Exhibit 4.17
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SALE AND PURCHASE AGREEMENT
BETWEEN
SANITEC OY
AND
ZODIAC SA
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SALE AND PURCHASE AGREEMENT
Agreement entered into on March 15, 2004 by and among Sanitec Oy, a private
company with limited liability incorporated under the laws of Finland whose
registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇ ▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
(SELLER), and Zodiac SA (BUYER), a public company with limited liability
incorporated under the laws of France whose registered office is at ▇, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇-▇▇▇-▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇. The Seller and the Buyer are
referred to collectively herein as the PARTIES.
The Seller owns all of the issued shares of Evac International Oy, a private
company with limited liability incorporated under the laws of Finland (TARGET).
Pursuant to this Agreement, the Seller wishes to sell and transfer to the Buyer,
and the Buyer wishes to purchase, all of the outstanding issued shares of the
Target and the Shareholder Loans for the Purchase Price.
The Parties agree as follows:
1. DEFINITIONS
ACCOUNTING PRINCIPLES means the accounting principles used
for the preparation of the Target's
and Subsidiaries Accounts in their
respective jurisdictions including,
for the avoidance of doubt, the
Group Accounting Principles.
AFFILIATE means, of a specified person, a
person that directly, or indirectly
through one or more intermediaries,
controls, or is controlled by, or is
under common control with, the
person specified.
AGREEMENT means this Share Purchase Agreement
and the Appendices hereto.
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AUDITOR'S CONFIRMATION means the confirmation of KPMG
Germany regarding the statutory
accounts of EVAC GmbH attached
hereto as Appendix 11.
ASSOCIATED COMPANY means the company listed in Appendix
2 under the heading Associated
Company.
AUDITED GROUP ACCOUNTS means the audited special-purpose
Sanitec accounting forms for the
Target and the Subsidiaries as of
December 31, 2003 and for the year
then ended as attached to the KPMG
auditors' statement dated February
26, 2004.
BUSINESS DAY means a day (other than a Saturday
or a Sunday) when banks are open for
business in Helsinki and
Frankfurt-am-Main.
BUYER has the meaning set out in the
preface above.
CLAIM means any claim made by the Buyer
against the Seller in respect of any
breach of this Agreement.
CLOSING means the consummation of the
transaction as described in clause 4
of this Agreement.
CLOSING DATE means the date which is three
Business Days after the date on
which the last of the conditions
precedents set out in clause 4.2 is
fulfilled or such other date as the
Parties may agree.
CLOSING DATE ACCOUNTS means the consolidated balance sheet
and a statement of the Net Asset
Value of the Target and the
Subsidiaries to be prepared by the
Target as at the Closing Date in
conformity with the Group Accounting
Principles.
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CONFIDENTIAL INFORMATION means any and all information of any
kind whatsoever, whether written or
oral, including, but not limited to
the contents of this Agreement,
financial information, trade
secrets, client lists and other
proprietary business information
regarding the Seller (including any
Affiliates thereof), the Target or
the Subsidiaries or the Associated
Company or the Buyer (including any
Affiliates thereof), which
information is not known to the
general public or to persons
unaffiliated with the Seller, the
Target the Subsidiaries or the
Associated Company or the Buyer, as
the case may be.
DATA ROOM means the documents which were
available for inspection by the
Buyer and its advisors in the
on-line virtual data room at
▇▇▇▇▇://▇-▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇, copies
of which are saved on the
DVD/CD-Roms attached to this
Agreement as Appendix 1, the
contents of which have been agreed
between the Seller and the Buyer and
are listed in the table of contents
to the DVD/CD-Roms.
DEFAULT RATE means EURIBOR plus 3 %.
DISCLOSED means disclosed to the Buyer or its
representatives in (a) the Data Room
and (b) the Navy Contracts.
DUE DILIGENCE means the due diligence review
conducted by the Seller on the basis
of the Data Room.
DUE DILIGENCE INFORMATION has the meaning given to it in
clause 6.1.
EFFECTIVE DATE means 1 January 2004 at 00.00 h.
ENVIRONMENTAL LAWS means any applicable environmental
laws, statues, directives and
regulations.
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ERISA means the U.S. Employee Retirement
Income Security Act of 1974, as
amended.
ERISA AFFILIATE means any trade or business, whether
or not incorporated, other than a
Subsidiary, which has employees who
are or have been at any date of
determination occurring within the
preceding six (6) years, treated
pursuant to Section 4001(a)(14) of
ERISA and/or Section 414 of the U.S.
Internal Revenue Code of 1986, as
amended (the "U.S. TAX CODE"), as
employees of a single employer which
includes Envirovac, Inc. or any
predecessor-in-interest.
ESCROW ACCOUNT means the escrow account to which a
part of the Purchase Price is
deposited in accordance with clause
4.5.2 (b).
ESCROW AGENTS means CMS Bureau ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
GmbH Steuerberatungsgesellschaft of
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▇▇▇▇▇▇▇▇▇▇▇ and CMS ▇▇▇▇▇▇ ▇▇▇▇▇ of
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ESCROW AMOUNT means EUR 3,500,000 which shall be
deposited to the Escrow Account.
ESCROW AGREEMENT means an escrow agreement
to be entered between the Seller,
the Buyer and the Escrow Agents on
the Closing Date substantially in
the form set out in Appendix 8.
EURIBOR means the Euro Interbank Offered
Rate for deposits of 3 months being
the rate at which euro interbank
term deposits within the euro zone
are offered by one prime bank to
another prime bank for a period of 3
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months and published at 11.00 a.m.
CET for spot value (T+2).
FINANCIAL INFORMATION means the Group Accounts, the
Audited Group Accounts and the
Subsidiaries' Accounts as
supplemented by the management
reports and all the book-keeping
material made available by the
Seller to the Buyer or its
representatives.
GROUP ACCOUNTING means generally accepted accounting
PRINCIPLES principles in Finland.
GROUP ACCOUNTS means the consolidated profit and
loss statements and balance sheets
(and the notes thereto) of the
Target for the financial years ended
December 31, 2001, 2002 and 2003
prepared by the Target's management
in accordance with the Group
Accounting Principles applied on a
consistent basis between financial
years.
GROUP CONTRIBUTION PAYABLE means the group contribution payable
recorded in the Audited Group
Accounts on line 93370 of page A.35
"Specification of current
liabilities" (corresponding to EUR
5,124,000) or such other amount as
the Parties may agree in writing. .
GROUP CONTRIBUTION means the group contribution
RECEIVABLE receivable recorded in the Audited
Group Accounts on line 62274 of page
A.20 "Specification of Balance Sheet
Financial Assets and Receivables"
(corresponding to EUR 587,000) or
such other amount as the Parties may
agree in writing.
INTELLECTUAL PROPERTY RIGHTS means patents, trade marks, service
marks, trade or business names,
design rights, copyrights (including
any software, database rights, and
domain names),
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and proprietary information, whether
or not any of these is registered
and including any applications for
registration of any of them, and all
rights of similar nature or having
equivalent or similar effect to any
of these which may subsist anywhere
in the world.
KEY EMPLOYEES means the list of employees and
their positions set out in Appendix
10 and a "Key Employee" is a
reference to one of them.
KPMG GERMANY means KPMG Deutsche
Treuhand-Gesellschaft
Aktiengesellschaft
Wirtschaftspruefungsgesellschaft.
MATERIAL AGREEMENTS means the customer contracts listed
in Appendix 9 to this Agreement and
the Navy Contracts.
MINIMUM NET ASSET VALUE means EUR 5,400,000.
NAVY CONTRACTS means the Frame Agreements and
Purchase Orders for U.S. Navy
Projects DDG, LPD and CVN - 77,
copies of which have been provided
to the Buyer.
NET ASSET VALUE means the consolidated Total
Shareholders' Equity of the Target
and the Subsidiaries (in the Audited
Group Accounts this is recorded on
line 84000 of page A 30
"Specification of changes in
Shareholders' Equity").
NET ASSET VALUE ESCROW means EUR 2,000,000.
AMOUNT
NET GROUP CONTRIBUTION means EUR 4,537,000 being the amount
PAYABLE at the Effective Date of:
1) the Group Contribution Payable;
2) less the Group Contribution
Receivable; or such other amount as
the Parties may agree to in writing.
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NET SHAREHOLDER LOANS means EUR 19,362,650 being the
amount at the Effective Date of:
1) Shareholder Loans;
2) less Sanitec Cash;
or such other amount as the Parties
may agree to in writing.
ORDINARY COURSE OF means the business activities of the
BUSINESS each of the Target and the
Subsidiaries having been conducted
consistently with past practice and
in all material respects in
accordance with good and sound
business practices as applied where
the business is conducted.
PARTY has the meaning set out in the
preface above.
PERSON means an individual, a partnership,
a corporation, an association, a
joint stock company, a trust, a
joint venture, an unincorporated
organisation, or a governmental
entity.
PURCHASE PRICE means sixty million Euros (EUR
60,000,000) minus Third Party Net
Debt minus Net Group Contribution
Payable.
SANITEC CASH means the aggregate amount of cash
and cash equivalents (including
amounts included in non-trade
receivable balances) of the Target
and the Subsidiaries held by the
Seller or one of its Affiliates and
included in the Audited Group
Accounts (corresponding to lines
64600, 62164 and 62364 of page A 20
"Specification of Balance Sheet -
Financial Assets and Receivables").
SECURITY INTEREST means any mortgage, pledge, lien,
encumbrance, charge, or other
security interest.
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SELLER has the meaning set out in the
preface above.
SELLER'S KNOWLEDGE means the actual knowledge of ▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Olli Bjoerkqvist and
Aki Tarjasalo.
SHAREHOLDER LOANS means the shareholder loans granted
by the Seller or its Affiliates to
the Target and certain of the
Subsidiaries and included in the
Audited Group Accounts together with
accrued but unpaid interest theron
(corresponding to lines 93160 and
92860 of page A.35 "Specification of
current liabilities").
SUBSIDIARIES means the companies listed in
Appendix 2 under the heading
Subsidiaries.
SUBSIDIARIES' ACCOUNTS means the individual companies'
profit and loss statements and
balance sheets (including notes
thereto) for the Subsidiaries for
the financial years ended December
31, 2001, 2002 and 2003 prepared by
the Target or any of the
Subsidiaries in accordance with the
Accounting Principles applied on a
consistent basis between financial
years. In countries where a
statutory audit is required (being
Germany, Finland and Sweden) this
means the individual company's
audited financial statements.
TARGET has the meaning set out in the
preface above.
TARGET SHARES means 500 ordinary shares of the
Target corresponding to 100% of all
the issued and outstanding shares of
the Target.
TAXES means all forms of taxation
including, in particular, any
charge, tax, duty, levy, impost,
withholding or
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liability wherever chargeable
imposed for support of national,
state, municipal or local government
or any other person in any
jurisdiction and any penalty, fine,
surcharge, interest, penalty,
charges or costs payable in
connection with any such taxation,
whether disputed or not.
TAX RETURN means any return, declaration,
report, claim for refund, or
information return or statement
relating to Taxes, including any
schedule or attachment thereto, and
including any amendment thereof.
THIRD PARTY CASH means the aggregate amount of cash
and cash equivalents (including
marketable securities and short term
investments) of the Target and the
Subsidiaries held at third party
financial institutions and included
in the Audited Group Accounts
(corresponding to line 64100 and
line 64200 of page A 20
"Specification of Balance Sheet -
Financial Assets and Receivables").
THIRD PARTY NET DEBT means EUR 476,000, being the
aggregate amount at the Effective
Date of:
(1) all indebtedness owed by the
Target and the Subsidiaries in
respect of or arising from:
(a) any money borrowed,
including, without
limitation, money borrowed
from banks or other
financial institutions; and
(b) any note, bond debenture or
other similar instrument
other than (i) any indebtedness
owed among any of the Target
and the Subsidiaries and (ii)
the Shareholder Loans,
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(the total corresponding to EUR
1,143,000, corresponding to the
sum of lines 92100, 92200,
92600, 91100, 91200, 91300,
91400, 91590 of page
"Specification of external
long-term debt and current
liabilities", and of lines
93210, 93220, 93260, 93290 of
page A 35 "Specification of
current liabilities" of the
Audited Group Accounts) or such
other amount as the Parties may
agree to in writing;
(2) less Third Party Cash as at the
Effective Date (the total
corresponding to EUR 667,000 as
the sum of lines 64100 and
64200 of page A 20
"Specification of Balance Sheet
- Financial Assets and
Receivables" of the Audited
Group Accounts) or such other
amount as the Parties may agree
to in writing.
WARRANTIES means the representations and
warranties of the Seller set out in
clause 5.1 and Appendix 4.
2. SALE AND PURCHASE
2.1 SALE AND PURCHASE OF TARGET SHARES
On and subject to the terms and conditions of this Agreement, the
Buyer hereby purchases from the Seller and the Seller hereby sells
to the Buyer, all of the Target Shares for the consideration
specified in clause 2.3.1 below.
The sale and transfer of the Target Shares under this Agreement
shall include any and all rights attaching to the Target Shares
including, without limitation, the right to receive dividends, if
any, for the fiscal year commencing on the Effective Date.
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2.2 SALE OF SHAREHOLDER LOANS
On and subject to the terms and conditions of this Agreement, the
Seller hereby sells to the Buyer all its rights and claims under
the Shareholder Loans and the Buyer assumes all rights and
obligations under or in connection with the Shareholder Loans in
place of the Seller, with economic effect from the Effective Date
(except for interest payable under clause 4.5.7) for the
consideration specified in clause 2.3.2 below.
2.3 PURCHASE PRICE
The Buyer shall pay the Purchase Price to the Seller. The Purchase
Price shall be allocated as follows:
2.3.1 EUR 35,624,350 shall be allocated to the Target Shares;
and
2.3.2 EUR 19,362,650 to the Net Shareholder Loans.
2.4 MINIMUM NET ASSET VALUE
The Purchase Price is based on the Minimum Net Asset Value as per
Closing. In the event the Net Asset Value on the Closing Date,
determined in accordance with clause 4.6, falls short of the
Minimum Net Asset Value the Purchase Price shall be reduced on a
euro for euro basis corresponding to the difference between the
Net Asset Value and the Minimum Net Asset Value.
2.5 PAYMENT OF THE PURCHASE PRICE
The Purchase Price shall be paid at Closing in accordance with
clause 4.5.2.
In the event a reduction of the Purchase Price as set out in
clause 2.4 exceeds the amount of the Net Asset Value Escrow
Amount, the difference shall be refunded by the Seller to the
Buyer within seven (7) days from the date the Closing Date
Accounts have been agreed or determined in accordance with clause
4.6.
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3. TRANSFER OF TITLE
The full and unrestricted ownership of and title to the Target Shares
and the Shareholder Loans shall pass from the Seller to the Buyer at
Closing against payment of the Purchase Price and fulfilment and
completion of the Closing procedures set forth in clause 4.5.
4. CLOSING
4.1 CLOSING
Closing shall take place on the Closing Date starting at a time
and place to be agreed by the Parties.
4.2 CONDITIONS TO CLOSING
Closing is subject to and conditional on fulfilment of the
conditions set out below:
4.2.1 the granting of any consents, approvals, authorisations
or clearances which are required (if any) from any
competent anti-trust authority in the countries listed
in Appendix 3;
4.2.2 the consent to the transactions contemplated by this
Agreement of the Bayerische-Hypo und Vereinsbank as
Senior Agent and the banks pursuant to a Senior
Multicurrency Term Loan and Revolving Credit Facility
Agreement dated 26 April 2001, as amended (the "SENIOR
FACILITY"), including proof of the release of the
pledges over the Target Shares granted to the Senior
Agent and proof of the release of the Target and Evac
Oy as guarantors of the Senior Facility and the release
of the floating charges over the assets of the Target
and Evac Oy under Finnish law;
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4.2.3 no competent authority in any country, other than in
those listed in Appendix 3, having prohibited the
transfer of the Target Shares and the Shareholder Loans
to the Buyer prior to the fulfilment of the conditions
set out in clauses 4.2.1 and 4.2.2 above and 4.2.4
below and if such a prohibition is made this condition
shall be satisfied (if not waived earlier) as and when
such prohibition is removed or ceases to apply; and
4.2.4 the delivery to the Buyer of a copy of the full audited
statutory accounts of EVAC GmbH for the financial year
ended 31 December 2003 with notes including a balance
sheet and profit and loss statement with amounts
identical by item to those in the balance sheet and
profit and loss statement set out in the attached
Auditors' Confirmation together with an audit opinion
with no qualifications other than as set out in the
Auditors' Confirmation.
4.3 SATISFACTION OF CONDITIONS
Where fulfilment of any condition set out in clause 4.2
requires a Party's active involvement or assistance, or
where a Party is capable of preventing its fulfilment,
that Party shall use its best endeavours to procure
that the condition is fulfilled as soon as practicable,
provided that the fulfilment of the conditions set
forth in clause 4.2.1 and 4.2.3 are the sole
responsibility of the Buyer.
4.4 RIGHT TO RESCIND
4.4.1 The Seller may rescind this Agreement by written notice
to the Buyer if the conditions set out in sub-clauses
4.2.1 and 4.2.3 above are not fulfilled by October 31,
2004 (and in which event the provisions of clause 4.8
shall apply) or the Buyer fails to pay the Purchase Price
in accordance with clause 4.5.2 in full.
4.4.2 The Buyer may rescind this Agreement by written notice to
the Seller before Closing if:
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(a) the Buyer has Claims under the Warranties in respect
of which the minimum aggregate liability of the
Seller in respect of not more than three of such
Claims exceeds EUR 5 million;
(b) a material adverse change occurs in the assets,
liabilities, business, financial condition or
results of operations of the Target and the
Subsidiaries on a consolidated basis excluding any
circumstance or change resulting from changes in
laws, regulations or accounting practices (and a
change shall be interpreted to be "material" if it
results in a sustained reduction of the enterprise
value of the Target and the Subsidiaries of more
than EUR 10 million) provided this right of
rescission is exercised on or before June 15, 2004
and after such date the provisions of this clause
shall cease to apply;
(c) the condition set out in clause 4.2.2 is not
satisfied on or before 15 April 2004;
(d) the condition set out in clause 4.2.4 is not
satisfied on or before 15 April 2004; or
(e) Closing has not occurred by 1 November 2004 but the
Buyer's right of rescission shall be conditional
on and subject to prior payment in full of the
non-closure fee payable under clause 4.8.
4.4.3 In the event of a rescission of this Agreement under
sub-clause 4.4.1 or 4.4.2 this Agreement shall become
void and have no effect and no Party shall have any
liability or responsibility to the other except for
clauses 4.8, 9.5, 11.2, 11.3, 11.4, 11.7 to 11.10
(inclusive) 11.12 and 11.13 which shall continue in force
and effect.
4.4.4 In the event that the Buyer fails to pay the Purchase
Price in accordance with clause 4.5.2 in full on Closing
and the Seller does not exercise its right to rescind,
the Purchase Price shall carry interest at the Default
Rate, compounded monthly from the Closing Date until the
date of payment.
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4.5. CLOSING
Closing of this Agreement shall take place on the Closing Date and
at such time:
4.5.1 the Seller shall deliver and transfer to the Buyer
share certificates representing the Target Shares,
endorsed in blank;
4.5.2 the Buyer shall deliver the Purchase Price by way of
wire transfer in immediately available funds, free of
any costs and charges as follows:
(a) an amount of EUR 51,487,000 to such account as the
Seller notifies to the Buyer in writing not less
than 3 Business Days before the Closing Date,
(b) an amount of EUR 3,500,000 to the Escrow Account;
(c) interest payable in accordance with clause 4.7 (if
any) to the account notified under paragraph 4.5.2
(a) above;
4.5.3 the Seller shall procure that the Target and the
Subsidiaries shall pay the Net Group Contribution
Payable to the Seller or its Affiliates;
4.5.4 the Parties shall execute a share transfer form
evidencing the transfer of the Target Shares;
4.5.5 the Parties shall sign and execute and shall cause the
Escrow Agents to sign and execute the Escrow Agreement;
4.5.6 the Seller shall deliver to the Buyer a waiver on its
own behalf and on behalf of any relevant Affiliate with
respect to their right to terminate any of the
agreements with the Target and the Subsidiaries as a
consequence of the transaction to be consummated under
this Agreement; and
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4.5.7 the Seller shall procure that the Target and the
Subsidiaries shall pay interest on the Shareholder
Loans from the Effective Date up to and including the
Closing Date at the rate of 4.5% per annum.
All measures taken in connection with the Closing will be
considered to have occurred simultaneously as a part of a single
transaction and no delivery will be considered to have been made
until each such measure has been completed.
4.6 CLOSING DATE ACCOUNTS
The Target shall within sixty (60) days from the Closing Date draw
up Closing Date Accounts in conformity with the Group Accounting
Principles. The Closing Date Accounts shall be reviewed by the
Buyer in order to prepare a certificate of the Net Asset Value as
at the Closing Date.
The Closing Date Accounts, including the certificate of Net Asset
Value shall be submitted to the Seller for their review. The
Seller shall be given the opportunity to review the Closing Date
Accounts and shall for such purpose have access to all the records
and book-keeping material relating to the Target to the extent
required for the purposes of such review.
The Closing Date Accounts shall be deemed accepted and shall be
conclusive for the purpose of defining the Net Asset Value
provided for in clause 2.4 unless within forty- five (45) days
after delivery of the Closing Date Accounts to the Seller, the
Seller (i) shall give a written notice to the Buyer objecting to
the Closing Date Accounts and (ii) submits adjusted Closing Date
Accounts to the Buyer.
The adjusted Closing Date Accounts shall be deemed to be accepted
and shall be conclusive for the purposes of defining the Net Asset
Value provided for in clause 2.4 unless the Buyer, within fourteen
(14) days after the date on which the adjusted Closing Date
Accounts were delivered, delivers a written notice to the Seller
objecting to the adjusted Closing Date Accounts.
The Parties shall use their respective best endeavours to attempt
to resolve all differences and agree upon the proper treatment of
the item(s) subject to
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dispute on a mutually acceptable basis. If the Parties are unable
to resolve the dispute as to the treatment of any item(s) relating
to the adjusted Closing Date Accounts within fourteen (14) days
after receipt of the notice of the Buyer by the Seller referred to
above, the dispute shall be referred for decision to the Helsinki
office of PricewaterhouseCoopers or such other independent
accounting firm as may be mutually appointed by the Parties.
PricewaterhouseCoopers or such independent accounting firm shall,
within thirty (30) days of such submission, determine and report
to the Parties its resolution on such remaining disputed items and
certify the Net Asset Value as at the Closing Date accordingly.
The decision of PricewaterhouseCoopers or such independent
accounting firm shall be final and binding upon each Party.
Fees and expenses of the independent accounting firm shall be
allocated between the Parties in proportion to the aggregate
amount of their unsuccessfully disputed items (as finally
determined by the independent accounting firm).
4.7 INTEREST
If Closing does not occur on or before May 31, 2004 the Buyer
shall pay interest on that part of the Purchase Price allocated to
the Target Shares under clause 2.3.1 at the rate of 4.5% per annum
from that date until the Closing Date.
4.8 NON-CLOSURE FEE
If Closing does not occur on or before October 31, 2004 for
whatever reason, but excluding termination of this agreement under
sub-clause 4.4.2 (a) to (d) the Buyer shall pay to the Seller on
demand to an account nominated by the Seller a fee of EUR 10
million (excluding value added tax if applicable) which shall be
payable without set-off or counterclaim. In the event that the
Buyer pays such fee and Closing subsequently occurs such fee shall
be treated as an advance payment of the Purchase Price and the
Purchase Price shall be reduced by the amount of the fee paid. The
Buyer accepts that the fee shall be payable
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also in circumstances where Closing does not occur for reasons
which are beyond the Buyer's control.
5. WARRANTIES
5.1 WARRANTIES OF THE SELLER
The Seller warrants to the Buyer that as of the date of this
Agreement and as of Closing the statements contained in Appendix 4
are correct.
5.2 WARRANTIES OF THE BUYER
The Buyer warrants to the Seller that the statements set out in
Appendix 5 are correct as of the date of this Agreement and as of
Closing. The Buyer shall have no liability to the Seller for
breach of any of such warranties unless the Seller serves written
notice of claim on the Buyer prior to expiry of the third
anniversary of the Closing Date.
6. DUE DILIGENCE ; SELLER'S DISCLOSURES; DISCLAIMER OF OTHER WARRANTIES
6.1 The Parties agree that the Seller has provided the Buyer and its
representatives access to and the right to study all information
and documentation relating to the Target and the Subsidiaries
located in the Data Room and has given the Buyer the opportunity
to request additional information and to ask questions. The
Buyer acknowledges that the Seller and the Target and the
Subsidiaries have also provided other information, including,
but not limited to, by way of site visits and meetings with the
management of the Target and the Subsidiaries (together with the
information contained in the Data Room, the "Due Diligence
Information").
6.2 In connection herewith the Buyer acknowledges and confirms that
this Agreement is entered into on the basis of and on condition
that the Buyer has conducted its own extensive due diligence
investigation and that it has carefully reviewed the Due
Diligence Information and has duly inquired to the extent it had
questions or comments with regard to any matter thereto and that
all issues derived therefrom and relevant to the Buyer have been
taken
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into account in the Purchase Price except as otherwise provided
for in this Agreement. In addition, the Buyer acknowledges that
it had independent legal, tax and financial advice relating to
the purchase of the Target Shares, the purchase of the
Shareholder Loans and the terms of this Agreement.
6.3 The Buyer acknowledges and agrees that the Seller makes no
warranty as to the accuracy of any forecasts, estimates,
projections, statements of intent or statements of opinion
contained in the Data Room or otherwise provided to the Buyer.
6.4 Except as expressly set forth in clause 5.1, the Seller makes no
representation or warranty, express or implied, in respect of
the Shares, the Target, the Subsidiaries or any of them, or any
of their respective assets, liabilities or operations, and all
such other representations or warranties are hereby expressly
disclaimed and excluded. The provisions of the Finnish Sale of
Goods Act (355/1987) are not applied to this Agreement.
7. DELIVERIES ON SIGNING OF THIS AGREEMENT
7.1 The Seller has delivered to the Buyer the following
certificates, instruments, and documents:
7.1.1 the consents of the third parties listed in Appendix
6 to the transactions contemplated by this
Agreement;
7.1.2 a certified copy of a resolution of the board of
directors of the Seller in English authorising the
transactions contemplated by this Agreement.
7.2 The Buyer has delivered to the Seller a certified copy of a
resolution of the board of directors of the Buyer in English
authorising the transactions contemplated by this Agreement.
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8. CERTAIN UNDERTAKINGS AND AGREEMENTS
8.1 COMPETITION FILING
The Buyer shall be responsible for and shall bear all costs related to
the preparation and filing of all necessary notices and obtaining
permits required under any applicable competition laws for the
consummation of the transactions contemplated hereunder. The Seller
shall at its own cost and expense give to the Buyer all assistance the
Buyer reasonably requests with respect to information required for such
measures.
8.2 ESCROW AGREEMENT
On the Closing Date, the Seller, the Buyer and the Escrow Agents shall
enter into the Escrow Agreement.
9. POST-CLOSING COVENANTS
9.1 SERVICES TO BE PROVIDED BY SELLER
The Seller will continue to provide the Target and the
Subsidiaries the following services for a transition period of (3)
months following the Closing Date:
9.1.1 services as per the Technical, Administrative,
Marketing and Management Service Agreement dated July,
7 2000 among the Seller, the Target and other parties
and the Buyer shall procure that the Target shall pay
the Seller a fee for these services at the rate of EUR
25,000 (excluding value added tax) per month;
9.1.2 services as per the Logistic and Production
Optimisation Service Agreement dated July, 7 2000 among
the Seller, the Target, and other parties and the Buyer
shall procure that the Target shall pay the Seller a
fee for these services at the rate of EUR 10,000
(excluding value added tax) per month;
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9.1.3 services for IT support on terms and conditions and
timing to be agreed in writing by the Seller and the
Buyer; and
9.1.4 subject to the approval of Hyperion (which the Parties
will use all reasonable efforts to obtain) and
agreement by the Buyer, the Seller will sub-licence the
Target and Subsidiaries to use the Hyperion Software
for a period of up to 6 months from the Closing Date
and the Buyer will procure that the Target pays all
costs and expenses (and any VAT thereon) incurred by
the Seller in relation to such sub-licence.
9.2 ASSUMPTION OF GUARANTEES
With effect from the Closing, the Buyer will (i) indemnify and
keep indemnified the Seller from and against any liabilities,
costs, expenses, damages and losses it may incur in connection
with the guarantees listed in Appendix 7 that it has given with
respect to certain products and third party debts of the Target
and the Subsidiaries and (ii) take all measures necessary,
starting without undue delay after the Closing Date to assume such
guarantees or to procure that it's Affiliate or Affiliates assume
such guarantees and will obtain unconditional releases from the
beneficiaries of such guarantees in favour of the Seller. From the
date of this Agreement until Closing the Seller will notify the
Buyer promptly after any increase of Euros 100,000 or more in the
amount of (i) the guarantees given by SEB in the maximum amounts
of SEK 15,000,000 and Euros 504,564 and (ii) the guarantee given
by Nordea Bank Finland for Euros 1,009,127, or the
counter-indemnites given by the Seller in relation to those
guarantees, all of which guarantees are listed in Appendix 7.
9.3 NON-COMPETITION
The Seller hereby undertakes for itself and on behalf of its
Affiliates from time to time for a period of three (3) years from
the Closing Date not to carry on any business anywhere in the
world that directly competes with the Target or the Subsidiaries
solely in the business of manufacturing, assembling and
distributing vacuum toilet systems and related components
currently carried
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out by the Target or the Subsidiaries without the prior written
consent of the Buyer. This restriction shall not apply to minority
shareholdings in any publicly listed companies that are not a
controlling interest. For the avoidance of doubt the Parties
confirm that the Seller's ceramic and sanitaryware business does
not compete in any way with the business of the Target or the
Subsidiaries as per this clause herewith.
The Seller undertakes for itself and on behalf of its Affiliates
from time to time for a maximum period of five years from the
Closing Date (or such shorter period as the parties may agree in
writing) not to supply directly or indirectly ceramic bowls to any
competitor of the Target that supplies vacuum toilet systems for
use in passenger ships provided that the Buyer procures that the
proportion of ceramic bowls supplied by the Seller and its
Affiliates to the Target and the Subsidiaries for their use in
passenger ships of all ceramic bowls bought by the Target and the
Subsidiaries for their use in passenger ships shall not materially
decline.
9.4 NON-SOLICITATION
The Seller hereby undertakes for a period of two (2) years from
the Closing Date not to solicit any Key Employees being employed
with the Target at the time without prior written consent of the
Buyer. Nothing shall, however, prevent the Seller from hiring any
Key Employee who:
(a) has applied for any publicly announced position at the
Seller (without solicitation by Seller or any Affiliate),
or
(b) whose employment or position has been terminated by Target
or any of the Subsidiaries for any reason after Closing, or
(c) whose employment with the Target or any of the Subsidiaries
ceased six months or more before the date of his or her
employment by the Seller.
9.5 CONFIDENTIALITY
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The Parties hereby undertake not to disclose any Confidential
Information they have obtained about the other Party or this
Agreement and the Seller with respect to the Target and the
Subsidiaries to any third parties unless the other Party has given
its consent to disclose such Confidential Information or if
required to do so by law or other regulations.
9.6 GROUP INSURANCE
If after Closing the Seller (or any of its Affiliates) receives
payment under an insurance policy of a claim made in respect of a
loss suffered or incurred by the Target or any of the Subsidiaries
the Seller shall or shall procure that the Affiliate shall
promptly pay to the Target or Subsidiary an amount equal to the
net amount received.
10. LIMITATIONS OF SELLER'S LIABILITY AND INDEMNITIES
10.1 REDUCTION IN PURCHASE PRICE
Any payment made by the Seller to the Buyer in respect of any
Claim shall, to the greatest extent possible, be treated as a
reduction of the Purchase Price.
The exclusive remedy for any breach of the Warranties shall be an
action for damages for breach of contract. Subject to clause 4.4.2
the Buyer shall not be entitled to rescind or terminate this
Agreement under any circumstances whatsoever, except for fraud
perpetrated by the Seller.
10.2 LIMITATION OF THE SELLER'S LIABILITY
10.2.1 The Seller shall not have any liability to compensate
the Buyer for any breach by the Seller of the
Warranties unless:
(a) prior to 5.00 p.m. CET on the sixth anniversary of
the Closing Date regarding Warranties set out in
paragraphs 4.1, 4.2, 4.3 and 4.19 of Appendix 4,
and on the third anniversary of the Closing Date
regarding all other Warranties, the Buyer gives
written notice to the Seller setting out in
reasonable detail the facts and
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circumstances constituting the alleged breach, the
Buyer's best estimate of the damages arising from
such breach (to the extent reasonably practical),
and the details of the Warranty allegedly
breached, and the Seller's liability for any
alleged breach so notified shall absolutely
determine and cease if legal proceedings have not
been commenced in respect of such alleged breach
within three months of the expiry of such
limitation period;
(b) the aggregate liability of the Seller arising from
all breaches of Warranty (other than in respect of
paragraph 4.19 of Appendix 4) exceeds five hundred
thousand Euros (EUR 500,000) and if the amount of
such liability in the aggregate exceeds five
hundred thousand Euros (EUR 500,000), the Buyer
shall be entitled to recover only the excess above
an amount of three hundred thousand Euros (EUR
300,000). The above monetary limitations shall not
apply to the Warranties set out under paragraphs
4.1 to 4.4 (inclusive), 4.7 and 4.8 of Appendix 4;
and
(c) the aggregate liability of the Seller arising from
all breaches of the Warranties set out in
paragraph 4.19 of Appendix 4 exceeds one hundred
thousand Euros (EUR 100,000) and if the amount of
such liability in the aggregate exceeds one
hundred thousand Euros (EUR 100,000), the Buyer
shall be entitled to recover only the excess above
an amount of fifty thousand Euros (EUR 50,000).
10.2.2 No liability shall attach to the Seller in respect of
any Claim to the extent that:
(a) any matter or thing has been done or omitted to be
done with respect to the subject matter of the
Claim prior to the Closing Date at the written
request, or with the written approval, of the
Buyer;
(b) the facts forming the basis for the Claim have
been Disclosed to the Buyer;
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(c) the matter to which the Claim relates has been
taken into account in the Group Accounts, the
Audited Group Accounts or the Closing Date
Accounts by way of a provision or depreciation
provided that with respect to the Closing Date
Accounts the purpose of this sub-clause is that
the Buyer cannot recover both under clause 4.6 and
under the Warranties for the same matter.
(d) the amount of the Claim can be recovered by the
Buyer, the Target, the Subsidiaries or the
Associated Company from a third party or under an
insurance policy in force on or prior to the
Closing;
(e) the Claim results from or is increased by the
failure of the Buyer, the Target, any of the
Subsidiaries or the Associated Company to mitigate
damages;
(f) the Claim either results from or is increased by
the passing of, or any change in any law, statute,
ordinance, rule, regulation or administrative
practice of any government, governmental
department, agency or regulatory body after the
Effective Date, including but not limited to any
increase in the rates of taxes or any imposition
of taxes or any withdrawal or relief from taxes
after the Effective Date.
10.3 MAXIMUM LIABILITY OF SELLER
Save for the specific indemnities provided in clauses 10.5 and
10.6 and the Warranties set out in paragraphs 4.1 to 4.4
(inclusive), 4.7 and 4.8 of Appendix 4 to which the maximum
financial limitations set out below shall not apply, the total
aggregate liability of the Seller shall not exceed EUR 5,000,000:
(a) after the first anniversary of the Closing Date the total
aggregate liability of the Seller shall reduce to EUR
4,500,000; and
(b) after the third anniversary of the Closing Date the total
aggregate liability of the Seller shall reduce to EUR
250,000 and shall remain so limited
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until and including the sixth anniversary of the Closing
Date. For the avoidance of doubt, the remaining aggregate
liability relates only to breaches of Warranties under 4.1
to 4.3 and 4.19 of Appendix 4.
10.4 ESCROW ACCOUNT
At Closing an amount of EUR 3,500,000 shall be placed in the
Escrow Account in accordance with the Escrow Agreement and shall
be released on and subject to the terms and conditions of the
Escrow Agreement as follows:
(a) an amount of EUR 2,000,000 after completion of the Closing
Date Accounts;
(b) an amount of EUR 500,000 at the latest on the first
Business Day after the second anniversary of the Closing
Date;
(c) an amount of EUR 750,000 at the latest on the first
Business Day after the third anniversary of the Closing
Date;
(d) an amount of EUR 250,000 at the latest on the first
Business Day after the sixth anniversary of the Closing
Date.
10.5 ▇▇▇▇▇▇ CASE
With effect from the date of this Agreement, the Seller shall
indemnify and hold the Target, the Subsidiaries and the Buyer
harmless from and against the claim filed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
against Bombardier Corporation and Envirovac, Inc. in March 1998
in the United States District Court for the District of Columbia
(case No. 98-CV-00657) ("▇▇▇▇▇▇ CLAIM") provided that:
(a) the Buyer shall provide, and shall procure that Envirovac,
Inc. and the Target and the Subsidiaries will provide, to
the Seller and the Seller's professional advisers full
access to premises, personnel and to all relevant assets,
documents, records and information within the power,
possession or control of Envirovac, Inc for the purpose of
investigating and/or
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enabling the Seller to take such action as are referred to
in sub-clause (d) below;
(b) the Buyer shall and shall procure that Envirovac, Inc. and
the Target and the Subsidiaries retain and preserve all
relevant assets, documents, records and information within
the power, possession or control of the Target and the
Subsidiaries relating to the ▇▇▇▇▇▇ Claim which are or may
be relevant in connection with such claim for so long as
such claim remains outstanding;
(c) the Seller shall be entitled to copies of any of the
documents or records, and to photograph any premises or
assets, referred to in sub-clause (b) above;
(d) the Buyer shall and shall procure that Envirovac, Inc. and
the Target and the Subsidiaries will:
(i) take such action and institute such proceedings,
and give such information and assistance, as the
Seller may reasonably request to:
(aa) dispute, resist, appeal, compromise,
defend, remedy or mitigate the ▇▇▇▇▇▇
Claim; or
(bb) enforce against any person the rights
of Envirovac, Inc. in relation to the
▇▇▇▇▇▇ Claim; and
(ii) use professional advisers nominated by the Seller
who shall act in accordance with the Seller's
instructions and permit the Seller to have
exclusive conduct of the negotiations and/or
proceedings;
(e) not make any admission of liability in respect of or
compromise or settle the ▇▇▇▇▇▇ Claim without the prior
written consent of the Seller.
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The Seller's liability under this clause 10.5 shall include,
without limitation, any damages, losses, costs and expenses
arising out of or relating to any of the above, and shall not be
limited by anything contained in clauses 10.2 and 10.3.
10.6 EVAC ITALIA SPA
The Seller shall indemnify the Buyer, the Target and the
Subsidiaries from and against any damages, losses, costs and
expenses incurred by them under breach of Warranty regarding EVAC
Italia SpA or otherwise by EVAC Italia SpA other than the usual
costs and expenses of completing the liquidation of that company
and provided the Seller procures that the liquidation of such
company is completed as expeditiously as practicable.
11. MISCELLANEOUS
11.1 ORDINARY COURSE OF BUSINESS
Between the date of this Agreement and the Closing Date the Seller
shall cause the Target and the Subsidiaries to conduct their
business only in the Ordinary Course of Business, except as
otherwise provided by this Agreement. Between the date of this
Agreement and the Closing Date the Seller shall cause the Target
and the Subsidiaries to refrain from the following measures and
actions without the prior written consent of the Buyer (each of
which shall be deemed to constitute a deviation from "Ordinary
Course of Business"):
(a) incurring any additional interest-bearing debt, other than
in the Ordinary Course of Business;
(b) granting any mortgage, encumbrance or lien on any property
or with respect to any assets other than in the Ordinary
Course of Business;
(c) incurring any contingent liability as guarantor or surety
with respect to the obligations of others (other than any
of the Subsidiaries) except in the Ordinary Course of
Business;
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(d) dismissing any Key Employee on any grounds other than
grounds entitling the employer to dismiss for cause;
(e) incurring or suffering, or paying or discharging any
material liability which liability was not either (i)
included in the Audited Group Accounts or the Subsidiaries
Accounts or (ii) incurred in the Ordinary Course of
Business;
(f) incurring any obligation or liability to any of the Key
Employees, its officers, directors or shareholders, or
making any loans or advances to any of its officers,
directors, shareholders or Affiliates, excluding normal
compensation and expense allowances payable to the Key
Employees officers and directors and except in the Ordinary
Course of Business;
(g) declaring, setting aside or paying any dividend on, or
making any group contribution, other than the Group
Contribution Payable, or any other distribution on or
effecting any split, combination or recapitalisation or any
direct or indirect redemption of, the Target Shares or the
shares of the Subsidiaries or repaying the Shareholder
Loans;
(h) making any material modification of the benefits payable to
any of the directors or employees of the Target or the
Subsidiaries, or making any bonus payment to or agreeing to
make any bonus payment to, any of the directors or
employees of the Target Group except in the Ordinary Course
of Business or in accordance with existing or customary
practice or agreements that have been disclosed to the
Buyer;
(i) making any loan, advance or capital contribution to, or
investment in, any person other than loans or advances made
in the Ordinary Course of Business;
(j) changing the articles of association, deeds or certificates
of incorporation, by-laws and any other similar documents
of incorporation of the Target or the Subsidiaries;
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(k) entering into any agreement or transaction for the sale or
acquisition or other disposition of any significant assets
of the Target or the Subsidiaries, except in the Ordinary
Course of Business on commercial terms or conditions
customarily used in the business by the Target or by the
Subsidiaries; or
(l) entering into any "▇▇▇▇ and hold" arrangements with
customers for inventory except in the Ordinary Course of
Business and for volumes (i) consistent with past practice
or (ii) requested by a customer provided the Target or the
Subsidiaries have not solicited such request.
11.2 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS
No Party shall issue any press release or make any public
announcement relating to the subject matter of this Agreement
without the prior written approval of the other Party; provided,
however, that any Party may make any public disclosure it believes
in good faith is required by applicable law or any listing or
trading agreement concerning its publicly-traded securities (in
which case the disclosing Party will use its best efforts to
advise the other Parties prior to making the disclosure).
11.3 NO THIRD-PARTY BENEFICIARIES
This Agreement shall not confer any rights or remedies upon any
Person other than the Parties and their respective successors and
permitted assigns.
11.4 ENTIRE AGREEMENT
This Agreement (including the documents referred to herein) and
the Confidentiality Agreement entered into between the Seller and
Buyer on January 16, 2004 (which Confidentiality Agreement will
terminate at Closing) constitutes the entire agreement among the
Parties and supersedes any prior understandings, agreements, or
representations by or among the Parties, written or oral, to the
extent they have related in any way to the subject matter hereof.
11.5 SUCCESSION AND ASSIGNMENT
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This Agreement shall be binding upon and inure to the benefit of
the Parties named herein and their respective successors and
permitted assigns. No Party may assign either this Agreement or
any of his or its rights, interests, or obligations hereunder
without the prior written approval of the other Party, except that
Buyer may assign by notice in writing given to the Seller any of
its rights and obligations under this Agreement to any Affiliate
provided that such assignment will not release Buyer from any
liability hereunder including but not limited to the obligation in
clause 4.5.2 to pay the Purchase Price on Closing and the
obligation to pay the fee under clause 4.8.
11.6 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together
will constitute one and the same instrument.
11.7 HEADINGS
The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.8 NOTICES
All notices, requests, demands, claims, and other communications
hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if
(and then two Business Days after) it is sent by registered or
certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
IF TO THE SELLER:
Sanitec Oy
▇▇▇▇▇▇▇▇▇ ▇▇ ▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Attn: ▇▇▇▇ ▇▇▇▇▇
WITH A COPY TO:
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
IF TO THE BUYER:
Zodiac SA
▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇-▇▇▇-▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Attn: ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇
WITH A COPY TO:
Asianajotoimisto Krogerus & Co. Oy
Pohjoinen ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attn: Mikko Mali
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address
set forth above using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex,
ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have been
duly given unless and until it actually is received by the
intended recipient. Any Party may change the address to which
notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
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11.9 GOVERNING LAW; JURISDICTION
This Agreement shall be governed by and construed in accordance
with the laws of Finland. Any dispute, controversy or claim
arising out of or relating to this Agreement, or the breach,
termination or validity thereof shall be finally settled by
arbitration in accordance with the Arbitration Rules of the
Finnish Central Chamber of Commerce. The court of arbitration
shall consist of three (3) arbitrators of whom each Party shall
appoint one (1) arbitrator whereafter the two (2) arbitrators
shall jointly appoint the third arbitrator who shall act as the
chairman of the court of arbitration. Should the arbitrators
nominated by the Parties fail to appoint the chairman within
fourteen (14) days from the date when the last arbitrator was
appointed by a Party, the chairman shall be appointed by the
Finnish Central Chamber of Commerce . The same shall apply to an
arbitrator to be appointed by a Party, if such Party has failed to
nominate its arbitrator within thirty (30) days from the request
of the other Party. The arbitration proceedings shall take place
in Helsinki, Finland. The arbitration proceedings shall be
conducted in English and the arbitration award shall be given in
English. Nothing herein shall restrict or prohibit any party from
applying to any court of competent jurisdiction for specific
performance or other injunctive relief.
11.10 AMENDMENTS AND WAIVERS
No amendment of any provision of this Agreement shall be valid
unless the same shall be in writing and signed by both the Buyer
and the Seller. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior
or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
11.11 SEVERABILITY
In the event, any term or provision of this Agreement that is
declared by a judicial or other competent authority to be invalid
or unenforceable for any reason, the Parties shall amend the
provision when possible in such reasonable manner that achieves
the intention of the Parties without illegality and the
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remaining terms and provisions of this Agreement shall remain in
full force and effect.
11.12 EXPENSES AND TAXES
Each of the Buyer and the Seller, will bear his or its own costs
and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated
hereby. In case any of the transaction costs incurred by the
Seller are paid by the Target or any of the Subsidiaries, the
Purchase Price will be reduced accordingly. Without limiting the
generality of the foregoing, all transfer, documentary, sales,
use, stamp, registration and other such Taxes, and all conveyance
fees, recording charges and other fees and charges (including any
penalties and interest) incurred in connection with the
consummation of the transactions contemplated by this Agreement,
shall be paid by the Buyer when due, and the Buyer will, at its
own expense, file all necessary Tax Returns and other
documentation with respect to all such Taxes, fees and charges,
and, if required by applicable law, the Parties will, and will
cause their Affiliates to, join in the execution of any such Tax
Returns and other documentation.
11.13 CONSTRUCTION
The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption
or burden of proof shall arise favouring or disfavouring any Party
by virtue of the authorship of any of the provisions of this
Agreement. Any reference to any national, state, or local statute
or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
11.14 INCORPORATION OF EXHIBITS, ANNEXES, AND SCHEDULES
The Exhibits, Annexes, and Schedules identified in this Agreement
are incorporated herein by reference and made a part hereof.
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In each instance in which provisions of this Agreement contradict
or are inconsistent with the provisions of the Appendices, the
provisions of this Agreement shall prevail and govern.
* * * * *
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
▇▇▇▇-▇▇▇▇ Daillance
Directeur General Branche Marine
For and on behalf of Zodiac S.A.
By:__________________________________
Under a power of attorney dated March 2, 2004
For and on behalf of Sanitec Oy
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APPENDIX 1
THE DVD/CD ROM CONTAINING THE DATA ROOM MATERIAL
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APPENDIX 2
THE SUBSIDIARIES AND ASSOCIATED COMPANIES
SUBSIDIARIES
Evac International Oy
Evac Oy
Evac AB
Evac GmbH
Aquamar Wasserbehandlung Chemikalien und Gerate GmbH
Evac S.a.r.l.
Evac (UK) Limited
Envirovac Inc.
Colton-Wartsila Inc.
Evac Ltda.
Evac Vacuum Systems (Shanghai) Co., Ltd.
Evac Italia
ASSOCIATED COMPANY
AWEK Industrial Patents Ltd.
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APPENDIX 3
COUNTRIES WHERE ANTI-TRUST FILING MAY BE REQUIRED
Finland
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APPENDIX 4
REPRESENTATIONS AND WARRANTIES OF THE SELLER
4.1 ORGANISATION
(a) The Seller is duly organised and validly existing under the laws of
the jurisdiction of its incorporation.
(b) Each of the Target and its Subsidiaries is a corporation duly
organised and validly existing under the laws of the jurisdiction of
its incorporation. Each of the Target and its Subsidiaries has full
corporate power and authority to carry on the businesses in which it
is engaged and to own and use the properties owned and used by it on
the date of this Agreement.
4.2 POWER AND VALIDITY
The Seller has full power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement
constitutes a valid and legally binding obligation of the Seller,
enforceable in accordance with its terms and conditions.
4.3 TITLE AND CAPITALISATION
(a) The Seller owns and transfers the Target Shares free and clear of
any restrictions on transfer, Security Interests, options, warrants,
purchase rights, contracts, commitments, claims, and demands. The
Seller is not a party to any option, warrant, purchase right, or
other contract or commitment that could require the Seller to sell,
transfer, or otherwise dispose of any capital stock of the Target
(other than this Agreement). The Seller is not a party to any voting
trust, proxy, or other agreement or understanding with respect to
the voting of any capital stock of the Target.
(b) All of the Target Shares have been duly authorised, are validly
issued, fully paid, and non-assessable, and are held of record by
the Seller.
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(c) The Target owns, directly or through one of the Subsidiaries,
beneficially and of record all of the shares or other equity
interests in each of the Subsidiaries and 25% of the issued shares
of the Associated Company listed in Appendix 2, free and clear of
any restrictions on transfer, Security Interests, options, warrants,
purchase rights, contracts, commitments, claims, and demands. All
such shares or other equity interests have been duly authorised, are
validly issued, fully paid, and non-assessable. There are no
options, warrants, purchase rights, or other contracts or
commitments pursuant to which any Person has the right or obligation
to acquire (or to require Target or any of the Subsidiaries to sell,
transfer, or otherwise dispose of) any shares or other equity
interests in any of the Subsidiaries or Associated Company. There
are no voting trusts, proxies, or other agreements or understandings
with respect to the voting of any shares or equity interests in any
of the Subsidiaries or Associated Company. Neither Target nor any of
the Subsidiaries or Associated Company owns any shares or equity
interests in, or has any contract or commitment pursuant to which it
has the right or obligation to acquire, any shares or other equity
interests in any Person other than one of the Subsidiaries or
Associated Company.
4.4 PAYMENTS
(a) None of the Target and its Subsidiaries has any liability or
obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this
Agreement.
(b) The Target has not declared or made any distribution of dividends on
the Target Shares nor any group contribution after the Effective
Date, other than the Group Contribution Payable.
(c) Since the Effective Date, none of the Target and the Subsidiaries
has reimbursed or paid interest or principal on the Shareholder
Loans except as provided for by clause 4.5.7 of this Agreement.
4.5 INTELLECTUAL PROPERTY RIGHTS
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(a) Target and Subsidiaries are the sole legal and beneficial owners of
all Intellectual Property Rights Disclosed, free and clear of any
and all adverse claims as to title, charges, liens, mortgages,
set-off, and encumbrances of any kind or nature whatsoever, and
neither Target nor Subsidiaries have granted to any Person any
licenses in respect of any of such Intellectual Property Rights.
(b) The ownership by Target and Subsidiaries of the Intellectual
Property Rights Disclosed has been recorded at the respective patent
and trademark offices registering or issuing such Intellectual
Property Rights, and the records of such patent and trademark
offices reflect such ownership by Target and Subsidiaries.
(c) Target and Subsidiaries do not use any Intellectual Property Rights
of the Seller or any of its Affiliates.
(d) Neither Target nor Subsidiaries have received any written allegation
of infringement by any Person of any Intellectual Property Rights
and to the Seller's Knowledge there is no basis for any such
allegation being made now or in the future.
(e) Neither Target nor Subsidiaries license any Intellectual Property
Rights from any Person and none of them make or are obliged to make
royalty or other payments to any Person for the use of any
Intellectual Property Rights Disclosed.
(f) To the Seller's Knowledge there is no unauthorised use by any Person
of any of the Intellectual Property Rights Disclosed.
(g) No challenge to the validity of any of the Intellectual Property
Rights Disclosed has been made and is outstanding, and Target and
Subsidiaries have not been notified that any such challenge is to be
made.
(h) All of the design rights for the ceramic bowls used by the Target
and Subsidiaries in connection with the performance of the agreement
between EVAC Oy and IDO Bathroom Oy for current projects and
projects under development are owned by the Target and the
Subsidiaries.
4.6 COMPUTER EQUIPMENT AND SOFTWARE
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The computer equipment and the computer software programs used to
perform the duties of the employees of the Target and the Subsidiaries
or otherwise in their business are the property of or duly leased by or
subject to necessary license agreements of the Target or a Subsidiary
and to the Seller's Knowledge the Target and the Subsidiaries will, as
of the Closing, be able to continue the use of the said computer
equipment and software subject to Clause 9.1.4 of this Agreement.
4.7 CORPORATE DOCUMENTS
The articles of association and trade register information (or other
applicable governing documents) of the Target and the Subsidiaries
copies of which appear in the Data Room are currently in force. All
resolutions passed by the meetings of shareholders and board of
directors have been duly recorded in the Target's and the Subsidiaries'
minutes.
The share and shareholder registers of the Target and the Subsidiaries
are accurate, up-to-date, and all transfer and other taxes levied on or
in relation to transfers of shares of the Target and the Subsidiaries
(other than any taxes payable as a consequence of the transfer of the
Target Shares to the Buyer) have been duly paid.
4.8 INTERCOMPANY LOANS
Except as Disclosed, the Target and the Subsidiaries have no debt or
other payment or guarantee obligations towards the Seller or any of the
Seller's Affiliates and the Seller or any of its Affiliates has no debt
or other payment obligations towards the Target or the Subsidiaries
other than in the Ordinary Course of Business.
4.9 FINANCIAL INFORMATION
(a) The Group Accounts and the Audited Group Accounts have been prepared
in accordance with the Group Accounting Principles and, as
applicable, the Finnish Accounting Act and are consistent with the
Seller's and the Target's past practice. The Subsidiaries' Accounts
have been prepared in accordance with the Accounting Principles
applied on a consistent basis between financial years and the
Financial Information presents in all material respects a true and
fair view of
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the consolidated financial conditions and results of the operations
of the Business on the Effective Date and for such period, as
required by the Group Accounting Principles.
(b) In the aggregate, the Target and the Subsidiaries (i) do not hold
assets located in the United States having an aggregate total value
of over U.S.$50 million, and (ii) have not made sales in or into the
United States of over U.S. $50 million in their most recent fiscal
year.
4.10 AGREEMENTS
(a) None of the Target and the Subsidiaries is acting in material breach
of the Material Agreements and to the Seller's Knowledge there are
no circumstances likely to give rise to any material violation under
such Material Agreement. The Target and the Subsidiaries have not
received or given notice of termination of any Material Agreement,
or received written notice of any material claim related thereto. To
Seller's Knowledge, no other party to a Material Agreement is in
material breach or default under such Material Agreement. Each
Material Agreement constitutes a valid and binding agreement,
enforceable against its respective parties in accordance with its
terms.
(b) The terms and conditions of all Material Agreements are not in
material violation of any applicable laws. There are no such
agreements that would limit or restrict the business of the Target
or the Subsidiaries except for agreements entered into in the
Ordinary Course of Business.
(c) All agreements between one or more of the Target and the
Subsidiaries on the one hand, the Seller and the Seller's Affiliates
on the other hand have been made on an "arms-length" basis. There is
no guarantee, indemnity, letter of comfort or encumbrance or other
similar liability given or incurred by the Target or any Subsidiary
for the benefit of the Seller or an Affiliate of the Seller.
(d) There are no material pending claims or notices of any such claim
with respect to any products manufactured or sold or with respect to
any services provided by the Target or the Subsidiaries.
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(e) Neither the Target nor any of the Subsidiaries is a party to any
agreement by which it sells goods or services (but excluding the
Material Agreements) for a consideration exceeding:
(i) in relation to the aviation business, EUR 6 million;
(ii) in relation to the marine business, EUR 3 million;
(iii) in relation to the train business, EUR 7 million; or
(iii) in relation to the building business EUR 700,000.
(f) Except as Disclosed, consummation of the transaction contemplated
hereunder will not result in a violation under any of the Material
Agreements or give the right to any party to a Material Agreement to
terminate such Material Agreement.
4.11 PROPERTY AND ASSETS
The Target or a Subsidiary is the owner of each of the properties and
assets, tangible and intangible, that are reflected in the Audited Group
Accounts, as being owned by the Target or a Subsidiary at the Effective
Date and of any properties and assets, tangible and intangible, acquired
since the Effective Date, and has good and marketable title to all of
such properties and assets, tangible and intangible, free and clear of
any lien or other encumbrance other than properties and assets disposed
of in the Ordinary Course of Business.
4.12 WORKING ORDER AND CONDITION
All material properties and assets of the Target and the Subsidiaries,
including, INTER ALIA, machinery, equipment and vehicles owned or used
by the Target and the Subsidiaries, are in adequate repair, condition
and working order, taking into account their age and wear and tear, and
have been regularly and properly maintained.
4.13 PREMISES
All premises leased, used or occupied by the Target and the
Subsidiaries, including all lease, rent and other agreements related to
such premises are Disclosed. Each lease agreement related to such
premises is in full force and effect and all rents and other related
payments due to date on each such lease have been paid. The Target or
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any Subsidiary has not received any notice claiming that it would be in
material default under any such agreements.
4.14 INSURANCE POLICIES
All insurance policies to which the Target or any of the Subsidiaries is
party or which otherwise provides coverage to the Target, or any
Subsidiary, or their directors or officers, or employees:
(a) are valid and in force;
(b) taken together, provide and have in the past provided insurance
coverage for the Target and the Subsidiaries for risks normally
insured against in similar businesses.
4.15 EMPLOYMENT AND PENSIONS MATTERS
(a) There are no unusual benefits for the Key Employees except for
those Disclosed. Except as Disclosed employment of none of the Key
Employees shall terminate prior to 31 December 2005 under the terms
of their employment agreements and none of the Key Employees have
given notice of termination and to the Seller's Knowledge none of
the Key Employees intend to give such notice due to the
transactions contemplated in this Agreement. There is no
remuneration payable to any of the Key Employees by the Target or
any Subsidiary as a result of the transaction contemplated herein.
(b) The Target and the Subsidiaries have at all times complied in all
material respects with laws, other regulations or collective
bargaining or other similar agreements relating to the employment
of labour (including, but not limited to those relating to
salaries, hours, work safety, pensions and social security or
collective bargaining). There is no labor strike, dispute, slowdown
or stoppage actually pending or, to the Seller's Knowledge,
threatened against or involving the operations of the Target or the
Subsidiaries.
(c) Except for those required under mandatory law, applicable
collective agreements and the Pension Plans there are no deferred
compensation agreements, pension
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benefits, profit-sharing, severance pay or retirement plans,
agreements or arrangements presently in force and there are no
obligations under any agreement providing for uncustomary or
material bonuses, fringe benefits, incentive plans or termination
benefits, except as Disclosed.
(d) Each material employee pension arrangement (collectively, the
"PENSION Plans"), is in substantial compliance with applicable law
and has been administered and operated in accordance with
applicable laws and regulations and its terms. The pension
liabilities of the Target and the Subsidiaries have been, to the
extent required by applicable law, fully paid, and to the extent
not paid, fully accounted for in the Audited Group Accounts. Except
for Pension Plans in Finland and Sweden (which are fully funded)
none of the Pension Plans is a defined employee benefit plan. There
are no Pension Plans in Finland or Sweden of the Target or the
Subsidiaries other than the statutory pension schemes.
(e) The Target and the Subsidiaries have complied in all material
respects with all applicable labour laws, including but not limited
to regulations regarding co-operation procedures (YT-menettely) in
termination of employment agreements and lay-offs of personnel.
(f) Section C.IV of the Data Room describes and contains true and
correct copies of all "employee benefit plans" (as defined by
Section 3(3) of ERISA) and any other bonus, profit sharing,
pension, compensation, deferred compensation, stock option, stock
purchase, fringe benefit, severance, post-retirement, scholarship,
disability, sick leave, vacation, individual employment,
commission, bonus, payroll practice, retention, or other plan,
agreement, policy, trust fund or arrangement (each such plan,
agreement, policy, trust fund or arrangement is referred to herein
as an "U.S. EMPLOYEE BENEFIT PLAN", and collectively, the "U.S.
EMPLOYEE BENEFIT PLANS"), in each case that are currently in effect
(or approved but not yet effective), or that were maintained,
sponsored or contributed to at any time within the last five (5)
calendar years, (x) for the benefit of (i) present or former
directors or employees of Envirovac, Inc., or any other United
States Subsidiary, or any other Persons presently or formerly
performing services for Envirovac, Inc., or any other U.S.
Subsidiary, or beneficiaries of any of the foregoing (collectively,
"COVERED EMPLOYEES"), or (y) with respect to which
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Envirovac, Inc., any other U.S. Subsidiary or any of their
respective ERISA Affiliates has or had any obligation on behalf of
any Covered Employee.
(g) Each U.S. Employee Benefit Plan which is described in Section 3(2)
of ERISA and which is intended to be tax qualified qualifies under
Section 401(a) of the Code and has received a determination letter
from the U.S. Internal Revenue Service to the effect that the U.S.
Employee Benefit Plan is qualified under Section 401 of the U.S.
Tax Code, and that any trust maintained pursuant thereto is exempt
from federal income taxation under Section 501 of the U.S. Tax
Code, and nothing has occurred or is expected to occur that caused
or would reasonably be expected to cause the loss of such
qualification or exemption or the imposition of any penalty or tax
liability.
(h) Neither Target nor any Subsidiary is a party to, or is obligated
under any agreement (including any collective bargaining agreement)
or otherwise obligated to recognise or bargain with any labor
organisation or union on behalf of any United States employees.
Neither Target, any Subsidiary or any ERISA Affiliate maintains,
contributes to or participates in, nor has ever maintained,
contributed to, or otherwise participated in, any employee pension
benefit plans which are "MULTI-EMPLOYER PLANS" (within the meaning
of Section 3(37) of ERISA) or which are subject to the provisions
of Title IV of ERISA. or Section 412 of the U.S. Tax Code. Except
as Disclosed all of the United States employees of Target or any
Subsidiary are employed "at-will" and are not parties to any
written employment agreement.
4.16 LITIGATION AND ARBITRATION
Except as Disclosed there are no suits or actions nor any other legal,
administrative, arbitration or alternative dispute resolution proceedings
or governmental investigations pending or threatened in writing against
the Target or any of the Subsidiaries, nor to the Seller's Knowledge
pending, nor are there any outstanding orders, judgements, awards or
decrees of any governmental body, court or arbitration tribunal against
the Target or any of the Subsidiaries.
4.17 LICENCES AND CONSENTS
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The Target and the Subsidiaries have all permits, governmental licences,
authorisations, registrations, approvals and product certificates
(collectively the "Permits") necessary for the conduct of their business,
all such Permits are in force and being complied with. The Target and any
of the Subsidiaries has not received notice of any violation of any of
the Permits.
4.18 COMPLIANCE WITH LAW
The Target and the Subsidiaries have carried on and are carrying on their
business and operations in material compliance with all applicable laws.
4.19 TAXES
The Target and the Subsidiaries have timely and accurately filed with the
appropriate tax authorities all required tax returns and reports and
paid, when due, all Taxes required to be paid. There is no dispute with
any tax authority in relation to the affairs of the Target or the
Subsidiaries and, to the Seller's Knowledge, there are no facts that may
give rise to any dispute.
All Taxes not yet due and payable have been appropriately reserved in the
books of Target and the Subsidiaries in accordance with the applicable
Accounting Principles.
None of the Target and Subsidiaries is currently under any specific tax
regime the benefit of which could be triggered by the sale of the Target
Shares or by any other act or omission prior to the sale of the Target
Shares. None of the Target and Subsidiaries is currently under any
specific tax regime that is subordinated to any commitment of one of the
Target or Subsidiaries, or any other person.
None of the Target and Subsidiaries benefits or benefited from a stay or
deferral of Taxes because of any act or operation prior to the sale of
the Target Shares. None of the Target and Subsidiaries has granted any
security on any asset, good or right in order to secure the payment of
any Taxes due (or alleged to be due by competent tax authorities) that
have not yet been paid.
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The Target and the Subsidiaries have all supporting documents required to
justify the information provided in the tax returns, reports and
elections filed with the appropriate tax authorities.
To the Seller's Knowledge none of the Target and Subsidiaries entered in
any contract, act or operation likely to be reassessed, rejected or
re-qualified on the ground it aimed at avoiding tax or diminishing the
tax obligations of one of the Target or Subsidiaries, or any other
person.
4.20 ENVIRONMENTAL MATTERS
The Target and the Subsidiaries (i) have obtained all necessary permits
and licenses under Environmental Laws necessary for their current
operations, (ii) are in compliance with all applicable Environmental Laws
necessary and (iii) are not subject to any claim, material judgement,
order or injunction or decree of any court, governmental authority,
agency or arbitration court with respect to any Environmental Laws.
There are no and, except as may be described in the Phase I Environmental
Assessment dated 30 August 2001 included as document C.XI.3 of the Data
Room, there have never been, any underground storage tanks present on any
United States real property owned or leased by Target or any Subsidiary
to the Seller's Knowledge except as Disclosed, neither Target nor any
Subsidiary has received notice of, or has received any claim or
threatened claim under any Environmental Law concerning an environmental
condition at any United States real property where Target or any
Subsidiary conducts or has ever conducted its business, or any off-site
location or locations to which any of them transported or arranged for
the transportation of any substance: (A) the presence of which requires
investigation or remediation under any Environmental Laws; (B) which is
defined as a "POLLUTANT," "HAZARDOUS WASTE" or "HAZARDOUS SUBSTANCE"
under any Environmental Laws; (C) that is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic or mutagenic or
otherwise hazardous and is regulated under Environmental Laws; or (D)
including gasoline, diesel fuel or other petroleum hydrocarbons,
polychlorinated biphenols (PCBs) or asbestos.
4.21 INVENTORY: CONDITION
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All inventory in the balance sheet of the Target or any of the
Subsidiaries was at the Effective Date physically existing and was in a
condition such that it was capable of being used for its intended use and
will be in such condition at Closing, subject to inventory movements
since the Effective Date in the Ordinary Course of Business.
4.22 INVENTORY: PROVISIONS
The provisions for obsolescence and excess inventory included in the
Audited Group Accounts are adequate.
4.23 ORDINARY COURSE OF BUSINESS
During the period from the Effective Date until Closing, the Seller has
not instructed or allowed the Target or any of the Subsidiaries to take
any action which is outside the Ordinary Course of Business, other than
actions related to the transactions contemplated hereby.
4.24 INFORMATION
(a) All written information contained in the Data Room is true and
accurate.
(b) All documents placed at any time in the on-line Data Room at
▇▇▇▇://▇-▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ by the Seller or its representatives have
been copied onto the DVD/CD-ROMs attached to this Agreement as the
Data Room.
4.25 ACCOUNTS RECEIVABLE
Adequate provisions were made for all accounts receivable in the Audited
Group Accounts.
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APPENDIX 5
REPRESENTATIONS AND WARRANTIES OF THE BUYER
5.1 ORGANISATION
The Buyer is a corporation duly organised and validly existing under the
laws of the jurisdiction of its incorporation.
5.2 AUTHORISATION OF TRANSACTION
The Buyer has full power and authority (including full corporate power and
authority) to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally
binding obligation of the Buyer, enforceable in accordance with its terms
and conditions. The Buyer need not give any notice to, make any filing
with, or obtain any authorisation, consent, or approval of any government
or governmental agency in order to consummate the transactions
contemplated by this Agreement except for the filing required by the
competent competition authorities.
5.3 NON-CONTRAVENTION
Neither the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will violate any
constitution, statute, regulation, rule, injunction, judgement, order,
decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject or any
provision of its charter or by-laws.
5.4 BROKERS' FEES
The Buyer has no liability or obligation to pay any fees or commissions to
any broker, finder, or agent with respect to the transactions contemplated
by this Agreement for which the Seller could become liable or obligated.
5.5 INVESTMENT
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The Buyer is not acquiring the Target Shares (i) with a view to or for
sale in connection with any distribution thereof such that the Buyer would
be considered an underwriter of such securities under any relevant
securities law regime, or (ii) with a view to taking any action that could
trigger a requirement to register the Target Shares themselves, or a
transaction involving such shares, with any relevant securities authority.
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Rechtsanwalte Steuerberater
Page 54
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APPENDIX 6
THIRD PARTY CONSENTS GRANTED TO SELLER
Consent of:
o Keramag Keramische Werke AG
o IDO Bathroom Oy
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 55
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APPENDIX 7
LIST OF GUARANTEES GIVEN BY SANITEC OY FOR THE BENEFIT OF THE TARGET AND THE SUBSIDIARIES
29.02.2004
-----------------------------------------------------------------------------------------------------------------------------------
Beneficiary Currency Guarantee Currency In Force Exchange In Force THE COMPANY
Limit1 rate EUR
-----------------------------------------------------------------------------------------------------------------------------------
GIVEN BY SANITEC
CORPORATION
-----------------------------------------------------------------------------------------------------------------------------------
Chantiers de l'Atlantique EUR 18.784 1,00000 18.784 Evac Oy
Societe Anonyme
Chantiers de l'Atlantique EUR 11.814 1,00000 11.814 Evac Oy
Societe Anonyme
Chantiers de l'Atlantique EUR 18.653 1,00000 18.653 Evac Oy
Societe Anonyme
Chantiers de l'Atlantique EUR 11.814 1,00000 11.814 Evac Oy
Societe Anonyme
Chantiers de l'Atlantique EUR 14.290 1,00000 14.290 Evac Oy
Societe Anonyme
Chantiers de l'Atlantique EUR 14.352 1,00000 14.352 Evac Oy
Societe Anonyme
Chantiers de l'Atlantique EUR 32.257 1,00000 32.257 Evac Oy
Societe Anonyme
Alstom Transport Limited EUR 375.245 1,00000 375.245 Evac ▇▇
▇▇▇▇▇-Transtech Oy EUR 43.551 1,00000 43.551 Evac AB
▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH & Co DEM 32.799 1,95583 16.770 Sanivac Vakuumtecknik
GmbH
The Boeing Company Envirovac Inc.
-------
557.530
--------------------------------------------------------------------------------
Start End
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
09.10.2003 30.04.2004 Performance
Guarantee
09.10.2003 30.04.2004 Performance
Guarantee
14.11.2003 31.05.2005 Performance
Guarantee
14.11.2003 31.05.2005 Performance
Guarantee
09.10.2003 31.07.2004 Performance
Guarantee
07.11.2002 31.07.2004 Performance
Guarantee
07.11.2002 31.12.2004 Performance
Guarantee
11.12.2000 mid year Performance
20072 Guarantee
19.04.2001 01.06.2004 Performance
Guarantee
27.04.2000 Performance
Guarantee
01.06.2003 General
Guarantee
--------------------------------------------------------------------------------
--------
1 Same as in Force if blank (also applies to following page)
2 Expiration of the Guarantee is dependent on the certification of the
trainsets. Current estimate of when the Guarantee is to expire is mid year 2007,
based on estimate on when last trainset under the contract is to be certified.
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 56
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-----------------------------------------------------------------------------------------------------------------------------------
Beneficiary Currency Guarantee Currency In Force Exchange In Force THE COMPANY Start
Limit rate EUR
-----------------------------------------------------------------------------------------------------------------------------------
GIVEN BY SANITEC
CORPORATION
-----------------------------------------------------------------------------------------------------------------------------------
GIVEN BY THE BANK
SEB AB SEK 15.000.000 SEK 2.851.110 9,23150 308.846 Evac AB 12.10.1999
SEB AB EUR 504.564 EUR 0 1,00000 0 Evac Oy 12.10.1999
Nordea/ABN Amro/Tenix SEK 626.820 9,23150 67.900 Evac Oy 30.01.2002
Defence Systems (Amecon)
Nordea/ABN Amro/Tenix AUD 49.985 1,61590 30.933 Evac Oy 30.01.2002
Defence Systems (Amecon)
Nordea Bank/Fincantieri EUR 90.386 1,00000 90.386 Evac Oy 18.03.2002
Nordea Bank/Fincantieri EUR 90.386 1,00000 90.386 Evac Oy 18.03.2002
Nordea Bank/Fincantieri EUR 54.612 1,00000 54.612 Evac Oy 18.03.2002
Nordea Bank/Fincantieri EUR 76.621 1,00000 76.621 Evac Oy 18.03.2002
Nordea Bank EUR 1.009.127 EUR 390.641 1,00000 390.641 Evac Oy 20.04.1998
1.110.325
Nordea Bank Finland, USD 300.000 USD 50.000 1,24180 40.264 Envirovac Inc. 05.04.2002
New York
Nordea -> HSBC EUR 660.000 607.248 Evac Int. Oy / Evac 7.11.03/
Vacuum Shanghai 20.1.04
HSBC GBP 4.950.000 GBP 290.526 0,67000 433.621 Companies in UK (incl. 17.05.2002
Evac UK)
1.081.133
-----------------------------------------------------------------------------------------------------------------------------------
TOTAL 2.748.988 EUR
-----------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
End
--------------------------------------------------------------------------------
12.10.2009 Performance/
Warranty Bond
12.10.2009 Performance/
Warranty Bond
15.12.2006 Performance
Guarantee
15.12.2006 Performance
Guarantee
31.03.2004 Performance/
Warranty Bond
30.11.2004 Performance/
Warranty Bond
30.06.2004 Performance/
Warranty Bond
30.09.2004 Performance/
Warranty Bond
31.12.2009 Performance/
Warranty Bond
Loan guarantee
31.03.2004 Loan guarantee
to Evac Shanghai
31.12.2003 Overdraft,
Engagements,
Bacs, etc.
--------------------------------------------------------------------------------
COMFORT LETTER
-----------------------------------------------------------------------------------------------------------------------------------
Dresdner Bank AG Hamburg DEM 500.000 DEM 500.000 1,95583 255.646 Sanivac Vakuumtecknik 19.01.2000
GmbH
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 57
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APPENDIX 8
FORM OF ESCROW AGREEMENT
JOINT ESCROW ACCOUNT INSTRUCTION LETTER
(THE "INSTRUCTION LETTER")
To: CMS Bureau ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH
Steuerberatungsgesellschaft [ ] 2004
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
("BUYER'S LAWYERS")
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("SELLER'S LAWYERS")
Dear Sirs
JOINT ESCROW ACCOUNT INSTRUCTION LETTER
We refer to the Sale and Purchase Agreement dated the same day as this
Instruction Letter between Sanitec Oy and Zodiac SA (the "Agreement") for the
sale and purchase of all the issued share capital of EVAC International Oy.
Terms defined in the Agreement shall, unless indicated otherwise, have the same
meaning when used in this Instruction Letter.
1. INSTRUCTIONS
In accordance with the terms of the Agreement and to facilitate the
operation of the Escrow Amount described in clauses 1 and 4.5.2 (b) of the
Agreement we hereby jointly and irrevocably instruct you:
1.1 to open an account at [ ] of [ ] (the "BANK") in the joint names of
the Seller's Lawyers and Buyer's Lawyers (the "ESCROW ACCOUNT") into
which the Escrow Amount is to be deposited pursuant to
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 58
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Clause 4.5.2 (b) of the Agreement. The Escrow Account is to operate
on the basis that all instructions shall require the signature of one
partner of the Seller's Lawyers and one partner or manager of the
Buyer's Lawyers. For this purpose "partner" shall mean a partner or
manager in the firm at the time that a relevant signature is
required;
1.2 to hold all sums for the time being standing to the credit of the
Escrow Account on deposit initially for a [three] month term and then
on recurring [one]-month terms at the best rate of interest available
from the Bank for deposits of similar amounts to those standing to
the credit of the Escrow Account for the period from the date hereof
to the dates for release described in Clause 10.4 of the Agreement
("Escrow Release Dates") or such longer period as this Instruction
Letter shall provide;
1.3 subject to making any payment or retention as provided in paragraph
1.4. below, to release the Escrow Amount to the Seller on the Escrow
Release Dates;
1.4 if prior to the Escrow Release Dates:
1.4.1 you receive notice from the Buyer attaching a Final
Judgement or from the Buyer and the Seller jointly, in
the form set out in Appendix A, to pay to the Buyer out
of the Escrow Amount the amount set out in such notice;
or
1.4.2 you receive notice from the Buyer in the form set out
in Appendix B and to the extent that you have not, in
relation to the same claim, subsequently received a
notice or notices in the forms set out in Appendices A
and/or C, to retain in the Escrow Account the amount
set out in such notice;
1.5 if on or after the last of the Escrow Release Dates any amount of the
Escrow Amount is retained in the Escrow Account in accordance with
paragraph 1.4.2 above, to continue to retain the amount in dispute in
the Escrow Account until you receive further notice from the Buyer in
the form set out in:
1.5.1 Appendix A attaching a Final Judgement or from the
Buyer and the Seller jointly, in which case you shall
pay to the Buyer out of the Escrow Account the amount
set out in such notice; or
1.5.2 Appendix C, in which case you shall release to the
Seller the amount set out in such further notice;
1.6. when the whole or any part of the principal amount of the Escrow
Amount is paid out of the Escrow Account to the Seller or the Buyer
in accordance with any of paragraphs 1.3 to 1.5 above to pay to
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 59
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the relevant recipient, together with such principal amount, the
interest accrued on such principal amount (less any Tax thereon for
which you may be accountable and the relevant proportion of the
charges and expenses incurred by you).
A "Final Judgement" means in relation to
(a) the determination of the Net Asset Value under clause 10.4.
(a) of the Agreement, a final and binding decision of
PricewaterhouseCoopers Oy or any other independent accounting
firm mutually agreed by the parties under clause 4.6 of the
Agreement; and
(b) the determination of any other dispute, a decision of a
competent court or an arbitration award under clause 11.9 of
the Agreement that is not appealable or, if appealable, the
time period for appeal of which has expired without an appeal
having been made.
2. TERMS OF APPOINTMENT
2.1 Neither the Seller's Lawyers nor the Buyer's Lawyers shall be liable
for any loss or damage in respect of any act or omission by them in
relation to any matter which is the subject of this letter except any
loss or damage arising out of their own fraud, wilful default or
gross negligence.
2.2 You may rely without enquiry on any notice (including a facsimile
message) which appears on its face to have been completed in
accordance with paragraphs 1.4, 1.5 or 1.6 above. You shall not be
required to enquire whether a notice has been validly given or
executed nor shall you be under any liability to any person if a
notice has not been validly given or executed. In accounting to us
for any payment made out of the Escrow Account, you may withhold or
deduct any sum which you are obliged by law to so withhold or deduct
(whether in respect of liability to taxation or otherwise). We
authorise you to pay all bank charges, taxation and other liabilities
referable to the operation of the Escrow Account (including all the
interest accruing on such Escrow Account) out the funds for the time
being standing to the credit of the Escrow Account.
2.3 Neither of you shall not be deemed to be trustees nor shall you have
any obligations in connection with the Escrow Account or its
administrators except those set out in this Instruction Letter.
2.4 In consideration of you accepting these instructions:
2.4.1 the Seller shall indemnify the Seller's Lawyers from and
against all actions, proceedings, claims, liabilities, costs, charges
and expenses whatsoever incurred or sustained by the Seller's Lawyers
in performance of its duties hereunder; and
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 60
--------------------------------------------------------------------------------
2.4.2 the Buyer shall indemnify the Buyer's Lawyers from and against
all actions, proceedings, claims, liabilities, costs, charges and
expenses whatsoever incurred or sustained by the Buyer's Lawyers in
performance of its duties hereunder
2.5 You may discharge any instruction to pay any sum out of the Escrow
Account by instructing the Bank to do so and you will not be
responsible for any delay or failure by the Bank to do so and you
will not be responsible for any delay or failure by the Bank in
executing any such instruction or for any loss which any of us may
suffer as a result of any act or omission by the Bank in making any
such payment or generally in operating the Escrow Account.
2.6 The Buyer and the Seller agree that being the Escrow Agent or acting
as the Escrow Agent does not constitute a conflict of interest,
either for the Escrow Agent or for any individual acting on behalf of
the Escrow Agent with respect to representing or acting for or
advising any of the Seller or its Affiliates or the Target or the
Subsidiaries in matters relating to the Agreement, including this
Escrow Agreement.
2.7 The Buyer shall pay the costs and expenses of the Buyer's Lawyers and
the Seller shall pay the costs and expenses of the Seller's Lawyers
incurred in the performance of their respective duties under this
Instruction Letter.
2.8 This Instruction Letter, and your agreement to be bound by it, shall
be governed by and construed in accordance with the laws of the
Federal Republic of Germany.
2.9 This Instruction Letter may be executed in any number of
counterparts, all of which taken together shall constitute one and
the same Instruction Letter, and any party may enter into this
Instruction Letter by executing a counterpart.
Please acknowledge your acceptance of the above instructions by signing and
returning the enclosed duplicate copy.
Yours faithfully
..................................................
for and on behalf of Sanitec Oy.
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 61
--------------------------------------------------------------------------------
...................................................
for and on behalf of [ ].
[ON DUPLICATE]
We hereby accept the provisions of this Instruction Letter
......................................................
for and on behalf of CMS ▇▇▇▇▇▇ ▇▇▇▇▇
......................................................
for and on behalf of CMS Bureau ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH
Steuerberatungsgesellschaft
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 62
--------------------------------------------------------------------------------
APPENDIX A
[LETTERHEAD OF THE BUYER]
To: CMS Bureau ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH
Steuerberatungsgesellschaft
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
("BUYER'S LAWYERS")
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("SELLER'S LAWYERS")
Dear Sirs
JOINT ESCROW ACCOUNT INSTRUCTION LETTER DATED [ ] 2004
(THE "INSTRUCTION LETTER")
We refer to the Escrow Amount held in an account in your name pursuant to the
Instruction Letter.
We hereby confirm that there is due to the Buyer from the Escrow Amount a sum
of(euro)[ ].
[IF THIS LETTER IS NOT ALSO SIGNED BY THE SELLERS:
We enclose a certified copy of a Final Judgement (as defined in the Instruction
Letter) and such other documents as are required to evidence the final nature of
the enclosed judgement which confirms[s] the amount payable to the Buyer in
respect of its claim against the Seller:
(a) in respect of the Closing Date Accounts or
(b) for breach of the warranties contained in Appendix 4 of the
Agreement.
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 63
--------------------------------------------------------------------------------
We therefore instruct you to pay to [ ] the aforesaid sum together with the
interest which has accrued thereon or, if less, the remaining balance of the
Escrow Amount from the Escrow Account into the following account, within three
Business Days of receipt of this notice
Bank [ ]
[Sort Code] [ ]
Account Name [ ]
Account Number [ ]
Yours faithfully
............................. [..............................]
for and on behalf of [ ]. for and on behalf of Sanitec Oy.
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 64
--------------------------------------------------------------------------------
APPENDIX B
[LETTERHEAD OF THE BUYER ]
To: CMS Bureau ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH
Steuerberatungsgesellschaft [ ] March 2004
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
("BUYER'S LAWYERS")
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("SELLER'S LAWYERS")
Dear Sirs
JOINT ESCROW ACCOUNT INSTRUCTION LETTER DATED [ ] 2004
(THE "INSTRUCTION LETTER")
We refer to the Escrow Amount held in an account in your name pursuant to the
Instruction Letter.
We hereby instruct you to retain the sum of (euro) [ ] of the principal amount
of the Escrow Amount together with all interest accrued on such sum in the
Escrow Account and not to release such amount on the next or any subsequent
Escrow Release Date.
Yours faithfully
......................................
for and on behalf of [ ]
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 65
--------------------------------------------------------------------------------
APPENDIX C
[LETTERHEAD OF THE BUYER]
To: CMS Bureau ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH
Steuerberatungsgesellschaft [ ] March 2004
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
("BUYER'S LAWYERS")
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇. ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("SELLER'S LAWYERS")
Dear Sirs
ESCROW ACCOUNT INSTRUCTION LETTER DATED [ ] 2004
(THE "INSTRUCTION LETTER")
We refer to the Escrow Amount held in an account in your name pursuant to the
Instruction Letter and the previous notice[s] given to you dated [ ] in the form
set out in Appendix B to the Instruction Letter (the "Prior Notice[s]")
We hereby certify that the sum of (euro) [ ] of the principal amount of the
Escrow Amount, being [the whole] [part] of the amount set out in the Prior
Notice[s], is hereby released from the restriction set out in the Prior
Notice[s] [and the Prior Notice[s] shall be of no further effect].
[IF PART ONLY RELEASED:
We hereby instruct you to retain the balance of the amount set out in the Prior
Notice [s], together with the interest accrued thereon, in the Escrow Account
pursuant to the Prior Notice[s] until such time as you receive a further notice
from us.]
[IF AFTER THE LAST ESCROW RELEASE DATE:
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 66
--------------------------------------------------------------------------------
We hereby instruct you to release the amount set out above, together with the
interest accrued thereon, to the Seller in accordance with the terms of the
Instruction Letter.]
Yours faithfully
.....................................
for and on behalf of [ ]
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 67
--------------------------------------------------------------------------------
APPENDIX 9
MATERIAL AGREEMENTS
----------------------------------------------------------------------------------------------------------------------
NO. DOCUMENT NAME PARTIES DATE
----------------------------------------------------------------------------------------------------------------------
1. AVIATION
-----------
----------------------------------------------------------------------------------------------------------------------
1a3 Boeing Agreement Envirovac Inc. / The Boeing Co. 9 December 1992
----------------------------------------------------------------------------------------------------------------------
1b1 Basic Agreement for the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation / 2 January 1996
MD-95-30 and MD-95-30ER Vacuum Envirovac Inc.
Waste System - Aviation Division
----------------------------------------------------------------------------------------------------------------------
1c1 Procurement Contract Number Bombardier Inc. / Bombardier 1 May 2002 (amendment dated 9
BCCM-1037-MSC (and Amendment) - Aerospace / Completion Centre of July 2003)
Aviation Division Montreal / Envirovac Inc.
----------------------------------------------------------------------------------------------------------------------
1d1 Supplier Agreement - Aviation Gulfstream Aerospace Corporation / 28 February 1996
Division Envirovac Inc.
----------------------------------------------------------------------------------------------------------------------
1e1 Memorandum of Agreement - Gulfstream Aerospace Corporation / 9 December 2002
Aviation Division Envirovac Inc.
----------------------------------------------------------------------------------------------------------------------
1f1 Agreement for aircraft American Airlines, Inc. / 1 January 1998
component repair services - Envirovac Inc.
Aviation Division
----------------------------------------------------------------------------------------------------------------------
1g1 Exchange and Maintenance Delta Air Lines Inc. / Envirovac 11 September 1997 (Addendum
Agreement for Aircraft Inc. dated 12 March 2003)
Equipment (and Addendum) -
Aviation Division
----------------------------------------------------------------------------------------------------------------------
Teaming Agreement ▇▇▇▇▇▇▇▇ Corporation / Evac 15/16 October 2003
Environmental Solutions Inc.
----------------------------------------------------------------------------------------------------------------------
2. TRAINS
---------
----------------------------------------------------------------------------------------------------------------------
2a1 Main Terms and Conditions Evac AB / 23 November 2000
Agreement relating to the Alstom Transport Limited
supply and maintenance of west
coast mainline toilet systems
----------------------------------------------------------------------------------------------------------------------
2b1 Supply Contract Evac AB / 6 September 2000
Daimler Chrysler Rail Systems (UK)
Ltd. (Adtranz)
----------------------------------------------------------------------------------------------------------------------
2c1 Supply Contract Evac AB (supplier)/ ▇▇▇▇▇▇▇▇ 7 March 2001
Interior Systems B.V.
----------------------------------------------------------------------------------------------------------------------
2d1 China Know-how & Technical China National Industrial 14 May 2001
Service License Contract - Machinery Import & Export Company
Train Division / Jinan Locomotive & Rolling Stock
Plant / Evac AB
----------------------------------------------------------------------------------------------------------------------
C.II.54 General Electric Purchase General Electric / Envirovac Inc. between September and October
Orders - Train Division 2003
----------------------------------------------------------------------------------------------------------------------
C.II.56 Purchase Order No. B13624-1 - VIA Rail Canada Inc. / Envirovac 13 December 2001
Train Division Inc.
----------------------------------------------------------------------------------------------------------------------
----------
3 Aviation/Train Confidential CD-ROM
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 68
--------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
NO. DOCUMENT NAME PARTIES DATE
----------------------------------------------------------------------------------------------------------------------
2e-2q1 Project Orders - Customers
(Train) - 2003-2005
----------------------------------------------------------------------------------------------------------------------
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 69
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----------------------------------------------------------------------------------------------------------------------
NO. DOCUMENT NAME PARTIES DATE
----------------------------------------------------------------------------------------------------------------------
3. MARINE
---------
----------------------------------------------------------------------------------------------------------------------
A.II.30 Distributor and Agency Envirovac Inc. / Callenberg 20/21 April 2003
Agreements Engineering Inc. / 14 November 1995
Evac Oy / Environmental Protection 28 May 2003
Engineering Ltd.
Evac Oy / Transvac Marine Systems
Limited
----------------------------------------------------------------------------------------------------------------------
C.II.45 Purchase Order Number Northrop Grumman / Envirovac Inc. 10 April 2002
4500106304 - Marine Division
----------------------------------------------------------------------------------------------------------------------
C.II.46 Requirements Contract (BIW Bath Iron Works / Envirovac Inc. 8 January 2003
Contract No. C-480-202) -
Marine Division
----------------------------------------------------------------------------------------------------------------------
C.II.48 Purchase Order 92255-001 OO - DRS Power & Control Technologies, 21 May 2003 (revised on 29
Marine Division Inc. / Envirovac Inc. July 2003)
----------------------------------------------------------------------------------------------------------------------
H.II.54 Purchase Order ▇▇▇▇▇ Werft / Evac Oy 12 June 2002
----------------------------------------------------------------------------------------------------------------------
H.II.55 Contract for delivery of vacuum Kvaerner Masa-Yards Inc. / Evac Oy 26 May 2003
toilet system incl. biological
sewage treatment plant
----------------------------------------------------------------------------------------------------------------------
H.II.57 Agreements with shipyards Evac Oy / Alstom 15 June 2001
Evac Oy / Kvaerner Masa-Yards 26 May 2003
Evac Oy / Sanitrade S.r.l. / 4 December 2000
Fincatieri Cantieri Navali 27 October 2000
Italiani S.p.A.
----------------------------------------------------------------------------------------------------------------------
H.II.58 Purchase order ▇▇▇▇ Finnyards Oy / Evac Oy 17 March 2003
----------------------------------------------------------------------------------------------------------------------
H.II.60 Sales contract Daewoo Shipbuilding & Marine 22 May 2003
Engineering Co., Ltd.
----------------------------------------------------------------------------------------------------------------------
H.II.61 Purchase orders and order Fincantieri, Cantieri Navali 28 November 2003
acknowledgements Italiani S.p.A. / Evac Oy 14 April 2003
Nuovi Cantieri Apuania S.p.A. / 14 July 2003
Evac Oy
----------------------------------------------------------------------------------------------------------------------
H.II.63 Purchase orders and contract Kvaerner Masa-Yards Inc. / Evac Oy 12 May 2003
for delivery of vacuum toilet 16 January 2004
system incl. biological sewage
treatment plant
----------------------------------------------------------------------------------------------------------------------
H.II.64 Purchase order with purchase MERWEDE Shipyard 3 February 2004
terms and conditions 18 December 2003
----------------------------------------------------------------------------------------------------------------------
H.II.68 Sales contract STX shipbuilding Co., Ltd. / Evac
Oy
----------------------------------------------------------------------------------------------------------------------
C.II.11 Service Center Agreement Envirovac Inc. / Green Marine & 15 August 1994
Industrial Equipment Company
----------------------------------------------------------------------------------------------------------------------
H.II.4 Agreement 899993 (Supply Evac Oy 28 May 1998
Agreement) Ido Bathroom Oy
----------------------------------------------------------------------------------------------------------------------
H.II.26 Contract of Purchase and Mitsubishi Heavy Industries, Ltd. 21 January 2003 and
Amendment for supply of Black / Evac Oy 28 June 2000
Water System
----------------------------------------------------------------------------------------------------------------------
H.II.44 Spare part orders Controller of procurement material February 2004
organisation
----------------------------------------------------------------------------------------------------------------------
H.II.45 Spare part orders Callenberg Engineering, Inc. February 2004
----------------------------------------------------------------------------------------------------------------------
H.II.46 Spare part orders Royal Caribbean Cruises Ltd. February 2004
----------------------------------------------------------------------------------------------------------------------
CMS ▇▇▇▇▇▇ ▇▇▇▇▇
Rechtsanwalte Steuerberater
Page 70
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----------------------------------------------------------------------------------------------------------------------
NO. DOCUMENT NAME PARTIES DATE
----------------------------------------------------------------------------------------------------------------------
H.II.62 Supply contract Evac Oy / Hyundai Heavy Industries 19 December 2003 /
& Co., Lrd. 15 January 2004
----------------------------------------------------------------------------------------------------------------------
H.II.65 Purchase order ▇▇▇.▇.▇▇▇▇▇ GmbH / Evac Oy 12 June 2002
----------------------------------------------------------------------------------------------------------------------
H.II.66 Purchase order Harada Corporation / Evac Oy 13 January 2004
----------------------------------------------------------------------------------------------------------------------
H.II.67 Purchase order Samsung Heavy Industries Co., Ltd. 16 January 2004
/ Evac Oy
----------------------------------------------------------------------------------------------------------------------
H.II.69 Contract and purchasing general Fincantieri Cantieri Navali 1 November 2000
conditions Italiani S.p.A.
----------------------------------------------------------------------------------------------------------------------
4: BUILDING
-----------
----------------------------------------------------------------------------------------------------------------------
C.II.39 Purchase Order 103148-8005 - ▇▇▇▇▇▇▇ County Facility / ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ Division Environmental Solutions
----------------------------------------------------------------------------------------------------------------------
C.II.9 Supermarket Systems Distributor Envirovac Inc. / ▇▇▇▇▇▇▇ Plumbing, 8 September 1998
Agreement Inc.
----------------------------------------------------------------------------------------------------------------------
C.II.40 Supermarket Systems Distributor Allstate Construction Group / 1 October 1998
Agreement - Building Division Envirovac Inc.
----------------------------------------------------------------------------------------------------------------------
C.II.41 Supermarket Systems Limited ▇▇▇▇ ▇▇▇▇▇ Construction, Inc. / 1 November 2002
Distributor Agreement - Envirovac Inc.
Building Division
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C.II.42 Supermarket Systems Distributor PBI Marketing Equipment, Inc. / 26 January 2000
Agreement (and Amendment) - Envirovac Inc.
Building Division
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APPENDIX 10
KEY EMPLOYEES
I. GERMANY
Hans Woermcke, chief technology officer
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, division manager (based in Sweden)
▇▇▇▇ ▇▇▇▇▇▇▇, site manager
▇▇▇▇▇ ▇▇▇▇▇▇▇, head of production
▇▇▇▇ ▇▇▇▇, head of customisation/engineering
Detlev Both, head of R&D engineering
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, program manager
II. USA
▇▇▇▇ ▇▇▇▇▇▇▇, site manager
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, contracts manager
▇▇▇▇ ▇▇▇▇▇▇▇, aviation manager
▇▇▇ ▇▇▇▇▇▇▇▇▇, aftermarket manager
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Envirovac INC, sales manager
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, engineering
▇▇▇▇▇ ▇▇▇▇▇▇▇, engineering
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, engineering
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, engineering
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, engineering
▇▇▇ ▇▇▇▇▇▇▇▇, engineering
▇▇▇ ▇▇▇▇▇▇, engineering
▇▇▇▇▇ ▇▇▇▇▇▇▇, engineering
▇▇▇▇ ▇▇▇▇▇ ▇▇, engineering
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, engineering
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III. FINLAND
Olli Bjoerkqvist, marine director
Aki Tarjasalo, financial director
▇▇▇▇▇ ▇▇▇▇, after sales manager
Juha Kiukas, program manager
▇▇▇▇ ▇▇▇▇▇▇▇, logistic & purchasing
Pekka Numi
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇. FRANCE
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Evac SARL, sales & project manager
▇. ▇▇▇▇▇▇▇ REPUBLIC OF CHINA
▇▇▇ ▇▇▇▇▇▇▇, EVSS, Shanghai, sales manager
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APPENDIX 11
AUDITOR'S CONFIRMATION