1
EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
AMONG
SOFEDIT,
MS,
BDHI, CIBA,CEFI
THE BARGE FAMILY,
THE DOMENECH FAMILY,
YACESE,
JRMH,
H.H.A.WAY,
AND
SOFEDIT FINANCIAL SHAREHOLDERS
DATED AS OF APRIL 3, 1998
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms............................................................................2
ARTICLE II
PURCHASE AND SALE
2.01. Purchase and Sale of the Shares..................................................................9
2.02. Consideration....................................................................................9
2.03. Closing.........................................................................................10
2.04. Closing Deliveries by the Sellers...............................................................10
2.05. Closing Deliveries by MS........................................................................10
2.06. Sellers' Representative.........................................................................10
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MS
3.01. Organization, Authority and Qualification of MS.................................................11
3.02. Capital Stock of MS; Ownership of the Shares....................................................11
3.03. Subsidiaries....................................................................................13
3.04. Corporate Books and Records.....................................................................14
3.05. No Conflict.....................................................................................14
3.06. Governmental Consents and Approvals.............................................................15
3.07. Financial Information, Books and Records, Securities Reports....................................15
3.08. No Undisclosed Liabilities......................................................................16
3.09. Conduct in the Ordinary Course; Absence of Certain Changes, Events and Conditions...............17
3.10. Litigation......................................................................................18
3.11. Certain Interests...............................................................................18
3.12. Compliance with Laws............................................................................19
3.13. Environmental and Other Permits and Licenses; Related Matters...................................19
3.14. Material Contracts..............................................................................20
3.15. Real Property...................................................................................22
3.16. Customers.......................................................................................23
3.17. Suppliers.......................................................................................23
3.18. Employee Benefit Matters........................................................................23
3.19. Labor Matters...................................................................................26
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SECTION PAGE
3.20. Key Employees...................................................................................27
3.21. Taxes...........................................................................................27
3.22. Insurance.......................................................................................28
3.23. Full Disclosure.................................................................................28
3.24. Brokers.........................................................................................28
3.25. Stockholder Approvals...........................................................................28
3.26. State Takeover Statute..........................................................................28
ARTICLE IV-A
REPRESENTATIONS AND WARRANTIES OF CIBA
4.A.01. Organization of CIBA..........................................................................29
4.A.02. No Conflict...................................................................................29
4.A.03. Governmental Consents and Approvals...........................................................29
4.A.04. Capital Stock of CIBA.........................................................................29
4.A.05. Ownership of the CIBA Shares..................................................................30
4.A.06. Financial Information, Books and Records......................................................30
4.A.07. No Undisclosed Liabilities....................................................................30
4.A.08. Conduct in the Ordinary Course; Absence of Certain Changes, Events and Conditions.............31
4.A.09. Litigation....................................................................................32
4.A.10. Compliance with Laws..........................................................................32
4.A.11. Absence of Activities.........................................................................32
4.A.12. Subsidiaries..................................................................................32
4.A.13. Corporate Books and Records...................................................................32
4.A.14. Brokers.......................................................................................32
4.A.15. Taxes.........................................................................................32
4.A.16. Full Disclosure...............................................................................33
4.A.17. Title to the Shares Owned by CIBA in BDHI.....................................................33
4.A.18. Stockholders Approval.........................................................................33
ARTICLE IV-B
REPRESENTATIONS AND WARRANTIES OF THE BARGE FAMILY AND CEFI
4.B.01. Authority and Qualification of the Barge Family and ..........................................33
4.B.02. No Conflict...................................................................................34
4.B.03. Governmental Consents and Approvals...........................................................34
4.B.04. Title to the Shares Owned by the Barge Family and CEFI in CIBA................................34
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4.B.05. Full Disclosure...............................................................................34
4.B.06. Brokers.......................................................................................35
4.B.07. Stockholders Approval.........................................................................35
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF EACH OF THE MEMBERS
OF THE DOMENECH FAMILY AND YACESE
5.01. Organization of YACESE, Authority and Qualification of the Domenech
Family and YACESE..............................................................................35
5.02. No Conflict.....................................................................................36
5.03. Governmental Consents and Approvals.............................................................36
5.04. Title to the Shares Owned by the Domenech Family and YACESE in BDHI
..............................................................................................36
5.05. Full Disclosure.................................................................................36
5.06. Brokers.........................................................................................36
5.07. Stockholders Approval...........................................................................36
ARTICLE VI-A
REPRESENTATIONS AND WARRANTIES OF JRMH AND H.H.A.WAY
6.A.01. Organization, Authority and Qualification of JRMH and H.H.A.WAY...............................37
6.A.02. No Conflict...................................................................................37
6.A.03. Governmental Consents and Approvals...........................................................38
6.A.04. Title to the Shares Owned by JRMH and H.H.A.WAY in BDHI.......................................38
6.A.05. Full Disclosure...............................................................................38
6.A.06. Brokers.......................................................................................38
6.A07. Stockholders Approval.........................................................................38
ARTICLE VI-B
REPRESENTATIONS AND WARRANTIES OF BDHI
6.B.01. Organization, Authority and Qualification of BDHI.............................................38
6.B.02. Capital Stock of BDHI; Ownership of the BDHI Shares...........................................39
. No Conflict.........................................................................................39
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SECTION PAGE
6.B.04. Governmental Consents and Approvals...........................................................39
6.B.05. Subsidiaries..................................................................................40
6.B.06. Corporate Books and Records...................................................................40
6.B.07. Financial Information, Books and Records......................................................40
6.B.08. No Undisclosed Liabilities....................................................................40
6.B.09. Conduct in the Ordinary Course; Absence of Certain Changes, Events and
Conditions.....................................................................................40
6.B.10. Litigation....................................................................................42
6.B.11. Compliance with Laws..........................................................................42
6.B.12. Brokers.......................................................................................42
6.B.13. SOFEDIT Shares................................................................................42
6.B.14. Taxes.........................................................................................42
6.B.15. Full Disclosure...............................................................................43
6.B.16. Stockholders Approval.........................................................................43
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF
THE SOFEDIT FINANCIAL SHAREHOLDERS
7.01. Organization, Authority and Qualification of the SOFEDIT Financial
Shareholders...................................................................................43
7.02. No Conflict.....................................................................................43
7.03. Governmental Consents and Approvals.............................................................44
7.04. Brokers.........................................................................................44
7.05. SOFEDIT Shares..................................................................................44
7.06. Full Disclosure.................................................................................44
7.07. Stockholders Approval...........................................................................44
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF SOFEDIT
8.01. Organization, Authority and Qualification of SOFEDIT............................................44
8.02. Capital Stock of SOFEDIT........................................................................45
8.03. Ownership of the shares of SOFEDIT..............................................................45
8.04. Subsidiaries....................................................................................46
8.05. Corporate Books and Records.....................................................................47
8.06. No Conflict.....................................................................................47
8.07. Governmental Consents and Approvals.............................................................47
8.08. Financial Information, Books and Records........................................................47
8.09. No Undisclosed Liabilities......................................................................48
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SECTION PAGE
8.10. Conduct in the Ordinary Course; Absence of Certain Changes, Events and
Conditions......................................................................................48
8.11. Litigation......................................................................................50
8.12. Compliance with Laws............................................................................50
8.13. Environmental and Other Permits and Licenses; Related Matters...................................50
8.14. Material Contracts..............................................................................51
8.15. Brokers.........................................................................................53
8.16. Taxes...........................................................................................53
8.17. Customers.......................................................................................53
8.18. Suppliers.......................................................................................54
8.19. Employee Benefit Matters........................................................................54
8.20. Labor Matters...................................................................................55
8.21. Certain Interests...............................................................................56
8.22. Real Property...................................................................................56
8.23. Insurance.......................................................................................57
8.24. Full Disclosure.................................................................................57
8.25. Stockholders Approval...........................................................................57
ARTICLE IX
ADDITIONAL AGREEMENTS
9.01. Conduct of Business Prior to the Closing........................................................58
9.02. Access to Information...........................................................................58
9.03. Confidentiality.................................................................................59
9.04. Regulatory and Other Authorizations; Notices and Consents.......................................59
9.05. Notice of Developments..........................................................................60
9.06. Stockholder Approvals...........................................................................60
9.07. Contribution(s) of BDHI Shares to YACESE........................................................60
9.08. Contribution(s) of BDHI Shares to H.H.A.WAY.....................................................61
9.09. Purchases of BDHI Shares........................................................................61
9.10. Promise to Transfer the Preferred Shares........................................................61
9.11. Further Action..................................................................................61
9.12. Securities Act..................................................................................61
ARTICLE X
CONDITIONS TO CLOSING
10.01. Conditions to Obligations of MS................................................................62
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SECTION PAGE
Termination of the SOFEDIT Stockholders Agreement and of the BDHI
Stockholders Agreement.........................................................................63
10.02. Conditions to Obligations of SOFEDIT, BDHI, CIBA and the Sellers...............................63
ARTICLE XI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
11.01. Survival of Representations and Warranties.....................................................66
ARTICLE XII
TERMINATION AND WAIVER
12.01. Termination....................................................................................66
12.02. Effect of Termination..........................................................................67
12.03. Waiver.........................................................................................68
ARTICLE XIII
GENERAL PROVISIONS
13.01. Expenses.......................................................................................68
13.02. Notices........................................................................................68
13.03. Public Announcements...........................................................................69
13.04. Headings.......................................................................................69
13.05. Severability...................................................................................69
13.06. Entire Agreement...............................................................................69
13.07. Assignment.....................................................................................70
13.08. No Third Party Beneficiaries...................................................................70
13.09. Amendment......................................................................................70
13.10. Governing Law..................................................................................70
13.11. Dispute Resolution and Arbitration.............................................................70
13.12. Counterparts...................................................................................71
13.13. Specific Performance...........................................................................71
13.14. Limited Recourse...............................................................................71
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STOCK PURCHASE AGREEMENT, dated as of April 3, 1998, between
MS Acquisition Corp., a Delaware corporation ("MS"), Societe Financiere de
Developpement Industriel et Technologique, a French societe anonyme ("SOFEDIT"),
BDHI, a French societe anonyme ("BDHI"), CIBA, a French societe anonyme
("CIBA"), CEFI, a Luxembourg societe de participations financieres ("CEFI"), the
individuals listed in Exhibit 1 hereto, duly represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
(collectively, the "Barge Family"), YACESE S.A., a French societe anonyme
("YACESE"), the individuals listed in Exhibit 2 hereto, duly represented by ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (collectively, the "Domenech Family"), JRMH, a French societe
civile ("JRMH"), H.H.A.WAY S.A., a French societe anonyme ("H.H.A.WAY"), and the
entities listed in Exhibit 3 hereto (collectively, the "SOFEDIT Financial
Shareholders" and, together with CEFI, YACESE, JRMH, H.H.A.WAY, the Barge
Family, the Domenech Family, the "Sellers").
W I T N E S S E T H:
WHEREAS, MS and the Sellers have agreed on the principle of a
transaction whereby the Sellers would sell to MS the CIBA Shares (as defined
below), the BDHI Shares (as defined below) and the SOFEDIT Shares (as defined
below), in consideration of the issuance by MS of promissory notes issued by MS
and shares of Common Stock and Preferred Stock of MS.
WHEREAS, BDHI and the SOFEDIT Financial Shareholders own all
the issued and outstanding shares of common stock, FF 100 par value per share
(the "SOFEDIT Common Stock"), of SOFEDIT;
WHEREAS, as of the date hereof, CIBA, YACESE, JRMH and the
individuals listed in Exhibit 5 hereto own all the issued and outstanding shares
of common stock, FF 100 par value per share of BDHI (the "BDHI Common Stock");
WHEREAS, the members of the Barge Family and CEFI own all the
issued and outstanding shares of common stock, FF 100 par value per share (the
"CIBA Common Stock"), of CIBA;
WHEREAS, the SOFEDIT Financial Shareholders wish to sell to
MS, and MS wishes to purchase from the SOFEDIT Financial Shareholders, their
shares of SOFEDIT (the "SOFEDIT Shares") held at the Closing (as defined below),
upon the terms and subject to the conditions set forth herein;
WHEREAS, between the date hereof and the Closing Date (as
defined below), ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ will sell 578 shares of BDHI to COMPAGNIE DE
FINANCEMENT INDUSTRIEL S.A. and Mr. ▇▇▇▇-▇▇▇▇ Hergoualc'h will sell one share of
BDHI to H.H.A.WAY;
WHEREAS, on the Closing Date (as defined below), the
contribution of 3.051 shares of BDHI by JRMH to H.H.A.WAY will become effective;
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WHEREAS, YACESE, the members of the Domenech Family,
H.H.A.WAY, JRMH and COMPAGNIE DE FINANCEMENT INDUSTRIEL S.A wish to sell to MS,
and MS wishes to purchase from YACESE, the Domenech Family, H.H.A.WAY, JRMH and
COMPAGNIE DE FINANCEMENT INDUSTRIEL S.A., all their shares of BDHI (the "BDHI
Shares") owned at the Closing Date (as defined below), upon the terms and
subject to the conditions set forth herein; and
WHEREAS, the members of the Barge Family and CEFI wish to sell
to MS, and MS wishes to purchase from the members of the Barge Family and CEFI,
their shares of CIBA (the "CIBA Shares"), upon the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants hereinafter set forth, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings:
"Action" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"Aetna Holdings" means Aetna Holdings, Inc., a wholly owned
subsidiary of MS.
"Aetna Industries" means Aetna Industries, Inc., a wholly
owned subsidiary of Aetna Holdings.
"Affiliate" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"Agreement" or "this Agreement" means this Stock Purchase
Agreement, dated as of April 3, 1998, among the parties hereto (including the
Exhibits hereto and the Disclosure Schedules) and all amendments hereto made in
accordance with the provisions of Section 14.09.
"BDHI Reference Balance Sheet" means the audited balance sheet
of BDHI as of December 31, 1997, a copy of which is set forth in Section
6.B.07(a) of the Disclosure Schedules.
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"BDHI Stockholders Agreement" means the agreement dated March
1, 1995, relating to, among other things, the management of BDHI, among Messrs.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇-▇▇▇▇ Hergoualc'h.
"Business" means, as applicable to MS or SOFEDIT or their
respective subsidiaries, the business of automobile equipment part supplier and
all other business which prior to the date hereof has been conducted by MS or
SOFEDIT or their respective subsidiaries, as applicable.
"Business Day" means any day that is not a Saturday, a Sunday
or other day on which banks are required or authorized by law to be closed in
the City of New York or Paris.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended through the date hereof.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System, as updated through the date
hereof.
"CIBA Reference Balance Sheet" means the audited balance sheet
of CIBA as of December 31, 1997, a copy of which is set forth in Section
4.A.06(a) of the Disclosure Schedules.
"Code" means the Internal Revenue Code of 1986, as amended.
"Control" (including the terms "control", "controlled by" and
"under common control with"), with respect to the relationship between or among
two or more Persons, means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities, as
trustee or executor, by contract or otherwise, including, without limitation,
the ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person.
"Disclosure Schedules" means the Disclosure Schedules attached
hereto, dated as of the date hereof, and forming a part of this Agreement.
"Encumbrance" means any security interest, pledge, mortgage,
lien (including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential arrangement or restriction of any kind,
including, without limitation, any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership, in each case
other than pursuant to the Stockholders Agreement, the New Stockholders
Agreement, the Registration Rights Agreement, or the New Registration Rights
Agreement.
"Environment" means surface waters, ground waters, soil,
subsurface strata and ambient air.
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"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations, proceedings, consent
orders or consent agreements relating in any way to any Environmental Law or any
Environmental Permit (hereafter "Claims"), including, without limitation, (a)
any and all Claims by Governmental Authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law and (b) any and all Claims by any Person seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the Environment.
"Environmental Condition" means a condition relating to or
arising or resulting from a failure to comply with any applicable Environmental
Law or Environmental Permit or a Release of Hazardous Materials into the
Environment that is required to be remediated under applicable Environmental
Laws.
"Environmental Laws" means any Law in effect on the Closing
Date and any binding judicial or administrative interpretation thereof,
including any binding judicial or administrative order, consent decree or
judgment, relating to pollution or protection of the environment, health, safety
or natural resources, including without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permits" means all permits, approvals,
identification numbers, licenses and other authorizations required under any
applicable Environmental Law.
"Governmental Authority" means any United States federal,
state or local or any foreign government or international organization,
governmental, regulatory or administrative authority, agency or commission or
any court, tribunal, or judicial or arbitral body.
"Governmental Order" means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Hazardous Materials" means (a) petroleum and petroleum
products, by-products or breakdown products, radioactive materials, asbestos in
any form that is or could become friable, urea formaldehyde foam insulation,
polychlorinated biphenyls, and radon gas, (b) any other chemicals, materials or
substances defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous wastes",
"restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words of similar import, under any applicable
Environmental Law, and (c) any other chemical, material or substance exposure to
which is regulated by any Governmental Authority under Environmental Laws.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended, and the rules and regulations promulgated thereunder.
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"Indebtedness" means, with respect to any Person, (a) all
indebtedness of such Person, whether or not contingent, for borrowed money, (b)
all obligations of such Person for the deferred purchase price of property or
services, (c) all obligations of such Person to purchase, redeem, retire,
defease or otherwise acquire for value any capital stock of such Person or any
warrants, rights or options to acquire such capital stock, valued, in the case
of redeemable preferred stock, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends, (d) all Indebtedness
of others referred to in clauses (a) through (c) above guaranteed in any manner
by such Person, or in effect guaranteed by such Person through an agreement to
assure a creditor against loss, and (e) all Indebtedness referred to in clauses
(a) through (c) above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any
Encumbrance on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness.
"Inventories" means all inventory, merchandise, finished
goods, and raw materials, packaging, supplies and other personal property
related to the Business maintained, held or stored by or for MS or any MS
Subsidiary on the Closing Date and any prepaid deposits for any of the same.
"IRS" means the Internal Revenue Service of the United States.
"Law" means any U.S., French or European, federal, state,
local or otherwise foreign statute, law, ordinance, regulation, rule, code,
order, other requirement or rule of law.
"Leased Real Property" means the real property leased by MS or
any MS Subsidiary, as tenant, together with, to the extent leased by MS or any
MS Subsidiary, all buildings and other structures, facilities or improvements
currently or hereafter located thereon, all fixtures, systems, equipment and
items of personal property of MS or any MS Subsidiary attached or appurtenant
thereto, and all easements, licenses, rights and appurtenances relating to the
foregoing.
"Liabilities" means any and all debts, liabilities and
obligations, whether accrued or fixed, absolute or contingent, matured or
unmatured or determined or determinable, including, without limitation, those
arising under any Law (including, without limitation, any Environmental Law),
Action or Governmental Order and those arising under any contract, agreement,
arrangement, commitment or undertaking.
"Material Adverse Effect" means any circumstance, change in,
or effect on the Business, MS or any MS Subsidiary, SOFEDIT or any SOFEDIT
Subsidiary, BDHI or CIBA, as applicable, that, individually or in the aggregate
with any other circumstances, changes in, or effects on, the Business, MS or any
MS Subsidiary, or SOFEDIT or any SOFEDIT Subsidiary, BDHI or CIBA, respectively:
(a) is materially adverse to the business, operations, assets or Liabilities,
employee relationships, customer or supplier relationships, prospects, results
of operations or the condition (financial or otherwise) of MS or any MS
Subsidiary, SOFEDIT or any SOFEDIT
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Subsidiary, BDHI or CIBA, as applicable, or (b) adversely affectsthe ability of
MS or any MS Subsidiary, SOFEDIT or any SOFEDIT Subsidiary, BDHI or CIBA, as
applicable, to operate or conduct the Business in the manner in which it is
currently operated or conducted by MS or any MS Subsidiary, SOFEDIT or any
SOFEDIT Subsidiary, BDHI or CIBA, as applicable.
"MS Class A Common Stock" means the Series A-1 Class A Common
Stock, $0.01 par value per share, of MS, the Series A-2 Class A Common Stock,
$0.01 par value per share, of MS, the Series A-3 Class A Common Stock, $0.01 par
value per share, of MS and the Series I Class A Common Stock, $0.01 par value
per share, of MS, as such series are defined in the attached form of Amended and
Restated Certificate of Incorporation of MS, taken together.
"MS Class B Common Stock" means the Series B-1 Class A Common
Stock, $0.01 par value per share, of MS, the the Series B-2 Class B Common
Stock, $0.01 par value per share, of MS and the Series II Class B Common Stock,
$.01 par value per share, of MS, as such series are defined in the attached form
of Amended and Restated Certificate of Incorporation of MS, taken together.
"MS Common Shares" has the meaning specified in Section 2.02.
"MS Common Stock" means the MS Class A Common Stock and the MS
Class B Common Stock.
"MS Preferred Shares" has the meaning specified in Section
2.02.
"MS Reference Balance Sheet" means the unaudited consolidated
balance sheet (including the related notes and schedules thereto) of MS, as of
June 30, 1997 (such date being the "MS Reference Balance Sheet Date"), a copy of
which is set forth in Section 3.07(a) of the Disclosure Schedules.
"MS Series A Preferred Stock" means the Series A Preferred
Stock, $0.01 par value, $100 stated value per share, of MS.
"MS Series B Preferred Stock" means the Series B Preferred
Stock, $0.01 par value, $100 stated value per share, of MS.
"MS Subsidiaries" means Aetna Holdings, Inc., Aetna
Industries, Inc., Aetna Export Sales Corp., Aetna Manufacturing Canada, Limited
and any and all other corporations, partnerships, joint ventures, associations
and other entities in which MS directly or indirectly owns an equity interest.
"New Registration Rights Agreement" has the meaning specified
in Section 10.01(h).
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"New Stockholders Agreement" has the meaning specified in
Section 10.01(h).
"Owned Real Property" means the real property owned by MS or
any MS Subsidiary or SOFEDIT or any SOFEDIT Subsidiary, as applicable, together
with all buildings and other structures, facilities or improvements currently or
hereafter located thereon, all fixtures, systems, equipment and items of
personal property of MS or any MS Subsidiary or SOFEDIT or any SOFEDIT
Subsidiary, as applicable, attached or appurtenant thereto and all easements,
licenses, rights and appurtenances relating to the foregoing.
"Permits" has the meaning specified in Section 3.13(a).
"Permitted Encumbrances" means such of the following as to
which no enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) liens for taxes, assessments and governmental
charges or levies not yet due and payable which are not in excess of $25,000 in
the aggregate; (b) Encumbrances imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's liens and other similar liens
arising in the ordinary course of business securing obligations that (i) are not
overdue for a period of more than 30 days and (ii) are not in excess of $25,000
in the case of a single property or $50,000 in the aggregate at any time; (c)
pledges or deposits to secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory obligations; and (d) minor
survey exceptions, reciprocal easement agreements and other customary
encumbrances on title to real property that (i) were not incurred in connection
with any Indebtedness, (ii) do not render title to the property encumbered
thereby unmarketable and (iii) do not, individually or in the aggregate,
materially adversely affect the value or use of such property for its current
and anticipated purposes.
"Person" means any individual, partnership, firm, corporation,
limited liability company, association, trust, unincorporated organization or
other entity, as well as any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
"Preferred Stock" means the MS Series A Preferred Stock and
the MS Series B Preferred Stock.
"Registration Rights Agreement" means the registration rights
agreement dated August 13, 1996, among MS and the stockholders of MS party
thereto.
"Real Property" applied to MS or SOFEDIT means the Leased Real
Property and the Owned Real Property, respectively, of MS or SOFEDIT and their
respective Subsidiaries.
"Regulations" means the Treasury Regulations (including
Temporary Regulations) promulgated by the United States Department of Treasury
with respect to the Code or other federal tax statutes.
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"Release" means disposing, discharging, injecting, spilling,
leaking, leaching, dumping, emitting, escaping, emptying or seeping into or upon
any land or water or air or otherwise entering into the Environment.
"Sellers' Shares" means the CIBA Shares, the BDHI Shares and
the SOFEDIT Shares, taken together.
"SOFEDIT Reference Balance Sheet" means the audited
consolidated balance sheet of SOFEDIT, as of June 30, 1997, a copy of which is
set forth in Section 8.08 of the Disclosure Schedules.
"SOFEDIT Stockholders Agreement" means the agreement dated
July 8, 1995, as amended, among the shareholders of SOFEDIT and Messrs. ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇-▇▇▇▇ Hergoualc'h.
"SOFEDIT Subsidiary" means any and all other corporations,
partnerships, joint ventures, associations and other entities in which SOFEDIT
directly or indirectly owns an equity interest.
"Stockholders Agreement" has the meaning specified in Section
3.02(a).
"Stock Option Plan" means the MS Acquisition Corp. Executive
Stock Option Plan.
"Subordinated Notes" means the 11% junior subordinated
promissory notes of Aetna Holdings due 2007.
"Subsidiaries" means any and all corporations, partnerships,
joint ventures, associations and other entities controlled by MS or SOFEDIT, as
applicable, directly or indirectly through one or more intermediaries.
"Tax" or "Taxes" means any and all federal, state, local or
foreign net or gross income, gross receipts, net proceeds, sales, use, ad
valorem, value-added, franchise, bank shares, withholding, payroll, employment,
excise, property, alternative or add-on minimum, environmental or other taxes,
fees, levies, duties, tariffs, imposts, and other charges of any kind (together
with any and all interest, penalties, additions to tax and additional amounts
imposed with respect thereto) imposed by any government or taxing authority,
whether disputed or not.
"U.S. GAAP" means United States generally accepted accounting
principles and practices as in effect from time to time and applied consistently
throughout the periods involved.
"USTs" means underground storage tanks, as such term is
defined in the Resource Conservation and Recovery Act, as amended, and the
regulations promulgated thereunder.
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ARTICLE II
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale of the Shares. Upon the terms
and subject to the conditions of this Agreement, at the Closing (as defined
below), (i) the SOFEDIT Financial Shareholders shall sell to MS, and MS shall
purchase from the SOFEDIT Financial Shareholders, the SOFEDIT Shares, (ii) the
members of the Barge Family and CEFI shall sell to MS, and MS shall purchase
from the members of the Barge Family and CEFI, the CIBA Shares, and (iii)
YACESE, the members of the Domenech Family, H.H.A.WAY and JRMH shall sell to MS,
and MS shall purchase from YACESE, the members of the Domenech Family, H.H.A.WAY
and JRMH, the BDHI Shares.
SECTION 2.02. Consideration. As consideration for the sales
set forth in Section 2.01, MS shall:
(i) issue to the Sellers a total of three million (3,000,000)
shares of MS Series A-1 Common Stock (the "MS Common Shares"), so that
after completion of the Closing, if all the stock options that have
been issued under the Stock Option Plan in effect as of the date hereof
were exercised, the Sellers would own seventy-five percent (75%) of the
total number of issued and outstanding shares of MS Common Stock;
(ii) issue to the Sellers promissory notes dated as of the
Closing Date and substantially in the form attached hereto as Exhibit
2.02 (A) (the "Promissory Notes"), for an aggregate amount of forty
million nine hundred sixty eight thousand U.S. Dollars ($40,968,000)
(the "Debt Amount"); and
(iii) issue to the Sellers two hundred and seventy thousand
(270,000) shares of MS Series B Preferred Stock (the "MS Preferred
Shares").
The allocation of the MS Common Shares and the MS Preferred
Shares among the Sellers, and the amount in principal of the Promissory Notes
are indicated in Exhibit 2.02 (B) hereto.
The parties hereto acknowledge and agree that the shareholders
of SOFEDIT are entitled to an amount equal to the dividends corresponding to
SOFEDIT's profits for fiscal year 1997 that would be paid in 1998 if SOFEDIT's
past dividend policy remained unchanged from the past practices of SOFEDIT with
respect to the payment of dividends. Therefore, in addition to the consideration
described above and notwithstanding any transfer of title interest with respect
to their SOFEDIT Shares at the Closing, the SOFEDIT Financial Shareholders will
keep the jouissance (as such term is defined under French law) of their SOFEDIT
Shares until 12:00 p.m., the day following the date of the 1998 Annual General
Shareholders Meeting of SOFEDIT called to resolve the
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distribution of dividends for fiscal year 1997 and, as a result, they will
receive the dividends voted on that meeting. With respect to the shareholders of
BDHI and CIBA, the Sellers acknowledge and agree among themselves that the
initial principal amounts of the PromissoryNotes to be issued to the Sellers as
set forth on the table attached as Exhibit 2.02 hereto reflect the amount of
BDHI's outstanding debt and the amount of dividends that would be paid by
SOFEDIT to BDHI out of SOFEDIT's profits for fiscal year 1997, based on
SOFEDIT's past dividend policy.
SECTION 2.03. Closing. Upon the terms and subject to the
conditions of this Agreement, the sales and purchases of Sellers' Shares
contemplated by this Agreement shall take place at a closing (the "Closing") to
be held at the offices of Natexis Finance S.A., in Paris, at 10:00 A.M. Paris
time on (i) April 9, 1998, or, if the closing conditions set forth in Article X
are not fulfilled on that date, (ii) at such other place or at such other time
or on such other date as the Sellers' Representative and MS may mutually agree
upon(the day on which the Closing actually takes place being the "Closing
Date").
SECTION 2.04. Closing Deliveries by the Sellers. At the
Closing, the Sellers shall deliver or cause to be delivered to MS:
(a) executed stock transfer forms ("ordres de mouvement") for
all their respective Sellers' Shares, completed pursuant to the terms
thereof, the stock ledger ("registre des mouvements de titres",
together with the "comptes d'actionnaires") of each of SOFEDIT, BDHI
and CIBA and any other documents necessary for the transfer of good and
marketable title to the Sellers' Shares;
(b) a receipt for the Promissory Notes, the MS Common Shares
and the MS Preferred Shares issued to them; and
(c) the certificates and other documents required to be
delivered pursuant to Section 10.01.
SECTION 2.05. Closing Deliveries by MS. At the Closing, MS
shall deliver to the Sellers:
(a) certificates for the MS Common Shares;
(b) certificates for the MS Preferred Shares;
(c) the Promissory Notes; and
(d) the certificates and other documents required to be
delivered pursuant to Section 10.02.
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SECTION 2.06. Sellers' Representative. Each Seller hereby
appoints ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ (such Person being the "Sellers' Representative"), as
each such Sellers' attorney-in-fact and representative, (i) to do any and all
things and to execute any and all documents or other papers, in each such
Seller's name, place and stead, in any way which each such Seller could do if
personally present, in connection with this Agreement, the New Stockholders
Agreement and the New Registration Rights Agreement and the transactions
contemplated hereby and thereby, (ii) to amend, cancel or extend, or waive the
terms of, this Agreement, the New Stockholders Agreement and the New
Registration Rights Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MS
As an inducement to the Sellers to enter into this Agreement,
MS hereby represents and warrants to the Sellers as follows:
SECTION 3.01. Organization, Authority and Qualification of MS.
MS is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all necessary power and authority to
own, operate or lease the properties and assets now owned, operated or leased by
it and to carry on the Business as it is currently conducted. The execution and
delivery of this Agreement, the New Stockholders Agreement and the New
Registration Rights Agreement by MS, the performance by MS of its obligations
hereunder and thereunder and the consummation by MS of the transactions
contemplated hereby and thereby have been duly authorized by all requisite
action on the part of MS. This Agreement has been, and upon their execution the
New Stockholders Agreement and the New Registration Rights Agreement shall have
been, duly executed and delivered by MS, and (assuming due authorization,
execution and delivery by the other parties hereto and thereto) this Agreement
constitutes, and upon their execution the New Stockholders Agreement and the New
Registration Rights Agreement will constitute, a legal, valid and binding
obligation of MS enforceable against MS in accordance with its and their terms.
MS is duly licensed or qualified to do business and is in good standing in each
jurisdiction in which the properties owned or leased by it or the operation of
its business makes such licensing or qualification necessary or desirable. All
corporate actions taken by MS have been duly authorized, and MS has not taken
any action that in any material respect conflicts with, constitutes a default
under or results in a violation of any provision of its Certificate of
Incorporation or By-laws, each as amended to date. True and correct copies of
the Certificate of Incorporation and By-laws of MS, each as in effect on the
date hereof, have been delivered or made available by MS to the Sellers.
SECTION 3.02. Capital Stock of MS; Ownership of the Shares.
(a) As of the date hereof, the authorized capital stock of MS consists of:
(x) 2,293,123.32 shares of Preferred Stock, consisting
of:
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(i) 293,123.32 shares of Series A Preferred Stock;
and
(ii) 2,000,000 additional shares of authorized
preferred stock which may be issued in one or more series upon
such terms as may be set forth by the board of directors of
MS; and
(y) 10,000,000 shares of Common Stock, par value $.01 per
share, consisting of:
5,000,000 shares of MS Class A Common Stock; and
5,000,000 shares of MS Class B Common Stock.
As of the date of this Agreement,
(i) 383,409 shares of MS Class A Common Stock are
issued and outstanding, all of which are duly authorized,
validly issued, fully paid and non-assessable;
(ii) 516,590 shares of MS Class B Common Stock are
issued and outstanding, all of which are validly issued, fully
paid and non-assessable;
(iii) 114,967.38 shares of Series A Preferred Stock
are issued and outstanding, all of which are duly authorized,
validly issued, fully paid and non-assessable;
(iv) 100,000 shares of MS Class A Common Stock are
reserved for issuance pursuant to employee stock options
granted pursuant to the Stock Option Plan;
(v) 1,394,491 shares of MS Class B Common Stock are
issued and outstanding and held by Aetna Holdings, all of
which are validly issued, fully paid and non-assessable; and
(vi) 178,155.94 shares of Series A Preferred Sock are
issued and outstanding and held by Aetna Holdings, all of
which are validly issued, fully paid and non-assessable.
None of the issued and outstanding shares of MS Common Stock
or MS Preferred Stock was issued in violation of any preemptive rights. Except
for the stockholders agreement (the "Stockholders Agreement") dated August 13,
1996, among MS and the stockholders of MS party thereto (as of the date hereof),
the New Stockholders Agreement (as of the Closing Date), the Registration Rights
Agreement (as of the date hereof and as of the Closing Date), the New
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Registration Rights Agreement (as of the Closing Date), the Stock Option Plan
and the MS Series A Preferred Stock, there are no options, warrants, convertible
securities or other rights, agreements, arrangements or commitments of any
character relating to the capital stock of MS or obligating MS to issue or sell
any shares of capital stock of, or any other interest in, MS. There are no
outstanding contractual obligations of MS to repurchase, redeem or otherwise
acquire any shares of MS Common Stock or of MS Preferred Stock or to provide
funds to, or make any investment (in the form of a loan, capital contribution or
otherwise) in, any other Person. The outstanding shares of MS Common Stock and
MS Preferred Stock referred to in this section constitute all the issued and
outstanding capital stock of MS and are owned of record and beneficially solely
by the Persons set forth in Section 3.02(a) of the Disclosure Schedules free and
clear of all Encumbrances.
(b) Upon consummation of the transactions contemplated by this
Agreement and registration of the MS Common Shares in the name of the Sellers in
the stock records of MS, the Sellers, assuming they shall have received the MS
Common Shares, will own at least seventy-five percent (75%) of the total number
of issued and outstanding shares of MS Common Stock free and clear of any
Encumbrances. Upon consummation of the transactions contemplated by this
Agreement, the MS Common Shares and the MS Preferred Shares will be fully paid
and nonassessable. There are no voting trusts, stockholder agreements, proxies
or other agreements or understandings in effect with respect to the voting or
transfer of any of the MS Common Stock or of the Preferred Stock, except for the
Registration Rights Agreement and the Stockholders Agreement (as of the date of
this Agreement only) and the Registration Rights Agreement, the New Registration
Rights Agreement and the New Stockholders Agreement (upon consummation of the
transactions contemplated by this Agreement). The MS Common Shares and MS
Preferred Shares to be issued pursuant to this Agreement will be duly
authorized, validly issued and not subject to preemptive rights created by
statute, MS' Certificate of Incorporation or By-laws or any agreement to which
MS is a party or is bound.
(c) The stock register of MS accurately records: (i) the name
and address of each Person owning shares of capital stock of MS and (ii) the
certificate number of each certificate evidencing shares of capital stock issued
by MS, the number of shares evidenced by each such certificate, the date of
issuance thereof and, in the case of cancellation, the date of cancellation.
SECTION 3.03. Subsidiaries. (a) Section 3.03(a) of the
Disclosure Schedules sets forth a true and complete list of all MS Subsidiaries,
listing for each MS Subsidiary its name, type of entity, the jurisdiction and
date of its incorporation or organization, its authorized capital stock,
partnership capital or equivalent, the number and type of its issued and
outstanding shares of capital stock, partnership interests or similar ownership
interests and the current ownership of such shares, partnership interests or
similar ownership interests.
(b) Other than the MS Subsidiaries, there are no other
corporations, limited liability company, partnerships, associations or other
entities in which MS owns, of record or beneficially, any direct or indirect
equity or other similar interest or any right (contingent or
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otherwise) to acquire the same. MS is not a member of (nor is any part of the
Business conducted through) any partnership. Except as set forth in Section
3.03(b) of the Disclosure Schedules, MS is not a participant in any joint
venture or similar arrangement.
(c) Each MS Subsidiary: (i) that is a corporation is duly
organized and validly existing under the laws of its jurisdiction of
incorporation, (ii) that is not a corporation is duly organized and validly
existing under the laws of its jurisdiction of organization, (iii) has all
necessary power and authority to own, operate or lease the properties and assets
owned, operated or leased by such MS Subsidiary and to carry on its business as
it has been and is currently conducted by such MS Subsidiary, and (iv) is duly
licensed or qualified to do business and is in good standing in each
jurisdiction in which the properties owned or leased by it or the operation of
its business makes such licensing or qualification necessary.
(d) All the outstanding shares of capital stock of each MS
Subsidiary are validly issued, fully paid, nonassessable and free of preemptive
rights and are owned by MS, whether directly or indirectly, free and clear of
all Encumbrances.
(e) There are no options, warrants, convertible securities, or
other rights, agreements, arrangements or commitments of any character relating
to the capital stock of any MS Subsidiary or obligating MS or any MS Subsidiary
to issue or sell any shares of capital stock of, or any other interest in, MS or
any MS Subsidiary.
(f) All corporate actions taken by each MS Subsidiary have
been duly authorized and no MS Subsidiary has taken any action that in any
respect conflicts with, constitutes a default under or results in a violation of
any provision of its charter or by-laws (or similar organizational documents).
(g) No MS Subsidiary is a member of (nor is any part of its
business conducted through) any partnership nor is any MS Subsidiary a
participant in any joint venture or similar arrangement.
(h) Except for the Stockholders Agreement (on the date of this
Agreement), the New Stockholders Agreement and the New Registration Rights
Agreement ( after the Closing Date), there are no voting trusts, stockholder
agreements, proxies or other agreements or understandings in effect with respect
to the voting or transfer of any shares of capital stock of or any other
interests in any MS Subsidiary.
(i) The stock register of each MS Subsidiary accurately
records: (i) the name and address of each Person owning shares of capital stock
of such MS Subsidiary and (ii) the certificate number of each certificate
evidencing shares of capital stock issued by such MS Subsidiary, the number of
shares evidenced each such certificate, the date of issuance thereof and, in the
case of cancellation, the date of cancellation.
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SECTION 3.04. Corporate Books and Records. The minute books of
MS and the MS Subsidiaries contain accurate records of all meetings and
accurately reflect all other actions taken by the stockholders, Boards of
Directors and all committees of the Boards of Directors of MS and the MS
Subsidiaries. Complete and accurate copies of all such minute books and of the
stock register of MS and each MS Subsidiary have been provided or made available
for inspection by MS to the Sellers for the period from August 1, 1996 to the
date hereof.
SECTION 3.05. No Conflict. Assuming that all consents,
approvals, authorizations and other actions described in Section 3.06 have been
obtained and all filings and notifications listed in Section 3.05 and Section
3.06 of the Disclosure Schedules have been made, the execution, delivery and
performance of this Agreement, the Promissory Notes, the New Stockholders
Agreement and the New Registration Rights Agreement by MS do not (a) violate,
conflict with or result in the breach of any provision of the charter or by-laws
(or similar organizational documents) of MS or any MS Subsidiary, (b) conflict
with or violate (or cause an event which could have a Material Adverse Effect as
a result of) any Law or Governmental Order applicable to MS or any MS Subsidiary
or any of their respective assets, properties or businesses, including, without
limitation, the Business, or (c) conflict with, result in any breach of,
constitute a material default (or event which, with the giving of notice or
lapse of time, or both, would become a material default) under, require any
consent under or give to others any rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, or result in the
creation of any Encumbrance on any of the shares or on any of the assets or
properties of MS or any MS Subsidiary pursuant to, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument or arrangement to which MS or any MS Subsidiary is a party or
by which any of the shares or any of such assets or properties is bound or
affected. MS specifically represents and warrants that, assuming that all
consents, approvals, authorizations and other actions described in Section 3.06
have been obtained and all filings and notifications listed in Section 3.05 and
Section 3.06 of the Disclosure Schedules have been made, the execution, delivery
and performance of this Agreement, the Promissory Notes, the New Stockholders
Agreement and the New Registration Rights Agreement by MS and the consummation
of the transactions contemplated hereby and thereby do not and will not (i)
result in either (w) the redemption of the outstanding shares of MS Series A
Preferred Stock, (x) the acceleration of the $35 million credit facility among
Aetna Industries, MS, Aetna Holdings, Aetna Export Sales Corp. and NBD Bank, (y)
the obligation for Aetna Industries to offer to purchase any of its 11 7/8%
Senior Notes due 2006 (the "Aetna Notes") or the qualification of a "Change of
Control" under the indenture of the Aetna Notes, or (z) the mandatory redemption
of the 11% junior subordinated notes due 2007 issued by Aetna Holdings nor (ii)
result in any increase of the interest rate of these financings.
SECTION 3.06. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement, the New Stockholders
Agreement and the New Registration Rights Agreement by MS do not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to any Governmental Authority, except for a filing
with the French Treasury pursuant to regulations on foreign investment in
France.
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SECTION 3.07. Financial Information, Books and Records,
Securities Reports. (a) True and complete copies of the audited consolidated
balance sheet of MS and Aetna Industries for each of the three fiscal years
ended as of December 31, 1996, and December 31, 1997 and the related audited
consolidated statements of income, retained earnings, stockholders equity and
changes in financial position of MS and Aetna Industries, together with all
related notes and schedules thereto, accompanied by the reports thereon of MS
and Aetna Industries' accountants (collectively referred to herein as the
"Financial Statements") have been delivered by MS to the Sellers' Representative
and are attached hereto under Section 3.07(a) of the Disclosure Schedules. The
Financial Statements (i) were prepared in accordance with the books of account
and other financial records of MS and each of the MS Subsidiaries, (ii) present
fairly the consolidated financial condition and results of operations of MS and
each of the MS Subsidiaries as of the dates thereof or for the periods covered
thereby, (iii) have been prepared in accordance with U.S. GAAP applied on a
basis consistent with the past practices of MS and each of the MS Subsidiaries
(except as may be otherwise indicated in the notes thereto) and (iv) include all
adjustments that are necessary for a fair presentation of the consolidated
financial condition of MS and the MS Subsidiaries and the results of the
operations of MS and the MS Subsidiaries as of the dates thereof or for the
periods covered thereby. The Form 10-K405 of MS, Aetna Holdings and Aetna
Industries for the fiscal year ended December 28, 1997, does not contain any
information that reflects a breach of a covenant under the indenture of the
Aetna Notes or in the NBD Credit Agreement of Aetna Industries dated May 2,
1996, as amended.
(b) The books of account and other financial records of MS and
the MS Subsidiaries: (i) reflect all items of income and expense and all assets
and Liabilities required to be reflected therein in accordance with U.S. GAAP
applied on a basis consistent with the past practices of MS and the MS
Subsidiaries, respectively, (ii) are in all material respects complete and
correct, and do not contain or reflect any material inaccuracies or
discrepancies and (iii) have been maintained in accordance with good business
and accounting practices.
(c) Since August 1, 1996, Aetna Industries and MS have filed
(x) all forms, reports, statements and other documents required to be filed with
(A) the SEC including, without limitation, (i) all annual reports on Form 10-K,
(ii) all quarterly reports on Form 10-Q and (iii) all amendments and supplements
thereto, and (B) any other applicable state securities authorities, and (y) all
forms, reports, statements and other documents required to be filed with any
other applicable federal or state regulatory authorities (all such reports in
clauses (x) and (y) being the "Aetna Reports"). The Aetna Reports, including all
Aetna Reports filed after the date of this Agreement and prior to the Closing
Date, (x) were or will be prepared in all material respects in accordance with
the requirements of applicable Law and (y) did not at the time they were filed,
or will not at the time they are filed, contain any untrue statement of a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Since June 30, 1997, there have been no events or
circumstances relating to MS, any MS Subsidiary or the Business that would
require the filing of any report on Form 8-K, other than any events after the
date hereof and prior to the Closing as to which MS and Aetna Industries shall
have filed with the SEC and delivered to the Sellers' Representative, a copy of
such report on Form 8-K.
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SECTION 3.08. No Undisclosed Liabilities. There are no
Liabilities of MS or any MS Subsidiary, other than Liabilities (i) reflected or
reserved against on the MS Reference Balance Sheet, or (ii) disclosed in Section
3.08 of the Disclosure Schedules or (iii) incurred since the date of the MS
Reference Balance Sheet in the ordinary course of the business, consistent with
the past practice, of MS and the MS Subsidiaries and which, taken together, do
not and would not
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reasonably be expected to have a Material Adverse Effect. Reserves are
reflected on the MS Reference Balance Sheet against all Liabilities of MS and
the MS Subsidiaries in amounts that have been established on a basis consistent
with the past practices of MS and the MS Subsidiaries and in accordance with
U.S. GAAP.
SECTION 3.09. Conduct in the Ordinary Course; Absence of
Certain Changes, Events and Conditions. Since the date of the MS Reference
Balance Sheet, except as disclosed in Section 3.09 of the Disclosure Schedules,
the business of MS and the MS Subsidiaries has been conducted in the ordinary
course and consistent with past practice. As amplification and not limitation of
the foregoing, except as disclosed in Section 3.09 of the Disclosure Schedules,
since the date of the MS Reference Balance Sheet, neither MS nor any MS
Subsidiary has:
(i) permitted or allowed any of the assets or properties
(whether tangible or intangible) of MS or any MS Subsidiary to be
subjected to any Encumbrance, other than Permitted Encumbrances and
Encumbrances that will be released at or prior to the Closing;
(ii) except in the ordinary course of business consistent with
past practice, discharged or otherwise obtained the release of any
Encumbrance or paid or otherwise discharged any Liability, other than
current liabilities reflected on the MS Reference Balance Sheet and
current liabilities incurred in the ordinary course of business
consistent with past practice since the date of the MS Reference
Balance Sheet;
(iii) made any loan to, guaranteed any Indebtedness of or
otherwise incurred any Indebtedness on behalf of any Person;
(iv) redeemed any of the capital stock or declared, made or
paid any dividends or distributions (whether in cash, securities or
other property) to the holders of capital stock of MS or any MS
Subsidiary or otherwise, other than dividends, distributions and
redemptions declared, made or paid by any MS Subsidiary solely to MS;
(v) sold, transferred, leased, subleased, licensed or
otherwise disposed of any properties or assets, real, personal or mixed
(including, without limitation, leasehold interests and intangible
assets), other than the sale of Inventories in the ordinary course of
business consistent with past practice;
(vi) issued or sold any capital stock, notes, bonds or other
securities, or any option, warrant or other right to acquire the same,
of, or any other interest in, MS or any MS Subsidiary;
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(vii) entered into any agreement, arrangement or transaction
with any of its directors, officers, employees or shareholders (or with
any relative, beneficiary, spouse or Affiliate of such Person);
(viii) made any change in any method of accounting or
accounting practice or policy used by MS or any MS Subsidiary, other
than such changes required by U.S. GAAP or disclosed in Section 3.09 of
the Disclosure Schedules;
(ix) allowed any Permit or Environmental Permit that was
issued or relates to MS or any MS Subsidiary or otherwise relates to
any Asset to lapse or terminate or failed to renew any such Permit or
Environmental Permit or any insurance policy that is scheduled to
terminate or expire within 45 calendar days of the Closing Date;
(x) incurred any Indebtedness, in excess of $50,000
individually or $250,000 in the aggregate;
(xi) amended or restated the Certificate of Incorporation or
the By-laws (or other organizational documents) of MS or any MS
Subsidiary, except as expressly provided for under this Agreement;
(xii) suffered any casualty loss or damage with respect to any
of their assets which in the aggregate have a replacement cost of more
than $50,000, whether or not such loss or damage shall have been
covered by insurance;
(xiii) suffered any Material Adverse Effect; or
(xiv) agreed, whether in writing or otherwise, to take any of
the actions specified in this Section 3.09 or granted any options to
purchase, rights of first refusal, rights of first offer or any other
similar rights or commitments with respect to any of the actions
specified in this Section 3.09, except as expressly contemplated by
this Agreement.
SECTION 3.10. Litigation. Except as set forth in Section 3.10
of the Disclosure Schedules (which, with respect to each Action disclosed
therein, sets forth: the parties, nature of the proceeding, date and method
commenced, amount of damages or other relief sought and, if applicable, paid or
granted), there are no Actions by or against MS or any MS Subsidiary, or
affecting any of their Assets, pending before any Governmental Authority (or, to
the best knowledge of MS after due inquiry, threatened to be brought by or
before any Governmental Authority). None of the matters disclosed in Section
3.10 of the Disclosure Schedules has or has had a Material Adverse Effect or
would reasonably be expected to affect the legality, validity or enforceability
of this Agreement or the New Stockholders Agreement or the New Registration
Rights Agreement or the consummation of the transactions contemplated hereby and
thereby. Except as set forth in Section 3.10 of the Disclosure Schedules,
neither MS nor the MS Subsidiaries is subject to any Governmental Order (nor, to
the best
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knowledge of MS after due inquiry, are there any such Governmental Orders
threatened to be imposed by any Governmental Authority) which has or has had a
Material Adverse Effect.
SECTION 3.11. Certain Interests. (a) Except as disclosed in
Section 3.11(a) of the Disclosure Schedules, no officer or director of MS or any
MS Subsidiary, and no relative or spouse (or relative of such spouse) who
resides with, or is a dependent of, any such officer or director:
(i) owns, directly or indirectly, in whole or in part, or has
any other interest in any tangible or intangible property which MS or
any MS Subsidiary uses in the conduct of the Business or otherwise; or
(ii) has outstanding any Indebtedness to MS or any MS
Subsidiary.
(b) Except as disclosed in Section 3.11(b) of the Disclosure
Schedules, neither MS nor any MS Subsidiary has any Liability or any other
obligation of any nature whatsoever to any officer or director of MS or any MS
Subsidiary or to any relative or spouse (or relative of such spouse) who resides
with, or is a dependent of, any such officer or director.
SECTION 3.12. Compliance with Laws. MS and the MS Subsidiaries
have each conducted the Business, in all material respects, in accordance with
all Laws and Governmental Orders applicable, to the knowledge of MS, to MS or
any MS Subsidiary or any of their respective assets or properties or the
Business, and neither MS nor any MS Subsidiary is in violation of any such Law
or Governmental Order, which would result in a Material Adverse Effect.
SECTION 3.13. Environmental and Other Permits and Licenses;
Related Matters. (a) Except as disclosed in Section 3.13(a)(i) of the Disclosure
Schedules, and except as would not reasonably be expected to result in a
Material Adverse Effect, MS and the MS Subsidiaries currently hold and are in
compliance with, all the health and safety and other permits, licenses,
authorizations, certificates, exemptions and approvals of Governmental
Authorities (collectively, "Permits"), including, without limitation,
Environmental Permits, necessary or proper for the current use, occupancy and
operation of each Asset of MS and the MS Subsidiaries and the conduct of the
Business, and all such Permits are in full force and effect. Except as disclosed
in Section 3.13(a)(ii) of the Disclosure Schedules, and except as would not
reasonably be expected to result in a Material Adverse Effect, there is no
existing practice, action or activity of MS or any MS Subsidiary and no existing
condition of the assets of MS or any MS Subsidiary or the Business which would
reasonably be expected to give rise to any civil or criminal Liability under, or
violate or prevent compliance with, any health or occupational safety or other
applicable Law. Except as disclosed in Section 3.13(a)(iii) of the Disclosure
Schedules, neither MS nor any MS Subsidiary has received any notice from any
Governmental Authority revoking, canceling, rescinding, materially modifying or
refusing to renew any Permit or providing written notice of violations under any
Law. To the knowledge of MS, Section 3.13(a)(iv) of the Disclosure Schedules
identifies all Permits that are nontransferable or which
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will require the consent of any Governmental Authority in the event of the
consummation of the transactions contemplated by this Agreement.
(b) Except as disclosed in Section 3.13(b) of the Disclosure
Schedules, and except as would not reasonably be expected to result in a
Material Adverse Effect, (i) Hazardous Materials have not been generated, used,
treated, handled or stored on, or transported to or from, or Released on any
Real Property or on any property formerly owned, leased or occupied by MS
or any MS Subsidiaries; (ii) MS and the MS Subsidiaries have disposed of all
Hazardous Materials, in compliance with all applicable Environmental Laws and
Environmental Permits; (iii) there are no pending or, to the knowledge of MS,
threatened Environmental Claims against MS, any MS Subsidiary, or any Real
Property; (iv) no Real Property is listed or proposed for listing on the
National Priorities List under CERCLA or on the CERCLIS or any analogous state
list of sites requiring investigation or cleanup; and (v) neither MS nor any MS
Subsidiary has received notice that it transported or arranged for the
transportation of any Hazardous Materials to any location that is listed or
proposed for listing on the National Priorities List under CERCLA or on the
CERCLIS or any analogous state list or which is the subject of any Environmental
Claim.
(c) Except as disclosed in Section 3.13(c) of the Disclosure
Schedules and except as would not reasonably be expected to result in a Material
Adverse Effect, there are no circumstances with respect to any Real Property or
other Asset or the operation of the Business which could reasonably be
anticipated (i) to form the basis of an Environmental Claim against MS, any MS
Subsidiary or any Real Property or Asset or (ii) to cause such Real Property or
Asset to be subject to any restrictions on ownership, occupancy, use or
transferability under any applicable Environmental Law.
(d) Except as disclosed in Section 3.13(d) of the Disclosure
Schedules, there are not now and never have been any USTs located on any Real
Property.
SECTION 3.14. Material Contracts. (a) Section 3.14(a) of the
Disclosure Schedules lists each of the following contracts and agreements
(including, without limitation, oral and informal arrangements) of MS and the MS
Subsidiaries (such contracts and agreements, together with all contracts,
agreements, leases and subleases concerning the management or operation of any
Real Property listed or otherwise disclosed in Section 3.15(a) or 3.15(b) of the
Disclosure Schedules to which MS or any MS Subsidiary is a party and all
agreements relating to Intellectual Property set forth in Section 3.14(a) of the
Disclosure Schedules, being "Material Contracts"):
(i) each contract and agreement for the purchase of Inventory,
spare parts, other materials or personal property with any supplier or
for the furnishing of services to MS, any MS Subsidiary or otherwise
related to the Business under the terms of which MS or any MS
Subsidiary: (A) is likely to pay or otherwise give consideration of
more than $50,000 in the aggregate during the calendar year to be ended
on December 31, 1998, (B) is likely to pay or otherwise give
consideration of more than $100,000 in the aggregate over the remaining
term
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of such contract or (C) cannot be cancelled by MS or such MS
Subsidiary without penalty or further payment and without more than 30
days' notice;
(ii) each contract and agreement for the sale of Inventory or
other personal property or for the furnishing of services by MS or any
MS Subsidiary which: (A) is likely to involve consideration of more
than $50,000 in the aggregate during the calendar year ended December
31, 1998, (B) is likely to involve consideration of more than $100,000
in the aggregate over the remaining term of the contract or (C) cannot
be cancelled by MS or such MS Subsidiary without penalty or further
payment and without more than 30 days' notice;
(iii) all broker, distributor, dealer, manufacturer's
representative, franchise, agency, sales promotion, market research,
marketing consulting and advertising contracts and agreements to which
MS or any MS Subsidiary is a party;
(iv) all management contracts and contracts with independent
contractors or consultants (or similar arrangements) to which MS or any
MS Subsidiary is a party and which are not cancellable without penalty
or further payment and without more than 30 days' notice;
(v) all contracts and agreements relating to Indebtedness of
MS or any MS Subsidiary;
(vi) all contracts and agreements with any Governmental
Authority to which MS or any MS Subsidiary is a party;
(vii) all contracts and agreements that limit or purport to
limit the ability of MS or any MS Subsidiary to compete in any line of
business or with any Person or in any geographic area or during any
period of time;
(viii) all contracts and agreements between or among MS, any
MS Subsidiary and any Affiliate of MS or any MS Subsidiary;
(ix) all contracts and agreements providing for benefits under
any Plan; and
(x) all other contracts and agreements whether or not made in
the ordinary course of business, which are material to MS, any MS
Subsidiary or the conduct of the Business or the absence of which would
have a Material Adverse Effect.
For purposes of this Section 3.14 and Section 3.15, the term
"lease" shall include any and all leases, subleases, sale/leaseback agreements
or similar arrangements.
(b) Except as disclosed in Section 3.14(b) of the Disclosure
Schedules, each Material Contract: (i) is valid and binding on the respective
parties thereto and is in full force and
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effect and (ii) upon consummation of the transactions contemplated by this
Agreement or the New Stockholders Agreement, shall continue in full force and
effect without penalty or other material adverse consequence resulting from the
transactions contemplated hereby and thereby. Neither MS nor any MS Subsidiary
is in material breach of, or material default under, any Material Contract.
(c) Except as disclosed in Section 3.14(c) of the Disclosure
Schedules, to the knowledge of MS, no other party to any Material Contract is in
material breach thereof or material default thereunder.
(d) Except as disclosed in Section 3.14(d) of the Disclosure
Schedules, there is no contract, agreement or other arrangement granting any
Person any preferential right to purchase, other than in the ordinary course of
business consistent with past practice, any of the properties or assets of MS or
any MS Subsidiary.
SECTION 3.15. Real Property. (a) Section 3.15(a) of the
Disclosure Schedules lists: (i) the street address of each parcel of Owned Real
Property, (ii) the date on which each parcel of Owned Real Property was
acquired, (iii) the current owner of each such parcel of Owned Real Property,
(iv) information relating to the recordation of the deed pursuant to which each
such parcel of Owned Real Property was acquired and (v) the current use of each
such parcel of Owned Real Property.
(b) Section 3.15(b) of the Disclosure Schedules lists: (i) the
street address of each parcel of Leased Real Property, (ii) the identity of the
lessor, lessee and current occupant (if different from lessee) of each such
parcel of Leased Real Property, (iii) the term (referencing applicable renewal
periods) and fixed or basic rental payment terms of the leases (and any
subleases) pertaining to each such parcel of Leased Real Property and (iv) the
current use of each such parcel of Leased Real Property.
(c) Except as described in Section 3.15(c) of the Disclosure
Schedules, there is no violation of any Law relating to any of the Owned Real
Property that would reasonably be expected to have a Material Adverse Effect. MS
has made available to the Sellers (to the extent such copies are in MS' physical
possession) true and complete copies of each deed for each parcel of Owned Real
Property and, to the extent available, for each parcel of Leased Real Property
and all the title insurance policies, title reports, surveys, certificates of
occupancy, environmental reports and audits, appraisals and Permits relating to
the Real Property, the operations of MS or any MS Subsidiary thereon or any
other uses thereof. Subject to all applicable leases, either MS or a MS
Subsidiary, as the case may be, is in peaceful and undisturbed possession of
each parcel of Real Property and neither MS nor any MS Subsidiary has executed
and delivered any contractual restrictions that preclude or materially restrict
the ability to use the premises for the purposes for which they are currently
being used. Except as set forth in Section 3.15(c) of the Disclosure Schedules,
neither MS nor any MS Subsidiary has leased or subleased any parcel or any
portion of any parcel of Real Property to any other Person, nor has MS
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or any MS Subsidiary assigned its interest under any lease or sublease listed in
Section 3.15(b) of the Disclosure Schedules to any third party.
(d) MS has, or has caused to be, delivered to the Sellers true
and complete copies of all leases and subleases listed in Section 3.15(b) of the
Disclosure Schedules. With respect to each of such leases and subleases:
(i) such lease or sublease represents the entire agreement
between the respective landlord and tenant with respect to such
property; and
(ii) except as otherwise disclosed in Section 3.15(b) of the
Disclosure Schedules, with respect to each such lease or sublease: (A)
neither MS nor any MS Subsidiary has received any notice of
cancellation or termination under such lease or sublease and (B)
neither MS nor any MS Subsidiary has received any notice of a breach or
default under such lease or sublease, which breach or default has not
been cured.
(e) There are no condemnation proceedings or eminent domain
proceedings of any kind pending or, to the actual knowledge of MS (without
investigation), threatened against the Owned Real Property.
(f) To the best knowledge of MS, all improvements on the Real
Property constructed by or on behalf of MS or any MS Subsidiary were constructed
in material compliance with all applicable Laws (including, but not limited to,
any building, planning or zoning Laws) affecting such Real Property.
SECTION 3.16. Customers. Listed in Section 3.16 of the
Disclosure Schedules are the names and addresses of the ten most significant
customers (by revenue) of MS and the MS Subsidiaries for the twelve-month period
ended December 31, 1997, and the amount for which each such customer was
invoiced during such period. Except as disclosed in Section 3.16 of the
Disclosure Schedules, neither MS nor any MS Subsidiary has received any notice
that any significant customer of MS has ceased, or will cease, to use the
products, equipment, goods or services of MS or any MS Subsidiary, or has
substantially reduced, or will substantially reduce, the use of such products,
equipment, goods or services at any time.
SECTION 3.17. Suppliers. Listed in Section 3.17 of the
Disclosure Schedules are the names and addresses of each of the ten most
significant suppliers of raw materials, supplies, merchandise and other goods
for MS and the MS Subsidiaries for the twelve-month period ended December 31,
1997, and the amount for which each such supplier invoiced MS and the MS
Subsidiaries during such period. Except as disclosed in Section 3.17 of the
Disclosure Schedules, neither MS nor any MS Subsidiary has received any notice
that any such supplier will not sell raw materials, supplies, merchandise and
other goods to MS or any MS Subsidiary at any time after the
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Closing Date on terms and conditions substantially similar to those used in its
current sales to MS and the MS Subsidiaries, subject only to general and
customary price increases.
SECTION 3.18. Employee Benefit Matters. (a) Plans and Material
Documents. Section 3.18(a) of the Disclosure Schedules lists (i) all employee
benefit plans (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) and all bonus, stock option, stock
purchase, restricted stock, incentive, deferred compensation, retiree medical or
life insurance, supplemental retirement, pension or severance plans and other
welfare and benefit plans, programs or arrangements, and all employment,
termination, severance or other contracts or agreements, whether legally
enforceable or not, to which MS or any MS Subsidiary is a party, with respect to
which MS or any MS Subsidiary has any obligation or which are maintained,
contributed to or sponsored by MS or any MS Subsidiary for the benefit of any
current or former employee, officer or director of MS or any MS Subsidiary, and
(ii) any contracts, arrangements or understandings between the Seller or any of
its Affiliates and any employee of MS or of any MS Subsidiary, including,
without limitation, any contracts, arrangements or understandings relating to a
sale or merger of MS (collectively, the "Plans"). Each Plan is in writing and MS
has furnished the Sellers with a complete and accurate copy of each Plan and a
complete and accurate copy of each material document prepared in connection with
each such Plan including, without limitation, (A) a copy of each trust or other
funding arrangement, (B) each summary plan description and summary of material
modifications, (C) the most recently filed Internal Revenue Service ("IRS") Form
5500, (D) the most recently received IRS determination letter for each such
Plan, and (E) the most recently prepared actuarial report and financial
statement in connection with each such Plan. Except as may be required pursuant
to any collective bargaining agreement, neither MS nor any MS Subsidiary has any
express or implied commitment, whether legally enforceable or not, (i) to create
any other employee benefit plan, program or arrangement, (ii) to enter into any
contract or agreement to provide compensation or benefits to any individual or
(iii) to modify, change or terminate any Plan, other than with respect to a
modification, change or termination required by Law. Each of the following
representations regarding the Plans is true, other than as disclosed in Section
3.18 of the Disclosures Schedules attached hereto.
(b) Absence of Certain Types of Plans. None of the Plans is a
multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA)
(a "Multiemployer Plan") or a single employer pension plan (within the meaning
of Section 4001(a)(15) of ERISA) for which MS or any MS Subsidiary could incur
liability under Section 4063 or 4064 of ERISA (a "Multiple Employer Plan"). None
of the Plans obligates MS or any MS Subsidiary to pay separation, severance,
termination or similar-type benefits solely as a result of any transaction
contemplated by this Agreement or as a result of a "change in control", within
the meaning of such term under Section 280G of the Code, other than with respect
to the vesting of stock options which will vest as a result of the transactions
contemplated herein. None of the Plans provides for or promises retiree medical,
disability or life insurance benefits to any current or former employee, officer
or director of MS or any MS Subsidiary.
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(c) Compliance with Applicable Law. Each Plan has been
operated in all material respects in accordance with the requirements of all
applicable Law, including, without limitation, ERISA and the Code, and all
persons who participate in the operation of such Plans and, to the best
knowledge of MS, all Plan "fiduciaries" (within the meaning of Section 3(21) of
ERISA) have always acted in all material respects in accordance with the
provisions of all applicable Law, including, without limitation, ERISA and the
Code. MS and each MS Subsidiary has performed all material obligations required
to be performed by it under, is not in any respect in default under or in
violation of, and has no knowledge of any material default or violation by any
party to, any Plan. No legal action, suit or claim is pending or threatened with
respect to any Plan (other than claims for benefits in the ordinary course), no
audit or investigation of any Plan is underway by the IRS, the Department of
Labor or the Pension Benefit Guaranty Corporation and, to the best knowledge of
MS, no fact or event exists that could give rise to any such action, suit,
audit, investigation or claim.
(d) Qualification of Certain Plans. Each Plan which is
intended to be qualified under Section 401(a) of the Code or Section 401(k) of
the Code has received a favorable determination letter from the IRS that it is
so qualified and each trust established in connection with any Plan which is
intended to be exempt from federal income taxation under Section 501(a)
of the Code has received a determination letter from the IRS that it is so
exempt, and no fact or event has occurred to the best knowledge of MS since the
date of such determination letter from the IRS to adversely affect the qualified
status of any such Plan or the exempt status of any such trust. Each trust
maintained or contributed to by MS or any MS Subsidiary which is intended to be
qualified as a voluntary employees' beneficiary association and which is
intended to be exempt from federal income taxation under Section 501(c)(9) of
the Code has received a favorable determination letter from the IRS that it is
so qualified and so exempt, and no fact or event has occurred to the best
knowledge of MS since the date of such determination by the IRS to adversely
affect such qualified or exempt status.
(e) Absence of Certain Liabilities and Events. There has been,
to the best knowledge of MS, no prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) with respect to any Plan.
Neither MS nor any MS Subsidiary has incurred any material liability for any
penalty or tax arising under Section 4971, 4972, 4980, 4980B or 6652 of the Code
or any material liability under Section 502 of ERISA, and no fact or event
exists which could give rise to any such liability. Neither MS nor any MS
Subsidiary has incurred any material liability under, arising out of or by
operation of Title IV of ERISA (other than liability for premiums to the Pension
Benefit Guaranty Corporation arising in the ordinary course), including, without
limitation, any such liability in connection with (i) the termination or
reorganization of any employee benefit plan subject to Title IV of ERISA or (ii)
the withdrawal from any Multiemployer Plan or Multiple Employer Plan, and no
fact or event exists which could give rise to any such liability. No Plan had an
accumulated funding deficiency (within the meaning of Section 302 of ERISA or
Section 412 of the Code), whether or not waived, as of the most recently ended
plan year of such Plan. None of the assets of MS or any MS Subsidiary is the
subject of any lien arising under Section 302(f) of ERISA or Section 412(n) of
the Code; neither MS nor any MS Subsidiary has been required to post any
security under Section 307 of ERISA or Section 401(a)(29) of the Code; and no
fact or event
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exists which could give rise to any such lien or requirement to post any such
security. Except as set forth in Section 3.18(e) of the Disclosure Schedules,
the consummation of the transactions contemplated by the Agreement will not
(either alone or upon the occurrence of any additional or subsequent events)
constitute an event under any Plan, trust, or loan that will or may result in
any payment (whether of severance pay or otherwise), acceleration, forgiveness
of indebtedness, vesting, distribution, increase in benefits or obligation to
fund benefits with respect to any employee of MS or any MS Subsidiary.
(f) Plan Contributions and Funding. To the best knowledge of
MS, all contributions, premiums or payments required to be made with respect to
any Plan have been made on or before their due dates. All such contributions
have been fully deducted for income tax purposes and no such deduction has been
challenged or disallowed by any government entity and, to the best knowledge of
MS, no fact or event exists which could give rise to any such challenge or
disallowance. With respect to each Plan which is an "employee welfare benefit
plan" within the meaning of Section 3(1) of ERISA, all material claims incurred
(including claims incurred but not reported) by employees thereunder for which
MS or any MS Subsidiary is, or will become, liable are (i) insured pursuant to a
contract of insurance whereby the insurance company bears any risk of loss with
respect to such claim, (ii) covered under a contract with a health maintenance
organization (an "HMO") pursuant to which the HMO bears the liability for such
claims; or (iii) reflected as a liability or accrued for in Section 3.18(f) of
the Disclosure Schedules.
(g) WARN Act. To the extent presently applicable, MS and the
MS Subsidiaries are in material compliance with the requirements of the Workers
Adjustment and Retraining Notification Act ("WARN").
SECTION 3.19. Labor Matters. Except as set forth in Section
3.19 of the Disclosure Schedules,
(a) neither MS nor any MS Subsidiary is a party to any
collective bargaining agreement or other labor union contract
applicable to persons employed by MS or any MS Subsidiary and, to the
best knowledge of MS, currently there are no organizational campaigns,
petitions or other unionization activities seeking recognition of a
collective bargaining unit which could affect MS or any MS Subsidiary;
(b) there are no controversies, strikes, slowdowns or work
stoppages pending or, to the knowledge of MS, threatened between MS or
any MS Subsidiary and any of their respective employees, and neither MS
nor any MS Subsidiary has experienced any such controversy, strike,
slowdown or work stoppage within the past three years;
(c) neither MS nor any MS Subsidiary has breached or otherwise
failed to comply with the provisions of any collective bargaining or
union contract and there are no grievances
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outstanding against MS or any MS Subsidiary under any such agreement or
contract which could have a Material Adverse Effect;
(d) there are no unfair labor practice complaints pending or,
to the knowledge of MS, threatened, against MS or any MS Subsidiary
before the National Labor Relations Board or any other Governmental
Authority or any current union representation questions involving
employees of MS or any MS Subsidiary which could have a Material
Adverse Effect;
(e) MS and each MS Subsidiary is currently in compliance with
all applicable Laws relating to the employment of labor, including
those related to wages, hours, collective bargaining and the payment
and withholding of taxes and other sums as required by the appropriate
Governmental Authority and has withheld and paid to the appropriate
Governmental Authority or is holding for payment not yet due to such
Governmental Authority all amounts required to be withheld from
employees of MS or any MS Subsidiary and is not liable for any arrears
of wages, taxes, penalties or other sums for failure to comply with any
of the foregoing;
(f) MS and each MS Subsidiary has paid in full to all their
respective employees or adequately accrued for in accordance with U.S.
GAAP all wages, salaries, commissions, bonuses, benefits and other
compensation due to or on behalf of such employees;
(g) to the knowledge of MS, there is no claim with respect to
payment of wages, salary or overtime pay that has been asserted or is
now pending or, to the best knowledge of MS, threatened before any
Governmental Authority with respect to any Persons currently or
formerly employed by MS or any MS Subsidiary;
(h) neither MS nor any MS Subsidiary is a party to, or
otherwise bound by, any consent decree with any Governmental Authority
relating to employees or employment practices;
(i) there is no charge or proceeding with respect to a
violation of any occupational safety or health standards that has been
asserted or is now pending or, to the best knowledge of MS, threatened
with respect to MS or any MS Subsidiary; and
(j) to the knowledge of MS, there is no charge of
discrimination in employment or employment practices, for any reason,
including, without limitation, age, gender, race, religion or other
legally protected category, which has been asserted or is now pending
or, to the best knowledge of MS, threatened before the United States
Equal Employment Opportunity Commission, or any other Governmental
Authority in any jurisdiction in which MS or any MS Subsidiary has
employed or currently employs any Person which would reasonably be
expected to have a Material Adverse Effect.
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SECTION 3.20. Key Employees. Section 3.20 of the Disclosure
Schedules lists the name, place of employment, the current annual salary rates,
bonuses, deferred or contingent compensation, pension, accrued vacation, "golden
parachute" and other like benefits paid or payable (in cash or otherwise) in
1997, the date of employment and a description of position and job function of
each current salaried employee, officer, director, consultant or agent of MS or
any MS Subsidiary whose annual compensation exceeded $100,000.
SECTION 3.21. Taxes. (a) (i) All returns and reports in
respect of Taxes required to be filed with respect to MS and each of its
Subsidiaries have been timely filed; (ii) all Taxes owed by MS or any of its
Subsidiaries, whether or not shown on such returns and reports due have been
timely paid; (iii) all such returns and reports are true, correct and complete
in all material respects; (iv) no adjustment relating to such returns and
reports has been proposed formally or informally by any Tax authority; (v) there
are no pending actions or proceedings for the assessment or collection of Taxes
against MS or any MS Subsidiary; (vi) there are no Tax liens on any assets of MS
or any MS Subsidiary; (vii) neither MS nor any of its Subsidiaries is a party to
any agreements or arrangements that would result, separately or in the aggregate
in the payment of any "excess parachute payments" within the meaning of Section
280G of the Code; (viii) no acceleration of the vesting schedule for any
property that is substantially unvested within the meaning of the regulations
under Section 83 of the Code will occur in connection with the transactions
contemplated by this Agreement; (ix) neither MS nor any MS Subsidiary has been a
United States real property holding corporation within the meaning of Section
897(c)(2) of the Code; and (x) neither MS nor any MS Subsidiary is subject to
any accumulated earnings tax penalty or personal holding company tax.
(b) Except as disclosed in reasonable specificity in Section
3.21(b) of the Disclosure Schedules: (i) there are no outstanding waivers or
agreements extending the statute of limitations for any period with respect to
any Tax to which MS or any of its Subsidiaries may be subject; (ii) neither MS
nor any MS Subsidiary presently has any income occurring in, or a change in
accounting method made for, a period ending on or prior to the Closing Date
which resulted from a deferred reporting of income from such transaction, or
from such change in accounting method; (iii) there are no proposed reassessments
of any property owned by MS or any MS Subsidiary or other proposals that could
increase the amount of any Tax to which MS or any MS Subsidiary would be
subject; and (iv) neither MS nor any MS Subsidiary is a party to any tax
sharing, indemnification or allocation agreement.
(c) The balance sheet of MS provides for reserves and
allowances adequate in amount to satisfy all Liabilities for Taxes relating to
MS and the MS Subsidiaries for prior Tax periods (including partial Tax periods
through the date hereof).
SECTION 3.22. Insurance. MS and the MS Subsidiaries have
obtained and maintained in full force and effect insurance with responsible and
reputable insurance companies or associations in such amounts, on such terms and
covering such risks, including fire and other risks insured against by extended
coverage, as is reasonably prudent, and each has maintained in full force and
effect public liability insurance, insurance against claims for personal injury
or death or property damage occurring
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in connection with the activities of MS or the MS Subsidiaries or any properties
owned, occupied or controlled by MS or the MS Subsidiaries, in such amount as
reasonably deemed necessary by MS.
SECTION 3.23. Full Disclosure. MS is not aware of any facts
pertaining to MS, any MS Subsidiary or the Business that would render any of the
representations and warranties of MS contained in this Article III inaccurate in
any material respect.
SECTION 3.24. Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of MS.
SECTION 3.25. Stockholder Approvals. No other approval of the
stockholders of MS is required for the completion of the transactions
contemplated herein, in the New Stockholders Agreement and in the New
Registration Rights Agreement than the approval of: (i) this Agreement; (ii) the
New Stockholders Agreement; (iii) the Amended and Restated Certificate of
Incorporation of MS, substantially in the form attached hereto (together, the
"MS Stockholder Approvals").
SECTION 3.26. State Takeover Statute. The Board of Directors
of MS has taken all actions necessary under the Delaware General Corporation Law
(the "DGCL"), including approving the issuance of new shares of MS and the other
transactions contemplated in this Agreement to ensure that the restrictions on
business combinations set forth in Section 203 of the DGCL do not or will not
apply to the issuance of new shares of MS or any of the transactions
contemplated by this Agreement.
ARTICLE IV-A
REPRESENTATIONS AND WARRANTIES OF CIBA
As an inducement to MS to enter into this Agreement, CIBA
hereby represents and warrants to MS as follows:
SECTION 4.A.01. Organization of CIBA. CIBA is a French societe
anonyme duly organized, validly existing and in good standing under the laws of
France and has all necessary power and authority to enter into this Agreement to
carry out its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by CIBA, the
performance by CIBA of its obligations hereunder and the consummation by CIBA of
the transactions contemplated hereby have been duly authorized by all requisite
action on the part of CIBA. This Agreement has been duly executed and delivered
by CIBA and (assuming due authorization, execution and delivery by all other
parties hereto) this Agreement constitutes a legal, valid and binding obligation
of CIBA enforceable against CIBA in accordance with its terms. All corporate
actions taken by CIBA
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have been duly authorized, and CIBA has not taken any action that in any
material respect conflicts with, constitutes a default under, or results in a
violation of any provision of its statuts.
SECTION 4.A.02. No Conflict. Assuming that all consents,
approvals, authorizations and other actions described in Section 4.A.03 have
been obtained and all filings and notifications listed in Section 4.A.03 have
been made, the execution, delivery and performance of this Agreement by CIBA do
not and will not (a) violate, conflict with or result in the breach of any
provision of the charter or by-laws (or similar organizational documents) of
CIBA, (b) conflict with or violate any Law or Governmental Order applicable to
CIBA, or (c) conflict with, result in any breach of, constitute a default (or
event which with the giving of notice or lapse of time, or both, would become a
default) under any contract to which CIBA is a party which would have a Material
Adverse Effect on the ability of CIBA to consummate the transactions
contemplated by this Agreement or the New Stockholders Agreement or the New
Registration Rights Agreement.
SECTION 4.A.03. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement by CIBA do not and will
not require any consent, approval, authorization or other order of, action by,
filing with or notification to any Governmental Authority.
SECTION 4.A.04. Capital Stock of CIBA. (a) The share capital
of CIBA consists of one class of 19,100 shares, each share having a par value of
FF 100. The CIBA Shares constitute 100% of the issued and outstanding capital
stock of CIBA. The CIBA Shares have been duly authorized and validly issued and
are fully paid and non-assessable. CIBA has no other shares or securities of any
kind outstanding. None of the issued and outstanding shares of CIBA was issued
in violation of any preemptive rights. There are no options, warrants,
convertible securities or other rights, agreements, arrangements or commitments
of any character relating to the capital stock of CIBA or obligating CIBA to
issue or sell any shares of capital stock of, or any other interest in, CIBA.
There are no outstanding contractual obligations of CIBA to repurchase, redeem
or otherwise acquire any shares of CIBA or to provide funds to, or make any
investment (in the form of a loan, capital contribution or otherwise) in, any
other Person. The outstanding shares of CIBA referred to in this section are
free and clear of all Encumbrances.
(b) The stock register of CIBA accurately records: (i) the
name and address of each Person owning shares of capital stock of CIBA and (ii)
the certificate number of each certificate evidencing shares of capital stock
issued by CIBA, the number of shares evidenced by each such certificate, the
date of issuance thereof and, in the case of cancellation, the date of
cancellation.
SECTION 4.A.05. Ownership of the CIBA Shares. (a) Section
4.A.05(a) of the Disclosure Schedules sets out the capital ownership of CIBA.
(b) Upon consummation of the transactions contemplated by this
Agreement, MS will own all the issued and outstanding capital stock of CIBA.
There are no voting trusts, stockholders
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agreements, proxies or other agreements or undertakings in effect with respect
to the voting or transfer of the CIBA Shares.
SECTION 4.A.06. Financial Information, Books and Records. (a)
True and complete copies of the CIBA Reference Balance Sheet have been delivered
to MS by CIBA and are attached hereto under Section 4.A.06 of the Disclosure
Schedules. The CIBA Reference Balance Sheet (i) was prepared in accordance with
the books of account and other financial records of CIBA, (ii) present fairly
the financial condition and results of operations of CIBA as of the date thereof
or for the period covered thereby, (iii) has been prepared in accordance with
French GAAP applied on a basis consistent with the past practices of CIBA and
(iv) include all adjustments (consisting only of normal recurring accruals) that
are necessary for a fair presentation of the financial condition of CIBA and the
results of the operations of CIBA as of the dates thereof or for the periods
covered thereby.
(b) The books of account and other financial records of CIBA:
(i) reflect all items of income and expense and all assets and Liabilities
required to be reflected therein in accordance with French GAAP applied on a
basis consistent with the past practices of CIBA, (ii) are in all material
respects complete and correct, and do not contain or reflect any material
inaccuracies or discrepancies and (iii) have been maintained in accordance with
good business and accounting practices.
SECTION 4.A.07. No Undisclosed Liabilities. There are no
Liabilities of CIBA, other than Liabilities (i) reflected or reserved against on
the CIBA Reference Balance Sheet, or (ii) incurred since the date of the CIBA
Reference Balance Sheet in the ordinary course of the business, consistent with
the past practice, of CIBA, and which do not and could not have a Material
Adverse Effect. Reserves are reflected on the CIBA Reference Balance Sheet
against all Liabilities of CIBA in amounts that have been established on a basis
consistent with the past practices of CIBA and in accordance with French GAAP.
SECTION 4.A.08. Conduct in the Ordinary Course; Absence of
Certain Changes, Events and Conditions. Since the date of the CIBA Reference
Balance Sheet, except as disclosed in Section 4.A.08 of the Disclosure
Schedules, the business of CIBA has been conducted in the ordinary course and
consistent with past practice. As amplification and not limitation of the
foregoing, except as disclosed in Section 4.A.08 of the Disclosure Schedules,
since the date of the CIBA Reference Balance Sheet, CIBA has not:
(i) permitted or allowed any of the assets or properties
(whether tangible or intangible) of CIBA to be subjected to any
Encumbrance, other than Permitted Encumbrances and Encumbrances that
will be released at or prior to the Closing;
(ii) except in the ordinary course of business consistent with
past practice, discharged or otherwise obtained the release of any
Encumbrance or paid or otherwise discharged any Liability, other than
current liabilities reflected on the CIBA Reference Balance
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Sheet and current liabilities incurred in the ordinary course of
business consistent with past practice since the date of the CIBA
Reference Balance Sheet;
(iii) made any loan to, guaranteed any Indebtedness of or
otherwise incurred any Indebtedness on behalf of any Person;
(iv) redeemed any of the capital stock or declared, made or
paid any dividends or distributions (whether in cash, securities or
other property) to the holders of capital stock of CIBA or otherwise,
other than dividends, distributions and redemptions declared, made or
paid by CIBA.
(v) disposed of any properties or assets;
(vi) issued or sold any capital stock, notes, bonds or other
securities, or any option, warrant or other right to acquire the same,
of, or any other interest in, CIBA;
(vii) entered into any agreement, arrangement or transaction
with any of its directors, officers, employees or shareholders (or with
any relative, beneficiary, spouse or Affiliate of such Person);
(viii) made any change in any method of accounting or
accounting practice or policy used by CIBA, other than such changes
required by French GAAP or disclosed in Section 4.A.08 of the
Disclosure Schedules;
(ix) incurred any Indebtedness, in excess of $50,000
individually or $250,000 in the aggregate;
(x) amended or restated the Certificate of Incorporation or
the By-laws (or other organizational documents) of CIBA;
(xi) suffered any casualty loss or damage with respect to any
of their assets which in the aggregate have a replacement cost of more
than $50,000, whether or not such loss or damage shall have been
covered by insurance;
(xii) suffered any Material Adverse Effect; or
(xiii) agreed, whether in writing or otherwise, to take any of
the actions specified in this Section 4.A.08 or granted any options to
purchase, rights of first refusal, rights of first offer or any other
similar rights or commitments with respect to any of the actions
specified in this Section 4.A.08, except as expressly contemplated by
this Agreement.
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SECTION 4.A.09. Litigation. There are no Actions by or against
CIBA or any of its assets or properties, pending before any Governmental
Authority (or, to the best knowledge of CIBA after due inquiry, threatened to be
brought by or before any Governmental Authority).
SECTION 4.A.10. Compliance with Laws. CIBA has conducted its
business in accordance with all Laws and Governmental Orders applicable to it or
any of its assets or properties, and to the best of its knowledge CIBA is not in
violation of any such Law or Governmental Order.
SECTION 4.A.11. Absence of Activities. CIBA has no activities
except for holding shares in BDHI.
SECTION 4.A.12. Subsidiaries. CIBA has no other subsidiary
than BDHI.
SECTION 4.A.13. Corporate Books and Records. The minute books
of CIBA contain accurate records of all meetings and accurately reflect all
other actions taken by the stockholders, Boards of Directors and all committees
of the Boards of Directors of CIBA.
SECTION 4.A.14. Brokers. No broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or commission from
CIBA in connection with this Agreement and the transactions contemplated
therein.
SECTION 4.A.15. Taxes. (a) (i) All returns and reports in
respect of Taxes required to be filed with respect to CIBA have been timely
filed; (ii) all Taxes owed by CIBA whether or not shown on such returns and
reports or otherwise due have been timely paid; (iii) all such returns and
reports are true, correct and complete in all material respects; (iv) no
adjustment relating to such returns and reports has been proposed formally or
informally by any Tax authority; (v) there are no pending actions or proceedings
for the assessment or collection of Taxes against CIBA; (vi) there are no Tax
liens on any assets of CIBA; and (vii) CIBA is not subject to any accumulated
earnings tax penalty or personal holding company tax.
(b) Except as disclosed in reasonable specificity in Section
4.A.15(b) of the Disclosure Schedules: (i) there are no outstanding waivers or
agreements extending the statute of limitations for any period with respect to
any Tax to which CIBA may be subject; (ii) CIBA presently does not have any
income occurring in, or a change in accounting method made for, a period ending
on or prior to the Closing Date which resulted from a deferred reporting of
income from such transaction, or from such change in accounting method; (iii)
there are no proposed reassessments of any property owned by CIBA or other
proposals that could increase the amount of any Tax to which CIBA would be
subject; and (iv) CIBA is not a party to any tax sharing, indemnification or
allocation agreement.
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(c) The CIBA Reference Balance Sheet provides for reserves and
allowances adequate in amount to satisfy all Liabilities for Taxes relating to
CIBA for prior tax periods (including partial tax periods through the date
hereof).
(d) CIBA is not, and at no time has been, engaged in the
conduct of a trade or business within the United States within the meaning of
Section 864(b) and Section 882(a) of the Code, or treated as or considered to be
so engaged under Section 882(d) or Section 897 of the Code or otherwise.
SECTION 4.A.16. Full Disclosure. CIBA is not aware of any
facts pertaining to CIBA that would render any of the representations and
warranties of MS contained in this Article IV-A inaccurate in any material
respect.
SECTION 4.A.17. Title to the Shares Owned by CIBA in BDHI.
CIBA owns its shares of BDHI free and clear of any and all Encumbrances.
SECTION 4.A.18. Stockholders Approval. No approval of the
Board of Directors or the stockholders of CIBA is required for the completion of
the transactions contemplated herein, in the New Stockholders Agreement or in
the New Registration Rights Agreement, except for the approval of MS as new
shareholder of CIBA by the Board of Directors of CIBA.
ARTICLE IV-B
REPRESENTATIONS AND WARRANTIES OF THE BARGE FAMILY AND CEFI
As an inducement to MS to enter into this Agreement, each of
the members of the Barge Family and CEFI hereby represents and warrants for
itself only, but not for the others, to MS as follows:
SECTION 4.B.01. Authority and Qualification of the Barge
Family and CEFI. CEFI is a Luxembourg societe de participations financiere, duly
organised and validly existing under the laws of Luxembourg, and it, along with
each of the members of the Barge Family, has all necessary power and authority
to enter into this Agreement, and CEFI has all necessary power and authority to
enter into the New Stockholders Agreement and the New Registration Rights
Agreement, to carry out their respective obligations hereunder and thereunder
and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement, the New Stockholders Agreement and the
New Registration Rights Agreement by CEFI and, with respect to this Agreement
only, the Barge Family, the performance by the Barge Family and CEFI of their
obligations hereunder and thereunder and the consummation by the Barge Family
and CEFI of the transactions contemplated hereby and thereby have been duly
authorized by all requisite action on the part of the Barge Family and CEFI.
This Agreement has been, and upon their execution the New
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Stockholders Agreement and the New Registration Rights Agreement shall have
been, duly executed and delivered by each of the members of the Barge Family and
CEFI, as applicable, and (assuming due authorization, execution and delivery by
all other parties hereto) this Agreement constitutes, and upon their execution
the New Stockholders Agreement and the New Registration Rights Agreement shall
constitute, legal, valid and binding obligations of each of the members of the
Barge Family and CEFI, as applicable, enforceable against each of the members of
the Barge Family and CEFI, as applicable, in accordance with their terms. All
corporate actions taken by the Barge Family and CEFI have been duly authorized,
and CEFI has not taken any action that in any material respect conflicts with,
constitutes a default under or results in a violation of any provision of its
statuts.
SECTION 4.B.02. No Conflict. The execution, delivery and
performance of this Agreement by the Barge Family and CEFI and of the New
Stockholders Agreement and the New Registration Rights Agreement by CEFI do not
and will not (a) violate, conflict with or result in the breach of any provision
of the charter or by-laws (or similar organizational documents) of CEFI, (b)
conflict with or violate any Law or Governmental Order applicable to CEFI or any
member of the Barge Family, or (c) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under any contract to which any member of the
Barge Family or CEFI is a party which would have a Material Adverse Effect on
the ability of any member of the Barge Family or CEFI to consummate the
transactions contemplated by this Agreement or the New Stockholders Agreement or
the New Registration Rights Agreement, as applicable.
SECTION 4.B.03. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement by the Barge Family and
CEFI and of the New Stockholders Agreement and the New Registration Rights
Agreement by CEFI by the members of the Barge Family or CEFI do not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to any Governmental Authority.
SECTION 4.B.04. Title to the Shares Owned by the Barge Family
and CEFI in CIBA. Upon performance of this Agreement, the Barge Family and CEFI
will have transferred to MS good title to the shares of CIBA owned by the Barge
Family and CEFI, free and clear of any and all Encumbrances.
SECTION 4.B.05. Full Disclosure. Neither CEFI nor any member
of the Barge Family is aware of any facts pertaining to themselves that would
render any of their respective representations and warranties contained in this
Article IV-B inaccurate in any respect.
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SECTION 4.B.06. Brokers. No broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of any member of the Barge Family or CEFI.
SECTION 4.B.07. Stockholders Approval. No approval of the
Board of Directors or the stockholders of CEFI is required for the completion of
the transactions contemplated herein, in the New Stockholders Agreement or in
the New Registration Rights Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF EACH OF THE MEMBERS
OF THE DOMENECH FAMILY AND YACESE
As an inducement to MS to enter into this Agreement, each of
the members of the Domenech Family and YACESE hereby represents and warrants for
itself only, but not for the others, to MS as follows:
SECTION 5.01. Organization of YACESE, Authority and
Qualification of the Domenech Family and YACESE. YACESE is a French societe
anonyme duly organized, validly existing and in good standing under the laws of
France and, along with each of the members of the Domenech Family, has all
necessary power and authority to enter into this Agreement, has all necessary
power and authority to enter into the New Stockholders Agreement and the New
Registration Rights Agreement, to carry out their respective obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement by the Domenech Family
and YACESE and of the New Stockholders Agreement and the New Registration Rights
Agreement by YACESE, the performance by the Domenech Family and YACESE of their
obligations hereunder and thereunder and the consummation by the Domenech Family
and YACESE of the transactions contemplated hereby and thereby have been duly
authorized by all requisite action on the part of the Domenech Family and
YACESE. This Agreement has been, and upon their execution the New Stockholders
Agreement and the New Registration Rights Agreement shall have been, duly
executed and delivered by each of the members of the Domenech Family and YACESE,
as applicable, and (assuming due authorization, execution and delivery by all
other parties hereto) this Agreement constitutes, and upon their execution the
New Stockholders Agreement and the New Registration Rights Agreement shall
constitute, legal, valid and binding obligations of each of the members of the
Domenech Family and YACESE, as applicable, enforceable against each of the
members of the Domenech Family and YACESE, as applicable, in accordance with
their terms. All corporate actions taken by the Domenech Family and YACESE have
been duly
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authorized, and YACESE has not taken any action that in any material respect
conflicts with, constitutes a default under or results in a violation of any
provision of its statuts.
SECTION 5.02. No Conflict. The execution, delivery and
performance of this Agreement by each member of the Domenech Family and YACESE
and of the New Stockholders Agreement and the New Registration Rights Agreement
by YACESE do not and will not (a) violate, conflict with or result in the breach
of any provision of the charter or by-laws (or similar organizational documents)
of YACESE, (b) conflict with or violate any Law or Governmental Order applicable
to any member of the Domenech Family or YACESE, or (c) conflict with, result in
any breach of, constitute a default (or event which, with the giving of notice
or lapse of time, or both, would become a default) under any contract which any
member of the Domenech Family or YACESE is a party which would have a Material
Adverse Effect on the ability of any member of the Domenech Family or YACESE to
consummate the transactions contemplated by this Agreement, the New Stockholders
Agreement or the New , as applicable.
SECTION 5.03. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement by the Domenech Family and
YACESE and of the New Stockholders Agreement and the New by YACESE do not and
will not require any consent, approval, authorization or other order of, action
by, filing with or notification to any Governmental Authority.
SECTION 5.04. Title to the Shares Owned by the Domenech Family
and YACESE in BDHI. Upon performance of this Agreement, the Domenech Family and
YACESE will have transferred to MS good and valid title to their shares of BDHI
Common Stock, free and clear of any and all Encumbrances.
SECTION 5.05. Full Disclosure. Neither YACESE nor any member
of the Domenech Family and YACESE is aware of any facts pertaining to themselves
that would render any of their respective representations and warranties
contained in this Article V inaccurate in any material respect.
SECTION 5.06. Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of any member of the Domenech Family or YACESE.
SECTION 5.07. Stockholders Approval. No approval of the Board
of Directors or stockholders of YACESE is required for the completion of the
transactions contemplated herein, in the New Stockholders Agreement or in the
New Registration Rights Agreement.
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ARTICLE VI-A
REPRESENTATIONS AND WARRANTIES OF JRMH AND H.H.A.WAY
As an inducement to MS to enter into this Agreement, each of
JRMH and H.H.A.WAY hereby represents and warrants, for itself, but not for the
other, to MS as follows:
SECTION 6.A.01. Organization, Authority and Qualification of
JRMH and H.H.A.WAY. JRMH and H.H.A.WAY are, respectively, a French societe
civile and a French societe anonyme, and are duly organized, validly existing
and in good standing under the laws of France and have all necessary power and
authority to enter into this Agreement, and H.H.A. WAY has all necessary power
and authority to enter into the New Stockholders Agreement and the New
Registration Rights Agreement, to carry out their respective obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement by JRMH and H.H.A.WAY
and of the New Stockholders Agreement and the New Registration Rights Agreement
by H.H.A.WAY, the performance by JRMH and H.H.A.WAY of their obligations
hereunder and thereunder and the consummation by JRMH and H.H.A.WAY of the
transactions contemplated hereby and thereby have been duly authorized by all
requisite action on the part of JRMH and H.H.A.WAY. This Agreement has been, and
upon their execution the New Stockholders Agreement and the New Registration
Rights Agreement shall have been, duly executed and delivered by JRMH and
H.H.A.WAY and (assuming due authorization, execution and delivery by all other
parties hereto and thereto) this Agreement constitutes, and upon their execution
the New Stockholders Agreement and the New Registration Rights Agreement shall
constitute, legal, valid and binding obligations of JRMH and H.H.A.WAY
enforceable against JRMH and H.H.A.WAY in accordance with their terms All
corporate actions taken by JRMH and H.H.A.WAY have been duly authorized, and
JRMH and H.H.A.WAY have not taken any action that in any material respect
conflicts with, constitutes a default under or results in a violation of any
provision of their statuts.
SECTION 6.A.02. No Conflict. The execution, delivery and
performance of this Agreement by JRMH and H.H.A.WAY and of the New Stockholders
Agreement and the New Registration Rights Agreement by H.H.A.WAY do not and will
not (a) violate, conflict with or result in the breach of any provision of the
charter or by-laws (or similar organizational documents) of JRMH or H.H.A.WAY,
(b) conflict with or violate any Law or Governmental Order applicable to JRMH or
H.H.A.WAY, or (c) conflict with, result in any breach of, constitute a default
(or event which with the giving of notice or lapse of time, or both, would
become a default) under any contract to which JRMH or H.H.A.WAY is a party which
would have a Material Adverse Effect on the ability of JRMH or H.H.A.WAY to
consummate the transactions contemplated by this Agreement, the New Stockholders
Agreement or the New .
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SECTION 6.A.03. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement by JRMH and H.H.A.WAY and
of the New Stockholders Agreement and the New by H.H.A.WAY do not and will not
require any consent, approval, authorization or other order of, action by,
filing with or notification to any Governmental Authority.
SECTION 6.A.04. Title to the Shares Owned by JRMH and
H.H.A.WAY in BDHI. Upon performance of this Agreement, JRMH and H.H.A.WAY will
have transferred to MS good and valid title to their shares of BDHI Common
Stock, as indicated in Exhibit 4, free and clear of any and all Encumbrances.
SECTION 6.A.05. Full Disclosure. Neither JRMH nor H.H.A.WAY is
aware of any facts pertaining to themselves that would render any of their
respective representations and warranties contained in this Article VI-A
inaccurate in any material respect.
SECTION 6.A.06. Brokers. No broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or commission in
connection with this Agreement or the transactions contemplated herein from
either JRMH or H.H.A. WAY.
SECTION 6.A07. Stockholders Approval. No approval of the
members of JRMH or the Board of Directors or stockholders of H.H.A.WAY is
required for the completion of the transactions contemplated herein, in the New
Stockholders Agreement or in the New Registration Rights Agreement.
ARTICLE VI-B
REPRESENTATIONS AND WARRANTIES OF BDHI
As an inducement to MS to enter into this Agreement, BDHI
hereby represents and warrants to MS as follows:
SECTION 6.B.01. Organization, Authority and Qualification of
BDHI. BDHI is a French societe anonyme duly organized, validly existing and in
good standing under the laws of France and has all necessary power and authority
to enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by BDHI, the performance by BDHI of its obligations hereunder and
the consummation by BDHI of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of BDHI. This Agreement has been
duly executed and delivered by BDHI and (assuming due authorization, execution
and delivery by all other parties hereto) this Agreement constitutes a legal,
valid and binding obligation of BDHI enforceable against BDHI in accordance with
its terms. All corporate actions taken by BDHI have been duly authorized, and
BDHI has not taken
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any action that in any material respect conflicts with, constitutes a default
under or results in a violation of any provision of its statuts.
SECTION 6.B.02. Capital Stock of BDHI; Ownership of the BDHI
Shares. (a) The authorized capital stock of BDHI consists of 35,000 shares of
Common Stock, par value FF 100 per share. The BDHI Shares, together with the
shares of BDHI held by CIBA, constitute 100% of the issued and outstanding
shares of BDHI. The BDHI Shares have been duly authorized and validly issued and
are fully paid and non-assessable. BDHI has no other shares or securities of any
kind outstanding.
None of the issued and outstanding shares of BDHI was issued
in violation of any preemptive rights. Except for the stockholders agreement
dated March 1, 1995, among BDHI and its current stockholders (the "BDHI
Stockholders Agreement"), there are no options, warrants, convertible securities
or other rights, agreements, arrangements or commitments of any character
relating to the capital stock of BDHI or obligating BDHI to issue or sell any
shares of capital stock of, or any other interest in, BDHI. There are no
outstanding contractual obligations of BDHI to repurchase, redeem or otherwise
acquire any shares of BDHI or to provide funds to, or make any investment (in
the form of a loan, capital contribution or otherwise) in, any other Person. The
outstanding shares of BDHI referred to in this section constitute all the issued
and outstanding capital stock of BDHI and are owned of record and beneficially
solely by the Persons set forth in Section 6.B.02(a) of the Disclosure Schedules
free and clear of all Encumbrances.
(b) The stock register of BDHI accurately records: (i) the
name and address of each Person owning shares of capital stock of BDHI and (ii)
the certificate number of each certificate evidencing shares of capital stock
issued by BDHI, the number of shares evidenced by each such certificate, the
date of issuance thereof and, in the case of cancellation, the date of
cancellation.
SECTION 6.B.03. No Conflict. Assuming that all consents,
approvals, authorizations and other actions described in Section 6.B.03 of the
Disclosure Schedules, have been obtained and all filings and notifications
listed in Section 6.B.03 of the Disclosure Schedules, have been made, the
execution, delivery and performance of this Agreement by BDHI do not and will
not (a) violate, conflict with or result in the breach of any provision of the
charter or by-laws (or similar organizational documents) of BDHI, (b) conflict
with or violate any Law or Governmental Order applicable to BDHI, or (c)
conflict with, result in any breach of, constitute a default (or event which,
with the giving of notice or lapse of time, or both, would become a default)
under, require any consent under or give to others any rights of termination,
amendment, acceleration, suspension, revocation or cancellation of, or result in
the creation of any Encumbrance on any of the shares or on any of the assets or
properties of BDHI pursuant to, any note, bond, mortgage or indenture, contract,
agreement, lease, sublease, license, permit, franchise or other .instrument or
arrangement to which BDHI is a party or by which any of the shares or any of
such assets or properties is bound or affected.
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SECTION 6.B.04. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement and the New Stockholders
Agreement by BDHI do not and will not require any consent, approval,
authorization or other order of, action by, filing with or notification to any
Governmental Authority.
SECTION 6.B.05. Subsidiaries. BDHI has no other subsidiary
than SOFEDIT.
SECTION 6.B.06. Corporate Books and Records. The minute books
of BDHI contain accurate records of all meetings and accurately reflect all
other actions taken by the stockholders, Board of Directors and all committees
of the Board of Directors of BDHI. Complete and accurate copies of all such
minute books and of the stock register of BDHI have been provided by BDHI to MS.
SECTION 6.B.07. Financial Information, Books and Records. (a)
True and complete copies of BDHI Reference Balance Sheet have been delivered to
MS by BDHI or its financial advisor and are attached hereto under Section 6.B.07
of the Disclosure Schedules. The BDHI Reference Sheet (i) was prepared in
accordance with the books of account and other financial records of BDHI, (ii)
present fairly the financial condition and results of operations of BDHI as of
the date thereof or for the period covered thereby, (iii) has been prepared in
accordance with French GAAP applied on a basis consistent with the past
practices of BDHI and (iv) include all adjustments (consisting only of normal
recurring accruals) that are necessary for a fair presentation of the financial
condition of BDHI and the results of the operations of BDHI as of the date
thereof or for the period covered thereby.
(b) The books of account and other financial records of BDHI:
(i) reflect all items of income and expense and all assets and Liabilities
required to be reflected therein in accordance with French GAAP applied on a
basis consistent with the past practices of BDHI, (ii) are in all material
respects complete and correct, and do not contain or reflect any material
inaccuracies or discrepancies and (iii) have been maintained in accordance with
good business and accounting practices.
SECTION 6.B.08. No Undisclosed Liabilities. There are no
Liabilities of BDHI, other than Liabilities (i) reflected or reserved against on
the BDHI Reference Balance Sheet, or (ii) incurred since the date of the BDHI
Reference Balance Sheet in the ordinary course of the business, consistent with
the past practice, of BDHI, as applicable, and which do not and could not have a
Material Adverse Effect. Reserves are reflected on the BDHI Reference Balance
Sheet against all Liabilities of BDHI in amounts that have been established on a
basis consistent with the past practices of BDHI and in accordance with French
GAAP.
SECTION 6.B.09. Conduct in the Ordinary Course; Absence of
Certain Changes, Events and Conditions. Since the date of the BDHI Reference
Balance Sheet, the business of BDHI has been conducted in the ordinary course
and consistent with past practice. As amplification and not limitation of the
foregoing, except as disclosed in Section 6.B.09 of the Disclosure Schedules,
since the date of the BDHI Reference Balance Sheet, BDHI has not:
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(i) permitted or allowed any of the assets or properties
(whether tangible or intangible) of BDHI to be subjected to any
Encumbrance, other than Permitted Encumbrances and Encumbrances that
will be released at or prior to the Closing;
(ii) except in the ordinary course of business consistent
with past practice, discharged or otherwise obtained the release of
any Encumbrance or paid or otherwise discharged any Liability, other
than current liabilities reflected on the BDHI Reference Balance
Sheet and current liabilities incurred in the ordinary course of
business consistent with past practice since the date of the BDHI
Reference Balance Sheet;
(iii) made any loan to, guaranteed any Indebtedness of or
otherwise incurred any Indebtedness on behalf of any Person;
(iv) redeemed any of the capital stock or declared, made or
paid any dividends or distributions (whether in cash, securities or
other property) to the holders of capital stock of BDHI or otherwise,
other than dividends, distributions and redemptions declared, made or
paid by any of BDHI;
(v) disposed of any properties or assets;
(vi) issued or sold any capital stock, notes, bonds or other
securities, or any option, warrant or other right to acquire the same,
of, or any other interest in, BDHI;
(vii) entered into any agreement, arrangement or transaction
with any of its directors, officers, employees or shareholders (or with
any relative, beneficiary, spouse or Affiliate of such Person);
(viii) made any change in any method of accounting or
accounting practice or policy used by BDHI, other than such changes
required by French GAAP or disclosed in Section 6.B.09 of the
Disclosure Schedules;
(ix) incurred any Indebtedness, in excess of $50,000
individually or $250,000 in the aggregate;
(x) amended or restated the Certificate of Incorporation or
the By-laws (or other organizational documents) of BDHI;
(xi) suffered any casualty loss or damage with respect to
any of their assets which in the aggregate have a replacement cost of
more than $50,000, whether or not such loss or damage shall have
been covered by insurance;
(xii) suffered any Material Adverse Effect; or
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(xiii) agreed, whether in writing or otherwise, to take any of
the actions specified in this Section 6.B.09 or granted any options to
purchase, rights of first refusal, rights of first offer or any other
similar rights or commitments with respect to any of the actions
specified in this Section 6.B.09, except as expressly contemplated by
this Agreement.
SECTION 6.B.10. Litigation. There are no Actions by or against
BDHI, or affecting any of their assets, pending before any Governmental
Authority (or, to the best knowledge of BDHI after due inquiry, threatened to be
brought by or before any Governmental Authority).
SECTION 6.B.11. Compliance with Laws. BDHI has conducted its
Business in accordance with all Laws and Governmental Orders applicable to it or
any of their respective assets or properties, and BDHI is not in violation of
any such Law or Governmental Order.
SECTION 6.B.12. Brokers. No broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or commission from
BDHI in connection with this Agreement and the transactions contemplated
therein.
SECTION 6.B.13. SOFEDIT Shares. BDHI owns the SOFEDIT Shares
subject to the pledges disclosed in Section 6.B.13 of the Disclosure Schedules.
SECTION 6.B.14. Taxes. (a) (i) All returns and reports in
respect of Taxes required to be filed with respect to BDHI have been timely
filed; (ii) all Taxes owed by BDHI whether or not shown on such returns and
reports have been timely paid; (iii) all such returns and reports are true,
correct and complete in all material respects; (iv) no adjustment relating to
such returns and reports has been proposed formally or informally by any Tax
authority; (v) there are no pending actions or proceedings for the assessment or
collection of Taxes against BDHI; (vi) there are no Tax liens on any assets of
BDHI; and (vii) BDHI is not subject to any accumulated earnings tax penalty or
personal holding company tax.
(b) Except as disclosed in reasonable specificity in Section
6.B.14(b) of the Disclosure Schedules: (i) there are no outstanding waivers or
agreements extending the statute of limitations for any period with respect to
any Tax to which BDHI may be subject; (ii) BDHI presently does not have any
income occurring in, or a change in accounting method made for, a period ending
on or prior to the Closing Date which resulted from a deferred reporting of
income from such transaction, or from such change in accounting method; (iii)
there are no proposed reassessments of any property owned by BDHI or other
proposals that could increase the amount of any Tax to which BDHI would be
subject; and (iv) BDHI is not a party to any tax sharing, indemnification or
allocation agreement.
(c) The BDHI Reference Balance Sheet provides for reserves and
allowances adequate in amount to satisfy all Liabilities for Taxes relating to
BDHI for prior Tax periods (including partial Tax periods through the date
hereof).
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(d) BDHI is not, and at no time has been, engaged in the
conduct of a trade or business within the United States within the meaning of
Section 864(b) and Section 882(a) of the Code, or treated as or considered to be
so engaged under Section 882(d) or Section 897 of the Code or otherwise.
SECTION 6.B.15. Full Disclosure. BDHI is not aware of any
facts pertaining to BDHI that would render any of the representations and
warranties of BDHI contained in this Article VI-B inaccurate in any material
respect.
SECTION 6.B.16. Stockholders Approval. No approval of the
Board of Directors or stockholders of BDHI is required for the completion of the
transactions contemplated herein, in the New Stockholders Agreement or in the
New , except for the approval of MS as new shareholder of BDHI by the Board of
Directors of BDHI
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF
THE SOFEDIT FINANCIAL SHAREHOLDERS
As an inducement to MS to enter into this Agreement, each of
the SOFEDIT Financial Shareholders hereby represents and warrants to MS as
follows, provided that, none of the representations or warranties under this
article VII shall be construed as a representation or a warranty on either
SOFEDIT, any SOFEDIT Subsidiary, or on any party hereto other than itself:
SECTION 7.01. Organization, Authority and Qualification of the
SOFEDIT Financial Shareholders. Each of the SOFEDIT Financial Shareholders has
all necessary power and authority to enter into this Agreement, the New
Stockholders Agreement and the New Registration Rights Agreement, to carry out
its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement,
the New Stockholders Agreement and the New Registration Rights Agreement by each
SOFEDIT Financial Shareholder, the performance of its obligations hereunder and
thereunder and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by all requisite action on its part. This
Agreement has been, and upon their execution the New Stockholders Agreement and
the New Registration Rights Agreement shall have been, duly executed and
delivered by it and (assuming due authorization, execution and delivery by all
other parties hereto) this Agreement constitutes, and upon their execution the
New Stockholders Agreement and the New Registration Rights Agreement shall
constitute, legal, valid and binding obligations of such SOFEDIT Financial
Shareholder, enforceable against it in accordance with their terms.
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SECTION 7.02. No Conflict. The execution, delivery and
performance of this Agreement, the New Stockholders Agreement and the New by
each SOFEDIT Financial Shareholder do not and will not (a) violate, conflict
with or result in the breach of any provision of the charter or by-laws (or
similar organizational documents) of such SOFEDIT Financial Shareholder, (b)
conflict with or violate any Law or Governmental Order applicable to such
SOFEDIT Financial Shareholder, or (c) conflict with, result in any breach of,
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under any contract to which such SOFEDIT
Financial Shareholder is a party which would have a Material Adverse Effect on
the ability of such SOFEDIT Financial Shareholder to consummate the transactions
contemplated by this Agreement, the New Stockholders Agreement and the New
Registration Rights Agreement.
SECTION 7.03. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement and the New Stockholders
Agreement by each SOFEDIT Financial Shareholder do not and will not require any
consent, approval, authorization or other order of, action by, filing with or
notification to any Governmental Authority.
SECTION 7.04. Brokers. No broker, finder or investment banker
other than Natexis Finance S.A. is entitled to any brokerage, finder's or other
fee or commission in connection with this Agreement and the transactions
contemplated therein, from any of the SOFEDIT Financial Shareholders.
SECTION 7.05. SOFEDIT Shares. Each of the SOFEDIT Financial
Shareholders owns its SOFEDIT Shares unrestricted, beneficially and of record,
free and clear of all Encumbrances and, at the Closing Date, it will transfer
good and valid title to its SOFEDIT Shares to MS pursuant to the terms of this
Agreement, free and clear of all Encumbrances.
SECTION 7.06. Full Disclosure. No SOFEDIT Financial
Shareholders is aware of any facts pertaining to itself that would render any of
the representations and warranties contained in this Article VII inaccurate in
any material respect.
(b) No representation or warranty of each of the SOFEDIT
Financial Shareholders in this Agreement, nor any statement or certificate
furnished or to be furnished to MS pursuant to this Agreement, or in connection
with the transactions contemplated by this Agreement, contains or will contain
on the Closing Date any untrue statement of a material fact, or omits or will,
on the Closing Date, omit to state a material fact necessary to make the
statements contained herein or therein not misleading.
SECTION 7.07. Stockholders Approval. No approval of the
stockholders of any SOFEDIT Financial Shareholders is required for the
completion of the transactions contemplated herein, in the New Stockholders
Agreement or in the New .
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ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF SOFEDIT
As an inducement to MS to enter into this Agreement, SOFEDIT
hereby represents and warrants to MS as follows:
SECTION 8.01. Organization, Authority and Qualification of
SOFEDIT. SOFEDIT is a French societe anonyme duly organized, validly existing
and in good standing under the laws of France and has all necessary power and
authority to own, operate or lease the properties and assets now owned, operated
or leased by it and to carry on the Business as it has been and is currently
conducted. The execution and delivery of this Agreement by SOFEDIT, the
performance by SOFEDIT of its obligations hereunder and the consummation by
SOFEDIT of the transactions contemplated hereby have been duly authorized by all
requisite action on the part of SOFEDIT. This Agreement has been duly executed
and delivered by SOFEDIT, and (assuming due authorization, execution and
delivery by the other parties hereto) this Agreement constitutes a legal, valid
and binding obligation of SOFEDIT enforceable against SOFEDIT in accordance with
its terms. SOFEDIT is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the properties owned or leased by it or
the operation of its business makes such licensing or qualification necessary or
desirable. All corporate actions taken by SOFEDIT have been duly authorized, and
SOFEDIT has not taken any action that in any respect conflicts with, constitutes
a default under or results in a violation of any provision of its "statuts".
True and correct copies of the "statuts" of SOFEDIT, as in effect on the date
hereof have been delivered by SOFEDIT to MS.
SECTION 8.02. Capital Stock of SOFEDIT. The share capital of
SOFEDIT consists of one class of authorized shares, each share having a par
value of FF 100. As of the date hereof, there are 102,812 issued and outstanding
shares of SOFEDIT Common Stock, which constitute 100% of the issued and
outstanding capital stock of SOFEDIT. The outstanding shares of SOFEDIT have
been duly authorized and validly issued and are fully paid and non-assessable.
SOFEDIT has no other shares or securities of any kind outstanding.
SECTION 8.03. Ownership of the shares of SOFEDIT. (a) Section
8.03(a) of the Disclosure Schedules sets out the capital ownership of SOFEDIT.
(b) Upon consummation of the transactions contemplated by this
Agreement, MS will own, directly or indirectly, all the issued and outstanding
capital stock of SOFEDIT. There are no voting trusts, stockholder agreement,
proxies or other agreements or understandings in effect with respect to the
voting or transfer of the shares of SOFEDIT free and clear of any and all
Encumbrances, except for the pledges described under Section 6.B.13 of the
Disclosure Schedules.
None of the issued and outstanding shares of SOFEDIT was
issued in violation of any preemptive rights. Except for the stockholders
agreement dated July 8, 1995, among SOFEDIT
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stockholders (the "SOFEDIT Stockholders Agreement"), there are no options,
warrants, convertible securities or other rights, agreements, arrangements or
commitments of any character relating to the capital stock of SOFEDIT or
obligating SOFEDIT to issue or sell any shares of capital stock of, or any other
interest in, SOFEDIT. There are no outstanding contractual obligations of
SOFEDIT to repurchase, redeem or otherwise acquire any shares of SOFEDIT or to
provide funds to, or make any investment (in the form of a loan, capital
contribution or otherwise) in, any other Person. The outstanding shares of
SOFEDIT referred to in this section constitute all the issued and outstanding
capital stock of SOFEDIT and are owned of record and beneficially solely by the
Persons set forth in Section 8.03(a) of the Disclosure Schedules free and clear
of any Encumbrances, except for the pledges disclosed under Section 6.B.13 of
the Disclosure Schedules.
(c) The stock register of SOFEDIT accurately records: (i) the
name and address of each Person owning shares of capital stock of SOFEDIT and
(ii) the certificate number of each certificate evidencing shares of capital
stock issued by SOFEDIT, the number of shares evidenced by each such
certificate, the date of issuance thereof and, in the case of cancellation, the
date of cancellation.
SECTION 8.04. Subsidiaries. (a) Section 8.04(a) of the
Disclosure Schedules sets forth a true and complete list of all SOFEDIT
Subsidiaries, listing for each SOFEDIT Subsidiary its name, type of entity, the
jurisdiction, and its authorized capital stock.
(b) Other than the SOFEDIT Subsidiaries, there are no other
corporations, limited liability companies, partnerships, associations or other
entities in which SOFEDIT owns, of record or beneficially, any direct or
indirect equity or other similar interest or any right (contingent or otherwise)
to acquire the same. SOFEDIT is not a member of (nor is any part of the Business
conducted through) any partnership. Except as set forth in Section 8.04(b) of
the Disclosure Schedules, neither SOFEDIT nor any SOFEDIT Subsidiary is a
participant in any joint venture or similar arrangement.
(c) Each SOFEDIT Subsidiary: (i) that is a corporation is duly
organized and validly existing under the laws of its jurisdiction of
incorporation, (ii) that is not a corporation is duly organized and validly
existing under the laws of its jurisdiction of organization, (iii) has all
necessary power and authority to own, operate or lease the properties and assets
owned, operated or leased by such SOFEDIT Subsidiary and to carry on its
business as it has been and is currently conducted by such SOFEDIT Subsidiary
and (iv) is duly licensed or qualified to do business and is in good standing in
each jurisdiction in which the properties owned or leased by it or the operation
of its business makes such licensing or qualification necessary or desirable.
(d) All the outstanding shares of capital stock of each
SOFEDIT Subsidiary are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights and are owned by SOFEDIT, whether
directly or indirectly, free and clear of all Encumbrances.
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(e) There are no options, warrants, convertible securities, or
other rights, agreements, arrangements or commitments of any character relating
to the capital stock of any SOFEDIT Subsidiary or obligating any SOFEDIT
Subsidiary to issue or sell any shares of capital stock of, or any other
interest in, such SOFEDIT Subsidiary.
(f) All corporate actions taken by each SOFEDIT Subsidiary
have been duly authorized and no SOFEDIT Subsidiary has taken any action that in
any respect conflicts with, constitutes a default under or results in a
violation of any provision of its charter or by-laws (or similar organizational
documents).
(g) There are no voting trusts, stockholder agreements,
proxies or other agreements or understandings in effect with respect to the
voting or transfer of any shares of capital stock of or any other interests in
any SOFEDIT Subsidiary.
(h) The stock register of each SOFEDIT Subsidiary accurately
records: (i) the name and address of each Person owning shares of capital stock
of such SOFEDIT Subsidiary and (ii) the certificate number of each certificate
evidencing shares of capital stock issued by such SOFEDIT Subsidiary, the number
of shares evidenced each such certificate, the date of issuance thereof and, in
the case of cancellation, the date of cancellation.
(i) Except as disclosed in Section 8.04 (b) of the Disclosure
Schedules, no SOFEDIT Subsidiary is a member of (nor is any part of the Business
conducted through) any partnership, nor is any SOFEDIT Subsidiary a participant
in any joint-venture or similar arrangement.
SECTION 8.05. Corporate Books and Records. The minute books of
SOFEDIT and the SOFEDIT Subsidiaries contain accurate records of all meetings
and accurately reflect all other actions taken by the stockholders, Boards of
Directors and all committees of the Boards of Directors of SOFEDIT and the
SOFEDIT Subsidiaries. Complete and accurate copies of all such minute books and
of the stock register of SOFEDIT and each SOFEDIT Subsidiary have been provided
by SOFEDIT to MS for the period from January 1, 1996, to the date hereof.
SECTION 8.06. No Conflict. Except as disclosed under Section
6.B.03 of the Disclosure Schedules, the execution, delivery and performance of
this Agreement by SOFEDIT and the Sellers do not and will not (a) violate,
conflict with or result in the breach of any provision of the charter or by-laws
(or similar organizational documents) of SOFEDIT or any SOFEDIT Subsidiary, (b)
conflict with or violate (or cause an event which could have a Material Adverse
Effect as a result of) any Law or Governmental Order applicable to SOFEDIT or
any SOFEDIT Subsidiary or any of their respective assets, properties or
businesses, including, without limitation, their Business, or (c) conflict with,
result in any breach of, constitute a default (or event which with the giving of
notice or lapse of time, or both, would become a default) under, require any
consent under, or give to others any rights of termination, amendment,
acceleration, suspension, revocation or cancellation of, or result in the
creation of any Encumbrance on any of the shares or on any of the assets or
properties of SOFEDIT
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or any SOFEDIT Subsidiary pursuant to, any note, bond, mortgage or indenture,
contract, agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which SOFEDIT or any SOFEDIT Subsidiary is a party
or by which any of the shares or any of such assets or properties is bound or
affected.
SECTION 8.07. Governmental Consents and Approvals. The
execution, delivery and performance of this Agreement by SOFEDIT do not and will
not require any consent, approval, authorization or other order of, action by,
filing with or notification to any Governmental Authority.
SECTION 8.08. Financial Information, Books and Records. (a)
True and complete copies of the SOFEDIT Reference Balance Sheet have been
delivered to MS by SOFEDIT and are attached hereto as Section 8.08 of the
Disclosure Schedules. The SOFEDIT Reference Balance Sheet (i) was prepared in
accordance with the books of account and other financial records of SOFEDIT,
(ii) presents fairly the consolidated financial condition and results
of operations of SOFEDIT described therein as of the dates thereof for the
period covered thereby, (iii) has been prepared in accordance with French GAAP
applied on a basis consistent with the past practices of SOFEDIT and (iv)
includes all adjustments (consisting only of normal recurring accruals) that are
necessary for a fair presentation of the consolidated financial condition of
SOFEDIT and the results of the operations of SOFEDIT as of the date thereof or
for the period covered thereby.
(b) The books of account and other financial records of
SOFEDIT: (i) reflect all items of income and expense and all assets and
Liabilities required to be reflected therein in accordance with French GAAP
applied on a basis consistent with the past practices of SOFEDIT, (ii) are in
all material respects complete and correct, and do not contain or reflect any
material inaccuracies or discrepancies and (iii) have been maintained in
accordance with good business and accounting practices.
SECTION 8.09. No Undisclosed Liabilities. There are no
Liabilities of SOFEDIT or any SOFEDIT Subsidiary, other than Liabilities (i)
reflected or reserved against on the SOFEDIT Reference Balance Sheet, or (ii)
disclosed in Section 8.09 of the Disclosure Schedules, or (iii) incurred since
the date of the SOFEDIT Reference Balance Sheet in the ordinary course of the
business, consistent with the past practice, of SOFEDIT or the SOFEDIT
Subsidiaries, as applicable, and which do not and could not have a Material
Adverse Effect. Reserves are reflected on the SOFEDIT Reference Balance Sheet
against all Liabilities of SOFEDIT and the SOFEDIT Subsidiaries in amounts that
have been established on a basis consistent with the past practices of SOFEDIT
and the SOFEDIT Subsidiaries and in accordance with French GAAP.
SECTION 8.10. Conduct in the Ordinary Course; Absence of
Certain Changes, Events and Conditions. Since the date of the SOFEDIT Reference
Balance Sheet, except as disclosed in Section 8.10 of the Disclosure Schedules,
the business of SOFEDIT has been conducted in the ordinary course and consistent
with past practice. As amplification and not limitation of the foregoing,
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except as disclosed in Section 8.10 of the Disclosure Schedules, since the date
of the SOFEDIT Reference Balance Sheet, SOFEDIT has not:
(i) permitted or allowed any of the assets or properties
(whether tangible or intangible) of SOFEDIT or of any SOFEDIT
Subsidiary to be subjected to any Encumbrance, other than Permitted
Encumbrances and Encumbrances that will be released at or prior to the
Closing;
(ii) except in the ordinary course of business consistent
with past practice, discharged or otherwise obtained the release of
any Encumbrance or paid or otherwise discharged any Liability,
other than current liabilities reflected on the SOFEDIT Reference
Balance Sheet and current liabilities incurred in the ordinary course
of business consistent with past practice since the date of the
SOFEDIT Reference Balance Sheet;
(iii) made any loan to, guaranteed any Indebtedness of or
otherwise incurred any Indebtedness on behalf of any Person;
(iv) redeemed any of the capital stock or declared, made or
paid any dividends or distributions (whether in cash, securities or
other property) to the holders of capital stock of SOFEDIT or any
SOFEDIT Subsidiary or otherwise, other than dividends, distributions
and redemptions declared, made or paid by any of SOFEDIT or any SOFEDIT
Subsidiary;
(v) sold, transferred, leased, subleased, licensed or
otherwise disposed of any properties or assets, real, personal or mixed
(including, without limitation, leasehold interests and intangible
assets), other than the sale of Inventories in the ordinary course of
business consistent with past practice;
(vi) issued or sold any capital stock, notes, bonds or other
securities, or any option, warrant or other right to acquire the same,
of, or any other interest in, SOFEDIT or any SOFEDIT Subsidiary;
(vii) entered into any agreement, arrangement or transaction
with any of its directors, officers, employees or shareholders (or with
any relative, beneficiary, spouse or Affiliate of such Person);
(viii) made any change in any method of accounting or
accounting practice or policy used by SOFEDIT or any SOFEDIT
Subsidiary, other than such changes required by French GAAP or
disclosed in Section 8.10 of the Disclosure Schedules;
(ix) allowed any Permit or Environmental Permit that was
issued or relates to SOFEDIT or any SOFEDIT Subsidiary or otherwise
relates to any Asset to lapse or terminate
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or failed to renew any such Permit or Environmental Permit or any
insurance policy that is scheduled to terminate or expire within 45
calendar days of the Closing Date;
(x) incurred any Indebtedness, in excess of $50,000
individually or $250,000 in the aggregate;
(xi) amended or restated the Certificate of Incorporation or
the By-laws (or other organizational documents) of SOFEDIT or any
SOFEDIT Subsidiary;
(xii) suffered any casualty loss or damage with respect to any
of their assets which in the aggregate have a replacement cost of more
than $50,000, whether or not such loss or damage shall have been
covered by insurance;
(xiii) suffered any Material Adverse Effect; or
(xiv) agreed, whether in writing or otherwise, to take any of
the actions specified in this Section 8.10 or granted any options to
purchase, rights of first refusal, rights of first offer or any other
similar rights or commitments with respect to any of the actions
specified in this Section 8.10, except as expressly contemplated by
this Agreement.
SECTION 8.11. Litigation. There are no Actions by or against
SOFEDIT or any SOFEDIT Subsidiary, or affecting any of their assets, pending
before any Governmental Authority (or, to the best knowledge of SOFEDIT after
due inquiry, threatened to be brought by or before any Governmental Authority).
None of the matters disclosed in Section 8.11 of the Disclosure Schedules has or
has had a Material Adverse Effect or could affect the legality, validity or
enforceability of this Agreement, the New Stockholders Agreement or the New
Registration Rights Agreement or the consummation of the transactions
contemplated hereby and thereby. Except as set forth in Section 8.11 of the
Disclosure Schedules, neither SOFEDIT nor any SOFEDIT Subsidiary is subject to
any Governmental Order (nor, to the best knowledge of SOFEDIT after due inquiry,
are there any such Governmental Orders threatened to be imposed by any
Governmental Authority) which has or has had a Material Adverse Effect.
SECTION 8.12. Compliance with Laws. SOFEDIT and any SOFEDIT
Subsidiary have each conducted the Business in accordance with all Laws and
Governmental Orders applicable to them or any of their respective assets or
properties or the Business, and neither SOFEDIT nor any SOFEDIT Subsidiary is in
violation of any such Law or Governmental Order.
SECTION 8.13. Environmental and Other Permits and Licenses;
Related Matters. (a) Except as disclosed in Section 8.13(a)(i) of the Disclosure
Schedules, and except as would not reasonably be expected to result in a
Material Adverse Effect, SOFEDIT and the SOFEDIT Subsidiaries currently hold and
are in compliance with, all Permits, including, without limitation,
Environmental Permits, necessary or proper for the current use, occupancy and
operation of each ▇▇▇▇▇
▇▇
▇▇
of SOFEDIT and the SOFEDIT Subsidiaries and the conduct of the Business, and all
such Permits are in full force and effect. Except as disclosed in Section
8.13(a)(ii) of the Disclosure Schedules and except as would not reasonably be
expected to result in a Material Adverse Effect, there is no existing practice,
action or activity of SOFEDIT or any SOFEDIT Subsidiary and no existing
condition of the assets of SOFEDIT or any SOFEDIT Subsidiary or the Business
which would reasonably be expected to give rise to any civil or criminal
Liability under, or violate or prevent compliance with, any health or
occupational safety or other applicable Law. Except as disclosed in Section
8.13(a)(iii) of the Disclosure Schedules, neither SOFEDIT nor any SOFEDIT
Subsidiary has received any notice from any Governmental Authority revoking,
canceling, rescinding, materially modifying or refusing to renew any Permit or
providing written notice of violations under any Law. To the knowledge of
SOFEDIT, Section 8.13(a)(iv) of the Disclosure Schedules identifies all Permits
that are nontransferable or which will require the consent of any Governmental
Authority in the event of the consummation of the transactions contemplated by
this Agreement.
(b) Except as disclosed in Section 8.13(b) of the Disclosure
Schedules and except as would not reasonably be expected to result in a Material
Adverse Effect, (i) Hazardous Materials have not been generated, used, treated,
handled or stored on, or transported to or from, or Released on any Real
Property or on any property formerly owned, leased or occupied by SOFEDIT or any
SOFEDIT Subsidiaries; (ii) SOFEDIT and the SOFEDIT Subsidiaries have disposed of
all Hazardous Materials, in compliance with all applicable Environmental Laws
and Environmental Permits; (iii) there are no pending or, to the knowledge of
SOFEDIT, threatened Environmental Claims against SOFEDIT, any SOFEDIT
Subsidiary, or any Real Property; (iv) no Real Property is listed or proposed
for listing on any list of sites of any Governmental Authority requiring
investigation or cleanup; and (v) neither SOFEDIT nor any SOFEDIT Subsidiary has
received notice that it has transported or arranged for the transportation of
any Hazardous Materials to any location that is listed or proposed for listing
on any list of any Governmental Authority or which is the subject of any
Governmental Claim.
(c) Except as disclosed in Section 8.13(c) of the Disclosure
Schedules, and except as would not reasonably be expected to result in a
Material Adverse Effect, there are no circumstances with respect to any Real
Property or other Asset or the operation of the Business which could reasonably
be anticipated (i) to form the basis of an Environmental Claim against SOFEDIT,
any SOFEDIT Subsidiary or any Real Property or Asset or (ii) to cause such Real
Property or Asset to be subject to any restrictions on ownership, occupancy, use
or transferability under any applicable Environmental Law.
(d) Except as disclosed in Section 8.13(d) of the Disclosure
Schedules, there are not now and never have been any USTs located on any Real
Property.
SECTION 8.14. Material Contracts. (a) Section 8.14(a) of the
Disclosure Schedules lists each of the following contracts and agreements
(including, without limitation, oral and informal
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arrangements) of SOFEDIT and of the SOFEDIT Subsidiaries (such contracts and
agreements to which SOFEDIT or any SOFEDIT Subsidiary is a party being "SOFEDIT
Material Contracts"):
(i) each contract and agreement for the purchase of inventory,
spare parts, other materials or personal property with any supplier or
for the furnishing of services to SOFEDIT or any SOFEDIT Subsidiary, or
otherwise related to the Business under the terms of which SOFEDIT or
any SOFEDIT Subsidiary, as applicable: (A) is likely to pay or
otherwise give consideration of more than $50,000 in the aggregate
during the calendar year ended December 31, 1998, (B) is likely to pay
or otherwise give consideration of more than $100,000 in the aggregate
over the remaining term of such contract or (C) cannot be cancelled by
SOFEDIT or the SOFEDIT Subsidiary that is a party thereto, as
applicable, without penalty or further payment and without more than 30
days' notice;
(ii) each contract and agreement for the sale of the inventory
of SOFEDIT or the SOFEDIT Subsidiaries or other personal property or
for the furnishing of services by SOFEDIT or any SOFEDIT Subsidiary,
which: (A) is likely to involve consideration of more than $50,000 in
the aggregate during the calendar year ended December 31, 1998, (B) is
likely to involve consideration of more than $100,000 in the aggregate
over the remaining term of the contract or (C) cannot be canceled by
SOFEDIT or the SOFEDIT Subsidiary that is a party thereto, as
applicable, without penalty or further payment and without more than 30
days' notice;
(iii) all broker, distributor, dealer, manufacturer's
representative, franchise, agency, sales promotion, market research,
marketing consulting and advertising contracts and agreements to which
SOFEDIT or any SOFEDIT Subsidiary is a party;
(iv) all management contracts and contracts with independent
contractors or consultants (or similar arrangements) to which SOFEDIT
or any SOFEDIT Subsidiary is a party and which are not cancellable
without penalty or further payment and without more than 30 days'
notice;
(v) all contracts and agreements relating to Indebtedness of
SOFEDIT or any SOFEDIT Subsidiary;
(vi) all contracts and agreements with any Governmental
Authority to which SOFEDIT or any SOFEDIT Subsidiary is a party;
(vii) all contracts and agreements that limit or purport to
limit the ability of SOFEDIT or any SOFEDIT Subsidiary to compete in
any line of business or with any Person or in any geographic area or
during any period of time;
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(viii) all contracts and agreements between or among SOFEDIT
or any SOFEDIT Subsidiary and any of the Sellers;
(ix) all contracts and agreements providing for benefits
under any Plan; and
(x) all other contracts and agreements whether or not made
in the ordinary course of business, which are material to SOFEDIT or
any SOFEDIT Subsidiary, or the conduct of the Business or the
absence of which would have a Material Adverse Effect.
(b) Each Material Contract: (i) is valid and binding on the
respective parties thereto and is in full force and effect and (ii) upon
consummation of the transactions contemplated by this Agreement or the New
Stockholders Agreement, shall continue in full force and effect without penalty
or other adverse consequence resulting from the transactions contemplated hereby
and thereby. Neither SOFEDIT nor any SOFEDIT Subsidiary is in breach of, or
default under, any Material Contract.
(c) No party to any Material Contract is in breach thereof or
default thereunder.
(d) Except as disclosed in Section 8.14(d) of the Disclosure
Schedules, there is no contract, agreement or other arrangement granting any
Person any preferential right to purchase, other than in the ordinary course of
business consistent with past practice, any of the properties or assets of
SOFEDIT or any SOFEDIT Subsidiary.
SECTION 8.15. Brokers. Except for Natexis Finance S.A., no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of SOFEDIT.
SECTION 8.16. Taxes. (a) (i) All returns and reports in
respect of Taxes required to be filed with respect to SOFEDIT and each of its
Subsidiaries have been timely filed; (ii) all Taxes owed by SOFEDIT or any of
its Subsidiaries whether or not shown on such returns and reports have been
timely paid; (iii) all such returns and reports are true, correct and complete
in all material respects; (iv) no adjustment relating to such returns and
reports has been proposed formally or informally by any Tax authority; (v) there
are no pending actions or proceedings for the assessment or collection of Taxes
against SOFEDIT or any of its Subsidiaries; (vi) there are no Tax liens on any
assets of SOFEDIT or any of its Subsidiaries; and (vii) neither SOFEDIT nor any
of its Subsidiaries is subject to any accumulated earnings tax penalty or
personal holding company tax.
(b) Except as disclosed in reasonable specificity in Section
8.16(b) of the Disclosure Schedules: (i) there are no outstanding waivers or
agreements extending the statute of limitations for any period with respect to
any Tax to which SOFEDIT or any of its Subsidiaries may be subject; (ii) neither
SOFEDIT nor any of its Subsidiaries presently has any income occurring in, or a
change in
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accounting method made for, a period ending on or prior to the Closing Date
which resulted from a deferred reporting of income from such transaction, or
from such change in accounting method; (iii) there are no proposed reassessments
of any property owned by SOFEDIT or any of its Subsidiaries or other proposals
that could increase the amount of any Tax to which SOFEDIT or any of its
Subsidiaries would be subject; and (iv) neither SOFEDIT nor any of its
Subsidiaries is a party to any tax sharing, indemnification or allocation
agreement.
(c) The SOFEDIT Reference Balance Sheet provides for reserves
and allowances adequate in amount to satisfy all Liabilities for Taxes relating
to SOFEDIT and its Subsidiaries for prior Tax periods (including partial Tax
periods through the date hereof).
(d) SOFEDIT and its Subsidiaries are not, and at no time have
been, engaged in the conduct of a trade or business within the United States
within the meaning of Section 864(b) and Section 882(a) of the Code, or treated
as or considered to be so engaged under Section 882(d) or Section 897 of the
Code or otherwise.
SECTION 8.17. Customers. Listed in Section 8.17 of the
Disclosure Schedules are the names and addresses of the ten most significant
customers (by revenue) of SOFEDIT and the SOFEDIT Subsidiaries for the
twelve-month period to be ended December 31, 1996, and the amount for which each
such customer was invoiced during such period. Except as disclosed in Section
8.17 of the Disclosure Schedules, neither SOFEDIT nor any SOFEDIT Subsidiary has
received any notice or has any reason to believe that any significant customer
of SOFEDIT has ceased, or will cease, to use the products, equipment, goods or
services of SOFEDIT or any SOFEDIT Subsidiary, or has substantially reduced, or
will substantially reduce, the use of such products, equipment, goods or
services at any time.
SECTION 8.18. Suppliers. Listed in Section 8.18 of the
Disclosure Schedules are the names and addresses of each of the ten most
significant suppliers of raw materials, supplies, merchandise and other goods
for SOFEDIT and the SOFEDIT Subsidiaries for the twelve-month period to be ended
December 31, 1996, and the amount for which each such supplier invoiced SOFEDIT
and the SOFEDIT Subsidiaries during such period. Except as disclosed in Section
8.18 of the Disclosure Schedules, neither SOFEDIT nor any SOFEDIT Subsidiary has
received any notice or has any reason to believe that any such supplier will not
sell raw materials, supplies, merchandise and other goods to SOFEDIT or any
SOFEDIT Subsidiary at any time after the Closing Date on terms and conditions
substantially similar to those used in its current sales to SOFEDIT and the
SOFEDIT Subsidiaries, subject only to general and customary price increases.
SECTION 8.19. Employee Benefit Matters. (a) Section 8.19 of
the Disclosure Schedules lists (i) all employee benefit plans and all bonus,
stock option, stock purchase, restricted stock, incentive, deferred
compensation, retiree medical or life insurance, supplemental retirement,
pension or severance plans to which SOFEDIT is a party, with respect to which
SOFEDIT has any obligation or which are maintained, contributed to or sponsored
by SOFEDIT for the benefit of any
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current or former employee, officer or director, (ii) any contracts,
arrangements or understandings between SOFEDIT and any employee of SOFEDIT,
including, without limitation, any contracts, arrangements or understandings
relating to a sale or merger of SOFEDIT (collectively, the "SOFEDIT Plans")
except for the plans which are compulsory pursuant to French laws (including
compulsory collective bargaining agreements). Each SOFEDIT Plan is in writing
and SOFEDIT has furnished the Sellers with a complete and accurate copy of each
SOFEDIT Plan and a complete and accurate copy of each material document prepared
in connection with each such Plan including, without limitation (i) a copy of
each funding arrangement, (ii) each summary plan description and summary of
material modifications, (iii) the most recently prepared actuarial report and
financial statement in connection with each such Plan. Except as disclosed in
Section 8.19 of the Disclosure Schedules, SOFEDIT does not have any express or
implied commitment, whether legally enforceable or not (i) to create, incur
liability with respect to or cause to exist any other employee benefit plan,
program or arrangement, (ii) to enter into any contract or agreement to provide
compensation or benefits of any individual or (iii) to modify, change or
terminate any SOFEDIT Plan; each such Plan has been operated in material
compliance with all applicable Law. All contributions, premiums or payments to
be made with respect to each such Plan have been made on or before their due
dates, and the assets of each such Plan are sufficient to procure or provide for
the benefits provided under each such Plan to all current or former Plan
participants.
(b) (i) All returns and reports in respect of Social Security
Contributions required to be filed with respect to SOFEDIT have been timely
filed, (ii) all Social Security Contributions required to be shown on such
returns and reports or otherwise due have been timely paid, (iii) all such
returns and reports are true, correct and complete in all material respects,
(iv) there is no pending or, to the actual knowledge of SOFEDIT, threatened
action or proceeding for the assessment or collection of Social Security
Contributions against SOFEDIT, (v) there are no Social Security liens on any
asset of SOFEDIT, (vi) the SOFEDIT Reference Balance Sheet provides for reserve
or allowance adequate in amount to satisfy all liabilities for Social Security
Contributions through the date hereof. For purposes hereof, "Social Security
Contributions" means any and all compulsory contributions and other charges of
any kind with respect to social security, family contributions (allocations
familiales), retirements and pensions.
SECTION 8.20. Labor Matters. (a) Except as set forth in
Section 8.20 of the Disclosure Schedules, SOFEDIT is not a party to any
employment agreement which contains any provision which is substantially more
favorable than those which are provided for in applicable labor legislation,
including the applicable compulsory collective bargaining agreement.
(b) There are no controversies, strikes, slowdowns or work
stoppages outstanding or, to the knowledge of SOFEDIT, pending between SOFEDIT
and any of its employees.
(c) To the knowledge of SOFEDIT, SOFEDIT has not breached or
otherwise failed to comply with the provisions of any applicable collective
bargaining agreement, and there are no
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grievances outstanding against SOFEDIT under any such agreement which could
reasonably have a Material Adverse Effect.
(d) To the knowledge of SOFEDIT, SOFEDIT is currently in
compliance with all applicable laws relating to the employment of labor,
including those related to wages, hours, collective bargaining and the payment
and withholding of taxes and social security contributions and other sums as
required by the appropriate Governmental Authority except as would not be
expected to result in a Material Adverse Event and has withheld and paid to the
appropriate Governmental Authority or is holding for payment not yet due to such
Governmental Authority all amounts required to be withheld from employees of
SOFEDIT and is not liable for any arrears of wages, taxes, penalties or other
sums for failure to comply with any of the foregoing that would reasonably
result in a Material Adverse Effect.
(e) To SOFEDIT's actual knowledge, SOFEDIT has paid in full to
all of its employees or adequately accrued for in accordance with French GAAP
all wages, salaries, commissions, bonuses, benefits and other compensation due
to or on behalf of such employees.
(f) SOFEDIT has not received notice that any claim with
respect to payment of wages, salary or overtime pay has been asserted or is now
pending or threatened before any Governmental Authority with respect to any
Persons currently or formerly employed by SOFEDIT.
(g) SOFEDIT has not received notice that any charge or
proceeding with respect to a material violation of any occupational safety or
health standards has been asserted or is now pending or, to the best knowledge
of SOFEDIT, threatened with respect to SOFEDIT.
SECTION 8.21. Certain Interests. (a) Except as disclosed in
Section 8.21(a) of the Disclosure Schedules, no officer or director of SOFEDIT
or any SOFEDIT Subsidiary and no relative or spouse (or relative of such spouse)
who resides with, or is a dependent of, any such officer or director:
(i) owns, directly or indirectly, in whole or in part, or has
any other interest in any tangible or intangible property which SOFEDIT
or any SOFEDIT Subsidiary uses in the conduct of the Business or
otherwise; or
(ii) has outstanding indebtedness to SOFEDIT or any SOFEDIT
Subsidiary.
(b) Except as disclosed in Section 8.21(b) of the Disclosure
Schedules, neither SOFEDIT nor any SOFEDIT Subsidiary has any Liability or any
other obligation of any nature whatsoever to any officer or director of SOFEDIT
or any SOFEDIT Subsidiary or to any relative or spouse (or relative of such
spouse) who resides with, or is a dependent of, any such officer or director.
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SECTION 8.22. Real Property. (a) Section 8.22(a) of the
Disclosure Schedules lists: (i) the street address of each parcel of Owned Real
Property, (ii) the date on which each parcel of Owned Real Property was
acquired, (iii) the current owner of each such parcel of Owned Real Property,
(iv) information relating to the recordation of the deed pursuant to which each
such parcel of Owned Real Property was acquired and (v) the current use of each
such parcel of Owned Real Property.
(b) Section 8.22(b) of the Disclosure Schedules lists: (i) the
street address of each parcel of Leased Real Property, (ii) the identity of the
lessor, lessee and current occupant (if different from lessee) of each such
parcel of Leased Real Property, (iii) the term (referencing applicable renewal
periods) and fixed or basic rental payment terms of the leases (and any
subleases) pertaining to each such parcel of Leased Real Property and (iv) the
current use of each such parcel of Leased Real Property.
(c) Except as described in Section 8.22(c) of the Disclosure
Schedules, there is no violation of any Law relating to any of the Owned Real
Property that would reasonably be expected to have a Material Adverse Effect.
SOFEDIT has made available to the Sellers (to the extent in SOFEDIT's physical
possession) true and complete copies of each deed for each parcel of Owned Real
Property and, to the extent available, for each parcel of Leased Real Property
and all the title insurance policies, title reports, surveys, certificates of
occupancy, environmental reports and audits, appraisals and Permits relating to
the Real Property, the operations of SOFEDIT or any SOFEDIT Subsidiary thereon
or any other uses thereof. Subject to all applicable leases, either SOFEDIT or a
SOFEDIT Subsidiary, as the case may be, is in peaceful and undisturbed
possession of each parcel of Real Property and neither SOFEDIT nor any SOFEDIT
Subsidiary has executed and delivered any contractual restrictions that preclude
or materially restrict the ability to use the premises for the purposes for
which they are currently being used. Except as set forth in Section 8.22(c) of
the Disclosure Schedules, neither SOFEDIT nor any SOFEDIT Subsidiary has leased
or subleased any parcel or any portion of any parcel of Real Property to any
other Person, nor has SOFEDIT or any SOFEDIT Subsidiary assigned its interest
under any lease or sublease listed in Section 8.22(b) of the Disclosure
Schedules to any third party.
(d) SOFEDIT has, or has caused to be, delivered to the Sellers
(to the extent in SOFEDIT's physical possession) true and complete copies of all
leases and subleases listed in Section 8.22(b) of the Disclosure Schedules. With
respect to each of such leases and subleases:
(i) such lease or sublease represents the entire agreement
between the respective landlord and tenant with respect to such
property;
(ii) except as otherwise disclosed in Section 8.22(b) of the
Disclosure Schedules, with respect to each such lease or sublease: (A)
neither SOFEDIT nor any SOFEDIT Subsidiary has received any notice of
cancellation or termination under such lease or sublease,
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and (B) neither SOFEDIT nor any SOFEDIT Subsidiary has received any
notice of a breach or default under such lease or sublease, which
breach or default has not been cured.
(e) There are no condemnation proceedings or eminent domain
proceedings of any kind pending or, to the actual knowledge of SOFEDIT (without
investigation), threatened against the Owned Real Property.
(f) All improvements on the Real Property constructed by or on
behalf of SOFEDIT or any SOFEDIT Subsidiary were constructed in material
compliance with all applicable Laws (including, but not limited to, any
building, planning or zoning Laws) affecting such Real Property.
SECTION 8.23. Insurance. SOFEDIT and the SOFEDIT Subsidiaries
have obtained and maintained in full force and effect insurance with responsible
and reputable insurance companies or associations in such amounts, on such terms
and covering such risks, including fire and other risks insured against by
extended coverage, as is reasonably prudent, and each has maintained in full
force and effect public liability insurance, insurance against claims for
personal injury or death or property damage occurring in connection with the
activities of MS or the MS Subsidiaries or any properties owned, occupied or
controlled by SOFEDIT or the SOFEDIT Subsidiaries, in such amount as reasonably
deemed necessary by SOFEDIT.
SECTION 8.24. Full Disclosure. Except as disclosed in Section
8.24 of the Disclosure Schedules, SOFEDIT is not aware of any facts pertaining
to SOFEDIT, any SOFEDIT Subsidiary or the Business, that would render any
representations and warranties made by SOFEDIT in this Article VIII inaccurate
in any material respect.
SECTION 8.25. Stockholders Approval. No approval of the Board
of Directors or stockholders of SOFEDIT is required for the completion of the
transactions contemplated herein, in the New Stockholders Agreement or in the
New Registration Rights Agreement, except for the approval of MS as new
shareholder of SOFEDIT by the Board of Directors of SOFEDIT.
ARTICLE IX
ADDITIONAL AGREEMENTS
SECTION 9.01. Conduct of Business Prior to the Closing. (a) MS
covenants and agrees that, except as described in Section 9.01(a) of the
Disclosure Schedules, between the date hereof and the time of the Closing,
neither MS nor any MS Subsidiary shall conduct its Business other than in the
ordinary course and consistent with MS' and such MS Subsidiary's prior practice.
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(b) Except as described in Section 9.01(b) of the Disclosure
Schedules, MS covenants and agrees that, prior to the Closing, without the prior
written consent of the Sellers' Representative, neither MS nor any MS Subsidiary
will do or cause to be done any of the things enumerated in the second sentence
of Section 3.09 (including, without limitation, clauses (i) through (xiv)
thereof).
(c) SOFEDIT, BDHI and CIBA covenant and agree each for itself
and not for the others that, between the date hereof and the time of the
Closing, (i) neither SOFEDIT (or its subsidiaries) nor CIBA or BDHI shall
conduct its Business other than in the ordinary course and consistent with prior
practice; (ii) BDHI and CIBA shall continue to have no activities except for
holding shares in BDHI or SOFEDIT, respectively, and (iii) BDHI and CIBA shall
incur no liabilities.
(d) SOFEDIT, BDHI and CIBA covenant and agree each for itself
and not for the others that, prior to the Closing, without the prior written
consent of MS, neither SOFEDIT (or its subsidiaries) nor BDHI, nor CIBA will do
or cause to be done any of the things enumerated in the second sentence of
Section 8.10 (including, without limitation, clauses (i) through (xiv) thereof).
SECTION 9.02. Access to Information. (a) From the date hereof
until the Closing, upon reasonable notice, MS shall, and shall cause each of the
MS Subsidiaries and each of their officers, directors, accountants and counsel
to: (i) afford the officers, directors, accountants, counsel, and
representatives of SOFEDIT and the Sellers reasonable access, during normal
business hours, to the offices, properties, plants, other facilities, books and
records of MS and each MS Subsidiary and to those officers, directors,
accountants and counsel of MS and of each MS Subsidiary who have any knowledge
relating to MS, any MS Subsidiary or the Business and (ii) furnish to the
officers, directors, accountants, counsel, and representatives of SOFEDIT and
the Sellers such additional financial and operating data and other information
regarding the assets, properties and goodwill of MS, the MS Subsidiaries and the
Business (or legible copies thereof) as SOFEDIT or the Sellers may from time to
time reasonably request.
(b) From the date hereof until the Closing, upon reasonable
notice, SOFEDIT, CIBA and BDHI shall, and shall cause each of the SOFEDIT
Subsidiaries and each of their officers, directors, accountants and counsel to:
(i) afford the officers, directors, accountants, counsel, and representatives of
MS reasonable access, during normal business hours, to the offices, properties,
plants, other facilities, books and records of SOFEDIT, CIBA and BDHI and each
SOFEDIT Subsidiary and to those officers, directors, accountants and counsel of
SOFEDIT, CIBA and BDHI and of each SOFEDIT Subsidiary who have any knowledge
relating to SOFEDIT, CIBA and BDHI, any SOFEDIT Subsidiary or the Business and
(ii) furnish to the officers, directors, accountants, counsel, and
representatives of MS such additional financial and operating data and other
information regarding the assets, properties and goodwill of SOFEDIT, CIBA and
BDHI, the SOFEDIT Subsidiaries and the Business (or legible copies thereof) as
MS may from time to time reasonably request.
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SECTION 9.03. Confidentiality. The parties to this Agreement
agree to, and shall cause their respective agents, representatives, Affiliates,
employees, officers and directors to: (i) treat and hold as confidential (and
not disclose or provide access to any Person to) any information relating to
this Agreement, the New Stockholders Agreement, the New Registration Rights
Agreement and the transactions contemplated herein and therein, as well as to
all information relating to trade secrets, processes, patent and trademark
applications, product development, price, customer and supplier lists, pricing
and marketing plans, policies and strategies, details of client and consultant
contracts, operations methods, product development techniques, business
acquisition plans, new personnel acquisition plans and all other confidential
information with respect to the Business, SOFEDIT or any party hereto, (ii) in
the event that any party hereto, or any such agent, representative, Affiliate,
employee, officer or director becomes legally compelled to disclose any such
information, provide the other parties hereto with prompt written notice of such
requirements so that any parties hereto may seek or cause to seek a protective
order or other remedy or waive compliance with this Section 9.03, (iii) in the
event that such protective order or other remedy is not obtained, or the other
parties hereto waive compliance with this Section 9.03, furnish only that
portion of such confidential information which is legally required to be
provided and exercise its best efforts to obtain assurances that confidential
treatment will be accorded such information, provided, however, that this
sentence shall not apply to any information that, at the time of disclosure, is
available publicly and was not disclosed in breach of this Agreement by any of
the parties hereto or any of their agents, representatives, Affiliates,
employees, officers or directors; provided further that, with respect to
intellectual property, specific information shall not be deemed to be within the
foregoing exception merely because it is embraced in general disclosures in the
public domain. In addition, with respect to intellectual property, any
combination of features shall not be deemed to be within the foregoing exception
merely because the individual features are in the public domain unless the
combination itself and its principle of operation are in the public domain. The
parties hereto agree and acknowledge that remedies at law for any breach of its
obligations under this Section 9.03 are inadequate and that in addition thereto
the parties hereto shall be entitled to seek equitable relief, including
injunction and specific performance, in the event of any such breach.
SECTION 9.04. Regulatory and Other Authorizations; Notices and
Consents. (a) CVC, MS and the Sellers shall use their best efforts to obtain (or
in the case of the Sellers to cause CIBA, BDHI, SOFEDIT and the SOFEDIT
Subsidiaries to obtain) all authorizations, consents, orders and approvals of
all Governmental Authorities and officials that may be or become necessary for
its execution and delivery of, and the performance of its obligations pursuant
to, this Agreement, the New Stockholders Agreement and the New Registration
Rights Agreement and will cooperate fully together and with any other parties in
promptly seeking to obtain all such authorizations, consents, orders and
approvals. Each party hereto agrees to make an appropriate filing, if necessary,
pursuant to the HSR Act with respect to the transactions contemplated by this
Agreement within five Business Days of the date hereof and to supply as promptly
as practicable to the appropriate Governmental Authorities any additional
information and documentary material that may be requested pursuant to the HSR
Act.
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(b) MS shall, and shall cause the MS Subsidiaries to, give
promptly such notices to third parties and use its or their best efforts to
obtain such third party consents as the Sellers may reasonably deem necessary or
desirable in connection with the transactions contemplated by this Agreement.
(c) SOFEDIT, CIBA and BDHI shall, and shall cause the SOFEDIT
Subsidiaries to, give promptly such notices to third parties and use its or
their best efforts to obtain such third party consents as MS may reasonably deem
necessary or desirable in connection with the transactions contemplated by this
Agreement.
(d) The Sellers shall cooperate and use reasonable best
efforts to assist MS, BDHI and CIBA in giving such notices and obtaining such
consents; provided, however, that the Sellers shall have no obligation to give
any guarantee or other consideration of any nature in connection with any such
notice or consent to any change in the terms of any agreement or arrangement
which the Sellers in their sole and absolute discretion may deem adverse to the
interests of the Sellers, BDHI, CIBA, SOFEDIT, any SOFEDIT Subsidiary or the
Business.
SECTION 9.05. Notice of Developments. Prior to the Closing,
each party hereto shall promptly notify the other parties hereto in writing of
all events, circumstances, facts and occurrences arising subsequent to the date
of this Agreement of which such party becomes aware and which could result in
any breach of a representation or warranty or covenant of such party or which
could have the effect of making any representation or warranty of such party to
this Agreement untrue or incorrect in any material respect. Prior to the
Closing, each of MS, BDHI, CIBA and SOFEDIT shall notify the other parties
hereto in writing of all other material developments affecting the assets,
Liabilities, business, financial condition, operations, results of operations,
customer or supplier relations, employee relations, projections or prospects of
it, any of its Subsidiaries or the Business.
SECTION 9.06. Stockholder Approvals. MS shall take all
necessary actions to cause the Stockholder Approvals to be obtained prior to the
Closing and SOFEDIT, BDHI and CIBA shall take all necessary actions to cause all
approvals required from their respective Boards of Directors to be obtained
prior to the Closing..
SECTION 9.07. Contribution(s) of BDHI Shares to YACESE. Prior
or concurrent to the Closing, ▇▇. ▇▇▇▇▇▇▇▇ shall contribute 578 shares of BDHI
to YACESE.
SECTION 9.08. Contribution(s) of BDHI Shares to H.H.A.WAY.
Prior or concurrent to the Closing, JRMH shall contribute 3.051 shares of BDHI
to H.H.A.WAY.
SECTION 9.09. Purchases of BDHI Shares. Prior or concurrent to
the Closing, CIBA shall purchase one share of BDHI from ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ and
JRMH shall purchase one share of BDHI from Mr. ▇▇▇▇-▇▇▇▇ Hergoualc'h.
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SECTION 9.10. Promise to Transfer the Preferred Shares. In
consideration for the loss of their control of SOFEDIT by the shareholders of
BDHI as a result of the transactions contemplated hereby, the SOFEDIT Financial
Shareholders irrevocably promise to transfer without additional consideration to
CEFI, YACESE and H.H.A.WAY, or their successors in interest, all of the
Preferred Shares received as part of the consideration for their SOFEDIT Shares,
if a Sale of the Company (as such term is defined in the form of Amended and
Restated Certificate of Incorporation of MS attached hereto) or an Initial
Public Offering of MS (as such term is defined in the form of Registration
Rights Agreement attached hereto) is completed within eighteen (18) months
following the Closing Date on the basis of an aggregate consolidated value of MS
before the Initial Public Offering or, as the case may be, at the time of the
Sale of the Company, equal or higher to two hundred and fifty million dollars
(USD250,000,000). This transfer shall take place promptly after the Closing of
the Initial Public Offering or the Sale of Company, as applicable, and the
SOFEDIT Financial Shareholders shall use their best efforts to ensure that, for
purposes of such transfer, their Preferred Shares be allocated to CEFI, YACESE
and H.H.A.WAY pro rata based upon the number of MS Common Shares received by
CEFI, YACESE and H.H.A.WAY hereunder. The SOFEDIT Financial Shareholders hereby
acknowledge the sufficiency of the consideration received for the undertakings
contained in this paragraph and irrevocably waive any claims based on the lack
or inadequacy of consideration for such undertakings. The SOFEDIT Financial
Shareholders further acknowledge that their undertakings in this paragraph are
not subject to any conditions other than those expressly stated in this
paragraph.
SECTION 9.11. Further Action. Each of the parties hereto shall
use all reasonable efforts to take, or cause to be taken, all appropriate
action, do or cause to be done all things necessary, proper or advisable under
applicable Law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and consummate and
make effective the transactions contemplated by this Agreement.
SECTION 9.12. Securities Act. Each of the Sellers represents
and warrants, on behalf of itself only, that the Class A Common Stock, the
Series B Preferred Stock and the Promissory Notes (together, the "Restricted
Securities") to be issued to such Seller hereunder will be acquired by such
Seller for its own account for the purpose of investment and not with a view to
the resale or distribution of all or any part hereof in violation of the
Securities Act. Each of the Sofedit Financial Shareholders, CEFI, YACESE, JRMH
and H.H.A. Way represents and warrants, on behalf of itself only, that it is an
"accredited investor" as such term is defined in Rule 501 of Regulation D of the
Securities Act. Each member of the Barge Family and each member of the Domenech
Family represents and warrants, on behalf of itself only, that (i) such Seller's
financial situation is such that such Seller can afford to bear the economic
risk of holding the restricted Securities for an indefinite period of time and
(ii) the Seller's knowledge and experience in financial and business matters are
such that such Seller is capable of evaluating the merits and risks of such
Seller's ownership of such Restricted Securities, or such Seller has been
advised by a representative possessing such knowledge and experience. Each
Seller understands that the Restricted Securities have not been registered under
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the Securities Act in reliance on an exemption thereform under Section 4(2) of
the Securities Act and that such Restricted Securities shall bear an appropriate
legend.
ARTICLE X
CONDITIONS TO CLOSING
SECTION 10.01. Conditions to Obligations of MS. The
obligations of MS to consummate the transactions contemplated by this Agreement
shall be subject to the fulfillment, at or prior to the Closing, of each of the
following conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of the relevant Sellers contained in
this Agreement shall have been true and correct when made and each
representation and warranty (i) that is qualified as to materiality
shall be true and correct and (ii) that is not so qualified shall be
true and correct in all material respects in each case as of the
Closing, with the same force and effect as if made as of the Closing
Date, other than such representations and warranties as are made as of
another date, which shall be true and correct as of such date, the
covenants and agreements contained in this Agreement to be complied
with by the relevant Sellers on or before the Closing shall have been
complied with in all material respects;
(b) No Proceeding or Litigation. No Action shall have been
commenced by or before any Governmental Authority against MS, SOFEDIT,
BDHI, CIBA or any of the Sellers, seeking to restrain or materially and
adversely alter the transactions contemplated by this Agreement which,
in the reasonable, good faith determination of MS, is likely to render
it impossible or unlawful to consummate such transactions or which
could reasonably be expected to have a Material Adverse Effect or
otherwise render inadvisable, in the reasonable good faith
determination of MS, the consummation of the transactions contemplated
by this Agreement; provided, however, that the provisions of this
Section 10.01(b) shall not apply if MS or any MS Subsidiary has
directly or indirectly solicited or encouraged any such Action;
(c) Resolutions. MS shall have received a true and complete
copy, certified by the Secretary or an Assistant Secretary of each
Seller that is not a natural person, of the resolutions duly and
validly adopted by the Board of Directors or similar governing body of
such Seller evidencing its authorization of the execution and delivery
of this Agreement, the New Stockholders Agreement and the New
Registration Rights Agreement and the consummation of the transactions
contemplated hereby and thereby;
(d) Organizational Documents. MS shall have received a copy of
the statuts, as amended, of CIBA, BDHI, SOFEDIT and of each SOFEDIT
Subsidiary, certified as of a date not earlier than fifteen (15)
Business Days prior to the Closing Date;
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(e) Minute Books. MS shall have received a copy of the minute
books and stock register of CIBA, BDHI, SOFEDIT;
(f) Consents and Approvals. MS shall have received, each in
form and substance satisfactory to MS in its sole and absolute
discretion, all authorizations, consents, orders and approvals of all
Governmental Authorities and officials and all material third party
consents relating to any of CIBA, BDHI, SOFEDIT or any SOFEDIT
Subsidiary which MS reasonably deems necessary or desirable for the
consummation of the transactions contemplated by this Agreement;
(g) No Material Adverse Effect. No event or events shall have
occurred, or be reasonably likely to occur, which, individually or in
the aggregate, have, or could reasonably be expected to have, a
Material Adverse Effect on any of CIBA, BDHI or SOFEDIT;
(h) New Stockholders Agreement; New Registration Rights
Agreement. A stockholders agreement (the "New Stockholders Agreement")
and a registration rights agreement (the "New Registration Rights
Agreement"), in the forms attached hereto as Exhibits 10.01(h).A and
10.01(h).B, respectively, shall have been executed by the parties
thereto;
(i) Termination of the SOFEDIT Stockholders Agreement and of
the BDHI Stockholders Agreement. The SOFEDIT Stockholders Agreement and
the BDHI Stockholders Agreement shall have been terminated and shall be
of no further force or effect;
(j) Exchange of the Subordinated Notes. The holders of the
Subordinated Notes shall have exchanged their Subordinated Notes for
notes with the same principal amounts substantially in the form
attached hereto as Exhibit 10.01(j) hereto.
(k) Approvals by the Boards of Directors of SOFEDIT, BDHI and
CIBA. The Boards of Directors of SOFEDIT, BDHI and CIBA shall given all
approved MS as a new shareholder.
SECTION 10.02. Conditions to Obligations of SOFEDIT, BDHI,
CIBA and the Sellers. The obligations of SOFEDIT, BDHI, CIBA and the Sellers to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment, at or prior to the Closing, of each of the following
conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of MS contained in this Agreement shall
have been true and correct when
made and each representation and warranty (i) that is qualified as to
materiality shall be true and correct and (ii) that is not so qualified
shall be true and correct in all material respects in each case as of
the Closing with the same force and effect as if made as of the
Closing, other than
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such representations and warranties as are made as of another date
which shall be true and correct as of such date, the covenants and
agreements contained in this Agreement to be complied with by MS on or
before the Closing shall have been complied with in all material
respects, and the Sellers shall have received a certificate of MS to
such effect signed by a duly authorized officer thereof;
(b) No Proceeding or Litigation. No Action shall have been
commenced or threatened by or before any Governmental Authority against
either MS, SOFEDIT, BDHI, CIBA or any of the Sellers, seeking to
restrain or materially and adversely alter the transactions
contemplated hereby which, in the reasonable, good faith determination
of the Sellers' Representative is likely to render it impossible or
unlawful to consummate the transactions contemplated by this Agreement,
or which could reasonably be expected to have a Material Adverse Effect
or otherwise render inadvisable, in the reasonable, good faith
determination of the Sellers' Representative, the consummation of the
transactions contemplated by this Agreement; provided, however, that
the provisions of this Section 10.02(b) shall not apply if SOFEDIT,
BDHI, CIBA, or the relevant Seller or Sellers has or have solicited or
encouraged any such Action;
(c) Resolutions. The Sellers shall have received a true and
complete copy, certified by the Secretary or an Assistant Secretary of
MS, of the resolutions duly and validly adopted by the Board of
Directors of MS evidencing its authorization of the execution and
delivery of this Agreement, the New Stockholders Agreement and the New
Registration Rights Agreement and the consummation of the transactions
contemplated hereby and thereby;
(d) Resignations of MS' Directors. MS shall have received
letters of resignation, effective as of the Closing, from ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Ueli Spring and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(e) Employment Contracts. MS shall have received a copy of an
amendment to the employment contract of Mr. Ueli Spring substantially
in the form attached hereto as Exhibit 10.02(e);
(f) Organizational Documents. The Sellers shall have received
a copy of (i) the Amended and Restated Certificate of Incorporation of
MS (substantially in the form attached as Exhibit 10.02(f) hereto) and
the Certificate of Incorporation (or other organizational document) of
each MS Subsidiary, certified by the secretary of state of the
jurisdiction in which each such entity is incorporated or organized, as
of a date not earlier than five Business Days prior to the Closing Date
and accompanied by a certificate of the Secretary or Assistant
Secretary of each such entity, dated as of the Closing Date, stating
that no amendments have been made to such Certificate of Incorporation
(or similar organizational
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documents) since such date, except as provided herein, and (ii) the
By-laws (or similar organizational documents) of MS and of each MS
Subsidiary, certified by the Secretary or Assistant Secretary of each
such entity;
(g) Minute Books. The Sellers shall have received a copy of
the minute books and stock register of MS and each MS Subsidiary,
certified by their respective Secretaries or Assistant Secretaries as
of the Closing Date;
(h) Good Standing; Qualification to Do Business. The Sellers
shall have received good standing certificates for MS and for each MS
Subsidiary from the secretary of state of the jurisdiction in which
each such entity is incorporated or organized and from the secretary of
state in each other jurisdiction in which the properties owned or
leased by any of MS or any MS Subsidiary, or the operation of its
business in such jurisdiction, requires MS or any MS Subsidiary to
qualify to do business as a foreign corporation, in each case dated as
of a date not earlier than five Business Days prior to the Closing Date
and accompanied by bring-down telegrams dated the Closing Date;
(i) Stockholder Approvals. The MS Stockholder Approvals shall
have been obtained;
(j) Consents and Approvals. The Sellers shall have received,
in form and substance satisfactory to the Sellers in their sole and
absolute discretion, copies of all authorizations, consents, orders and
approvals of all Governmental Authorities and officials and all third
party consents and estoppel certificates relating to MS or any MS
Subsidiary which the Sellers reasonably deem necessary or desirable for
the consummation of the transactions contemplated by this Agreement;
and
(k) No Material Adverse Effect. No event or events shall have
occurred, or be reasonably likely to occur, which, individually or in
the aggregate, have, or could reasonably be expected to have, a
Material Adverse Effect on MS; and
(l) New Stockholders Agreement; New Registration Rights
Agreement. The New Stockholders Agreement and the New Registration
Rights Agreement shall have been executed by the parties thereto; and
waivers of all their rights under the Registration Rights Agreement
shall have been signed by the stockholders of MS that are party
thereto.
(m) Exchange of the Subordinated Notes. The holders of the
Subordinated Notes shall have exchanged their Subordinated Notes for
notes with the same principal amounts substantially in the form
attached hereto as Exhibit 10.01(j) hereto.
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ARTICLE XI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
SECTION 11.01. Survival of Representations and Warranties. The
representations and warranties contained in this Agreement, and all statements
contained in this Agreement, the Exhibits to this Agreement, the Disclosure
Schedules and any certificate delivered pursuant to this Agreement or in
connection with the transactions contemplated by this Agreement (collectively,
the "Acquisition Documents"), shall survive the Closing until the third (3rd)
anniversary of the Closing Date; provided, however, that the representations and
warranties dealing with Tax matters shall survive until 60 days after the
expiration of the applicable statute of limitations for any tax. Neither the
period of survival nor the liability of the relevant parties with respect to
their representations and warranties shall be reduced by any investigation made
at any time by or on behalf of the other parties. If written notice of a claim
has been given prior to the expiration of the applicable representations and
warranties by a party to the other parties, then the relevant representations
and warranties shall survive as to such claim, until such claim has been finally
resolved.
ARTICLE XII
TERMINATION AND WAIVER
SECTION 12.01. Termination. This Agreement may be terminated
at any time prior to the Closing:
(a) by the Sellers' Representative if: (i) an event or
condition occurs that has resulted in or that may be expected to result
in a Material Adverse Effect on MS or any MS Subsidiary, (ii) any
representation or warranty of MS contained in this Agreement shall not
have been true and correct when made or shall have become untrue, in
any such case such that Section 10.02(a) will not be satisfied and such
breach (if curable) has not been cured within 10 days following receipt
by MS, as applicable, of written notice of such breach, (iii) MS shall
not have materially complied with any covenant or agreement to be
complied with by it and contained in this Agreement, or (iv) MS or any
MS Subsidiary makes a general assignment for the benefit of creditors,
or any proceeding shall be instituted by or against MS or any MS
Subsidiary seeking to adjudicate any of them a bankrupt or insolvent,
or seeking liquidation, winding up or reorganization, arrangement,
adjustment, protection, relief or composition of its debts under any
Law relating to bankruptcy, insolvency or reorganization; or
(b) by MS if: (i) an event or condition occurs that has
resulted in or that may be expected to result in a Material Adverse
Effect on SOFEDIT, BDHI or CIBA, (ii) any representation or warranty of
SOFEDIT, BDHI, CIBA or any Seller contained in this
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Agreement shall not have been true and correct when made or shall have
become untrue, in any such case such that Section 10.01(a) will not be
satisfied and such breach (if curable) has not been cured within 10
days following receipt by SOFEDIT, BDHI, CIBA or such Seller, as
applicable, of written notice of such breach, (iii) SOFEDIT, BDHI, CIBA
or any Seller shall not have materially complied with any covenant or
agreement to be complied with by it and contained in this Agreement, or
(iv) any of SOFEDIT, any SOFEDIT Subsidiaries, BDHI or CIBA makes a
general assignment for the benefit of creditors, or any proceeding
shall be instituted by or against any of them seeking to adjudicate any
of them a bankrupt or insolvent, or seeking liquidation, winding up or
reorganization, arrangement, adjustment, protection, relief or
composition of its debts under any Law relating to bankruptcy,
insolvency or reorganization; or
(c) by either MS or the Sellers' Representative if the Closing
shall not have occurred by April 17, 1998; provided, however, that the
right to terminate this Agreement under this Section 12.01(c) shall not
be available to any party whose failure to fulfill any obligation under
this Agreement shall have been the cause of, or shall have resulted in,
the failure of the Closing to occur on or prior to such date; or
(d) by either MS or the Sellers' Representative in the event
that any Governmental Authority shall have issued an order, decree or
ruling or taken any other action restraining, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement and such
order, decree, ruling or other action shall have become final and
nonappealable; or
(e) by the mutual consent of all the parties hereto.
SECTION 12.02. Effect of Termination. (a) In the event of
termination of this Agreement as provided in Section 12.01, this Agreement shall
forthwith become void and there shall be no liability on the part of any party
hereto except (i) for the breach of the obligations set forth in Sections 9.03,
12.02(b) and 12.02(c)(ii) that nothing herein shall relieve any party from
liability for any breach of any provision of the Agreement.
(b) Notwithstanding the foregoing, if the Closing does not
occur because of the failure to satisfy the conditions to the Sellers'
obligation to effect the Closing contained in Section 10.02 (a), then MS shall
reimburse SOFEDIT, BDHI, CIBA and the Sellers for their out-of-pocket costs and
expenses, including, without limitation, reasonable fees and disbursements of
counsel, financial advisors, financing sources and accountants, reasonably
incurred by SOFEDIT, BDHI, CIBA and the Sellers in connection with the
preparation, negotiation and performance of this Agreement and the transactions
contemplated hereby.
(c) Notwithstanding the foregoing, if the Closing does not
occur because of the failure to satisfy the conditions to MS' obligation to
effect the Closing contained in Section 10.01(a), then SOFEDIT, BDHI, CIBA and
the Sellers shall reimburse MS for its out-of-pocket costs and
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expenses, including, without limitation, reasonable fees and disbursements of
counsel, financial advisors, financing sources and accountants, reasonably
incurred by MS in connection with the preparation, negotiation and performance
of this Agreement and the transactions contemplated hereby.
SECTION 12.03. Waiver. Either the Sellers' Representative, on
behalf of the Sellers, SOFEDIT, BDHI, CIBA or MS may (a) extend the time for the
performance of any of the obligations or other acts of any other party, (b)
waive any inaccuracies in the representations and warranties of any other party
contained herein or in any document delivered by any other party pursuant hereto
or (c) waive compliance with any of the agreements or conditions of any other
party contained herein. Any such extension or waiver shall be valid only if set
forth in an instrument in writing signed by the party to be bound thereby. Any
waiver of any term or condition shall not be construed as a waiver of any
subsequent breach or a subsequent waiver of the same term or condition, or a
waiver of any other term or condition, of this Agreement. The failure of any
party to assert any of its rights hereunder shall not constitute a waiver of any
of such rights.
ARTICLE XIII
GENERAL PROVISIONS
SECTION 13.01. Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses, whether or not the Closing
shall have occurred.
SECTION 13.02. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by courier service, by cable, by telecopy, by telegram, by
telex or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 13.02):
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(a) if to MS:
(i) before the Closing Date:
MS Acquisition Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ▇.▇.▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. Ueli Spring
(ii) after the Closing Date:
MS Acquisition Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ▇.▇.▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) if to any of the Sellers:
SOFEDIT S.A.
Quartier des Chenes
▇, ▇▇▇▇▇▇ ▇▇ ▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Telephone: (▇▇ ▇) ▇▇ ▇▇ ▇▇ ▇▇
Telecopy: (▇▇ ▇) ▇▇ ▇▇ ▇▇ ▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
SECTION 13.03. Public Announcements. Unless otherwise required
by applicable Law, no party to this Agreement shall make, or cause to be made,
any press release or public announcement in respect of this Agreement or the
transactions contemplated hereby or otherwise communicate with any news media
without the prior written consent of MS and the Sellers' Representative and MS
and the Sellers' Representative shall cooperate as to the timing and contents of
any such press release or public announcement.
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SECTION 13.04. Headings. The descriptive headings contained in
this Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
SECTION 13.05. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
SECTION 13.06. Entire Agreement. This Agreement with the
schedules and exhibits thereto constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and thereof and supersedes all
prior agreements and undertakings, both written and oral, among the parties
hereto with respect to the subject matter hereof and thereof.
SECTION 13.07. Assignment. This Agreement may not be assigned
by operation of law or otherwise without the express written consent of all
parties hereto or, with respect to the Sellers only, of the Sellers'
Representative (which consent may be granted or withheld in the sole discretion
of any party). Any assignment made in violation of the preceding sentence shall
be void.
SECTION 13.08. No Third Party Beneficiaries. This Agreement
shall be binding upon and inure solely to the benefit of the parties hereto and
their permitted assigns and nothing herein, express or implied, is intended to
or shall confer upon any other Person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement;
provided,however, that the holders of capital stock of MS as of the date hereof,
shall be deemed third party beneficiaries hereunder with respect to the
representations and warranties of SOFEDIT only, as if such representations and
warranties had been made to the holders of capital stock of MS as of the date
hereof. This agreement shall not be construed so as to give any rights to the
holders of capital stock of MS against any party hereto other than SOFEDIT.
SECTION 13.09. Amendment. This Agreement may not be amended or
modified except (a) by an instrument in writing signed by all parties hereto or,
with respect to the Sellers only, by the Sellers' Representative, or (b) by a
waiver in accordance with Section 12.03.
SECTION 13.10. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of New York.
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SECTION 13.11. Dispute Resolution and Arbitration. (a)
Dispute. In the event of any dispute, controversy or claim (each, a "Dispute")
arising under or in connection with this Agreement or any breach, invalidity or
termination hereof, prior to the commencement of an arbitration proceeding
pursuant to clause (b) of this Section 13.11, MS and the Sellers'
Representative, on behalf of the Sellers, shall in good faith use their best
efforts for a 15-day period commencing on the date one party has notified the
other of a Dispute to resolve such Dispute. In the event that such efforts do
not resolve such Dispute, either MS or the Sellers' Representative may commence
an arbitration proceeding pursuant to clause (b) of this Section 13.11.
(b) ICC Rules. In the event a Dispute has not been resolved
pursuant to the procedure set forth in Section 13.11(a), all Disputes arising
under or in connection with this Agreement or any breach, invalidity or
termination hereof shall be finally settled under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce (the "ICC Rules") by one or
more arbitrators appointed in accordance with the ICC Rules. The seat of the
arbitration shall be in Brussels, Belgium. The arbitration proceedings shall be
conducted, and the award shall be rendered in writing, in the English language.
Except to the extent allowed by the ICC Rules for the sole purpose of seeking
interim relief, no party shall be entitled to commence proceedings before the
courts of any jurisdiction, in connection with the conduct of the arbitration
proceedings, provided that the parties shall be free to commence proceedings
before such courts for the purpose of enforcing any arbitral award.
(c) Confidentiality. All arbitration proceedings under this
Section 13.11 shall be confidential and the arbitrators may issue appropriate
protective orders to safeguard the confidential information of any party. Except
as required by applicable Law, none of the parties to the arbitration
proceedings shall make (or request any arbitrator to make) any public
announcement with respect to the proceedings or decisions of the arbitrators
without the prior written consent of the other party or parties thereto. The
existence of any Dispute submitted to arbitration, and the award of the
arbitrators, shall be kept in strict confidence, except as required in
connection with the enforcement of such award or as otherwise required by
applicable Law.
SECTION 13.12. Counterparts. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
SECTION 13.13. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
SECTION 13.14. Limited Recourse. Notwithstanding anything in
this Agreement or any other document, agreement, or instrument contemplated
hereby to the contrary, (i) the obligations
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of MS, SOFEDIT, BDHI or CIBA hereunder shall be without recourse to any director
or stockholder of MS, SOFEDIT, BDHI or CIBA, respectively, or any stockholder,
partner, member, officer, director, manager, employee or agent of such
stockholder or such Affiliate, and shall be limited to the assets of MS,
SOFEDIT, BDHI or CIBA, respectively; and (ii) other than the representations,
warranties and covenants expressly made by the stockholders of SOFEDIT, BDHI and
CIBA herein, the stockholders of MS, SOFEDIT, BDHI and CIBA have made no (and
shall not be deemed to have made any) representations, warranties or covenants
(express or implied) under, or in connection with, this Agreement.
83
IN WITNESS WHEREOF, each of the parties hereto has executed,
or has caused to be executed by its duly authorized representative, this
Agreement as of the date first written above.
SOFEDIT
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President and Director
MS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior VP and CFO
BDHI
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President and Director
84
CIBA
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President and Director
CEFI
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President and Director
YACESE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
JRMH
By: /s/ ▇▇▇▇-▇▇▇▇ Hergoulac'h
---------------------------
Name: ▇▇▇▇-▇▇▇▇ Hergoulac'h
Title: President
85
H.H.A.WAY
By: /s/ ▇▇▇▇-▇▇▇▇ Hergoualc'h
---------------------------
Name: ▇▇▇▇-▇▇▇▇ Hergoualc'h
Title: President
86
▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇
▇▇
COMPAGNIE DE FINANCEMENT
INDUSTRIEL S.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
JAFCO I SAINT ▇▇▇▇▇▇ ▇.▇.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
JAFCO II SAINT ▇▇▇▇▇▇ ▇.▇.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
TOCQUEVILLE EUROPE L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
89
82
BIDASSOA INVESTISSEMENTS S.C.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
CININDEV S.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
CFJPE S.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
OBERON S.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
90
EURO SYNERGIES INVESTMENTS S.C.A.
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Title:
VENTADOUR INVESTISSEMENTS S.A.
By: /s/ ▇. ▇▇▇▇▇
---------------------------
Name: ▇. ▇▇▇▇▇
Title:
COGEPA S.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
SOFEDICI S.C.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
91
84
APAX PARTNER CLUB
By: /s/ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title:
ALTAMIR & CIE
By: /s/ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title:
APAX FRANCE IV
By: /s/ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title:
92
CCT Partners III, LP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Partner
93
EXHIBIT 1
OWNERSHIP OF CIBA
Name Number of Shares of CIBA
---- ------------------------
- ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ 2.079
- ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ 2.270
- ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ 4.340
- CEFI S.A. 10.411
------
Total: 19.100
------
94
EXHIBIT 2
MEMBERS OF THE DOMENECH GROUP OF SELLERS
Name Number of shares of BDHI
(as of the date hereof)
- ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2.921
- ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1.405
- ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 469
- ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
- YACESE S.A. 5.036
------
Total: 10.300
------
95
EXHIBIT 2.02 (A)
FORM OF PROMISSORY NOTE
96
EXHIBIT 2.02 (B)
TABLES OF ALLOCATION OF
THE PROMISSORY NOTES, THE MS COMMON SHARES
AND THE MS PREFERRED SHARES
AMONG THE SELLERS
97
EXHIBIT 3
LIST OF SOFEDIT FINANCIAL SHAREHOLDERS
COMPAGNIE DE FINANCEMENT INDUSTRIEL S.A.
JAFCO I SAINT ▇▇▇▇▇▇ ▇.▇.
JAFCO II SAINT ▇▇▇▇▇▇ ▇.▇.
TOCQUEVILLE EUROPE L.P.
BIDASSOA INVESTISSEMENTS S.C.A.
CININDEV S.A.
CFJPE S.A.
OBERON S.A.
EURO SYNERGIES S.C.A.
VENTADOUR INVESTISSEMENTS S.A.
COGEPA S.A.
SOFEDICI S.C.
APAX PARTNER CLUB
ALTAMIR & CIE
APAX FRANCE IV
98
EXHIBIT 4
SHARES OF BDHI OWNED BY JRMH AND H.H.A.WAY
Name Number of shares of BDHI
(as of the Closing Date)
- JRMH 2.549
- H.H.A. WAY S.A. 3.051
-----
Total: 5.600
-----
99
EXHIBIT 5
INDIVIDUAL SHAREHOLDERS OF BDHI
As of the signing date:
NAME NUMBER OF SHARES HELD
- ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ 1
- ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2.921
- Mr. ▇▇▇▇-▇▇▇▇ Hergoualc'h 1
- ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇
- ▇▇▇.▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1.405
- ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 469
- ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 469
-----
TOTAL 5.267
As of the Closing Date:
NAME NUMBER OF SHARES HELD
- ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ 1
- ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2.343
- ▇▇▇.▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1.405
- ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 469
- ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 469
---
TOTAL 4.687