaining the Required Regulatory Approvals, constitute a violation by the Purchaser or any of its Affiliates of any Laws or Judgments.

 

(d)       Neither the Purchaser nor the Purchaser's Guarantor is subject to or threatened to be subject to any Insolvency Proceedings.

 

(e)       The Purchaser's Guarantor is a company (corporation) duly organized and validly existing under the laws of the State of Delaware (USA). The Purchaser's Guarantor has full corporate power and authority to enter into this Agreement and to provide the Purchaser's Guarantee as contemplated hereby. The entering into of this Agreement and the performance of the Purchaser's Guarantor's obligations hereunder have been authorized by all necessary corporate action and proceedings on the part of the Purchaser's Guarantor.  This Agreement has been duly signed by the Purchaser's Guarantor and constitutes a legal, valid and binding obligation of the Purchaser's Guarantor, enforceable against it in accordance with its terms.

 

 

5.2      Governmental Authorizations.  Other than the Required Regulatory Approvals, no Governmental Authorization or other third party consent is required to be made or obtained by the Purchaser or any of its Affiliates prior to the Closing in connection with (a) the entering into of this Agreement by the Purchaser, (b) the performance by the Purchaser of its obligations hereunder, or (c) the consummation of any of the transactions contemplated by this Agreement. [The Purchaser submitted a substantially complete draft Merger Notice to the CMA no later than forty (40) Business Days after April 14, 2016.]5

 

5.3      Financing.  The Purchaser has and will have as of the Closing Date sufficient resources available to it in immediately available funds to pay the Closing Purchase Price and to make such other payments as are required to be made by it pursuant to this Agreement.  The Purchaser's obligations hereunder are not subject to any conditions regarding its or any other person's ability to obtain financing for the consummation of the sale and purchase of the Transferred Shares and the Transferred Assets and the other transactions contemplated by this Agreement.

 

5.4      Acknowledgement.

 

(a)       The Purchaser acknowledges that it and its advisors have been given access to an electronic data room organized by the Sellers, and that it has reviewed the Disclosed Information to its reasonable satisfaction, has been afforded the opportunity to discuss the same with senior management of CECA and the Company and has taken the same into account in the terms of its offer to acquire the Transferred Assets and the Transferred Shares.  In entering into this Agreement, the Purchaser has relied upon its own review and analysis of the Disclosed Information, upon the representations and warranties of the Sellers expressly set forth in this Agreement and upon its own independent investigations.

 

(b)       The Purchaser further acknowledges that the representations and warranties of the Sellers set forth in this Agreement supersede any and all earlier representations, warranties or statements made by any directors, officers, employees, agents, representatives or advisors of the Sellers (collectively, the "Sellers' Representatives") regarding the Transferred Assets, the Business, the Transferred Shares, the Company or any other matter referenced in this Agreement, and that neither any of the Sellers nor any of the Sellers' Representatives shall have any liability in respect of any such earlier representations, warranties or statements (and in respect of which the Purchaser undertakes not to, and to procure that none of its Affiliates shall, bring any claim or action against any of the Sellers or any of the Sellers' Representatives).  Except as expressly set forth in this Agreement, neither any of the Sellers nor any of the Sellers' Representatives makes any representation or warranty, either express or implied, of any kind whatsoever with respect to the Transferred Assets, the Business, the Transferred Shares, the Company or any of the transactions contemplated hereby (including as to the accuracy or completeness of any information provided to the Purchaser or its representatives).  Without limiting the generality of the foregoing, the Purchaser acknowledges that neither any of the Sellers nor any of the Sellers' Representatives makes any representation or warranty with respect to the future relations of the Company or the Business with any customers or suppliers, or with regard to the future financial or business prospects of the Company or the Business.

 

---

 

(c)       The Purchaser further acknowledges that neither any of the Sellers nor any of the Sellers' Representatives makes any representation or warranty with respect to any financial projections, business plans, budgets, estimates, predictions or forecasts (collectively "projections") relating to the Business or the Company (and in respect of which the Purchaser undertakes not to, and to procure that none of its Affiliates shall, bring any claim or action against any of the Sellers or any of the Sellers' Representatives).  The Purchaser acknowledges that there are numerous assumptions reflected in such projections and significant uncertainties (and has had in this respect the opportunity to discuss the same with the management of the Business and the Company) inherent in attempting to make such projections, that the Purchaser is familiar with such types of assumptions and uncertainties, that the Purchaser is taking full responsibility for making its own evaluation of the adequacy and accuracy of all projections or forward-looking statements furnished to it, and that the Purchaser shall not have any claim against any of the Sellers or any of the Sellers' Representatives with respect thereto.

 

ARTICLE VI

PRE-CLOSING COVENANTS

 

6.1      Required Antitrust Clearance.

 

(a)       The Purchaser acknowledges the importance for the Sellers that the Required Antitrust Clearance be obtained as soon as possible and represents and warrants that it has investigated the markets in which the Company and the Business operate, has availed itself of anti-trust experts and has identified the measures required to be taken in accordance with paragraph (b)(ii) below in order to obtain the Required Antitrust Clearance pursuant to a Phase I decision under article 6 (1) (b) of the EC Merger Regulation N°139/2004 or the equivalent at the national level).

 

(b)       The Purchaser shall (and shall cause its Affiliates to):

 

(i)           (x) make at its own expense, as soon as possible and in any event prior to the later of (i) five (5) Business Days after the date hereof and [August 18, 2016], full and accurate filings with the relevant Governmental Authorities with respect to the transactions contemplated hereby (which filings the Purchaser shall confirm to the Sellers' Agent in writing as soon as reasonably practicable after their making) in order to obtain the Required Antitrust Clearance as soon as reasonably practicable, and (y) supply as soon as reasonably practicable any additional information and documentary material that may be requested by the relevant Governmental Authorities, provided that the Purchaser shall not make any notification or filing without first providing the Sellers' Agent with a copy of such notification or filing in draft form (provided that all privileged or commercially sensitive information relating to the Purchaser or its Affiliates may be first removed) and a reasonable opportunity to discuss its content with the Purchaser prior to its filing with the relevant Governmental Authority and shall consider all reasonable comments or suggestions made by the Sellers' Agent in this respect;

 

(ii)          do all things necessary or appropriate under applicable Laws to obtain the Required Antitrust Clearance, including (x) divesting, disposing of, or holding separate (or otherwise taking or committing to take any action that limits the Purchaser's (or its Affiliates') freedom or action with respect to, or its ability to retain, operate or control) any of the Transferred Assets, the Business or the businesses or assets of the Company, or (y) divesting, disposing of, or holding separate (or otherwise taking or committing to take any action that limits the Purchaser's (or its Affiliates') freedom or action with respect to, or its ability to retain, operate or control) any of the businesses or assets of the Purchaser (or its Affiliates);

 

 

(iii)         not enter into any transaction for the acquisition of any business or Entity, or any joint venture or exclusive arrangement that might reasonably be expected to make it more difficult to obtain the Required Antitrust Clearance or to result in any material delay in obtaining the Required Antitrust Clearance;

 

(iv)         keep the Sellers' Agent regularly informed of the processing of the antitrust filings and in particular, if it becomes aware of anything that could result in the Required Antitrust Clearance being delayed or denied and to provide the Sellers' Agent promptly with all non-privileged or non-commercially-sensitive documents and information concerning the antitrust filings and any communication exchanged with the relevant Governmental Authorities;

 

(v)          invite the Sellers' Agent and its advisors to participate in any meeting or telephone conversations with the relevant Governmental Authorities if necessary or appropriate in the Purchaser's reasonable opinion and to submit any document to be handed to the relevant Governmental Authorities to the Seller's Agent for its review; and

 

(vi)        give notice to the Sellers' Agent of the receipt of any Required Antitrust Clearance within two (2) Business Days of its becoming aware of the same (including a copy of the Required Antitrust Clearance).

 

(c)       All filing fees and similar charges incurred by the Parties in making any notifications or filings pursuant to this Section 6.1 shall be borne by the Purchaser.

 

(d)       The Sellers shall assist and cooperate with the Purchaser in preparing and filing all documents required to be submitted by the Purchaser pursuant to this Section 6.1, including by providing upon request to the other Party and its advisors such information in their possession as is reasonably necessary for Purchaser to make the appropriate filings.

 

6.2      Required Permit Approvals.

 

(a)       As soon as reasonably practicable after the date hereof, the relevant Party shall (or shall cause its Affiliates (including in the case of the Sellers, the Company), where required), to make all appropriate filing with all relevant Governmental Authorities to obtain, as soon as reasonably practicable and in any event on or prior to the Closing Reference Date (but subject to the Closing), the Required Permit Approvals and any other Governmental Authorizations required to be obtained in connection with the transactions contemplated hereby (including, in the case of CECA, filing any application with the relevant Préfet or other relevant Governmental Authority as may be required by applicable Law in order to obtain an authorization to change the operator of any installation for which a prior approval is required).

 

(b)       Each relevant Party shall:

 

(i)           keep the other Party (it being specified that for the purpose of this Section 6.2, in respect of the Sellers, the other Party shall be deemed the Sellers' Agent) regularly informed of the processing of such regulatory filings and in particular, if it becomes aware of anything that could result in any of the Required Permit Approvals being delayed or denied and to provide the other Party promptly with all non-privileged or non-commercially-sensitive documents and information concerning such filings and any communication exchanged with the relevant Governmental Authorities;

 

 

(ii)          invite the other Party and its advisors to participate in any meeting or telephone conversations with the relevant Governmental Authorities and to provide to the other Party any document to be handed to the relevant Governmental Authorities and a reasonable opportunity to discuss its content with the such relevant Party prior to its submission to the relevant Governmental Authority and shall consider and take into account all reasonable comments or suggestions made by the other Party in this respect; and

 

(iii)         give notice to the other Party of the receipt of any Required Permit Approvals within two (2) Business Day of its becoming aware of the same (including a copy of such Required Permit Approvals).

 

(c)       Each Party shall assist and cooperate with the other Party in preparing and filing all documents required to be submitted by the relevant Party pursuant to this Section 6.2 and in obtaining the Required Permit Approvals and any other Governmental Authorizations required to be obtained in connection with the transactions contemplated hereby (which assistance and cooperation shall include timely furnishing to the relevant Party all information concerning such Party and its Affiliates which is required to be included in such notifications or documents or which may be requested by the relevant Governmental Authority).

 

(d)       The Purchaser shall and shall procure that its Affiliates (i) do all things necessary or appropriate to obtain the Required Permit Authorizations as soon as possible, including giving (or procure that a financial institution gives) any required guarantee, deposit or other undertaking and (ii) not take any actions that might reasonably be expected to make it more difficult to obtain the Required Permit Authorizations or to result in any delay in obtaining the same.

 

6.3      Compliance with Personal Data Protection Regulation.  As soon as practicable after the date of this Agreement and in any event prior to Closing Date, the Sellers shall make their commercially reasonable efforts so that the Company duly register its personal data files with its agency for data protection in accordance with the applicable data protection Law.

 

6.4      Sale of the Pioltello Site.  The Sellers shall take, and shall cause the Company to take, all actions necessary to complete the sale of the Pioltello Site to any of the Sellers, any of their Affiliates or any Third Party prior to the Closing without any liability whatsoever on the part of the Company.

 

6.5      Ordinary Course of Business.  During the period from the date of this Agreement to the Closing, except as may be (w) contemplated by this Agreement, (x) disclosed on Annex 6.5, (y) required by applicable Law or by a Governmental Authority, or (z) consented to in writing beforehand by the Purchaser (which consent shall not be unreasonably withheld or delayed), each Seller (1) shall not sell, transfer, assign, pledge, dispose of or take any other action that would result in any Encumbrance being created on the Transferred Shares and (2) shall ensure that the Company and CECA (in respect of the Business) (A) carry on their business only in the ordinary course, and (B) do not take any of the following actions (excluding, in the case of CECA, items (i), (ii), (iii), (iv), (vi) and (xiii) if and only to the extent any such action does not have, and is not reasonably likely to have, any adverse impact on the Transferred Assets, the Transferred Liabilities and/or the Business):

 

(i)           amending its Organizational Documents;

 

(ii)          carrying out or entering into any acquisition of any Entity (or interests in the corporate capital thereof) or business, merger, demerger, spin-off, consolidation, joint-venture;

 

 

(iii)         altering its issued share capital or declaring, setting aside, making or paying any dividend or other distribution in respect of its profits, equity reserves or share capital (in cash or otherwise), or purchasing or redeeming any shares in its share capital;

 

(iv)         issuing, pledging or selling any shares in its share capital or any options, warrants or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares;

 

(v)          incurring any indebtedness for borrowed money (including through the issuance of debt securities) in excess of one hundred thousand (100,000) euro (except pursuant to and in accordance with existing lines of credit or intragroup financing agreement);

 

(vi)         making or committing to make any capital expenditure in excess of five hundred thousand (500,000) euro and which involve payments after the Closing Reference Date;

 

(vii)        making any change in its accounting procedures or practices unless mandated by the accounting principles generally accepted in its jurisdiction of incorporation;

 

(viii)       disposing of, by sale, lease, transfer, pledge, license or other form of disposition any asset (other than inventory) which net book value in the accounts of the Company or CECA exceeds fifty thousand (50,000) euro;

 

(ix)          entering into, terminating, cancelling or materially amending any Material Contract;

 

(x)           except as may be required pursuant to applicable Law, by the Collective Bargaining Agreements or employment contracts in force at the date of this Agreement, entering into, terminate or modify any pension plan (or any arrangement that would be a pension plan if in effect on the date of this Agreement) or grant any bonuses, retention package, contractual termination indemnities, salary or wage increase, or otherwise increase the compensation payable to any Anticipated Transferred Employee, except for annual increases of wages within the frame of the annual mandatory negotiations and reasonable bonuses consistent with past practice;

 

(xi)          terminating, cancelling, amending, waiving or modifying any Governmental Authorization which is necessary for the conduct of the Business (subject to the actions contemplated in Section 6.2);

 

(xii)         making any settlement in or commencement of any Proceedings requiring it to pay an amount in excess of fifty thousand (50,000) euro;

 

(xiii)        any material change in any procedures or policies related to the Business;

 

(xiv)        changing in any material respect its practices for the collection of account receivables (including any acceleration of collections) or the payment of suppliers (including any deferral of payments);

 

(xv)         committing, in writing or otherwise, to take or authorize any of the actions set forth in the foregoing subsections (i) through (xv).

 

For the purposes of granting any consents which may be requested by the Sellers' Agent or the Company pursuant to this Section 6.5, the Purchaser hereby designates ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ with immediate effect and represents and warrants to, and agrees with, the Sellers that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have full capacity and right to give any such consents on behalf of the Purchaser during the term of this Agreement.  Within five (5) Business Days of receipt of any request for consent by the Sellers' Agent or the Company, the Purchaser shall have the right to notify the Sellers' Agent or the Company that it objects to the proposed action (which notice of objection shall indicate its reasons for so objecting).  If the Purchaser shall not have notified the Sellers' Agent or the Company, as the case may be, of its objection to a proposed action within such period of five (5) Business Days, the Purchaser shall be deemed to have consented to such proposed action.

 

6.6      Termination of Intragroup Agreements.

 

(a)       The Purchaser hereby acknowledges and agrees that, on or immediately prior to Closing, the Sellers will, and will cause the Company to, terminate (without any indemnity, penalty or early termination fee being due by the Company or any liability to be assumed by the Purchaser as a result of such termination) the agreements of the Company with the Sellers or their Affiliates, including for the avoidance of doubt agreements entered into by any of the Sellers or their Affiliates with third parties and benefiting the Company, listed on Annex 6.6 (the "Terminated Intragroup Agreements"), and in a manner and on such terms that all outstanding payments due under such Terminated Intragroup Agreements shall be paid at Closing by the relevant debtor, provided, however, that (i) the Cash Pooling Receivable shall be settled in accordance with the provisions of Section 2.5 and (ii) the tax consolidation shall be terminated in accordance with Article XI. For the avoidance of doubt, it is understood and agreed that the collective bargaining agreements entered into by the Company shall remain in force after the Closing Date according to their terms and conditions.

 

6.7      Access and Information.

 

(a)       During the period from the date of this Agreement to the Closing, upon the reasonable written request of the Purchaser and subject to compliance by the Purchaser with the terms of the Confidentiality Agreement, each Seller shall, and shall cause the Company to, use its best efforts to arrange for the Purchaser and its representatives to be granted reasonable access during normal business hours to the persons listed in Annex 6.7 premises and the books and records of the Business and the Company, and all other document and data relating to the Business or the Company's business that are in their possession or control which Purchaser may reasonably request, for purposes of preparing for the Closing, provided that such access shall not unduly interfere with the normal business and operations of CECA and the Company.  Notwithstanding the foregoing, none of the Sellers shall be required to provide access to any information which it reasonably believes that it may not provide to the Purchaser or its representatives by reason of applicable Law, which constitutes information protected by attorney/client or other privilege, or which any of the Sellers or the Company is required to keep confidential by reason of a Contract with a third party.

 

(b)       The Sellers shall promptly inform the Purchaser in case of receipt by the Company or CECA (in respect of the Business) of a written notice by any of the Top 20 customers referred to in Section 4.16(d) (x) canceling or otherwise terminating, or (y) to the Knowledge of Sellers (i) threatening to cancel or to otherwise terminate, or (ii) materially and adversely modifying its relationship with the Business.

 

6.8      Public Announcements.  During the period from the date of this Agreement to the Closing, neither the Purchaser nor any of the Sellers shall, or shall permit any of its Affiliates, or any of its representatives or advisors to, issue or cause the publication of any press release or other public announcement or disclosure with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the other Party, which consent shall not be unreasonably withheld, except that each Party shall be permitted to make such public announcements (including without limitation file, to the extent required, a summary or copy of this Agreement on a Form 8-K or other filing under the U.S. Securities Laws) as may be required by applicable Law or the rules of the New York Stock Exchange.  In the event any such press release, public announcement or other disclosure is required by Law or the rules of the New York Stock Exchange to be made by the Party proposing to issue the same, such Party shall notify the other Party prior to the issuance or making of any such press release, public announcement or other disclosure (including without limitation file a copy of this Agreement on a Form 8-K or other filing under the U.S. Securities laws) and shall consult in good faith with the other Party and use its reasonable endeavors to take into account the reasonable requirements of such Party as to the timing, contents and manner of making any such press release, public announcement or other disclosure (including without limitation file, to the extent required, a summary or copy of this Agreement on a Form 8-K or other filing under the U.S. Securities laws).

 

 

6.9      Substitution and Release of Sellers Guarantees.

 

(a)       The Purchaser acknowledges that the Sellers and/or certain of their Affiliates have given or provided the guarantees, comfort letters and other undertakings listed on Annex 6.9 (as such annex will be updated prior to the Closing to reflect the guarantees, comfort letters and other undertakings given or provided by the Sellers or their Affiliates in the ordinary course of business after the date hereof and with the prior written consent of Purchaser (which consent shall not be unreasonably withheld or delayed)) (the "Sellers Guarantees") to third parties in respect of obligations of CECA (in respect of the Business) or the Company and that the Sellers Guarantees must be released at or prior to the Closing.

 

(b)       During the period from the date of this Agreement to the Closing, the Purchaser shall use its commercially reasonable efforts, with the full and timely assistance and cooperation of the Sellers, to obtain (i) all third party consents required to cause the Purchaser to be irrevocably and unconditionally substituted as of the Closing Date for the relevant Seller and/or its Affiliates in respect of all obligations of the relevant Seller and/or its Affiliates under the Sellers Guarantees; and (ii) the full and complete, irrevocable and unconditional release of the relevant Seller and/or its Affiliates as of the Closing Date from all of its obligations, liabilities and indebtedness under each Sellers Guarantee. The Purchaser shall inform the Sellers' Agent of the steps undertaken by the Purchaser in such connection and shall send prior notice to the Sellers' Agent of any meeting with any third party beneficiary of a Sellers Guarantee to which it is invited to participate and the relevant Seller shall be entitled to attend such meeting.

 

6.10    Labor Matters.

 

(a)       Transfer of the CECA Transferred Employees

 

(i)           The Parties acknowledge and agree that article L. 1224-1 of the French Labor Code shall apply to the transaction contemplated hereby and that at the Closing and effective as of the Closing Date all the employment agreements of the CECA Transferred Employees, in force immediately before the Closing Date shall automatically be transferred to the Purchaser in accordance with article L. 1224-1 of the French Labor Code.

 

(ii)          In accordance with article L.2414-1 of the French Labor Code, the Parties acknowledge and agree that the contract of employment of any CECA Transferred Employees who are afforded special protection under French Law will be transferred only with the prior authorization from the applicable inspecteur du travail.

 

(b)       Employment Offer. On or prior to the Closing and with effect as of the Closing Date, the Purchaser shall offer to employ each Anticipated Voluntary Transferred Employee listed in Annex 6.10, from and after the Closing in a position offering terms pertaining to salary or wages, commissions, bonuses, incentive compensation and employee benefits that are at least as favourable as those applicable to such Anticipated Voluntary Transferred Employee immediately prior to the Closing Date, it being specified that the offer made to the employee identified as the "Responsable du service procédés" in Annex 6.10 shall include the proposed modification of his employment agreement so as to allow the performance of the Secondment Agreement.

 

 

(c)       Transfer of retirement savings plans (Plans d'épargne pour la retraite collectifs) and saving plans (Plans d'épargne) of CECA Transferred Employees. The Sellers will cooperate with the Purchaser to allow the transfer to the Purchaser and/or its Affiliates of the retirement savings plans (plans d'épargne pour la retraite collectif) and saving plans (plans d'épargne) of CECA and benefiting to the CECA Transferred Employees and, in such connection, shall provide the Purchaser with any relevant information and, to the extent possible, take all commercially reasonable measures (at the Purchaser's expense) which could reasonably be required on the part of the Sellers for such matter.

 

(d)       Business Employee Loans.  The Purchaser acknowledges that loans have been and/or will be extended to certain Transferred Employees by CECA (the "Business Employee Loans"), including to finance such employees' participation to capital increases of ▇▇▇▇▇▇ ▇.▇. The Sellers' Agent shall notify the Purchaser not less than five (5) Business Days prior to the Closing Date the names of the concerned Transferred Employees and the outstanding amount under the Business Employee Loans granted to each of them as of the Closing Date.

 

(e)       Key employees. The Parties hereby acknowledge that the consummation of the transactions contemplated by this Agreement will be a "change of control" (or similar phrase) of the Company to the extent relevant under the applicable Collective Bargaining Agreement. Subject to applicable Law, the Purchaser shall be entitled to discuss, with the reasonable cooperation of the Sellers, with the General Manager (Direttore Generale) of the Company with a view to obtaining such employee's consent to refrain from terminating or purporting to terminate his employment agreement as a result of the Closing.

 

6.11    Assignability and Material Consents.

 

(a)       Non-Assignable Items.  Notwithstanding anything to the contrary in this Agreement or the other Transaction Documents, neither this Agreement nor any of the Transaction Documents shall constitute an agreement to sell, convey, assign or transfer any asset, or any claim, right or benefit arising under or resulting from such asset, to the Purchaser, if an attempted sale, conveyance, assignment or transfer thereof, without the prior consent, approval, authorization, waiver or agreement of another Person (a "Third Party Consent"), would (i) violate or is otherwise prohibited under any applicable Law, or (ii) constitute a breach or other contravention of the rights of a third party (the "Non-Assignable Items").

 

(b)       Material Consents.  With respect to (i) the Business Contracts and (ii) the Shared Contracts:

 

(i)           the Sellers shall use their reasonable best efforts to obtain, prior to Closing, all Third Party Consents (the "Material Consents") necessary to authorize, approve or permit the sale, conveyance, assignment, transfer or continuation of such contracts and of the portion of the Shared Contracts that relates to the Business (the "Shared Contract Business Portion"), provided that:

 

(A)           the Purchaser shall diligently assist and cooperate in good faith with the Sellers to obtain the Material Consents by providing any information or otherwise taking (at its cost and expense) any reasonable actions which the Sellers may reasonably request and that do not require Purchaser to make any payment or deliver any guarantee, comfort letter or similar undertaking to any third party or to accept any change to any such contracts or portion of Shared Contracts;

 

 

(B)           the Sellers shall not be required to compromise any right, asset or benefit, to expend any amount, to make any payment or deliver any guarantee, comfort letter or similar undertaking to any third party to obtain a Material Consent and shall not accept any change to any such contracts or Shared Contract Business Portion (other than any changes of an administrative nature required to permit its assignment or transfer to the Purchaser) without the prior written consent of the Purchaser (it being understood and agreed, however, that in the event that the Purchaser shall have (a) consented to a change proposed by a third party and (b) agreed to hold the Sellers harmless from and against the consequences of such change, then the relevant Sellers shall be required to accept such change); and

 

(C)           the failure to obtain any or all of such Material Consents shall not entitle the Purchaser to terminate this Agreement or not to complete the transactions contemplated hereby; and

 

(ii)          in the event that any Material Consent is not obtained on or prior to Closing, the Sellers shall:

 

(A)           provide the Purchaser, no later than three (3) Business Days prior to the Closing Date, with a list of the Material Consents which have not been obtained as of such date;

 

(B)           continue to use their reasonable best efforts (on the basis described above) to obtain such Material Consent until the first to occur of (a) the date which is six (6) months after the Closing Date, (b) the date of expiration of the relevant contract (provided that the Sellers shall not be obligated to extend the stated term of the relevant contract, including pursuant to any available automatic renewal option), and (c) the termination by the relevant third party of the relevant contract; and

 

(C)           cooperate in good faith with the Purchaser to put in place, as from the Closing Date, such arrangements as the Sellers and the Purchaser may find to provide that the Purchaser or the Company, as applicable, shall, to the extent reasonably practicable and legally feasible, receive all benefits and be responsible for all liabilities under each such contract, or, in respect of Shared Contracts, the Shared Contract Business Portion, until the first to occur of (a) the date of expiration of the relevant contract (provided that the Sellers shall not be obligated to extend the stated term of the relevant contract, including pursuant to any available automatic renewal option), (b) the termination by the relevant third party of the relevant contract, subject to the performance by the Purchaser or the Company of the applicable obligations thereunder and (c) the date which is six (6) months after the Closing Date.

 

(iii)         The Sellers shall keep Purchaser reasonably and timely informed of all measures taken in accordance with this Section 6.11(b).

 

6.12    Name Change of the Company.  At Closing, the Purchaser shall cause the required actions to be taken in order to change, effective as of the Closing Date, the corporate name of the Company to delete the name "CECA".

 

6.13    Disclosure Supplement.  During the period from the date hereof to the Closing Date, the Sellers shall be entitled to supplement and amend the Schedules to the Disclosure Letter to update information, events, agreements, transactions or occurrences to be set forth therein, in each case, promptly after the Sellers become aware of any such information, events, agreements, transactions or occurrences, provided that no such supplement or amendment shall be made to add, modify or update any information, events, agreements, transactions or occurrences if such supplement or amendment arises from matters existing on or prior to the date hereof; and provided further that such supplement or amendment shall be deemed disclosed but shall not qualify, or constitute exceptions to, any representations and warranties of Sellers contained in Article IV or limit Purchaser's right to indemnification under Article VII. Notwithstanding the foregoing, in case such supplement or amendment would constitute, or would be expected to result in, a Material Adverse Change, Purchaser shall be entitled not to consummate the transactions contemplated by this Agreement and to terminate the Agreement in accordance with Section 8.1 below.

 

 

6.14    Information Systems.  From the date hereof until the Closing, and subject to applicable Laws and the terms of this Agreement, the Parties shall cooperate to adapt the Seller's Group information systems with a view to enable the Company and the Business to operate without disruption at Closing. To this end, dedicated applications will be created for the Business and the Company within the Sellers' Group Information Technology environment. Such applications will essentially consist of duplications of Seller's Group own applications with a view to provide the Purchaser sufficient time to implement its migration project to its own applications and IT infrastructure as from the Closing Date until the end of the IT TSA at the latest. In this respect a network interconnection will be created between the Seller's Group's and the Purchaser's WAN (Wide Area Network) and will remain active from the Closing Date until the end of the IT TSA.

 

6.15    Real Estate.

 

(a)       Required Material Consents.

 

(i)           As soon as reasonably practicable after the date hereof and in any event no later than five (5) Business Days after the date hereof, CECA shall make or cause to be made all appropriate filing with all relevant Third Parties and Governmental Authorities to obtain, as soon as reasonably practicable and in any event on or prior to the Closing Reference Date, the Required Material Consents and any other express or tacit waiver from the relevant Municipalities and SAFERs having a pre-emption right over a portion of Business Owned Real Property.

 

(ii)          The Purchaser shall assist and cooperate with CECA in preparing and filing all documents required to be submitted by CECA pursuant to this Section 6.15 and in obtaining the Required Material Consents (which assistance and cooperation shall include (i) timely furnishing to CECA all information concerning the Purchaser and its Affiliates which is required to be included in such such filings or documents or which may be requested by the relevant Third Party or Governmental Authority and (ii) in respect of the waiver of SAFER's pre-emption rights, timely providing the undertaking referred to in article R.143-3, al. 4 of the Code Rural et de la Pêche Maritime for the portions of the Business Owned Real Property covered by the arrêtés préfectoraux referred to in sections 10.3.1.2 and 10.3.1.3 of the Data Room and related to the operation of the Saint Bauzile and Riom quarries, which are used or intended to be used for mineral extraction).

 

(iii)         CECA shall keep the Purchaser regularly informed of the processing of such filings and give notice to the Purchaser of the receipt of any Required Material Consent within four (4) Business Day of its becoming aware of the same (including a copy of such Required Material Consent, as applicable).

 

(b)       Exercise of Preemption Rights.  Without prejudice to the conditions to the respective obligations of the Parties set forth in Article III hereto, in the event that any of the Municipalities or SAFER having a preemption right over a portion of the Business Owned Real Property as a result of the transactions contemplated by this Agreement has validly exercised such right, and subject to the Closing, (i) such portion of the Business Owned Real Property shall be deemed excluded from the Business Owned Real Property and (ii) the Business Purchase Price shall be automatically reduced by an amount equal to the amount actually received net of tax and other expenses by CECA from the relevant Municipality or SAFER having exercised such pre-emption right.

 

 

(c)       Fortage Agreement.

 

(i)           The Parties acknowledge that an undertaking to sell and purchase the portion of the Business Owned Real Property described in Annex 6.15(c)(i) (the "Laffont Business Owned Real Property") has been entered into between CECA and ▇▇ ▇▇▇▇▇▇▇ pursuant to a notarized purchase deed dated May 17, 2004 (the "Undertaking Agreement"). As a result thereof, the Lafont Business Owned Real Property shall be deemed excluded from the Business Owned Real Property and CECA and the Purchaser shall enter into at Closing a contrat de fortage in a form reflecting the terms and conditions set forth in the term sheet attached as Annex 6.15(c)(ii) with respect to the Laffont Business Owned Real Property (the "Fortage Agreement").

 

(ii)          If and only to the extent a claim, demand or Proceeding is asserted, notified or instituted by ▇▇ ▇▇▇▇▇▇▇ and/or her successors and assigns ("▇▇ ▇▇▇▇▇▇▇'▇ Claim") against CECA and/or the Purchaser and/or any of its Affiliates in connection with the entering into, the execution and/or the termination of the Fortage Agreement by CECA and the Purchaser (except as a result of a breach of the Fortage Agreement by the Purchaser and/or its relevant Affiliates):

 

(A)           if such ▇▇ ▇▇▇▇▇▇▇'▇ Claim is asserted, notified or instituted against the Purchaser and/or any of its Affiliates, the Purchaser and/or its relevant Affiliates shall notify CECA of such claim within thirty (30) days of receipt of such ▇▇ ▇▇▇▇▇▇▇'▇ Claim;

 

(B)           if such ▇▇ ▇▇▇▇▇▇▇'▇ Claim is asserted, notified or instituted against CECA and/or any of its Affiliates, CECA shall notify the Purchaser and/or its relevant Affiliates of such claim within thirty (30) days of receipt of such ▇▇ ▇▇▇▇▇▇▇'▇ Claim;

 

(C)           in any event (i.e. in cases referred to in paragraph (A) and (B) above), CECA shall control the defense of such ▇▇ ▇▇▇▇▇▇▇'▇ Claim and shall conduct the defense actively and diligently. CECA shall keep the Purchaser and/or its relevant Affiliates reasonably informed of the development of the underlying ▇▇ ▇▇▇▇▇▇▇'▇ Claim. The Purchaser and/or its relevant Affiliates shall assist and cooperate with CECA in connection with such ▇▇ ▇▇▇▇▇▇▇'▇ Claim (Purchaser’s and/or its relevant Affiliates’ costs and expenses in relation therewith shall be taken into account for purposes of Section 6.15(c)(ii)(D) below);

 

(D)           the costs and expenses (including reasonable attorney fees) of such ▇▇ ▇▇▇▇▇▇▇'▇ Claim shall be shared by CECA and the Purchaser and/or its relevant Affiliates on a respectively 70/30 basis upon CECA and the Purchaser and/or its relevant Affiliates evidencing the costs and expenses actually paid by them (x) for the defense of ▇▇ ▇▇▇▇▇▇▇'▇ Claim, in the case of CECA, or (y) for cooperating and assisting CECA in relation therewith, in the case of Purchaser and/or its relevant Affiliates; it being specified that such costs and expenses shall be borne exclusively by CECA if the ▇▇ ▇▇▇▇▇▇▇'▇ Claim is asserted, notified or instituted against CECA only by ▇▇ ▇▇▇▇▇▇▇ and/or her successors and assigns (including, for the avoidance of doubt, if CECA brings the Purchaser and/or its relevant Affiliates into the proceedings related to the ▇▇ ▇▇▇▇▇▇▇'▇ Claim); and

 

(E)           any damages payable to ▇▇ ▇▇▇▇▇▇▇ and/or her successors and assigns pursuant to a final non-appealable judgment or a settlement agreement consented to by CECA in connection therewith shall be borne exclusively by CECA.

 

(iii)         The Parties acknowledge and agree that this Section 6.15(c) shall be the sole and exclusive remedy of the Purchaser and/or its relevant Affiliates against CECA in connection with the consequences of ▇▇ ▇▇▇▇▇▇▇'▇ Claim related to the Fortage Agreement and that the provisions of this Section 6.15(c) shall apply for the duration of the Fortage Agreement.

 

 

6.16    Purchaser's Guarantee.

 

(a)       The Purchaser's Guarantor hereby irrevocably and unconditionally guarantees, on a joint and several basis, the prompt and complete performance by the Purchaser of all its obligations under and pursuant to this Agreement and/or any Transaction Documents, including without limitation its payment obligations set forth in Article II and its indemnification obligations set forth in Article VII (the "Purchaser's Guarantee").

 

(b)       The Purchaser's Guarantor undertakes with the Sellers that if and whenever the Purchaser does not pay any amount (including principal, interest, fees and any other accessory claim of any nature whatsoever) when due under this Agreement, the Purchaser's Guarantor shall pay that due and payable amount within a period of five (5) Business Days of receipt of a notice claiming payment of that amount duly signed by the Sellers' Agent.

 

(c)       The Purchaser's Guarantee is governed by the provisions of articles 2288 et seq. of the French Code Civil.

 

(d)       The Purchaser's Guarantor (a) waives any rights it may have under article 2298 (bénéfice de discussion) or article 2303 (bénéfice de division) of the French Code Civil, (b) undertakes not to exercise any rights it may have against the Sellers under article 2309 of the French Code Civil and (c) agrees that the Purchaser's Guarantee will remain in full force and effect and that it will remain liable under the Purchaser's Guarantee notwithstanding (i) any change to the legal form of any of the Sellers and/or the Purchaser or (ii) any merger, spin off, amalgamation, reconstruction, reorganization or partial transfer of assets in consideration for shares of any of the Sellers and/or the Purchaser or of their successors or assigns with any other person.

 

6.17    Sellers' Parent Guarantee.

 

(a)       The Sellers' Guarantor hereby irrevocably and unconditionally guarantees, on a joint and several basis, the prompt and complete performance by the Sellers of their respective obligations under and pursuant to thus Agreement and/or any Transaction Documents, including without limitation the payment obligations of the Sellers set forth in Article II (as the case may be) and their respective indemnification obligations set forth in Article VII (the "Sellers' Parent Guarantee").

 

(b)       The Sellers' Guarantor undertakes with the Purchaser that if and whenever a Seller does not pay any amount (including principal, interest, fees and any other accessory claim of any nature whatsoever) when due under this Agreement, the Sellers' Guarantor shall pay that due and payable amount within a period of five (5) Business Days of receipt of a notice claiming payment of that amount duly signed by Purchaser.

 

(c)       The Sellers' Parent Guarantee is governed by the provisions of articles 2288 et seq. of the French Code Civil.

 

(d)       The Sellers' Guarantor (a) waives any rights it may have under article 2298 (bénéfice de discussion) or article 2303 (bénéfice de division) of the French Code Civil, (b) undertakes not to exercise any rights it may have against the Purchaser under article 2309 of the French Code Civil and (c) agrees that the Sellers' Parent Guarantee will remain in full force and effect and that it will remain liable under the Sellers' Parent Guarantee notwithstanding (i) any change to the legal form of any of the Sellers and/or the Purchaser or (ii) any merger, spin off, amalgamation, reconstruction, reorganization or partial transfer of assets in consideration for shares of any of the Sellers and/or the Purchaser or of their successors or assigns with any other person.

 

6.18     Accounting Transition Services Agreement.  The Parties shall discuss in good faith a potential adjustment of the Fees (as such term is defined in the Accounting Transition Services Agreement) in case the Recipient allocates adequate resources to carry out the Services internally at least one month prior to the Closing Date.

 

ARTICLE VII

REPAYMENT AND INDEMNIFICATION OBLIGATIONS

 

7.1      Repayment Obligations of the Sellers.  From and after the Closing and subject to the provisions of this Article VII:

 

(a)       the Sellers shall pay to the Purchaser, as a partial repayment of the Purchase Price, the amount of any and all Damages actually suffered by the Purchaser or the Company as a direct result of:

 

(i)           any breach of any representation or warranty made by the Sellers contained in this Agreement; and/or

 

(ii)          any Specific Liability,

 

and

 

(b)       the Sellers shall indemnify and hold harmless the Purchaser from and against any Excluded Liability.

 

From and after the Closing and without prejudice to Section 6.15(c)(ii), the right to a partial repayment of the Purchase Price provided for in this Section 7.1 shall be the Purchaser's exclusive remedy for any such breach of representation or warranty or in connection with the Specific Liabilities and, save the case of fraud or willful misconduct (dol), the Purchaser hereby waives any other rights to claim for money damages or to rescission it may have in connection therewith. For the avoidance of doubt, it is understood and agreed that the Purchaser's right to obtain any remedy available at Law for any breach of any covenant or obligation of any of the Sellers contained in this Agreement or any other Transaction Documents shall not be excluded or limited in any manner.

 

7.2      Indemnification Obligations of the Purchaser.  From and after the Closing and subject to the provisions of this Article VII, the Purchaser shall pay to the Sellers, and indemnify and hold harmless the Sellers from and against:

 

(a)       the amount of any and all Damages actually suffered by the Sellers as a direct result of any breach of any representation or warranty made by the Purchaser contained in this Agreement; and/or

 

(b)       any Transferred Liability.

 

From and after the Closing, the right to indemnification provided for in this Section 7.2 shall be the exclusive remedy of the Sellers for any such breach of representation or warranty or in connection with the Transferred Liabilities and, save the case of fraud or willful misconduct (dol), the Sellers hereby waives any other rights to claim for money damages or to rescission they may have in connection therewith. For the avoidance of doubt, it is understood and agreed that the Sellers' right to obtain any remedy available at Law for any breach of any covenant or obligation of the Purchaser contained in this Agreement or any other Transaction Documents shall not be excluded or limited in any manner.

 

7.3      Method of Asserting Claims, etc.  A Party making a claim for a partial repayment of the Purchase Price or for indemnification under this Article VII shall, for the purposes of this Agreement, be referred to as the "Indemnified Party" and the Party against whom such claim is asserted under this Article VII shall, for the purposes of this Agreement, be referred to as the "Indemnifying Party".  All claims by an Indemnified Party under this Article VII shall be asserted (as a condition to their validity) and resolved as follows:

 

(a)       Claim Notices.  In the event that (x) any claim, demand or Proceeding is asserted, notified or instituted by any Person (including by any Governmental Authority) other than the Parties hereto and their respective Affiliates (a "Third Party") which, if successful, could give rise to Damages for which an Indemnifying Party would be liable to an Indemnified Party hereunder (any such claim, demand or Proceeding, a "Third Party Claim"), or (y) any Indemnified Party shall have a claim to receive a partial repayment of the Purchase Price from or to be indemnified by any Indemnifying Party which does not involve a Third Party Claim (any such claim, a "Direct Claim"), the Indemnified Party shall send to the Indemnifying Party a written notice (a "Claim Notice") specifying the factual basis of such claim and the amount or a good faith estimated amount of related Damages to the extent such amount is known or can be determined (which estimate shall not be conclusive of the final amount of such claim), all with reasonable particularity and containing a reference to the provisions of this Agreement in respect of which a right to a partial repayment of the Purchase Price or to be indemnified is claimed, and such available supporting evidence as may reasonably be required by the Indemnifying Party to assess the merits of the claim and the computation or estimate of Damages.

 

(b)       Time for Claim Notice.  The Indemnified Party shall send a Claim Notice: (i) in the case of a Third Party Claim, within thirty (30) days of receipt (including by the Company, in the case of the Purchaser) of actual notice of such Third Party Claim (or such shorter period as may be warranted under the circumstances (e.g., in the case of emergency proceedings or when a response to a notification must be given within a time period in order to avoid a forfeiture of rights) to permit the Indemnifying Party to exercise its rights hereunder); and (ii) in the case of a Direct Claim, with reasonable promptness in view of the circumstances (but in no event later than thirty (30) days after the Indemnified Party (including the Company, in the case of the Purchaser) first becomes aware of the facts upon which the Direct Claim is based). For avoidance of doubt, failure by the Indemnified Party to comply with such notice periods shall have no consequences on its right to make a claim for indemnification under this Agreement, provided, however, that any such failure shall relieve the Indemnifying Party from any liability that it may have to the Indemnified Party to the extent of any increase of the Damage resulting from such failure.

 

(c)       Direct Claims.  In the event of a Direct Claim, the Indemnifying Party shall have thirty (30) days following its receipt of the relevant Claim Notice or, if the amount of the claim was not determined at the time of the Claim Notice, the date on which the amount of the Direct Claim has been notified to it by the Indemnified Party (the "Direct Claim Review Period") to make such investigation of the underlying claim as it considers reasonably necessary or desirable.  During the Direct Claim Review Period, the Indemnifying Party and the Indemnified Party shall use their commercially reasonable endeavors to reach an agreement with respect to the validity and the amount of the Direct Claim.  If the Indemnifying Party and the Indemnified Party agree, on or prior to the expiration of the Direct Claim Review Period, upon the validity and amount of such Direct Claim, the Indemnifying Party shall pay to the Indemnified Party, within ten (10) days following the date of such agreement, the full agreed amount of such Direct Claim.  If the Indemnifying Party and the Indemnified Party fail to agree, on or prior to the expiration of the Direct Claim Review Period, upon the validity and/or amount of such Direct Claim, the dispute may be resolved in accordance with Section 12.11.

 

(d)       Third Party Claims.

 

(i)           Third Party Claim Review Period.  In the event of a Third Party Claim, the Indemnifying Party shall have thirty (30) days following its receipt of the relevant Claim Notice (the "Third Party Claim Review Period") to make such investigation of the underlying claim as it considers reasonably necessary or desirable.  During the Third Party Claim Review Period, the Indemnifying Party and the Indemnified Party shall use their commercially reasonable endeavors to reach an amicable solution with respect to such Third Party Claim.  If the Indemnifying Party and the Indemnified Party fail to agree, on or prior to the expiration of the Third Party Claim Review Period, upon an amicable solution with respect to such Third Party Claim, the dispute may be resolved in accordance with Section 12.11.

 

(ii)          Defense of Third Party Claim.

 

(A)           From and after the delivery of a Claim Notice hereunder and until such time, if any, as it is determined or agreed that the Indemnifying Party has no liability to the Indemnified Party in respect of the relevant Third Party Claim, the Indemnifying Party shall have the right (but not the obligation) to control the defense of such Third Party Claim and to retain (at its expense) counsel of its choice, reasonably acceptable to the Indemnified Party, to represent the Indemnified Party (including the Company if the Purchaser is the Indemnified Party), unless: (i) such Third Party Claim may result in injunctions, equitable or other non monetary remedies which, in the Purchaser's reasonable opinion, are likely to materially adversely impact the Business or the business of the Company (excluding Remedial Actions which shall be carried out in accordance with Section 7.9) in respect of the Indemnified Party and/or any of its Affiliates (including the Company), or (ii) such Third Party Claim in respect of which the Sellers would, if liable, likely be liable to the Purchaser or the Company for less than 50% of the total amount of the corresponding Damage (after taking into account the monetary limitations on the Sellers' liability set forth in this Article VII); provided, in any case, that the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. The Indemnified Party shall (and, if the Purchaser is the Indemnified Party, shall procure that the Company) cooperate with the Indemnifying Party and its counsel and furnish to the Indemnifying Party and its counsel all information and documentation as may be reasonably requested by the Indemnifying Party and its counsels in defending such Third Party Claim.  The Indemnified Party may assist, at its expense, in the defense of any Third Party Claim with counsel of its choice, reasonably acceptable to the Indemnifying Party.  The Indemnifying Party shall keep the Indemnified Party reasonably informed of the development of the underlying claim. The conduct of the defense of a Third Party Claim by the Indemnifying Party shall not be deemed to constitute an admission or acknowledgment by the Indemnifying Party of liability to the Indemnified Party in respect of such Third Party Claim. Notwithstanding anything to the contrary in this Section 7.3(d)(ii)(A), the relevant Indemnifying Party shall always be entitled to control the defense of a Third Party Claim related to any matter referred to in paragraphs (iii) and (iv) of the definition of Specific Liabilities.

 

(B)           In the event that the Indemnifying Party (x) shall fail to assume control of the defense of a Third Party Claim with reasonable promptness after written notice to such effect by the Indemnified Party, or (y) shall notify the Indemnified Party of its intention not to assume control of the defense of a Third Party Claim, the Indemnified Party shall conduct (or if the Purchaser is the Indemnified Party, shall procure that the Company conducts) the defense of such Third Party Claim (subject to subsection (iv) below) in good faith and using all reasonable means and defenses available to it (or if the Purchaser is the Indemnified Party, to the Company) and shall have the right to retain counsel of its choice, reasonably acceptable to the Indemnifying Party, at the cost of the Indemnifying Party (under circumstances where the Indemnifying Party is ultimately found to be liable for Damages resulting from or arising out of such Third Party Claim).  The Indemnifying Party may assist, at its expense, in the defense of any Third Party Claim with counsel of its choice, reasonably acceptable to the Indemnified Party.  The Indemnified Party shall keep the Indemnifying Party reasonably informed of the development of the underlying claim.

 

(C)           If the Indemnifying Party shall assume control of the defense of any Third Party Claim, any awards of costs paid by a third party to the Indemnified Party (including in the case of the Purchaser, the Company) or to the Indemnifying Party in the context of such Third Party Claim shall be for the account of the Indemnifying Party.

 

(iii)          Counterclaim and Cross-Claim.  To the extent reasonably requested by the Indemnifying Party and related to the claim in question, the Indemnified Party shall make (or if the Purchaser is the Indemnified Party, shall procure that the Company makes) any counterclaim against any Person asserting such Third Party Claim or any cross-claim against any other Person which may be liable.  The Indemnifying Party shall bear the cost of any such counterclaim or cross-claim, which shall not be settled without the prior written consent of the Indemnified Party.

 

(iv)          Settlement of Third Party Claims.  The Indemnifying Party shall not be liable for any Third Party Claim which is settled or otherwise compromised or in respect of which any admission of liability is made without its prior written consent (and if the Purchaser is the Indemnified Party, no amounts payable in respect of any such settlement or compromise of a Third Party Claim made without the prior written consent of the Indemnifying Party shall be taken into account in the computation of the Cumulative Threshold Amount).  In such connection, in the event that (x) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall receive from a Third Party or (y) the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) shall propose to make to a Third Party, an offer of settlement of a Third Party Claim (a "Settlement Offer"), the Indemnified Party shall notify the Indemnifying Party of such Settlement Offer as promptly as practicable upon receipt thereof from the Third Party and reasonably in advance of responding thereto, or reasonably in advance of making such Settlement Offer, and shall provide with such notice all related available supporting documentation reasonably required to enable the Indemnifying Party to assess the relative merits of the Settlement Offer.  At the reasonable request of either the Indemnified Party or the Indemnifying Party, the Parties will consult in good faith with respect to any such Settlement Offer.  The Indemnifying Party shall then determine in the exercise of its own business judgment whether or not to consent to the Settlement Offer.  In the event that a Settlement Offer is received which the Indemnifying Party, but not the Indemnified Party, is willing to accept, the Indemnified Party may elect to continue the defense of such Third Party Claim at its own expense, in which case the liability of the Indemnifying Party shall be limited to the lesser of: (i) the amount of Damages calculated as if the Third Party Claim were settled in accordance with the proposed Settlement Offer; and (ii) the Damages actually suffered by the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company), taking into account the final determination of the Third Party Claim.

 

(v)          Existing Third Party Claims.  For the purposes of this Article VII, without prejudice to said Article VII and to Section 6.5, the defense of any Third Party Claims asserted or initiated prior to the Closing shall be handled in accordance with the provisions of Section 7.3(d)(ii) through (iv), and the Indemnifying Party shall be deemed to have received a Claim Notice in respect thereof on a timely basis and, as the case may be, without prejudice to the obligation of the Sellers to disclose such claim pursuant to the provisions of Section 4.15 and Section 6.13.

 

(e)       Access.  From and after the delivery of a Claim Notice hereunder, upon the written reasonable request of the Indemnifying Party, the Indemnified Party shall use its best efforts to grant to the Indemnifying Party and its representatives (including professional advisors) reasonable access to the premises, books, records, employees and senior management of the Indemnified Party (including the Company, if the Purchaser is the Indemnified Party) to the extent reasonably related to the matters to which the Claim Notice relates, subject in each case to the Indemnifying Party and its representatives each signing a confidentiality agreement. Except in connection with such Claim Notice, the defense of any related Third Party Claim and any counterclaims or cross-claims made pursuant to subsection (d)(iii) above, the Indemnifying Party will not, and shall require that its representatives do not, use or disclose to any third party other than the Indemnifying Party's representatives (except as may otherwise be required by applicable Laws) any information obtained pursuant to this subsection (e) which is reasonably designated as confidential by the Indemnified Party.  All such access shall be granted during normal business hours, and shall be granted under conditions which will not unduly interfere with the business and operations of the Indemnified Party (or, if the Purchaser is the Indemnified Party, the Company).  Notwithstanding the foregoing, the Indemnified Party shall not be required to provide access to any information which it may not provide to the Indemnifying Party and its representatives by reason of applicable Law or which constitutes information protected by attorney/client privilege.

 

 

(f)       Cooperation.  From and after the delivery of a Claim Notice hereunder, in the event that any Damage is susceptible of remedy, the Indemnified Party may determine in the exercise of its own business judgment whether or not to allow the Indemnifying Party an opportunity to implement such remedy within a reasonable period.

 

(g)       Duty to Mitigate.  The Indemnified Party shall use its commercially reasonable endeavors (and if the Purchaser is the Indemnified Party, it shall procure that the Company use their commercially reasonable endeavors) to mitigate any Damages resulting from or arising out of any matters giving rise to a claim for a partial repayment of the Purchase Price or indemnification under this Article VII, including making and diligently pursuing such claim pursuant to any insurance policies covering such Indemnified Party (or if the Purchaser is the Indemnified Party, the Company), it being agreed that such duty to mitigate shall not include the requirement to compromise any right, to deliver any guarantee or to accept any changes to any contract.

 

(h)       Payment.

 

(i)           No amount shall become due and payable by an Indemnifying Party to an Indemnified Party (x) in respect of any claim arising by reason of contingent liability, unless and to the extent that such contingent liability ceases to be contingent and has become an actual liability; and (y) in respect of any Third Party Claim unless and to the extent that the Indemnified Party (or if the Purchaser is the Indemnified Party, the Company) is under the obligation to pay the relevant Damages to the relevant third party as a result of a final non-appealable judgment of a court of competent jurisdiction, a final non appealable decision of an arbitral tribunal or a binding settlement or other agreement among the relevant parties entered into in accordance with the terms of this Agreement.

 

(ii)          Subject to paragraph (i) above, any payment due by the Sellers to the Purchaser in respect of any claim shall be payable within thirty (30) Business Days following:

 

(A)           the date determined by mutual agreement between the Indemnified Party and the Indemnifying Party or the date of issuance of a final non-appealable judgment pursuant to Section 12.11 (or, if later, the date for payment set forth in such judgment); or

 

(B)           in the case of a Third Party Claim, the date on which payment must be made to the relevant third party pursuant to a final settlement of such Third Party Claim reached in accordance with and subject to the terms and conditions of this Agreement.

 

 

7.4      Calculation of Damages.

 

(a)       Deductions.  In calculating the amount of any Damages which may be due and payable by the Sellers as a result of any claim brought by the Purchaser pursuant to Section 7.1(a), there shall be deducted:

 

(i)           the amount of any indemnification or other recoveries (including insurance proceeds) actually received by the Purchaser or the Company from any Third Party with respect to such Damages (net of costs of enforcement, deductibles, premium increases and adjustments);

 

(ii)          the amount of any reserve or provision included in any Company Post-Closing Adjustment Amounts or any Business Post-Closing Adjustment Amounts for Damages of the type to which such claim relates, but only to the extent such reserve or provision has been specifically recorded to address any such Damages (i.e. non-specific provision shall not be taken into account for the purpose of this Section 7.4(a)); and

 

(iii)         the amount of any corresponding Tax savings or benefit (including any Tax reduction, credit, or loss carry-back or carry-forward) available to the Purchaser or the Company as a result of such Damages, provided, however, that if any Tax Governmental Authority imposes any Tax upon the Purchaser by reason of any indemnification for any Damages, the total amount of the indemnification net of such Tax shall be equal to the Damages as determined in this Section 7.4(a) (grossed up for such increase).

 

(b)       No Multipliers.  For purposes of computing the amount of any Damages, only the Damages actually sustained by the Purchaser or the Company shall be taken into account, to the exclusion of any price/earnings or similar multiplier or valuation factor (whether or not implicit in the Purchase Price).

 

(c)       Subsequent Repayments.  In the event that the availability or amount of any deduction referred to in this Section 7.4 is determined only after payment by the Sellers of the amount otherwise required pursuant to this Article VII, the Purchaser shall repay to the Sellers as promptly as practicable after such determination any such payments that the Sellers would not have had to make pursuant to this Article VII had such determination been made at or prior to the time of such payment.

 

7.5      Limitations on Sellers' Liability.

 

(a)       Thresholds.  Subject to Section 7.8, no claim for a partial repayment of the Purchase Price may be brought by the Purchaser under Section 7.1(a)(i), and no amount shall become due and payable by the Sellers in respect of any such claim brought by the Purchaser, unless:

 

(i)           the amount of Damages against which the Purchaser is entitled to receive a partial repayment of the Purchase Price in respect of any single claim exceeds one hundred thousand euro (€100,000) (the "Individual Claim Threshold Amount") (it being understood that if the amount of such Damages shall exceed the Individual Claim Threshold Amount, the Sellers' repayment obligation shall extend to the entire amount of such Damages, including the amount up to the Individual Claim Threshold Amount, subject however to clause (ii) below), and

 

(ii)          the cumulative and aggregate amount of all Damages in respect of which the Sellers are obligated to make a partial repayment of the Purchase Price under the preceding clause (i) shall exceed one million euro (€1,000,000) in the aggregate (the "Cumulative Threshold Amount"), it being agreed that the Sellers' repayment obligation shall cover only the amount of Damages which is in excess of the Cumulative Threshold Amount.

 

 

(b)       Maximum Liability.  Subject to Section 7.8, notwithstanding any other provisions of this Agreement, the maximum aggregate amount of Damages for which the Sellers may be liable under Section 7.1(a) of this Agreement shall be equal to twenty million euro (€20,000,000), provided, however, that in no event the maximum aggregate amount of Damages for which the Sellers may be liable under Section 7.1(a)(i) of this Agreement shall exceed ten million euro (€10,000,000).

 

(c)       Specific Representation or Warranty. Matters covered by a specific representation or warranty contained in this Agreement shall not fall within the scope of any general representation or warranty made herein.  As a consequence, a claim which could be made by the Purchaser under both a specific representation or warranty and a general representation or warranty may be brought only once under such specific representation or warranty. In this respect and without limiting the foregoing, the Purchaser acknowledges and agrees that notwithstanding any other provision of this Agreement, no representations or warranties are given by the Sellers concerning:

 

(i)           matters relating to Tax or any related claims or liabilities other than such representations and warranties as are expressly set forth in Section 4.9;

 

(ii)          real property matters or any related claims, liabilities or other matters other than such representations and warranties as are expressly set forth in Section 4.10;

 

(iii)         relating to Environmental Laws or any environmental or health and safety (including health and safety at work) matters other than such representations and warranties as are expressly set forth in Section 4.14; and

 

(iv)        labor matters or any related claims, liabilities or other matters other than such representations and warranties as are expressly set forth in Section 4.18.

 

7.6      Exclusions.

 

(a)       Tax Claims.  No claim in respect of Taxes shall entitle the Purchaser to receive a partial repayment of the Purchase Price to the extent that:

 

(i)           it corresponds to a mere change in the time when a Tax should have been paid or such Tax can effectively be deducted or recovered by the Company (except that the Purchaser shall be entitled to a partial repayment of the Purchase Price for any resulting interest charges or penalties); or

 

(ii)          such claim arises (or such claim having arisen, is increased) by a failure or omission on the part of the Company to make any election, surrender or disclaimer or to give any notice or consent or do any other thing after the Closing under the provisions of any Law relating to Tax.

 

(b)       No Double Recovery.  Any liability for a partial repayment of the Purchase Price pursuant to this Agreement shall be determined without duplication of recovery, and (x) the Purchaser shall not be entitled to a partial repayment of the Purchase Price for any Damage under the provisions of this Article VII if and to the extent that the amount of such Damage was taken into account in the determination of any Company Post-Closing Adjustment Amounts or any Business Post-Closing Adjustment Amounts, as applicable, pursuant to the provisions of Article II, and (y) the Sellers shall not be required to make any partial repayment of the Purchase Price more than once on account of the same events, facts, matters, circumstances or omissions.

 

(c)       Subsequent Events.  The Sellers shall have no liability for all or part of any Damages which solely result from or arise out of:

 

 

(i)           voluntary actions taken by or on behalf of, or omissions of, the Purchaser or the Company after the Closing (including (x) changes in accounting methods or policies, or (y) the granting by the Purchaser or the Company of any extensions or waivers to any Third Party with respect to any statute of limitations applicable to claims which might be made against the Purchaser);

 

(ii)          the passing of, or any change in, any Law, in any such case not actually in force at the date of this Agreement (even if retroactive in effect), including any increase in the Tax rates in effect on the date hereof or imposition of any Tax not in effect on the date hereof;

 

(iii)         any change in use of the facilities of the Company or the Business (or a portion thereof) initiated by the Purchaser or the Company or any successor in interest thereof (whether in connection or not with any closure or sale, in whole or part, of such facilities), except (i) as a result of a preference right encumbering the Business Owned Real Property identified in Annex 4.10(a)(iii) hereto being exercised within the framework of the transfer of the Business Owned Real Property to the Purchaser as contemplated in this Agreement or (ii) directly resulting from the termination of the fuel storage activities in Riom;

 

(iv)        any total or partial closure of any of the facilities of the Company or the Business;

 

(v)         any environmental investigation, study, sampling or analysis of the Environment including the soil, subsoil, groundwater, surface water and sediment, undertaken after the Closing Date other than required as a Remedial Action; or

 

(vi)       (i) any excavation, transportation, treatment and disposal of excavated soil or subsoil (other than minerals and related materials extracted from the quarries operated in the ordinary course pursuant to the applicable arrêtés préfectoraux) carried out outside of (x) a Remedial Action or (y) routine maintenance or repair work of underground facility used in the Business or the business of the Company carried out consistently with past practices, or (ii) any construction work after the Closing Date other than in relation to (x) a Remedial Action, (y) the Black Pearl project included in the business plan as described in Annex 7.6(c)(vi) or (z) works strictly required to remedy non compliance with applicable Environmental Law, existing as at the Closing Date, of any facility used in the Business or the business of the Company.

 

(d)       General Exclusions.  The Sellers shall have no liability for all or part of any Damages solely resulting from or arising out of:

 

(i)           any event, fact, matter, or circumstance (x) which is specifically permitted under this Agreement, or (y) which was specifically agreed in writing by the Purchaser; or

 

(ii)          any event, fact, matter, or circumstance which was disclosed in the Schedules to the Disclosure Letter.

 

(e)       Requirement of Third-Party Claims. Notwithstanding anything in this Agreement to the contrary, and except in case of Emergency Measures and Sanitary Measures, a claim for Damages resulting from or arising out of a breach of any of the representations or warranties of the Seller set forth in Section 4.14 (Environmental Matters) or any Specific Liability relating to environmental matters shall give rise to a repayment obligation on the part of the Sellers under this Article VII only if the claim is based on a Third Party Claim (x) notified to the Seller in accordance with the provisions of this Article VII, and (y) which was not voluntarily provoked by or on behalf of the Purchaser or the Company.

 

 

7.7       Claim Periods.  To be valid, a Claim Notice must be delivered by the Purchaser to the Sellers' Agent prior to the date which is fifteen (15) months after the Closing Date, except that the right to deliver a Claim Notice for a partial repayment of the Purchase Price in respect of (i) a breach of a representation or warranty contained in Section 4.9 (Tax Matters), Section 4.14 (Environmental Matters) or Section 4.18 (Employment Matters) or (ii) any Specific Liability shall survive until the date which is five (5) years after the Closing Date.

 

7.8       Specific Exceptions to Certain Limitations. 

 

(a)       The provisions of Sections 7.5 (Limitations on Sellers' Liability) and 7.7 (Claim Periods) shall not apply to any claim by the Purchaser based on any breach of a representation or warranty of the Sellers set forth in Section 4.1(a) and Section 4.5 pertaining to the ownership of the Transferred Shares free and clear of all Encumbrances and the Company's capitalization, which shall be subject to the applicable statute of limitation periods.

 

(b)       The limitations set forth in Section 7.5 shall not apply to any claim for a partial repayment of the Purchase Price that may be brought by the Purchaser under Section 7.1(b) (Excluded Liabilities).

 

(c)       The limitations set forth in Section 7.5(a) shall not apply to any claim made by the Purchaser in relation with any Specific Liability.

 

7.9      Additional Procedures for Environmental Claims.

 

(a)       Meetings with Governmental Authorities.  Except in case of a surprise visit by a Governmental Authority, the Purchaser shall send prior notice to the Sellers' Agent of any meeting with any Governmental Authorities responsible for environmental matters to which it or the Company is invited to participate and which pertains to the facilities occupied, or to the business operated, by the Business or the Company, and the Sellers' Agent shall be entitled to attend such meeting.  The Purchaser shall not, and shall cause its Affiliates (including the Company) not to initiate any discussion regarding, or provide any information (including, for the avoidance of doubt, following a surprise visit by a Governmental Authority) to, any Governmental Authority with respect to any Release of Hazardous Materials or Remedial Action or step which would reasonably be expected to give rise to an indemnification by the Sellers without the Sellers' Agent's prior consent (which shall not be unreasonably withheld, conditioned or delayed having given due consideration to the emergency of the situation and the constraints imposed by the Governmental Authority).  More generally, from the date hereof and for the duration defined in Section 7.7 (Claims Period), and except for the implementation of an Emergency Measure, the Purchaser shall not and shall cause the Company not to seek, request or take any action expected to provoke or result in any administrative inquiry, investigation, audit or Remedial Action or similar compliance order of any Governmental Authority without the Sellers' Agent's prior consent (which shall not be unreasonably withheld, conditioned or delayed).

 

(b)       Remedial Actions.  In the event that the Purchaser shall have sent a Claim Notice in accordance with Section 7.1 in relation to any alleged breach of any of the Sellers' representations or warranties set forth in Section 4.14 (Environmental Matters) or any Specific Liability requiring that Remedial Action be undertaken in, on, under, or at any properties owned, operated, or occupied (or previously owned, operated or occupied) by the Business or the Company, except however for any Remedial Action required to be undertaken as an Emergency Measure, then:

 

 

(i)           the Sellers' Agent and the Purchaser shall jointly prepare a written document describing in detail the timing, scope, nature, methodology and cost of the contemplated Remedial Actions in accordance with Remediation Standards, it being understood and agreed between the Parties that all Remedial Actions shall be conducted in the most cost effective way available at the time such Remedial Actions are performed (the "Plan"). The Plan shall include the name of the Party in charge of the conduct of the Remedial Actions. The Sellers' Agent shall be entitled to elect not to conduct such Remedial Actions and let the Purchaser assume its conduct. In such case, the The Sellers' Agent shall be entitled to monitor and control, at its own costs, the conduct of the Remedial Actions including, without limitation, the conduct of all discussions and negotiations with any relevant Third Party. The Plan shall be approved by written consent of the Sellers'Agent (which shall not be unreasonably withheld, conditioned or delayed) prior to any commencement of implementation of the Plan. Any amendment of the Plan shall be made through the written consent of the Parties.  Any dispute regarding the preparation, approval or implementation of the Plan that cannot be resolved in good faith discussions among the Parties within ten (10) Business Days shall be finally settled in accordance with the provisions of Section 12.11(b); and

 

(ii)          once a Plan has been agreed, and to the extent the Sellers are ultimately found to be liable to indemnify the Purchaser, the Sellers shall not be liable to indemnify the Purchaser for any Remedial Actions undertaken by the Purchaser or any of its Affiliates (including the Company) outside the scope of the Plan.

 

7.10     Local Sale Agreements.  Notwithstanding anything to the contrary provided under the Local Sale Agreements, the representations and warranties made by the Sellers under Article IV are the only representations and warranties granted by the Sellers to the Purchaser in connection with the Company, the Transferred, Shares, the Transferred Assets and the Business and the Purchaser and its Affiliates shall not be entitled to any claim for indemnification in connection with the Company, the Transferred Shares, the Transferred Assets and the Business other than as provided under and subject to the terms and conditions of this Agreement.

 

ARTICLE VIII

TERMINATION

 

8.1      Termination.  This Agreement may be terminated, and the transactions contemplated hereby may be abandoned, at any time prior to the Closing:

 

(a)       by the written agreement of the Purchaser and the Sellers' Agent;

 

(b)       by the Sellers' Agent, if any competent Governmental Authority in any jurisdiction in which a Required Antitrust Clearance must be obtained decides to open an in-depth investigation (i.e. a phase II decision under article 6(1)(c) of the EC Merger Regulation N°139/2004, a Phase 2 CMA Reference or the equivalent at any other national level);

 

(c)       by either the Purchaser or the Sellers' Agent, if a court of competent jurisdiction or any competent Governmental Authority shall have issued an order or other Judgment or taken any other action (which order or other Judgment the Purchaser and the Seller hereto shall use their commercially reasonable endeavors to lift), which permanently restrains, enjoins or otherwise prohibits the transactions contemplated by this Agreement;

 

(d)       by the Purchaser if the condition to Closing set forth in Section 3.1(a) has not been satisfied or waived by the Purchaser on or prior to March 1, 2017 and whether or not disclosed in accordance with Section 6.13;

 

(e)       by either the Purchaser or the Sellers' Agent, if the condition to the Closing set forth in Section 3.1(b) has not been satisfied or jointly waived by the Purchaser and the Sellers' Agent on or prior to March 1, 2017, unless such eventuality shall be due to the breach by any of the Party of any of its covenants, agreements or other undertakings set forth in this Agreement to be performed or observed by such Party prior thereto.

 

 

8.2      Effect of Termination.  Upon any termination of this Agreement pursuant to Section 8.1, all further obligations of the Parties hereunder, other than pursuant to Section 12.4 (Costs and Expenses) and as provided in the Confidentiality Agreement, shall terminate, except that nothing herein shall relieve any Party from liability for any antecedent breach of this Agreement.

 

ARTICLE IX

STATUTORY REQUIREMENTS

 

All information in this Article IX are provided by CECA to the Purchaser solely for purposes of complying with French statutory requirements and shall not give rise to any legal rights (including any right to indemnification) to either Party resulting or arising from or related to such information unless specifically set forth in this Agreement.

 

9.1      Origin of Ownership.  ▇▇▇▇ is the owner of the Business for having created it.

 

9.2      Encumbrances.  The fonds de commerce the subject of this Agreement is not subject to any Encumbrances or privileges.

 

9.3      Turnover and Net Results.

 

(a)       In accordance with article L.141-1 of the French commercial code, CECA represents that the proforma turnover (chiffres d'affaires) and proforma net results (résultats d'exploitation) generated by the Business (the fonds de commerce) related to the Transferred Assets, were in the following amounts: 

 

Turnover before taxes: Proforma turnover before taxes for the Activated Carbon Business, the Diatomaceous Business and the perliting business:

 

	Turnover before taxes
January 1, 2015 to December 31, 2015	Seventy million seven hundred thousand (70,700,000) euros
January 1, 2014 to December 31, 2014	Seventy million (70,000,000) euros
January 1, 2013 to December 31, 2013	Sixty six million five hundred thousand (66,500,000) euros

 

EBITDA: Proforma EBITDA (Earning Before Interests, Taxes Depreciation and Amortization) for the Activated Carbon Business, the Diatomaceous Business and the perliting business:

 

	EBITDA
January 1, 2015 to December 31, 2015	Twelve million six hundred thousand (12,600,000) euros
January 1, 2014 to December 31, 2014	Eleven million six hundred thousand (11,600,000) euros
January 1, 2013 to December 31, 2013	Ten million one hundred thousand (10,100,000) euros

 

 

(b)       The Purchaser acknowledges that the figures represented above do not conform to the figures presented in ▇▇▇▇'s annual accounts due to revenue and costs not related to the fonds de commerce the subject of this Agreement.  The Purchaser further acknowledges and accepts that ▇▇▇▇ has used reasonable efforts to procure that such figures are reasonably accurate.

 

9.4      Accounting Records.

 

(a)       Pursuant to article L. 141-2 of the French Commercial Code, CECA shall provide, at Purchaser's written request, access to the Business' books of accounts for the current year and the three years preceding the Closing, until the third anniversary of the Closing Date.

 

(b)       The Business forms part of the global operations of CECA and, as a result, no books of accounts within the meaning of article L.141-2 of the French Commercial Code or statutory accounts specific to the Business exist. The Purchaser acknowledges the impossibility for CECA to comply with the obligation provided for in article L. 141-2 of the French Commercial Code to sign and initial such books of account and hereby waives any right it may have under applicable Law as a result of such failure to comply.

 

9.5      Leases.

 

The facilities located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ Abidos are leased to CECA by SCI L'Aubisque, société civile immobilière whose registered office is rue ▇▇▇▇▇ ▇▇▇▇▇▇ – 64150 Abidos registered under number 419 618 616, pursuant to a commercial lease agreement (bail commercial) dated June 19, 2003 (as amended on August 15, 2004 and October 1st, 2008) for a period of 9 years.

 

9.6      Information and Declaration of Sincerity.  The Parties acknowledge that they have been informed of the sanctions applicable in the event of any insufficiency or intentional misstatement of the Purchase Price relating to the Transferred Assets agreed to by the Parties and any false declarations of sincerity with respect thereto.  The Parties affirm, under penalties prescribed by ▇▇▇, that this Agreement contains the total purchase price for the Transferred Assets agreed to by the Parties (prior to any adjustment thereto in accordance with the terms of Sections 2.4 and 2.8); they acknowledge they have been informed of the penalties in the event of the inexactitude of these declarations and they affirm that, subject to the provisions of Article II, this Agreement is neither modified by nor contradicts any other agreement between the Parties increasing the Business Base Purchase Price.

 

ARTICLE X

POST CLOSING COVENANTS

 

10.1    Employment Matters.

 

(a)       For a period of not less than two years commencing on the Closing Date, the Purchaser shall, and shall cause the Company, not to implement any mass layoff (including by way of carrying out of any safeguard of employment plan ("plan de sauvegarde de l'emploi" or "licenziamenti collettivi")) with respect to any of the Transferred Employees.

 

 

(b)       For a period of not less than two years commencing on the Closing Date (or a longer period if required by Law), the Purchaser shall, and shall cause the Company, to provide each Transferred Employee salary or wages, commissions, bonuses, incentive compensation (excluding actual equity securities) and employee benefits that are at least as favorable as those currently applicable to such Transferred Employee.

 

(c)       It is acknowledged that certain Transferred Employees have been allocated free performance shares (actions gratuites) or other equity instruments (the "Performance Shares") by ▇▇▇▇▇▇ ▇▇ pursuant to the terms of the plans adopted by the board of directors of ▇▇▇▇▇▇ ▇▇ on May 9, 2012, November 6, 2013, November 13, 2014 and November 9, 2015 (together, the "Performance Shares Plans").  In such connection, the Sellers will take any actions required such that the concerned Transferred Employees do not cease to benefit from their free share allocations or other rights under the Performance Share Plans by reason of their no longer being employees of the Sellers' Group or the Company no longer being member of the Sellers' Group, as the case may be.

 

(d)       From and after the Closing, ▇▇▇▇▇▇ ▇▇ shall assume and be responsible for, perform, discharge and pay when due, and indemnify and hold the Purchaser and their Affiliates (including the Company) harmless from and against any and all losses, costs, liabilities and obligations arising prior to, on or after Closing in connection with the Performance Shares and/or any other free performance shares allocated by ▇▇▇▇▇▇ ▇▇, if any and/or any compensation of the Transferred Employees based on or related to any shares or security of any member of the Sellers' Group, including social security charges and other Taxes resulting from a claim made by any employees and former employees of the Company and any Transferred Employees in relation to any Performance Shares Plans.

 

(e)       The Sellers shall provide, or procure that their Affiliates provide, to the Purchaser and the Company in a timely manner information in respect of any vested Performance Shares in order for the Purchaser and the Company to comply with any declaration or notification obligations pursuant to applicable Law.

 

10.2    Use of Sellers Trademarks and Logos.  The Purchaser acknowledges that it is not purchasing, acquiring or otherwise obtaining any right, title or interest in the Retained Names.  The Purchaser shall not, and shall procure that the Company shall not, use the Retained Names from and after the Closing Date except that for a period of (i) six (6) months after the Closing Date, the Company may use marketing or other materials (including letters, brochures and business cards), if and to the extent such materials were in existence on the Closing Date, it being provided that such use of the Retained Names shall be in a manner which is consistent with the use of the Retained Names prior to the Closing Date, does not create confusion as to the origin of the services and products supplied by the Company or the Business and does not cause any harm to any of the Sellers and their Affiliates or to the Retained Names.

 

10.3    Non-Compete.

 

(a)       Each of the Sellers agrees that during the period commencing on the Closing Date and ending on the third (3rd) anniversary date of the Closing Date, it will not, and will cause its Affiliates, not to, engage in any Competing Business. For the purpose hereof, "Competing Business" shall mean any business engaged in developing, manufacturing, regenerating and selling activated carbon, filter aids (diatomaceous earth and perlite products) and cryogenic insulation products and services.

 

 

(b)       It is understood and agreed that: (i) none of the Sellers and their Affiliates shall be deemed to be in default with respect to the foregoing covenant as a result of any investment it may make in no more than twenty percent (20%) of the outstanding share capital or other ownership interests of any Person; (ii) this Section 10.3 shall not be construed to prohibit: (A) any of the Sellers and their Affiliates from hereafter acquiring and continuing to own and operate any Person which operate a Competing Business if such operations account for no more than twenty percent (20%) of such entity's consolidated revenues at the time of such acquisition; and (B) the acquisition by any of the Sellers and their Affiliates (an "Acquiring Person"), in the context of any acquisition, merger, joint venture, asset purchase, or any other business combination (the "Acquisition"), of an ownership interest in a Person which derives more than twenty percent (20%) of its consolidated revenues from a Competing Business in its most recent fiscal year, as long as the Acquiring Person shall enter into a binding agreement to sell or divest such Competing Business within twelve (12) months following the closing of the Acquisition; and (iii) this Section 10.3 shall not be construed to prohibit the acquisition or ownership, for investment purposes only, by any employee savings, retirement, or similar benefit plan of any of the Sellers and their Affiliates, of any ownership in any company engaged in a Competing Business, provided that the investment decisions in respect of such benefit plan shall be made by independent trustees or independent managers.

 

(c)       In the event that the covenants contained in this Section 10.3 are more restrictive than permitted by Law, the Parties agree that such covenants shall be enforceable and enforced to the fullest extent permitted by Law.

 

10.4    Non-Solicitation.

 

(a)       Each of the Sellers, for a period starting on the date hereof and ending twelve (12) months after the Closing Date, undertakes not to, directly or indirectly through any other Entity:

 

(i)           solicit or encourage any Transferred Employees to leave his current or future positions within the Business or the Company, as applicable; or

 

(ii)          contract for services with, hire or employ (even in the case of a resignation), for itself, any of its Affiliates or any third party, any Transferred Employees.

 

(b)       Notwithstanding the foregoing, a general offer of employment to the public (and the hiring of the employees who respond to such offer of employment) shall not be deemed prohibited under this Agreement as long as not specifically directed at the Transferred Employees.

 

(c)       Subject to the same caveat set forth in paragraph (b) above and except as provided in Section 6.10(b), the Purchaser undertakes, for a period starting on the date hereof and ending twelve (12) months after the Closing Date, not to, and shall cause the Company not to, directly or indirectly through any other Entity:

 

(i)           solicit or encourage any employee of the Sellers or any of their Affiliates to leave his current or future positions within the Sellers or any of their Affiliates;

 

(ii)          contract for services with, hire or employ (even in the case of a resignation), for itself, any of its Affiliates or any third party, any employee of the Sellers or any of their Affiliates.

 

10.5    Insurance.  From and after Closing, the Purchaser shall obtain, and shall procure that the Company obtains, insurance coverage to replace the insurance coverage currently maintained by the Sellers or their Affiliates on behalf of the Company and in respect of the Transferred Assets.

 

10.6    Certain Payments Received from Third Parties and Collection of Receivables.

 

(a)       To the extent that after the Closing Date, any of the Sellers or any of their Affiliates receives any payment that is for the account of the Company or the Purchaser (in respect of the Business), the Sellers shall, or shall cause their relevant Affiliate, to deliver such amount to the Company on a monthly basis.

 

 

(b)       To the extent that after the Closing Date, the Purchaser or the Company receives any payment that is for the account of any of the Sellers or any of their Affiliates, the Purchaser shall, or shall cause the Company, to deliver such amount to the relevant Seller or the relevant Affiliates on a monthly basis.

 

(c)       The Purchaser shall and shall procure that its Affiliates use their commercially reasonable efforts to provide to CECA and its Affiliates, at CECA's expenses, such assistance and cooperation as may be reasonably requested in connection with the collection of the Receivables related to the Business (including by sending reminder letters, placing collection calls or otherwise contacting the debtor of such Receivables on behalf of CECA or its Affiliates).

 

10.7    No Recourse against Officers.  Except for claims involving fraud, wilful misconduct (dol) or gross fault (faute lourde), the Purchaser shall not, and shall cause its Affiliates (including the Company) not to, make any claim against any former or current mandataire social or officer of the Company (who are individuals) with respect to any management decisions adopted by the Company prior to the Closing Date or otherwise seek the liability of any such mandataire social or officer in that respect and, to the extent any such claim is made by the Purchaser or any of its Affiliates, the Purchaser shall indemnify and hold any such a mandataire social or officer harmless against the consequences of any such claim or liability.

 

10.8    Confidentiality.

 

(a)       Each of the Parties shall treat (and shall direct its employees, representatives and professional advisors to treat) and shall procure that its Affiliates treat (and that each of its Affiliates shall direct its employees, representatives and professional advisors to treat) the contents of this Agreement as confidential and shall refrain from disclosing this Agreement, in whole or part, to any Person without the consent of the other Party (which consent shall not be unreasonably withheld) except to the extent necessary for enforcement hereof or as otherwise required by Law, by any Governmental Authority or by the rules of any stock exchange (in which case, to the extent practicable and permitted, the disclosing Party shall give prior written notice to the other Party, and if requested by such other Party, the disclosing Party shall seek to obtain a protective order or similar protection); provided, however, that (x) the Purchaser may disclose and provide copies of this Agreement to its financing sources and to its and their respective professional advisors, and (y) the Seller may disclose and provide copies of this Agreement to its Affiliates and controlling Persons and to their respective professional advisors, provided that such Persons shall have agreed to maintain the confidentiality of this Agreement in accordance with the terms of this Section 10.8 or shall otherwise be legally obligated not to disclose and to keep the contents of this Agreement confidential.

 

(b)       After the Closing Date, the Sellers shall treat (and shall direct their employees, representatives and professional advisors to treat), and shall procure that their Affiliates treat (and that each of their Affiliates shall direct its employees, representatives and professional advisors to treat) as confidential and shall refrain from disclosing any Confidential Information which they may possess.  For the purpose hereof, "Confidential Information" shall mean all information of a confidential or proprietary nature, in any form or medium, that relates exclusively to the Company or the Business.  Notwithstanding the foregoing, Confidential Information does not include such information which: (i) at the time of disclosure is publicly available or thereafter becomes publicly available through no act or omission of the Seller; (ii) is disclosed or furnished to any of the Sellers or their Affiliates by a third party who is not known by such Seller to have acquired the information under an obligation of confidentiality; (iii) is independently developed by any of the Sellers or their Affiliates without the use of or reference to Confidential Information after the Closing Date; (iv) is required to be disclosed by any of the Sellers or their Affiliates under applicable Law, by any Governmental Authority, or by the rules of any stock exchange; or (v) necessary or required for the purpose of enforcing any rights or complying with any obligations under this Agreement (including in connection with any Proceeding).

 

 

(c)       After the Closing Date, the Purchaser shall treat (and shall direct its employees, representatives and professional advisors to treat), and shall procure that its Affiliates (including the Company) treat (and that each of its Affiliates shall direct its employees, representatives and professional advisors to treat) as confidential and shall refrain from disclosing any Seller's Group Confidential Information which they may possess or had access to in the Disclosed Information.  For the purpose hereof, "Seller's Group Confidential Information" shall mean all information of a confidential or proprietary nature, in any form or medium, that relates to the Sellers or any of their Affiliates (excluding, for the avoidance of doubt, the information which related exclusively to the Business).  Notwithstanding the foregoing, Seller's Group Confidential Information does not include such information which: (i) at the time of disclosure is publicly available or thereafter becomes publicly available through no act or omission of the Purchaser or the Company; (ii) is disclosed or furnished to the Purchaser or the Company by a third party who is not known by the Purchaser or the Company to have acquired the information under an obligation of confidentiality; (iii) is independently developed by the Purchaser or the Company without the use of or reference to Seller's Group Confidential Information after the Closing Date; or (iv) is required to be disclosed by the Purchaser or the Company under applicable Law, by any Governmental Authority or by the rules of any stock exchange.

 

(d)       The undertakings set forth in this Section 10.8 shall survive for a period of five (5) years following the Closing.

 

10.9    Creditors Opposition.  The Parties waive their respective rights to have the Business Purchase Price held in escrow from the date of the Local Business Sale Agreement until the time limit for creditors to exercise their right pursuant to article L. 141-14 et seq. of the French Commercial Code, to object to the payment of such Business Purchase Price, has elapsed. The Parties, which are fully informed of the legal risks of waiving the escrow procedure, purely and simply, fully and definitively, discharge the legal advisors who have prepared and drafted this Agreement from any and all liability whatsoever in relation to the potential consequences of such a waiver. In the event that creditors of CECA shall have validly notified their opposition to the transactions contemplated hereby or in the Local Asset Sale Agreement pursuant to the opposition procedures set forth under applicable Law, CECA undertakes to be responsible for any such potential creditor's objection and agrees to reimburse Purchaser upon demand and presentation of the necessary documents evidencing any amount actually paid by Purchaser to any Sellers' creditor that objected to the payment of the Business Purchase Price.

 

10.10  Subsequent Transfers.  If, subsequent to the Closing Date, the Purchaser discovers that any assets, properties, or rights (x) constitute a Transferred Asset, and (y) have not been transferred to the Purchaser on the Closing Date, the Purchaser shall have the right, exercisable within fifteen (15) months following the Closing Date, to send written notice to CECA requesting the transfer to the Purchaser of such assets, properties or rights.  If it is determined that such assets, properties or rights (x) constitute a Transferred Asset, and (y) should have been transferred to the Purchaser, Seller shall procure that they are promptly transferred to Buyer without any further consideration.

 

10.11  Cut-Off Arrangement.  Without prejudice to Taxes which shall be dealt with in accordance with Section 2.3 and Article XI, any amounts (other than rebates discounts or similar price accommodations) paid or received either by CECA prior to the Closing or by the Purchaser after the Closing in relation to goods and services provided to or by the Business in relation to a period commencing prior to the Closing Date and ending after the Closing Date shall be apportioned among CECA and the Purchaser, respectively, on the basis of documentary evidence in accordance with (x) the Accounting Principles that would be applied by CECA to reflect such amounts on its financial statements as at the Closing Reference Date if such date were the end of a financial period or (y) if the Accounting Principles cannot apply, on a pro rata temporis basis.

 

 

CECA and the Purchaser shall agree on the amounts resulting from such apportionments and shall settle the resulting payments within four (4) months of the Closing Date.

 

10.12   Registration of Intellectual Property.  From and after the Closing Date, all formalities that may be required to register the Business Intellectual Property in the name of the Purchaser shall be made by the Purchaser and all costs associated therewith shall be borne by the Purchaser.

 

10.13   Deutz Litigation.  From and after the Closing Date and for as long as no final non-appealable decision of a court or arbitral tribunal of competent jurisdiction has been rendered or no final settlement has been entered into in connection with the Deutz Litigation, the Purchaser shall provide CECA with such access to the documents, books and records and personnel of the Purchaser as may be reasonably required by CECA in connection with the defense or settlement of the Deutz Litigation.

 

10.14   Information Systems.  Sellers shall make their reasonable commercial efforts to cause the transfer to the Company and the Business on or prior to Closing of (i) all rights in the software licenses used primarily by the Company and the Business in the conduct of their respective businesses and (ii) IT equipment of the Sellers solely used by the Company and the Business in the conduct of their respective businesses.

 

10.15   Preparation of Consolidated Accounts.  Upon request of the Sellers, the Purchaser shall cause the Company to prepare consistently with past practices and deliver to the Sellers the information packages necessary for the preparation of the Sellers' consolidated accounts within the timeframe set forth in Annex 10.15.

 

ARTICLE XI

TAX COVENANTS

 

11.1    Cooperation.  From and after the Closing Date, in addition to the commitments provided under Section 12.2, the Purchaser and the Sellers agree to furnish or cause to be furnished to each other, their Affiliates and their respective counsels, accountants and other authorized representatives, upon request, as promptly as practicable, such information and assistance relating to the Company, the Transferred Assets and the Business (including access to employees, contractors and representatives) as is reasonably necessary for the filing of all Tax Returns, the calculation of Taxes, the making of any election related to Taxes, the preparation for any audit by any Tax Authority, and the prosecution or defense of any claim, suit or proceeding relating to any Tax Return.

 

11.2    Tax Returns.

 

 

(a)       The Purchaser shall prepare and file, or cause to be prepared and filed, all Tax Returns required to be filed by the Company for any Pre-Closing Period that are required to be filed after the Closing Date. The Purchaser shall provide to the Sellers' Agent a copy of all such Tax Returns and all Tax Returns required to be filed with respect to the Business after the Closing Date and as to which Excluded Tax Liabilities are allocable to the Sellers, as soon as reasonably possible but at least thirty (30) days before such Tax Returns are required to be filed. The Purchaser shall provide with all such Tax Returns a statement indicating the amount of Tax shown on such Tax Returns that is allocable to the Sellers. The Sellers' Agent shall notify the Purchaser of any proposed revisions to such Tax Returns within ten (10) days after receipt of such Tax Returns from the Purchaser. The Purchaser shall reflect such revisions in such Tax Returns except where such revisions are unreasonable, inconsistent with prior practice or contrary to applicable Tax Laws. In order to enable the Purchaser to provide to the Sellers' Agent copies of Tax Returns at least thirty (30) days before such Tax Returns are required to be filed, the Sellers' Agent and the Sellers shall provide the information and assistance requested by the Purchaser relating to any of the Company or the Business as is reasonably necessary for the preparation of such Tax Returns within such time frame. The Purchaser's information or assistance requests shall be sent to the Sellers' Agent with reasonable prior notice. If the Purchaser were to consider that the Sellers have not timely provided the requested information or assistance, the Purchaser shall nevertheless provide to the Sellers' Agent the Tax Returns as soon as they are available. The Purchaser shall not, and shall not permit the Company to, amend any Tax Return referred to under this Section (including granting an extension of any applicable statute of limitations) or make or change any Tax election for any Pre-Closing Period or Straddle Period without the prior written consent of the Sellers' Agent, such consent to not be unreasonably withheld or delayed.

 

(b)       The Purchaser shall be responsible for preparing and timely filing any Tax Returns required with respect to any Transfer Taxes relating to the Transferred Shares and the Transferred Assets. Such Tax Returns shall be prepared in a manner consistent with the allocation of Business Purchase Price pursuant to Section 2.10.

 

(c)       The Sellers will prepare and file, or cause to be prepared and filed, when due all Tax Returns required to be filed with respect to the Business on or before the Closing Date. The Purchaser will prepare and file, or cause to be prepared and filed, when due, all Tax Returns required to be filed with respect to the Business after the Closing Date.

 

(d)       The Seller undertakes to comply and fullfill, duly and timely, all the obligations provided by Law in case of termination of the tax consolidation (consolidato nazionale) including, but not limited to, the filing of the communication to the Italian Tax Authorities regarding the early termination of such tax consolidation.

 

11.3    Tax Refunds.  The Purchaser shall promptly pay and shall cause its Affiliates to promptly pay to the Sellers an amount equal to any refund, credit, rebate, reduction in Taxes or similar payment (including any interest paid or credited with respect thereto) received by the Purchaser or the Company if and when actually received, relating to Pre-Closing Periods (a "Tax Refund"), provided, however, that the Purchaser shall have no obligation to pay any refund of Tax to the Sellers to the extent that (i) the Purchaser or its Affiliates paid such Tax in the first instance and such Tax was not included as a liability in the calculation of the Closing Company Working Capital, (ii) the Tax Refund was included as an asset in the calculation of the Closing Company Working Capital, or (iii) the Tax Refund is attributable to the carry back or utilization of any Tax item arising after the Closing Date. If any deduction or withholding for or on account of Taxes from any payment made by the Purchaser to the Sellers pursuant to a Tax Refund is required by applicable Tax Laws, the Purchaser shall hold and maintain the Sellers harmless against any such deduction or withholding by paying to the Sellers an additional amount equal to the amount required to procure that the aggregate net amount received by the Sellers will equal to full amount which would have been received by them had not such deduction or withholding been made. If a Tax Authority subsequently disallows any Tax Refund with respect to which ▇▇▇▇▇▇▇ had received a payment pursuant to this Section, Sellers shall promptly pay to the Purchaser the full amount of such Tax Refund.

 

 

11.4    Payment of Taxes.

 

(a)       The Purchaser shall pay and hold the Sellers harmless against all Transfer Taxes relating to the transfer of the Transferred Shares and the Transferred Assets. The Purchaser shall deliver to the Sellers' Agent within fifteen (15) Business Days following the date any such Transfer Tax become due evidence that such Transfer Tax has been duly and timely paid to the relevant Tax Authority.

 

(b)       The Purchaser shall and shall cause the Company to be liable for, pay and hold the Sellers harmless against any and all Taxes imposed on any of the Business, the Transferred Assets and the Company except for the Excluded Tax Liabilities for which the Sellers shall be liable for, pay and hold the Purchaser harmless against. With respect to any Tax item of a periodic nature or measured by the level of any item, including but not limited to the land tax (taxe foncière), the local real estate tax (cotisation foncière des entreprises), the French domestic tax on natural gas consumption (taxe intérieure sur la consommation de gaz naturel), the tax on the consumption of electricity (taxe sur la consommation finale d'électricité), due in connection with the Business and the Transferred Assets, and that is payable with respect to a Straddle Period, the amount of such Tax allocable to the Pre-Closing Period will be determined by multiplying the Tax by a fraction the numerator of which is the number of calendar days in the portion of the period ending on (and including) the Closing Date and the denominator of which is the number of calendar days in the entire taxable period. If any Taxes subject to proration are paid by the Purchaser, on the one hand, or any of the Sellers, on the other hand, the proportionate amount of such Taxes paid (or in the event a refund of any portion of such Taxes previously paid is received, such refund) shall be paid promptly by (or to) the other after the payment of such Taxes (or promptly following the receipt of any such refund). Such prorations may be calculated after the Closing Date, as each item to be prorated (including any such Tax, obligation, assessment, charge, refund, reimbursement, rent instalment, fee or revenue) accrues or comes due, provided that, in any event, any such proration shall be calculated not later than thirty (30) days after the Party requesting proration of any item obtains the information required to calculate such proration of such item.

 

11.5    VAT.

 

(a)       It is the joint intention of the Purchaser and of the Sellers that the Transferred Assets forming the Business shall be treated in France as the transfer of a totality of assets (universalité de biens) or part thereof, within the meaning set by article 257 bis of the French Tax Code, and therefore that the transfer of the Transferred Assets, including the deliveries of properties and all services between the Parties shall be exempted from VAT payment in such jurisdictions provided that the Purchaser is liable to VAT in France (redevable de la TVA), subject to the performance by the Purchaser and/or the Sellers of any formalities as described in the Local Asset Sale Agreement.

 

(b)       The Purchaser, as being considered as the successor of the Sellers regarding the Business for purposes of applying the VAT, will be responsible, if necessary, for the "regularizations of the deduction rights" (régularisations du droit à déduction) and for the "taxes relating to sales or self-delivery" (taxations de cessions ou de livraisons à soi-même), which will become due after the date hereof and which would have been incurred by the Sellers should it have continued to operate the totality of assets (universalité de biens) of the Business.

 

(c)       The Parties hereby acknowledge having been expressly informed of their obligation to mention the total amount of the Business Purchase Price (VAT excluded) on the Tax Return related to VAT submitted for the period of time within which the Local Asset Sale Agreement was executed. This amount will be mentioned on the line "other non-taxable transactions" (autres opérations non imposables).

 

 

(d)       If, notwithstanding the above, a French Tax Authority determines that VAT is due in respect of the Transferred Assets transferred by the Sellers under this Agreement as part of the Business:

 

(i)           due to the fact that the Purchaser (x) is not liable for the payment of VAT, or (y) will not continue to run the whole Business transferred, the Sellers shall notify the Purchaser of that determination within fifteen (15) days of being so advised by the French Tax Authority and the Purchaser shall, within fifteen (15) days of such notification (against delivery by the Sellers of an appropriate invoice showing the applicable VAT) pay to the Sellers a sum which is equal to: (x) the amount of VAT determined by the French Tax Authority to be so due; plus (y) any interest for late payment imposed by the French Tax Authority on the Sellers in respect thereof. Such payment shall be made by wire transfer to the bank account of the Sellers as shall be indicated by the Sellers to the Purchaser;

 

(ii)          in other cases, the Sellers and the Purchaser shall negotiate in good faith so that the Sellers recharge the VAT to the Purchaser to the extent that the Purchaser can recover the full amount of the said recharged VAT.

 

ARTICLE XII

MISCELLANEOUS

 

12.1    Further Actions.  Subject to the terms and conditions herein provided, each of the Parties shall use its commercially reasonable endeavors to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under all applicable Laws to consummate and make effective the transactions contemplated by this Agreement.

 

12.2    Records.  During the period from the Closing Date through the tenth anniversary of the Closing Date, the Purchaser shall not, and shall not permit the Company to, destroy or otherwise dispose of any of books and records of the Company or any Business Records existing as of the Closing Date except with the prior written consent of the Sellers' Agent, which consent shall not be unreasonably withheld.  The Purchaser shall, and shall cause the Company to, make available to each of the Sellers and their representatives and agents as reasonably requested for the satisfaction of their legal obligations and subject to the entering of appropriate confidentiality agreements all such books and records in connection therewith, and permit each of the Sellers and their representatives and agents to examine, make extracts from and, at their expense, copy such books and records to at any time during normal business hours for any proper business purpose.

 

12.3    Brokers and Finders.

 

(a)       The Sellers shall indemnify and defend and hold the Purchaser and the Company harmless against all claims, losses, liabilities and expenses which may be asserted against the Purchaser (or any Affiliate of the Purchaser, including, after the Closing, the Company) by any broker or other Person who claims to be entitled to an investment banker's, financial advisor's, broker's, finder's or similar fee or commission in respect of the entering into of this Agreement, or the consummation of the transactions contemplated hereby, by reason of its acting at the request of the Sellers.

 

(b)       The Purchaser shall indemnify and defend and hold each of the Sellers harmless against and in respect of all claims, losses, liabilities, fees, costs and expenses which may be asserted against such Seller by any broker or other Person who claims to be entitled to an investment banker's, financial advisor's, broker's, finder's or similar fee or commission in respect of the entering into of this Agreement or the consummation of the transactions contemplated hereby, by reason of his acting at the request of the Purchaser or any of its Affiliates (excluding the Company).

 

 

12.4    Costs and Expenses.  Whether or not the transactions contemplated by this Agreement are consummated, except as may otherwise be expressly provided herein or in the Transaction Documents, the Sellers, on the one hand, and the Purchaser, on the other hand, shall bear their own expenses incurred in connection with the negotiation, preparation and signing of this Agreement and the consummation of the transactions contemplated herein. For the avoidance of doubt, both Parties expressly recognize that none of these costs and expenses were or will be taken into account in determining the Purchase Price.

 

12.5    Sellers' Agent.  Arkema and Arkema Shanghai hereby irrevocably appoint CECA as their sole representative (the "Sellers' Agent"), with full power and authority to, in their name, place and ▇▇▇▇▇, take all actions permitted or required to be taken by them pursuant to this Agreement, including:

 

(i)           receive notices under this Agreement;

 

(ii)          receive and distribute any payments made by the Purchaser under this Agreement;

 

(iii)        deliver any notices, certifications, consents, approvals or waivers required or appropriate under this Agreement; and

 

(iv)        handle, contest, dispute, compromise, adjust, settle or otherwise deal with any and all claims by or against or disputes with the Purchaser under this Agreement.

 

12.6    Notices.  All notices and other communications required or permitted to be given or made pursuant to this Agreement shall be in writing in the English language and shall be: (x) delivered by hand against an acknowledgement of delivery dated and signed by the recipient; (y) sent by an overnight courier service of recognized international standing (all charges paid); or (z) sent by facsimile transmission or email and confirmed by registered mail (postage prepaid, return receipt requested) posted no later than the following Business Day (with any such facsimile transmission to be deemed received at the time indicated on the corresponding activity report, a copy of which shall be included in the confirmation by mail) (provided that any notice or communication which is received after 6 p.m. (local time in the place of receipt) on a Business Day or on any day which is not a Business Day shall be deemed received only at 9 a.m. (local time in the place of receipt) on the next Business Day) to the relevant Party at its address set forth on Annex 12.6, or to such other Persons or at such other addresses as hereafter may be furnished by the Purchaser, the Sellers' Agent by like notice to the other.  Any such notice or other communication shall be effective only upon actual receipt thereof by its intended recipient.

 

12.7    Entire Agreement.  This Agreement represents the entire agreement and understanding of the Parties with reference to the transactions set forth herein and no representations or warranties have been made in connection with this Agreement other than those expressly set forth herein. This Agreement supersedes all prior negotiations, discussions, correspondence, communications, understandings and agreements between the Parties relating to the subject matter of this Agreement (including the Confidentiality Agreement) and all prior drafts of this Agreement, all of which are merged into this Agreement.  No prior drafts of this Agreement may be used to show the intent of the Parties in connection with this Agreement or shall otherwise be admissible into evidence in any Proceeding or other legal action involving this Agreement.

 

 

12.8    No Third Party Rights; Assignment.  This Agreement shall inure to the benefit of, and be binding upon, the Parties hereto and their respective successors and assigns; provided, however, that none of the Parties shall assign any of its rights or delegate any of its obligations created under this Agreement without the prior written consent of the other Parties. Notwithstanding the foregoing, the Purchaser shall be entitled to (a) assign all or any portion of its rights and obligations under this Agreement to one or more Affiliate(s) without the consent of the other Party, provided that the Purchaser and the Purchaser's Guarantor shall be jointly and severally liable with such Affiliates for the performance of their obligations hereunder and (b) assign its rights under this Agreement to any lender of Purchaser or Purchaser's Guarantor as collateral or charge in respect of any debt financing. It is understood and agreed, for the avoidance of doubt, that in the event the Purchaser sells or transfers all or part of the Business or the Company after the Closing to any Person, the Purchaser shall retain the benefit of and be bound by the provisions this Agreement (including the rights and obligations under Article VII) as if such sale or transfer had not occurred.  Except as expressly provided herein, nothing set forth in this Agreement shall be construed to give any Person other than the Parties to this Agreement any right, remedy or claim under or with respect to this Agreement or any provision of this Agreement.

 

12.9    Severability.  This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof.  Furthermore, in lieu of any such invalid or unenforceable term or provision, the Parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

 

12.10  Waivers and Amendments.  No modification of or amendment to this Agreement shall be valid unless in a writing signed by the Parties hereto referring specifically to this Agreement and stating the Parties' intention to modify or amend the same.  Any waiver of any term or condition of this Agreement must be in a writing signed by the Party sought to be charged with such waiver referring specifically to the term or condition to be waived, and no such waiver shall be deemed to constitute the waiver of any other breach of the same or of any other term or condition of this Agreement.

 

12.11  Governing Law and Submission to Jurisdiction.

 

(a)       This Agreement shall be governed by, and interpreted and enforced in accordance with, the laws of France (without giving effect to the conflicts-of-law principles thereof).

 

(b)       Arbitration.

 

(i)           Except as provided in Section 2.8 (Post-Closing Adjustments), all claims, controversies or disputes (each, a "Dispute") arising out of or in connection with this Agreement which are not resolved by the Parties shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce (the "Rules") by three (3) arbitrators (unless the Parties shall have expressly agreed in writing that a Dispute will be settled by one (1) arbitrator) appointed in accordance with the Rules.  The two arbitrators nominated by the Parties shall agree upon the nomination of the third arbitrator, who shall be the Chair of the arbitral tribunal, within fifteen (15) days from the date upon which both of them have been duly confirmed by the International Court of Arbitration of the International Chamber of Commerce (the "ICC Court").  If the two arbitrators nominated by the Parties fail to nominate a third arbitrator within the above-referenced fifteen (15) day period, the necessary appointment shall be made by the ICC Court in accordance with the Rules.

 

 

(ii)          An arbitral tribunal constituted under this Section 12.11 shall have exclusive jurisdiction over any challenge of a decision rendered pursuant to Section 2.8 on the grounds that such decision constitutes or is based upon manifest error (erreur grossière).

 

(iii)         The arbitral tribunal shall use its best efforts to render its final award as soon as is reasonably practicable. Without prejudice to such provisional remedies as may be available under the jurisdiction of a competent court, the arbitral tribunal shall have full authority to grant injunctive relief and/or specific performance.  The arbitral tribunal shall not have the power to decide the dispute as "amiables compositeurs".  The award of the arbitral tribunal shall be final and binding upon the Parties, and each Party hereby waives any and all rights to appeal or challenge the award insofar as such waiver can be validly made.

 

(iv)         The place of arbitration shall be Paris, France.  The English language shall be used throughout the proceedings, but documentary evidence in French may be submitted without translation.

 

 

 

Made in [·] on ___________, 2016, in ___ (_) originals.

 

 

CECA ▇▇			▇▇▇▇▇▇ S.R.L
By:			By:
	Name:			Name:
	Title:			Title:
ARKEMA SHANGHAI DISTRIBUTION CO LTD			ARKEMA FRANCE
By:			By:
	Name:			Name:
	Title:			Title:
CALGON CARBON INVESTMENTS INC.			CALGON CARBON CORPORATION
By:			By:
	Name:			Name:
	Title:			Title:

 

 

-79-