SEC Info℠ | Home | Search | My Interests | Help | Sign In | Please Sign In | ||||||||||||||||||||
As Of Filer Filing For·On·As Docs:Size 5/18/06 Chemtura Corp 8-K:1,9 5/15/06 2:328K |
Document/Exhibit Description Pages Size 1: 8-K Chemtura Corporation Form 8-K on Item 1.01 and HTML 11K 9.01 2: EX-10.1 Sale and Purchase Agreement HTML 344K
LONDOCS\2427971.06 |
Dated May 12, 2006
BIO-LAB, INC.
GREAT LAKES CHEMICAL CORPORATION
GREAT LAKES CHEMICAL (EUROPE) GmbH
CHEMTURA JAPAN LTD
GREAT LAKES CHEMCIAL FAR EAST LTD
GREAT LAKES CHEMICAL(S) PTE LIMITED
GREAT LAKES MANUAFACTURING (UK) LIMITED
GREAT LAKES SALES (ITALY) Srl
BAYROL IBERICA S.A.
CHEMTURA CORPORATION
BWA WATER ADDITIVES UK LIMITED
BWA WATER ADDITIVES JAPAN K. K.
BWA WATER ADDITIVES USA LLC
and
MCAW GROUP LIMITED
___________________________________
AGREEMENT
for the sale and purchase of the business and certain
assets of the industrial water additives
business of the Great Lakes Chemical Group
___________________________________
CONTENTS
Clause Page
1. Interpretation *Part 1 - BioLab Gulf
Part 2 - BioLab Arabia
DATE: MAY 12, 2006
PARTIES:
(the first to the ninth parties being collectively referred to as the "Sellers" and each individually as a "Seller");
(the eleventh to the fourteenth parties being collectively referred to as the "Purchasers" and each individually as a "Purchaser").
RECITALS:
IT IS AGREED as follows:
In this Agreement, the following words and expressions shall have the following meanings:
"Accounting Principles" means the accounting principles set out in schedule 11;
"Accounts Payable" means all amounts owing and payable by the Sellers (whether or not invoiced and whether or not due and payable) to creditors and all other actual or contingent liabilities and obligations of the Sellers of whatsoever nature (including Tax), whether or not owing in respect of or relating to the carrying on of the Business, or the performance of obligations or liabilities under the Business Contracts or the ownership or use of the Assets, or the supply of goods or services provided in the course of the Business or otherwise whatsoever in relation to the period on or before the Completion Date;
"Accounts Receivable" means all amounts owing to the Sellers (whether or not invoiced and whether or not due and payable) from debtors of whatsoever nature whether or not owing to the Sellers in respect of or relating to the carrying on of the Business, or the performance of obligations or liabilities under the Business Contracts or the ownership or use of the Assets or the supply of goods or services provided in the course of the Business or otherwise whatsoever in relation to the period on or before the Completion Date but excluding the BioLab Arabia Capital Indebtedness;
"Adrian Know-How Licence Agreement" means the know-how licence agreement in the agreed form to be entered into on the Completion Date by GLCC and BWA UK in respect of the BCDMH Know-How and P-DMH Know-How;
"Adrian Supply Agreement" means the agreement in the agreed form to be entered into on the Completion Date by Bio-Lab, Inc. and BWA UK for the supply of certain products sold by the Business;
"Advance Receipts" means all amounts received (whether by deposit, pre-payment or otherwise) by or on behalf of the Sellers on or before the Completion Date so far as the same relate to any goods or services to be provided by the Purchasers after the Completion Date;
"Alexandria Lease" means the lease agreement entered into by the Representative Office of GLCC in Egypt and Ms. Magda Farid Mohamed dated 1 August 1999 in relation to certain premises in Alexandria;
"Assets" means all the assets, contracts and rights to be sold and transferred to the Purchasers under this Agreement as described in clause 2.1;
"Automatic Transfer Country" means the United Kingdom, Italy, Spain, Singapore (to the extent provided under local law) or any other jurisdiction in which the Transfer Regulations apply. For the avoidance of doubt, the United States of America, Canada, Egypt, the United Arab Emirates, the People's Republic of China and Japan are not Automatic Transfer Countries;
"Balancing Payment Date" means the date falling seven days after the Inventory Adjustment Confirmation Date;
"BCDMH Access Letter" means the access letter to be entered into between Bio-Lab, Inc and BWA UK in the agreed form;
"BCDMH Know-How" means all technical, industrial and commercial information and techniques existing in whatever form or media including (but not limited to) information and techniques concerned with (i) the design, development, or manufacture of any products (including any processes and methodologies used to design, develop or manufacture such products which are not exclusively related to the facility, plant or equipment where they are designed, developed or manufactured); (ii) the marketing of any products or services (including potential customer and supply lists, sales statistics, surveys, reports and market share data); (iii) the production, selection and purchase and/or use of components, parts or raw materials; (iv) any engineering and chemical data, specifications, formulae, experience, component lists, instructions or designs and diagrams in each case relating to BCDMH;
"BioLab Arabia" means BioLab Arabia Limited, further details of which are set out in part 2 of schedule 14;
"BioLab Arabia Capital Indebtedness" means the Indebtedness due from BioLab Arabia to GLMUK at Completion in respect of capital loans made by GLMUK to BioLab Arabia (but excluding, for the avoidance of doubt, the BioLab Arabia Trade Payable) and which amounted to US$ 3,582,830 as at 30 April 2006;
"BioLab Arabia Third Party Indebtedness" means any and all Indebtedness which BioLab Arabia owes on the Completion Date to any lender not being a member of the Sellers' Group or a shareholder of BioLab Arabia (excluding, for the avoidance of doubt, the BioLab Arabia Trade Payable and the BioLab Arabia Capital Indebtedness);
"BioLab Arabia Trade Payable" means the amount due as at the Completion Date to the Sellers from BioLab Arabia in respect of goods supplied by them to BioLab Arabia in the ordinary course of business (but excluding the BioLab Arabia Capital Indebtedness) and which amounted to US$ 2,557,024 as at 30 April 2006;
"BioLab Arabia Shares" means the 7,840 shares of SR500 each in the issued share capital of BioLab Arabia owned by BioLab Gulf;
"BioLab Arabia Shareholders' Agreement" means the shareholders agreement dated 15 July 2001 between BioLab Gulf and Al-Hejailan Projects Engineering Company, a copy of which is attached to the Disclosure Letter as item 1.85.2 of the Disclosure Bundle;
"BioLab Gulf" means BioLab (Gulf) GmbH, further details of which are set out in part 1 of schedule 14;
"BioLab Gulf Shares" means the 1 fully paid quota of CHF 20,000 in BioLab Gulf owned by GLCE;
"BioLab Gulf Transfer Agreement" means the public deed in the agreed form to be entered into between GLCE and Holdco for the transfer of the BioLab Gulf Shares;
"Business" means such part of each Sellers' businesses as relate to the manufacturing process, development, marketing and sale of water treatment antiscalants, corrosion inhibitors and microbiocides, primarily for water and water purification applications, including but not limited to the Products and operated primarily under the Business Names and identified by the Sellers as their industrial water additives business and carried on by the Sellers at the date of this Agreement, but excluding, for the avoidance of doubt, the Pool and Spa Business and the Liquibrom Business;
"Business Contracts" means the Customer Contracts, the Distribution Contracts, the Equipment Contracts, the Intellectual Property Contracts and the Supplier Contracts and all other contracts, arrangements and commitments entered into and orders placed or received on or before Completion by or on behalf of the Sellers exclusively in connection with the Business (excluding the Transaction Documents) and which at Completion remain (in whole or in part) to be performed but excluding: (1) contracts with Employees, (2) contracts relating to the use or occupation of the Properties (other than the occupation of a part of the premises of Advanced Watertek LLC in Dubai pursuant to an oral licence to occupy which shall be a Business Contract for the purposes of this Agreement) and (3) contracts for the purchase of raw materials, supplies, parts and components to be used in the manufacture of products to be supplied to the Purchasers (or as they may direct) by members of the Sellers' Group pursuant to the Supply Agreements;
"Business Day" means a day (excluding Saturday) on which banks generally are open in the City of London and New York for the transaction of normal banking business;
"Business Employee" means any individual employed by any of the Sellers or members of the Sellers' Group in a jurisdiction other than an Automatic Transfer Country who provides services primarily to the Business (or in the case of Singapore, any individual who provides services primarily to the Business but does not transfer to the Purchasers automatically by operation of law);
"Business Information" means all information existing at the Completion Date either (i) owned by or (ii) in the possession, custody or control of the Sellers (and in respect of which the Sellers are legally entitled to pass title to the Purchasers) and in any way relating to the Business including but not limited to the Regulatory Information, details of customers, suppliers, distributors and agents, sales and marketing information (including but not limited to sales targets, sales statistics, market share statistics and market surveys) and information relating to present and future business operation, administration and development or planning, information relating to discounts, commissions and rebates received and/or paid and litigation or legal advice, in whatever form (including computer disks or tapes) that information may be recorded or stored, but not including any information which relates exclusively to the Plant or the specifications or configurations of any of the equipment located onsite at the Plant, to the extent that such information, specifications or configurations are not necessary or desirable for the process of manufacturing the Products generally as opposed to specifically at the Plant;
"Business Intellectual Property" means all Intellectual Property owned by the Sellers or any member of the Sellers' Group at the Completion Date which is used in, or has been developed for use in, or is required or intended for use in relation to the Business including but not limited to the Confidential Information and the unregistered trade marks assigned under the IP Assignments and the Intellectual Property listed in parts 1 and 2 of schedule 6 but excluding the Excluded Intellectual Property;
"Business Names" means "BioLab IWA" and/or "BioLab Industrial Water Additives";
"Business Records" means all books and records in whatever form (including computer disks or tapes) either (i) owned by or (ii) in the possession, custody or control of the Sellers (and in respect of which the Sellers are legally entitled to pass title to the Purchasers) containing or relating to Business Information or on which Business Information is recorded or stored but excluding the Excluded Business Records;
"Business Transfer Agreements" means the asset purchase agreements in the agreed form to be entered into between certain Sellers and the relevant Purchaser for the transfer of such Assets as are owned by the relevant Sellers in Italy, Japan and the USA;
"CHAPS" means the clearing houses automated payment system or any other method of electronic transfer for same-day value;
"Chemtura Group" means the group of companies comprising Chemtura Corporation and any subsidiary company from time to time of Chemtura Corporation;
"Completion" means completion of the sale and purchase of the Business and the Assets in accordance with clause 4;
"Completion Date" means the date upon which Completion takes place in accordance with clause 4;
"Confidential Information" means Know How and all other trade secrets and information of a confidential nature (including, without limitation, all proprietary formulas, designs, specification, drawings, data, manuals or instructions, technical, industrial and commercial information and techniques in whatever form (including computer disks or tapes) that information may be recorded or stored);
"Consideration" means the Initial Consideration:
"Control" shall be interpreted in accordance with the definition set out in Section 840 of the Income and Corporation Taxes Act 1988;
"Cost of Goods" means the invoice price paid to the supplier.
"Customer Contracts" means all contracts, commitments and arrangements entered into and orders received on or before the Completion Date by or on behalf of the Sellers with customers for the sale or supply of goods or services by the Sellers in connection with the Business which at Completion remain to be performed in whole or in part, and including, but not limited to, those listed in part 1 of schedule 9;
"Disclosure Bundle" shall have the meaning ascribed to it in the Disclosure Letter;
"Disclosure Letter" means the letter of the same date as this Agreement (including the content of any schedule or appendix thereto) from the Sellers to the Purchasers and Holdco together with all documents annexed to it in the agreed form;
"Distribution Contracts" means all agency, distributorship, franchise and other like agreements, arrangements and commitments entered into by or on behalf of the Sellers in connection with the Business which at Completion remain to be performed (in whole or in part and including, but not limited to, those listed in part 2 of schedule 9);
"DMH-01 Licence" means the licence in respect of DMH-01 in the agreed form between the relevant Seller and the relevant Purchaser;
"Domain Names" means "wateradditives.com" registered to BioLab Water Additives Business and "onsightview.com" registered to Bio-Lab Services Inc;
"Employee Lease Agreement" means the employee leasing agreement for USA and Canada in the agreed form to be entered into by GLCC and Holdco on the Completion Date;
"Employees" means the Transferring Employees and the Non-Transferring Employees;
"Employment Law" means all and any laws, including without limitation, common law, civil law, civil code, statutes, legislation, directives, recommendations, regulations, notices, codes of practice, guidance notes, judgments, decrees or orders, whether of the European Community, the USA, the UK, Italy, Spain, Singapore, Canada, Egypt, the United Arab Emirates, the People's Republic of China or any other relevant jurisdiction, relating to or connected with (1) the employment of employees including but not limited to their health and safety at work and (2) the engagement, use and termination of engagement of individuals other than employees who provide services including but not limited to their health and safety at work;
"Employment Liabilities" means all Losses connected with or arising from any Employment Law;
"Encumbrance" means any mortgage, charge, pledge, lien, adverse claim, restriction, assignment, hypothecation, security interest, title retention or any other encumbrances or third party rights or claims of any kind (other than repairmen's, carriers', workers', lessors' and similar liens arising or incurred in the ordinary course of business and provisions constituting reservation and retention of title clauses entered into in the ordinary course of business);
"Environmental Laws" means all local, state and federal Laws relating to (a) protection of surface or ground water, drinking water supply, soil, surface or subsurface strata or medium, or ambient air, (b) pollution control, (c) product registration and (d) Hazardous Materials.
"Event" means any event, occurrence, transaction, or act whatsoever;
"Equipment" means the office and laboratory equipment specified in schedule 7 but excluding for these purposes any such items which are the subject of Equipment Contracts;
"Equipment Contracts" means all contracts, commitments and arrangements entered into and orders placed or received on or before the Completion Date by or on behalf of the Sellers in relation to the leasing, lease purchase, hire or hire purchase, credit sale, conditional sale or sale by instalments of goods or equipment in connection with the Business which on Completion remain to be performed in whole or in part;
"ERISA" means the U.S. Employee Retirement Income Security Act of 1974, as amended;
"Escrow Account" means the interest bearing deposit account with National Westminster Bank PLC to be opened in the joint names of the Seller's Solicitors and the Buyer's Solicitors and operated in accordance with clause 15.2;
"Escrow Agreement" means the agreement to be entered into between GLCC and Holdco, the Sellers' Solicitors and the Buyers' Solicitors in connection with the operation of the Escrow Account in the agreed form;
"Escrow Sum" means the sum of US$1,372,000 to be paid into the Escrow Account in accordance with clause 15.2;
"Excluded Assets" means the assets referred to in clause 2.2 which are excluded from the sale and purchase pursuant to this Agreement;
"Excluded Business Contracts" means those contracts set out in part 8 of Schedule 9;
"Excluded Business Records" means the Sellers' statutory books and accounting records and all other records which do not relate to the Business (including those relating to Tax) and documents which are legally privileged such that the transfer of such documents to the Purchasers would result in the document losing its legally privileged status;
"Excluded Intellectual Property" means the Trafford Park IP, the Intellectual Property listed in part 3 of schedule 6 and all patents, patent applications, trade marks and trade mark applications other than the Patents and the Trade Marks and the Trafford Park IP;
"Excluded Inventory" means
(a) raw materials, supplies, parts and components relating to the Business to be used in the manufacture of products pursuant to (and as defined in) the Supply Agreements on hand at Completion at any of Sellers' or Sellers' agents' facilities, but excluding any such assets on hand at Completion at BioLab Arabia's or its agents' facilities;
(b) finished goods in transit to customers as at the Completion Date in respect of which an invoice has been raised by the Sellers to a third party customer;
(c) obsolete goods, which shall be determined and agreed in accordance with the provisions set out in schedule 11;
(d) such quantity of the finished goods (including the related packaging materials) which are held or owned by the Sellers at the Completion Date and relate exclusively to the Business as result in the value of all such finished goods (valued as at the Completion Date in accordance with the provisions set out in schedule 11 and the Accounting Principles) exceeding the sum of the Reference Inventory Amount plus US$ 1 million, it being recorded that such quantity shall be identified on a pro rata basis;
"Excluded Liabilities" means all debts, creditors and liabilities (including the Accounts Payable) of the Sellers (whether or not invoiced and whether or not due and payable) and all other actual or contingent liabilities of the Sellers of whatever nature (including any liability of any Seller or any member of the Sellers' Group to Tax or under the US Pension Plans) whether or not occurring in respect of or relating to the carrying on of the Business or the performance of obligations under the Business Contracts or the ownership or use of any Assets or the supply of goods or services provided in the course of the Business or otherwise whatsoever in relation to the period on or before the Completion Date other than any liabilities expressly assumed by the Purchasers under the Transaction Documents;
"Financial Accounts" means the management accounts for the Business for the period 1 January 2005 to the Financial Accounts Date, previously supplied to the Purchasers and which are attached to the Disclosure Letter;
"Financial Accounts Date" means 31 March 2006;
"Freight out" means all associated freight costs;
"Goodwill" means the goodwill and undertaking of the Sellers to the extent that it relates to the Business including the exclusive right for the Purchasers to represent themselves as carrying on the Business in succession to the Sellers;
"Governmental Entity" means any federal, state, local or other governmental or regulatory authority or agency or any court, whether domestic or foreign;
"Gross Profit Margin" means Gross Sales Revenue less Cost of Goods, Warehousing and Freight out;
"Gross Profit Margin Confirmation Date" means the date upon which, pursuant to clause 15.10, the Gross Profit Margin Final Confirmation shall be issued;
"Gross Profit Margin Final Confirmation" shall mean the final confirmation of the Gross Profit Margin Statement, being either:
"Gross Profit Margin Joint Resolution" shall mean the joint resolution between BWA UK (on behalf of the Purchasers) and GLCC (on behalf of the Sellers) as envisaged in clause 15.10(a);
"Gross Profit Margin Statement" shall mean the statement showing the calculation of the Gross Profit Margin, as referred to in clause 15.9(a);
"Gross Sales Revenue" means the aggregate invoiced amounts net of any cash discounts and customer rebates granted in respect of the relevant period;
"Hazardous Materials" means any waste, pollutant, contaminant, hazardous substance, toxic, ignitable, reactive or corrosive substance, hazardous waste, special waste, industrial substance, by-product, process-intermediate product or waste, petroleum or petroleum-derived substance or waste, chemical liquids or solids, liquid or gaseous products, or any constituent of any such substance or waste, the use, handling or disposal of which by the Seller is in any way governed by or subject to any applicable Environmental Law;
"Indebtedness" means any borrowing or indebtedness in the nature of borrowing;
"Initial Consideration" means US$ 85,000,000;
"Intellectual Property" means Confidential Information, and all patents, registered designs, trade marks and service marks, copyrights (including rights in computer software), database rights, and other intellectual property rights in each case whether registered or unregistered and including applications for the grant of any of the foregoing and the right to apply for registration or protection of any of the foregoing subsisting at any time in any part of the world and including (without limitation) all rights in inventions, discoveries, products, prototypes, designs, drawings, patterns, techniques, computer programs, source codes, Domain Names, semi-conductor topographies, trading, business or brand names, goodwill or the style of presentation of the goods or services or related marketing materials or any improvement of any of the foregoing;
"Intellectual Property Contracts" means all contracts, arrangements, commitments, licences, authorisations and permissions relating to the use, enjoyment and/or exploitation by (1) a Seller of any Intellectual Property or Business Information used exclusively in connection with the Business as carried on at the Completion Date and (2) any third party of any Business Intellectual Property or Business Information and including, but not limited to those listed in part 4 of schedule 6;
"Inventory Amount" means the value of the Purchased Inventory (to be determined in accordance with the provisions set out in schedule 11 and the Accounting Principles);
"Inventory Amount Final Confirmation" shall have the meaning ascribed to it in Schedule 11;
"Inventory Amount Joint Resolution" shall have the meaning ascribed to it in Schedule 11;
"Inventory Amount Statement" shall have the meaning ascribed to it in Schedule 11;
"Inventory Adjustment Confirmation Date" means the date upon which, pursuant to schedule 11, the Inventory Amount Final Confirmation shall be issued;
"IP Assignments" means the assignments in agreed form to be entered into between BWA UK and each of the Sellers on the Completion Date in respect of the assignment of the Business Intellectual Property;
"Know How" means all technical, industrial and commercial information and techniques existing in whatever form or media including (but not limited to) information and techniques concerned with (i) the design, development, or manufacture of any products (including any processes and methodologies used to design, develop or manufacture such products which are not exclusively related to the facility, plant or equipment where they are designed, developed or manufactured); (ii) the marketing of any products or services (including potential customer and supply lists, sales statistics, surveys, reports and market share data); (iii) the production, selection and purchase and/or use of components, parts or raw materials; (iv) any engineering and chemical data, specifications, formulae, experience, component lists, instructions or designs and diagrams but excluding the Trafford Park IP;
"Laws" means all applicable statutes, rules, codes, regulations, restrictions, ordinances, orders, decrees, approvals, directives, judgments, injunctions, writs, awards and decrees of, or issued by, all Governmental Entities, in each case to the extent that they have the force of law;
"Lease Assignment" means the assignment agreement in the agreed form to be entered into between BWA UK and GLCC whereby the Alexandria Lease will be assigned by GLCC to BWA UK on Completion;
"Liquibrom Business" means the business conducted by the Sellers and any other members of the Sellers' Group with respect to the manufacture, development, marketing and sale of sodium bromide aqueous solutions, used primarily in cooling water disinfection applications;
"Liquibrom Distribution Agreement" means the agreement (in the agreed form) to be entered into between Chemtura Corporation and BWA US on Completion, in respect of the sale to BWA US of Liquibrom for on-sale by BWA US;
"Losses" includes, in respect of any matter, event or circumstance, all demands, claims, actions, proceedings, damages, payments, fines, penalties, losses, costs (including reasonable legal costs), expenses (including taxation), disbursements or other liabilities in any case of any nature whatsoever;
"Merger Control Authority" means any authority in any relevant jurisdiction which is responsible for supervising, approving and otherwise regulating mergers affecting such jurisdiction;
"Non-Transferring Employees" means a) any employee of the Sellers or a member of the Sellers' Group who is not a Transferring Employee and does not otherwise become an employee of any member of the Purchasers' Group, including but not limited to those listed in part 2 of Schedule 8, and b) any persons who provide services personally to the Sellers or a member of the Sellers' Group in any jurisdiction whatsoever other than as an employee and whose engagement is not assigned or novated to the relevant Purchaser or other member of the Purchasers' Group and who does not otherwise provide services to the relevant Purchaser or the Purchasers' Group;
"Patents" means the patents and patent applications more particularly detailed in part 1 of schedule 6;
"P-DMH Know-How" means all technical, industrial and commercial information and techniques existing in whatever form or media including (but not limited to) information and techniques concerned with (i) the design, development, or manufacture of any products (including any processes and methodologies used to design, develop or manufacture such products which are not exclusively related to the facility, plant or equipment where they are designed, developed or manufactured); (ii) the marketing of any products or services (including potential customer and supply lists, sales statistics, surveys, reports and market share data); (iii) the production, selection and purchase and/or use of components, parts or raw materials; (iv) any engineering and chemical data, specifications, formulae, experience, component lists, instructions or designs and diagrams in each case relating to P-DMH;
"Pension Arrangements" means:
"Plant" means the plant and any and all equipment and facilities located at Tenax Road, Trafford Park, Manchester, M17 1WT;
"Pool and Spa Business" means the business conducted by the Sellers and other members of the Sellers' Group with respect to the developing, manufacturing, packaging, marketing, distributing, selling and providing services relating to chemicals, feeders, controllers, treatment devices and other products for use in or associated with pools and spas (residential and commercial), fountains, water features, water parks and amusement parks;
"Prepayments" means all amounts paid (whether by deposit, prepayment or otherwise) on or before the Completion Date by or on behalf of the Sellers so far as the same relate to anything (including any service) to be provided to the Purchasers under any of the Business Contracts or otherwise in connection with the carrying on of the Business in the ordinary course after the Completion Date (but excluding, for the avoidance of doubt, liabilities in respect of Tax and amounts paid in respect of raw materials, supplies, parts or components to be used in the manufacture of products or services to be supplied by members of the Sellers' Group pursuant to, or any other matters in any way relating to, the Supply Agreements or the Transitional Services Agreement);
"Proceedings" means any proceedings, suit or action arising out of or in connection with this Agreement;
"Products" means the "Products" as defined in the Trafford Park Supply Agreement and the Bromicide Gel products referred to in the Adrian Supply Agreement;
"Proguard Trade Mark Licence" means the licence for the PROGUARD WATER SOLUTIONS trade marks in the agreed form to be entered into at Completion between BioLab, Inc and BWA UK;
"Property Agreements" means the leases in the agreed form to be entered into at Completion between GLMUK and BWA UK in respect of part of the UK Premises
"Properties" means all freehold or leasehold property or properties owned or leased by the Sellers and used in connection with the Business;
"Purchased Inventory" means finished goods (including the related packaging materials) which are held or owned by the Sellers at the Completion Date and relate exclusively to the Business (but excluding the Excluded Inventory), the value of which as at the Completion Date shall be agreed in accordance with the provisions set out in schedule 11 and the Accounting Principles;
"Purchasers' Group" means the group of companies comprising the Purchasers, Holdco, any holding company from time to time of the Purchasers or Holdco and any subsidiary of the Purchasers or Holdco or of any such holding company and "member of the Purchasers' Group" shall be construed accordingly;
"Purchasers' Solicitors" means Addleshaw Goddard of 100 Barbirolli Square, Manchester M2 3AB;
"Reference Inventory Amount " means US$12,200,000, calculated based on the value of the Business' finished goods as at 31 January 2006;
"Regulatory Information" means all regulatory information existing at the Completion Date either:
(i) owned by; or
(ii) in the possession, custody or control of the Sellers (and in respect of which the Sellers are legally entitled to pass title to the Purchasers) and relating to the Business including but not limited to information relating to:
(a) product registrations (including EPA FIFRA, PMRA, SYKE, KEMI, CTB);
(b) product approvals (including FDA, USDA, Manchester Beth Din Kosher approval, CEFAS);
(c) product certifications (including NSF Std 60, Kiwa ATA);
(d) chemical registrations (including ELINCS registration, confidential listings on DSL in Canada);
(e) toxicological studies and ecotoxicological studies conducted on chemicals and products being sold;
(f) dossier submissions, completed application forms, IUCLID documents;
(g) risk assessments and occupational exposure information for Product Stewardship or product registration purposes;
(h) letters of access for customer product registrations; and
(i) such other data and information used to support product registrations, approvals and/or certificates,
in each case in connection with the Business, but excluding any such information relating to those products for which a licence or sublicence to access will be provided pursuant to a separate agreement between the parties, or for which separate arrangements have been made by the parties under the Regulatory Services Agreement;
"Regulatory Services Agreement" means the agreement in the agreed form to be entered into at Completion between Bio-Lab, Inc. and Holdco;
"Release" means, with respect to any Hazardous Material, any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into any surface or ground water, drinking water supply, soil, surface or subsurface strata or medium, or the ambient air;
"Relief" means any loss, allowance, exemption, set-off, deduction, credit or other relief from or relating to any Tax or to the computation of income, profits or gains for the purpose of any Tax and any right to a repayment of Tax;
"Relevant Associate" means a relevant associate as defined in paragraph 3(7) of Schedule 10 of the VATA;
"Retention Contracts" means the contracts listed in schedule 12;
"Sales Documentation" means all sales publications, advertising and promotional materials, printed terms and conditions of sale or supply, business forms, instructional material and other technical and sales materials which are owned by the Sellers on the Completion Date and relate to the Business;
"Sellers' Group" means the group of companies comprising GLCC, any holding company from time to time of GLCC and any subsidiary of GLCC or any such holding company and "member of the Sellers' Group" shall be construed accordingly;
"Sellers' Solicitors" means Baker & McKenzie LLP of 100 New Bridge Street, London, EC4V 6JA;
"Senior Management" means Beverley Hepburn, J.C. Shia, Alastair Sholl, Paul Turgeon, Colin Hogan, Bob Bentley and Mike Finan;
"Service Document" means a document relating to or in connection with any Proceedings;
"SIDF Loan" means the loan of US$2.8million made by the Saudi Industrial Development Fund to BioLab Arabia pursuant to an agreement between the parties dated 23 April 2003;
"SIDF Guarantee" means the guarantee dated 8 March 2003 granted by GLCC in favour of SIDF, whereby GLCC has agreed to guarantee as primary obligor 49 per cent of the payment obligations of BioLab Arabia under the SIDF Loan;
"Sixth Directive" means the Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (77/388/EC);
"Supplier Contracts" means all contracts, commitments and arrangements entered into and orders placed with suppliers on or before the Completion Date by or on behalf of the Sellers for the sale or supply of goods or services to the Sellers in connection with the Business which at Completion remain to be performed in whole or in part, other than contracts for the purchase of Excluded Inventory or Purchased Inventory and including, but not limited to those listed in part 5 of schedule 9;
"Supply Agreements" means the Trafford Park Supply Agreement and the Adrian Supply Agreement;
"Syngenta Access Letters" means the two access letters in the agreed form entered into between GLCC and BWA UK;
"Tax" means all forms of taxation and all withholdings, duties, levies, imposts, charges, social security contributions and rates imposed, assessed or enforced by any local, municipal, governmental, state, federal or other body or authority in any jurisdiction in all cases being in the nature of taxation and any interest, penalty, surcharge or fine in connection therewith;
"Tax Authority" means any person, body, authority or institution having jurisdiction over the assessment, determination, collection, or other imposition of any Tax;
"Taxation Liability" means a liability, or an increase in a liability, to make an actual payment of or of an amount in respect of Tax including whether or not such Tax is also or alternatively chargeable against or attributable to any other person;
"Taxes Act" means the Income and Corporation Taxes Act 1988;
"Tax Returns" means any return, declaration, report, claim for refund or information return or statement relating to Taxes, including any schedule or attachment thereto and any amendment thereof;
"Third Party Proprietor Patents" means any Patent where the legal title as at the Completion Date is registered to a third party and the Sellers or any of them is the beneficial owner of such Patent, such Patents are more particularly detailed in part 1(b) of Schedule 6;
"Third Party Proprietor Trade Marks" means any Trade Mark where the legal title as at the Completion Date is registered to a third party and the Sellers or any of them is the beneficial owner of such Trade Mark, such Trade Marks are more particularly detailed in part 2(b) of Schedule 6;
"Trade Marks" means the trade marks and trade mark applications more particularly detailed in part 2 of schedule 6;
"Trafford Park IP" means any and all Intellectual Property developed and acquired by the Sellers subsisting in or exclusively relating to the facilities and equipment located at the Plant, and used in the manufacture of the Products;
"Trafford Park Supply Agreement" means the agreement in the agreed form to be entered into on the Completion Date by GLMUK and BWA UK for the supply of certain products sold by the Business;
"Transaction Documents" means this Agreement, the Disclosure Letter, the BioLab Gulf Transfer Agreement, the Business Transfer Agreements, the Lease Assignment, the IP Assignments, the Property Agreements, the Supply Agreements, the Adrian Know-How Licence Agreement, the Transitional Services Agreement, the Regulatory Services Agreement, the Liquibrom Distribution Agreement, the DMH-01 Licence, the BCDMH Access Letter, the Proguard Trade Mark Licence, the Syngenta Access Letters, the Transition Services Agreement and the Employee Lease Agreement;
"Transfer Date" means the date on which the Transferring Employees transfer to the employment of the Purchasers being the Completion Date;
"Transfer Regulations" means (a) in the United Kingdom the UK Transfer Regulations and Transfer of Employment (Pension Protection) Regulations 2005 as amended or replaced, (b) in Singapore Chapter 91 of the Singapore Employment Act as amended or replaced, (c) in Italy Article 2112 of the Italian Civil Code as amended or replaced, (d) in Spain Article 44 of Royal Legislative Decree 1/1995 of March 24, 1995 as amended or replaced and (e) whether in those jurisdictions or elsewhere in the world, any other Employment Laws dealing with the transfer by operation of law of the employment of employees from one employer to another (including but not limited to Employment Laws implementing the EU Council Directives 2001/23/EC, 98/50/EC and 77/187/EEC, each as amended or replaced);
"Transfer Taxes" means all stamp, documentary, sales, use, customs duties, excise duties, securities or other transfer or similar tax or fees, land registry fees, intellectual property registry or recording fees, and any other fees or charges levied or payable anywhere in the world on the transfer of any of the Assets, or any instrument effecting the same;
"Transferring Employees" means (a) those individuals employed by the Sellers or other member of the Sellers' Group in an Automatic Transfer Country who are assigned to the Business, and whose employment is transferred to the Purchasers including but not limited to those listed in part 1 of schedule 8, and (b) Business Employees who accept the Purchasers' (or a member of the Purchasers' Group's) offer of employment including, but not limited to, those listed in part 1 of schedule 8 and (c) those persons who provide services personally to the Business in any jurisdiction whatsoever other than as an employee and whose engagement is assigned or novated to a member of the Purchasers' Group or who otherwise provides services to the Purchasers' Group in respect of or for the Business after the Transfer Date including, but not limited to, those listed in part 1 of schedule 8;
Transition Services Agreement" means the transition services agreement for Spain in the agreed form to be entered into by Bayrol Iberica S.A. and BWA UK on the Completion Date;
"Transitional Services Agreement" means the transitional services agreement in the agreed form to be entered into by GLMUK and Holdco on the Completion Date;
"UK" means the United Kingdom of Great Britain and Northern Ireland;
"UK Pension Arrangement" means the Great Lakes (UK) Limited Pension Plan as governed by the Supplemental Deed and the Rules dated 16 September 2004;
"UK Premises" means GLMUK's premises at Tenax Road, Trafford Park, Manchester, England M17 1WT;
"UK Transfer Regulations" means the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended or replaced;
"UK Transferring Employees" means such of the Transferring Employees listed in part 1 of schedule 8 who are participating in the UK Pension Arrangement;
"USA" means the United States of America;
"US$" means USA dollars, the lawful currency from time to time of the USA;
"US Pension Plans" means the plans listed in paragraph 10.8 of Schedule 3, each being a pension plan as defined Section 3(2) of ERISA, covering any Business Employees in the USA, that Sellers maintain, to which Sellers contribute or have any obligation to contribute, or with respect to which Sellers have any liability;
"VAT" means, in a member state of the European Union any tax chargeable in accordance with the Sixth Directive or locally applicable legislation made subordinate or pursuant thereto and includes any replacement of such tax, and in any other country, any value added, goods and services or similar tax chargeable on the supply or deemed supply of goods or services under the applicable legislation;
"VATA" means the Value Added Tax Act 1994;
"Warehousing Costs" means the costs associated with the storing of the product;
"Warranties" means the warranties given in clause 13 and schedule 3;
All references to statutes, statutory provisions, enactments, EU Directives or EU Regulations shall include references to any consolidation, re-enactment, modification or replacement of the same, any statute, statutory provision, enactment, EU Directive or EU Regulation of which it is a consolidation, re-enactment, modification or replacement and any subordinate legislation in force under any of the same from time to time except to the extent that any consolidation, re-enactment, modification or replacement enacted after the date of this Agreement would extend or increase the liability of either party to the other under this Agreement.
A company or other entity shall be a "holding company" for the purposes of this Agreement if it falls within either the meaning attributed to that term in ss736 and 736A Companies Act 1985 or the meaning attributed to the term "parent undertaking" in s258 Companies Act 1985, and a company or other entity shall be a "subsidiary" for the purposes of this Agreement if it falls within either the meaning attributed to that term in ss736 and 736A Companies Act 1985 or the meaning attributed to the term "subsidiary undertaking" in s258 Companies Act 1985, and the terms "subsidiaries" and "holding companies" are to be construed accordingly.
Any reference to a document in the "agreed form" is to the form of the relevant document in the terms agreed between the Sellers and the Purchasers prior to the execution of this Agreement and signed or initialled for identification purposes only by or on behalf of the Sellers and the Purchasers (in each case with such amendments as may be agreed by or on behalf of the Sellers and the Purchasers).
All obligations of the Sellers under the Transaction Documents (to which they are respectively party) shall be joint and several (including, but not limited to, in respect of the obligations of GLCC under clauses 3.3, 3.4, 5.1, 11.2(a), 15.6(d) and 15.7. References to the "Sellers" shall, unless the context otherwise requires, mean all of the Sellers, or any of them.
All obligations of the Purchasers under the Transaction Documents (to which they are respectively party) shall be joint and several. References to the "Purchasers" shall, unless the context otherwise requires, mean all of the Purchasers, or any of them.
References to this Agreement include the recitals and schedules which form part of this Agreement for all purposes. References in this Agreement to the parties, the recitals, schedules and clauses are references respectively to the parties and their legal personal representatives, successors and permitted assigns, the recitals and schedules to and clauses of this Agreement.
Save where specifically required or indicated otherwise:
Clause and paragraph headings and the table of contents are inserted for ease of reference only and shall not affect construction.
Where any statement in the Warranties is qualified by the expression "to the best of the knowledge of the Sellers" or "so far as the Sellers are aware" or any similar expression, the Sellers shall be deemed to have knowledge of:
The Sellers shall sell (subject to clause 2.4) with full title guarantee, and the Purchasers shall purchase, with effect from the Completion Date, the Business as a going concern and all the Assets (comprising the following assets), free from all Encumbrances, except those Encumbrances fairly disclosed in the Disclosure Letter with specific reference to this clause 2.1:
There shall be excluded from the sale and purchase under this Agreement (and accordingly nothing in this Agreement shall operate to transfer from the Sellers) the following assets:
The Advance Receipts, Prepayments and the Excluded Liabilities shall be dealt with in accordance with clauses 5.1, 5.2 and 6.2 respectively.
The total price for the Business to be paid by the Purchasers to the Sellers is the Consideration. Each Seller hereby irrevocably authorises GLCC to receive the Consideration on their behalf, and the receipt of such amount by GLCC shall be a good, valid and effective discharge of the Purchasers' obligations to make such payment.
The Consideration shall be satisfied:
Notwithstanding any other provision of this Agreement, in the event that the Inventory Amount is less than the Reference Inventory Amount, GLCC (on behalf of the Sellers) shall be liable to pay to the Purchasers, on or before the Balancing Payment Date, the full amount of the shortfall by CHAPS transfer to such account as the Purchaser shall notify to GLCC in writing by way of adjustment to the Consideration provided that this shall not in any way limit GLCC's obligations under this clause) together with interest calculated and charged in accordance with clause 22.
GLCC (on behalf of the Sellers) and BWA UK (on behalf of the Purchasers) shall, within three Business Days after Completion, determine the amount of the BioLab Arabia Third Party Indebtedness (as reflected in the letters to be received from each of SIDF and NCB detailing the amount of Indebtedness owed to such entities by BioLab Arabia as at the Completion Date. In the event that the total amount of 49% of the BioLab Arabia Third Party Indebtedness exceeds US$1,900,000, then GLCC (on behalf of the Sellers) shall within seven days of such joint determination, pay to the Purchasers in cash the full amount of such excess by CHAPS transfer to such account as the Purchaser shall notify to GLCC in writing by way of adjustment to the Consideration provided that this shall not in any way limit GLCC's obligations under this clause).
The Consideration shall be allocated between the Assets as specified in schedule 10 subject to any adjustment required to be made pursuant to this clause 3 and such allocation shall be adopted by the parties for all purposes (including but not limited to Tax).
The Inventory Amount shall be calculated in accordance with the provisions of schedule 11.
Completion shall take place immediately following the execution of this Agreement or such other date as may be agreed in writing between BWA UK (on behalf of the Purchasers) and GLCC (on behalf of the Sellers).
Completion shall take place at the offices of the Sellers' Solicitors when all (but not some only) of the events detailed in this clause 4 shall occur.
At Completion, the Sellers' shall do or deliver (or cause to be delivered) to BWA UK the matters or items listed in part 1 of schedule 2.
At Completion, the Purchasers shall do or deliver (or cause to be delivered) to GLCC (on behalf of the Sellers) the matters or items listed in part 2 of schedule 2.
Risk in, title to and ownership of the Assets shall pass to the Purchasers on Completion.
Upon Completion, the Advance Receipts shall belong to the Purchasers and GLCC (for itself and on behalf of the relevant Sellers) shall pay to the Purchasers the full amount of the Advance Receipts in accordance with the provisions of this clause 5.
Upon Completion, the Prepayments shall belong to the relevant Sellers and the Purchasers shall pay to the relevant Sellers the full amount of the Prepayments in accordance with the provisions of this clause 5.
All periodical charges and outgoings of the Business or the Assets including but not limited to:
shall (to the extent not already taken into account as a Prepayment) be apportioned on a time basis so that such part of the relevant charges and outgoings as is attributable to the period ending at 24:00 hrs on the Completion Date shall be borne by the relevant Seller and such part of the relevant charges and outgoings as is attributable to the period commencing on the day immediately following the Completion Date shall be borne by the Purchasers. Any charges or outgoings which can only be calculated on an annualised basis, shall be assumed to accrue at the same rate following the Completion Date as they actually accrued prior to such date, for the purposes of this clause 5.3.
All periodical income and receipts of the Business including but not limited to all periodical amounts received or receivable under any of the Business Contracts shall (to the extent not already taken into account as an Advance Receipt) be apportioned on a time basis so that such part of the relevant income and receipts as is attributable to the period ending at 24:00 hrs on the Completion Date shall belong to the relevant Seller and such part of the relevant payments and receipts as is attributable to the period commencing on the day immediately following the Completion Date shall belong to the Purchasers and provided that any apportionments related to discounts offered to customers shall be apportioned such that such part of the relevant discount as is attributable to the sales made on or prior to the Completion Date shall belong to the relevant Seller and such part of the relevant discounts as are attributable to sales made in the period commencing on the day immediately following the Completion Date shall belong to the Purchasers and that any apportionments related to rebates offered by suppliers shall be apportioned such that such part of the relevant rebate as is attributable to purchases made on or prior to the Completion Date shall belong to the relevant Seller and such part of the relevant rebates as are attributable to the period commencing on the day immediately following the Completion Date shall belong to the Purchasers. Any income and receipts (including rebates or discounts) which can only be calculated on an annualised basis, shall be assumed to accrue at the same rate following the Completion Date as they actually accrued prior to such date, for the purposes of this clause 5.4.
The parties shall use all reasonable endeavours to draw up and agree a statement of the Advance Receipts referred to in clause 5.1, the Prepayments referred to in clause 5.2 and the apportionments referred to in clauses 5.3 and 5.4 and the balance owing by one party to another in respect of the same as soon as practicable after the Completion Date. If such statement has not been prepared and agreed within 90 Business Days after the Completion Date either party may refer the matter for determination in accordance with the procedure detailed in clause 10. Payment of the balance agreed, or determined pursuant to clause 11, shall be made within 10 Business Days after such agreement or determination.
The Purchasers shall, with effect from the day immediately following the Completion Date, assume or procure the assumption of the obligations and liabilities of, and become entitled to the benefit of, the Sellers under the Business Contracts, except insofar as such obligations have been performed or should have been performed at or before the Completion Date, and the Purchasers shall indemnify the Sellers against all Losses incurred by the Sellers in respect of the non-performance or defective or negligent performance by the Purchasers of the Business Contracts after the Completion Date.
If any consent or approval of, or an agreement or novation with, any person who is not a party to this Agreement or who is a member of the Sellers' Group (in which the Sellers shall procure the delivery of such consent or approval, agreement or novation) is required for the transfer to the Purchasers of the benefit or burden of any of the Business Contracts and any such consent or approval has not been received or such agreement or novation has not been entered into at or prior to the Completion Date:
In the event that any such consent or approval is not obtained or such agreement or novation is not entered into in respect of any of the Business Contracts, no reduction shall be made to the Purchase Price in respect thereof and the relevant Seller shall not be liable for any losses of the Purchasers whatsoever arising from any such failure to obtain any such consent or approval or enter into any such agreement or novation.
The provisions of part 3 of schedule 8 shall have effect in respect of Employees in any Automatic Transfer Countries and the provisions of part 4 of schedule 8 shall have effect in respect of Employees in the USA or any other jurisdictions which are not Automatic Transfer Countries.
The provisions of part 1 of schedule 5 shall have effect in respect of Employees in any Automatic Transfer Countries and the provisions of part 2 of schedule 5 shall have effect in respect of Employees in the USA or any other jurisdictions which are not Automatic Transfer Countries.
If any difference of opinion arises between the parties or their respective accountants in relation to any provision of this Agreement in respect of which a party is expressed to have the right to refer such matter for determination pursuant to this clause 10, subject to any time period referred to in the relevant provision during which the parties must seek to resolve the dispute before referring it to an independent firm having expired, either party may refer the matter to an independent firm of accountants for resolution as follows:
Subject to clause 14, no party shall, without the prior written consent of the other, disclose to any other person, firm or company the terms of this Agreement save in the case of disclosure required by law, or disclosure to the relevant party's professional advisers provided such advisers are under a duty of confidentiality.
Subject to clause 11.3, each Seller and Chemtura Corporation jointly and severally covenants with the Purchasers with the intent of securing to the Purchasers the full benefit and value of the Goodwill and the Business, and as an essential part of this Agreement, that it shall not (and each Seller shall procure that no member of the Sellers' Group shall, and Chemtura Corporation shall procure that no member of the Chemtura Group shall), except with the consent in writing of BWA UK (whether as principal or agent or whether alone or jointly with or as a shareholder of any other company):
(i) general solicitations for employment not specifically targeting such persons shall not be considered a breach of this agreement;
(ii) the restrictions in this paragraph shall not apply in the event that the person seeking employment responded to a published advertisement, including web or other job postings or a job fair or otherwise contacted the Sellers or any member of the Sellers' Group on his or her own initiative or either directly or through a search firm, employment agency or similar entity; or
(iii) the restrictions in this clause 11.2(b) shall not apply to the hiring of any Transferring Employee at least 3 months after their employment with the Purchasers has ceased.
The restrictions contained in clause 11.2 shall not preclude any member of the Sellers' Group or Chemtura Corporation from performing their respective obligations under the Supply Agreements or from being interested or involved in, or conducting the Liquibrom Business and the manufacture, sale and distribution of the products of the Pool and Spa Business.
The Purchasers covenant with the Sellers and Chemtura Corporation that they shall not (and it shall procure that no member of the Purchaser' Group shall), except with the consent in writing of GLCC (whether as principal or agent or whether alone or jointly with or as a shareholder of any other company), for the period of one year after Completion, solicit or entice away or attempt to solicit or entice away from the Sellers' Group any person who is at Completion employed in a senior capacity by any member of the Sellers' Group provided that:
For the avoidance of doubt, Chemtura Corporation is a party to this Agreement for the purpose of this clause 11 only and it shall not inherit any liabilities, obligations or undertakings whatsoever under this Agreement other than those specifically referred to in this clause 11.
To the extent applicable, the parties hereby waive compliance with the Bulk Sales Act, R.S.O. 1990, c-B14, as amended and any USA bulk sales laws and any other similar laws in any applicable jurisdiction in respect of the transactions contemplated by this Agreement.
The Sellers jointly and severally warrants to the Purchasers, that each of the statements set out in schedule 3 is true and accurate in all respects, as at the date of this Agreement.
The liability of the Sellers in respect of any claim under the Warranties shall be limited and qualified as set out in schedule 4.
The Purchasers jointly and severally warrant to the Sellers that:
Indemnities
resulting from or by reference to any Event occurring on or before Completion or in respect of any gross receipts, income, profits or gains earned, accrued or received (or deemed to be earned, accrued or received for the purposes of any Taxation) by BioLab Gulf and/or BioLab Arabia and/or on or before Completion and such payment to be made two Business Days after the receipt of a written notice from the Purchasers of the amount which the Sellers are required to pay or, if later, the date two Business Days before the date on which the Taxation Liability in question is, or as the case may be would have been, due for payment.
(i) the Purchasers' use of the FLOCON Trade Marks listed in Schedule 6 Part 2(c) outside of the field of industrial water, municipal water, waste water and industrial process water treatment; or
(ii) any breach of the terms of this Agreement, or any negligent, wilful or fraudulent act or omission, of or by any member of the Purchasers' Group; and
Subject to the provisions of clause 14.2 below, no disclosure or announcement relating to the existence or subject matter of this Agreement shall be made or issued by or on behalf of the Sellers or any member of the Sellers' Group or the Purchasers or any member of the Purchasers' Group without the prior written approval of GLCC (on behalf of the Sellers) or BWA UK (which approval may be subject to reasonable conditions but shall otherwise not be unreasonably withheld or delayed) provided that these restrictions shall not apply:
(a) to any disclosure or announcement if required by any law, applicable securities exchange, supervisory, regulatory or governmental body;
(b) if the information to be disclosed enters the public domain otherwise than through an act or omission of this disclosing party;
(c) such disclosure is on a confidential basis to the disclosing party's professional advisers for the purpose of advising that party in connection with this Agreement or any of the Transaction Documents; or
(d) such disclosure is on a confidential basis to the disclosing party's officers and employees whose function requires the disclosure.
The Purchaser acknowledges and confirms, for the purposes of clause 14.1, that it consented to the Sellers sending letters to its customers and suppliers prior to Completion informing them of the proposed sale of the Business and requesting consent to the assignment of the relevant Business Contract. Nothing in this Agreement will prohibit the Purchasers from making or sending after Completion any announcement to a customer, client or supplier of the Business informing it that the Purchasers have purchased the Business.
The Sellers shall pay any amount due by them under the Retention Contracts to the Purchasers within fourteen days of receipt from the Purchasers of evidence satisfactory to the Sellers that the relevant payments have become due and if any contribution is not paid on the due date, interest shall be paid in respect thereof at the rate provided in clause 22 from the due date to the date of payment.
(a) a statement setting out details of the Gross Profit Margin earned on all sales made by the Purchasers or any member of the Purchasers' Group of Belclene Phosphonates to General Electric Company or any of its subsidiaries from time to time anywhere in the world during the period commencing on the day after the Completion Date and terminating on (and including) the first anniversary of the Completion Date; and
(b) such evidence as may be necessary to support the Gross Profit Margin Statement and as may be reasonably requested by GLCC (on behalf of the Sellers).
The Sellers shall use their commercially reasonable endeavours to procure that the legal title to each of the Third Party Proprietor Patents and the Third Party Proprietor Trade Marks is transferred to the Purchasers (or to such party duly designated by the Purchasers) as soon as possible following Completion. At the Sellers' cost, the Sellers shall, and shall use their commercially reasonable endeavours to procure that any third party shall, execute such further documents and do such further acts and things as are necessary and as the Purchasers may reasonably request from time to time to procure that the legal titles are vested absolutely in the Purchasers (or in such party duly designated by the Purchasers) as required by this clause 17.
This Agreement may be executed in any number of counterparts and by the parties to it on separate counterparts and each such counterpart shall constitute an original of this Agreement but all of which together constitute one and the same instrument. This Agreement shall not be effective until each party has executed at least one counterpart.
The Sellers and the Purchasers agree to perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution and delivery of) such further documents, as may be required by law or as the other parties to this Agreement may reasonably require, whether on or after the Completion Date, to implement and/or give effect to this Agreement and the transactions contemplated by this Agreement and for the purpose of vesting in the Purchasers the full benefit of the assets, rights and benefits to be transferred to the Purchasers under or pursuant to this Agreement including, without limitation, the legal and beneficial ownership of the Assets. The Sellers and the Purchasers agree that any actions to be undertaken by them pursuant to this clause 19 shall be at the cost and expense of the Sellers (as to one half) and the Purchasers (as to the other half).
The Transaction Documents and the Disclosure Letter together represent the whole and only agreement between the parties in relation to the sale and purchase of the Business and supersede any previous agreement (whether written or oral) between the parties in relation to the subject matter of any such document save that nothing in this Agreement shall exclude any liability for, or remedy in respect of, fraudulent misrepresentation.
provided that in each case where delivery by fax or by hand occurs after 6pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9am on the next following Business Day.
References to time in this clause are to local time in the country of the addressee.
Address: c/o Chemtura Corporation
199 Benson Road, Middlebury
Connecticut, 06749
USA
Fax: 00 1 203 573 4430
For the attention of: General Counsel
Address: c/o Addleshaw Goddard (Ref: TXH/LEWIA)
100 Barbirolli Square
Manchester
M2 3AB
Fax: (+44) (0)161 934 6060
Address: c/o Addleshaw Goddard (Ref: TXH/LEWIA)
100 Barbirolli Square
Manchester
M2 3AB
Fax: (+44) (0)161 934 6060
Subject to any clauses in this Agreement or the Transaction Documents entitling either party to recover its costs from the other party if particular conditions are not fulfilled, each of the parties shall be responsible for its own legal, accountancy and other costs, charges and expenses incurred in connection with the negotiation, preparation and implementation of this Agreement and any other Transaction Document.
The parties do not intend that any term of this Agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.
The Purchasers shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity pursuant to the Business Transfer Agreements to the extent that it has made such a recovery under this Agreement. In the event of any inconsistency between the terms of this Agreement and the Business Transfer Agreements, the provisions of this Agreement shall take precedence.
Time shall be of the essence of this Agreement, both as regards times, dates and periods specified in the agreement and as to any times, dates or periods that may by agreement between the parties be substituted for any of them.
Each provision of this Agreement shall continue in full force and effect after Completion, except to the extent that a provision has been fully performed on or before Completion.
If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable in any respect under the law of any jurisdiction, then such provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included in this Agreement but without invalidating any of the remaining provisions of this Agreement. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. The parties shall then use all reasonable endeavours to replace the invalid or unenforceable provision(s) by a valid and enforceable substitute provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
The construction, validity and performance of this Agreement shall be governed by the laws of England and Wales.
The parties to this Agreement irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction over any claim or matter arising under or in connection with this Agreement and that accordingly any proceedings in respect of any such claim or matter may be brought in such court.
The Sellers (other than GLMUK) hereby irrevocably appoint GLMUK of Tenax Road, Trafford Park, Manchester, M17 1WT as their agent to receive and acknowledge on their behalf service of any Service Document in England and Wales and undertake not to revoke the authority of such agent. If for any other reason the agent named above (or its successor) no longer serves as agent of the Sellers for this purpose, the Sellers shall promptly appoint a successor agent and notify the Purchasers thereof. If the Sellers fail to appoint another agent, the Purchasers shall be entitled to appoint one on behalf of the relevant Seller at the expense of the relevant Seller. Until the Purchasers receive such notification, it shall be entitled to treat the agent named above (or its said successor) as the agent of the Sellers for the purposes of this clause. The Sellers agree that any such Service Document shall be sufficiently and effectively served on it if properly addressed and delivered to such agent for service at its address for the time being in England and Wales whether or not such agent gives notice thereof to the Sellers.
BWA Japan and BWA USA hereby irrevocably appoint of BWA UK of Tenax Road, Trafford Park, Manchester, M17 1WT as their agent to receive and acknowledge on its behalf service of any Service Document in England and Wales and undertake not to revoke the authority of such agent. If for any other reason the agent named above (or its successor) no longer serves as agent of the Purchasers for this purpose, the Purchasers shall promptly appoint a successor agent and notify the Sellers thereof. If the Purchasers fail to appoint another agent, the Sellers shall be entitled to appoint one on behalf of the relevant Purchaser at the expense of the relevant Purchaser. Until the Sellers receive such notification, it shall be entitled to treat the agent named above (or its said successor) as the agent of the Purchasers for the purposes of this clause. The Purchasers agree that any such Service Document shall be sufficiently and effectively served on it if properly addressed and delivered to such agent for service at its address for the time being in England and Wales whether or not such agent gives notice thereof to the Purchasers.
The parties have shown their acceptance of the terms of this Agreement by executing it at the end of the schedules.
(Deliberately left blank)
Part 1: Sellers' Obligations at Completion
At Completion, the relevant Sellers shall deliver to BWA UK (on behalf of the Purchasers):
provided that the items referred to in paragraphs 1.2 and 1.3 of this schedule may be delivered to BWA UK (on behalf of the Purchasers) at the Properties.
The Sellers shall permit the Purchasers to enter into and take possession of all the Assets and assume conduct of the Business.
Part 2: Purchasers' Obligations at Completion
At Completion, the Purchasers shall:
Bank Name: Citibank New York, New York
ABA No.: 02100089
SWIFT No.: CITIUS33
Account Name: Great Lakes Chemical Corporation
Account No.: 30429086
such payment to be made in US$ and such payment shall constitute a full and valid discharge of the Purchasers' obligation to make that payment to the Sellers;
In this schedule unless the context otherwise indicates any references to a "material adverse effect" shall mean a material adverse effect on the assets, liabilities, business, financial condition and results of the Business taken as a whole.
and, so far as the Sellers are aware, no offer, bid, tender or proposal is outstanding which by the acceptance or other act of some other person would give rise to any such transaction.
The execution, delivery and performance of this Agreement will not result in the breach of any of the terms or conditions of or constitute a default under or entitle any other party to cancel, terminate or take any action under any of the Business Contracts listed in Schedule 9, nor so far as the Sellers are aware, any other Business Contract.
(i) having a disability;
(ii) their sex or sexual orientation.
(a) is/are outstanding either by the insurer or the insured under any of the Policies; or
(b) against the Sellers by any third party is/are outstanding in respect of any risk covered by any of the Policies.
The information in the schedules and all statements of fact in this Agreement are complete and accurate in all material respects.
Limitations on Liability under the Warranties
and any claim not so brought shall be wholly barred and unenforceable and shall absolutely determine and cease;
Part 1: Provisions concerning Employees in the United Kingdom or other Automatic Transfer Countries
Part 2: Pension/Employee Benefits Provisions Concerning Employees in the United States of America or any other Jurisdiction where there is no Principle of Automatic Transfer of Employment
Business Intellectual Property
See attached
See attached
See attached
See attached
See attached
See attached
Part 3: Excluded Intellectual Property
Part 4: Business Intellectual Property licensed to the Business
Part 1:The Transferring Employees
1. The Transferring Employees in the Automatic Transfer Countries who are assigned to the Business are:
EMPLOYEE NAME |
COUNTRY |
COMMENTS |
J Barbour |
UK |
|
S England |
UK |
|
M Farriols |
Spain |
|
C Galli |
Italy |
|
B Hepburn |
UK |
|
N Hill |
UK |
|
C Hogan |
UK |
|
J Horton |
UK |
|
D Kay |
UK |
|
R Kokot |
UK |
|
J Milligan |
UK |
|
N Partington |
UK |
|
S Patel |
UK |
|
G Pilati |
Italy |
|
A Roberts |
UK |
|
A Sholl |
UK |
|
D Wilson |
UK |
|
N Wright |
UK |
|
J Irwin |
UK |
|
A Tay |
Singapore |
2. The Business Employees in countries other than the Automatic Transfer Countries are listed below. Those who are known to have accepted an offer of employment from the Purchasers or a member of Purchasers' Group and are therefore Transferring Employees are indicated in column 3:
EMPLOYEE NAME |
COUNTRY |
TRANSFERRING EMPLOYEE? |
J Bardia |
USA (Miami) |
|
E Dawson |
USA (Atlanta) |
|
G Ganzer |
USA (New Jersey) |
|
D Gill |
USA (Atlanta) |
|
T Ishizuka |
Japan (Tokyo) |
|
N. Tomizawa |
Japan (Tokyo) |
|
I Khafagy |
Egypt (Alexandria) |
|
M Khafagy |
UAE (Dubai) |
|
J Kramer |
USA (Atlanta) |
|
F O'Brien |
USA (Atlanta) |
|
JC Shia |
Singapore |
|
M Shields |
USA (Atlanta) |
|
S Strba |
Canada (Toronto) |
|
T Tang |
China (Shanghai) |
|
P Turgeon |
USA (Atlanta) |
|
A Yeoman |
USA (Atlanta) |
|
P. Quintana |
USA (Atlanta) |
|
M Wingo |
USA (Atlanta) |
|
T Alston |
USA (Atlanta) |
|
I Oliva |
USA (Miami) |
3. The Transferring Employees who provide services personally to the Business in any jurisdiction whatsoever other than as an employee and whose engagement is assigned or novated to the Purchasers or other member of the Purchasers' Group or who otherwise provides services to the Purchasers or the Purchasers' Group in respect of or for the Business after the Transfer Date are:
EMPLOYEE NAME |
COUNTRY |
COMMENTS |
N Walker |
USA |
Part 2: The Non-Transferring Employees
EMPLOYEE NAME |
COUNTRY |
COMMENTS |
S York |
Belgium (Antwerp) |
Part 3: Provisions concerning Employees in the United Kingdom or other Automatic Transfer Countries
Part 4: Provisions Concerning Employees in the United States of America or any other Jurisdiction where there is no Principle of Automatic Transfer of Employment
Part 2: Distribution Contracts
(Intentionally omitted)
Part 4: Intellectual Property Contracts
Part 7: Miscellaneous Contracts
See attached
Determination and Confirmation of the Inventory Amount
The Parties shall procure that representatives from each of BWA UK or the relevant Purchaser and GLCC or the relevant Seller shall attend at the premises of the Sellers (or third party contractors) at which the Purchased Inventory is stored in order to undertake a physical inspection of the Purchased Inventory for the purposes of determining the value of such Purchased Inventory in accordance with the principles specified in paragraph 2 of this Schedule 11. Such inspection shall take place on the Completion Date.
The Purchased Inventory shall be valued on a basis consistent with the way in which inventory has been calculated in the Financial Accounts, which is more particularly described below:
the Purchased Inventory shall be valued on a first-in, first-out basis using Standard Costs plus the Capitalization of Variances
the Purchased Inventory shall be valued on a first-in, first-out basis using Standard Costs plus the Capitalization of Variances
the Purchased Inventory shall be valued on a first-in, first-out basis;
the Purchased Inventory shall be valued at the inter-company invoice price plus all delivery costs associated with receiving such raw materials into Japan including without limitation all costs of in-bound freight, customs duties and inspection charges.
The Seller has, on a subjective basis and in accordance with past practice, created reserves against inventory whose utility is deemed to be less than their cost, whether due to physical deterioration, obsolescence, changes in prices or otherwise. In determining reserves, the Seller takes into account variables such as type of material, feasibility of reworking, potential future sales, value of product, utility to customers importance of specification and shelf life determinants. Inventory in respect of which a reserve for less than full value has been created will constitute Purchased Inventory and shall be valued in accordance with the above provisions less the amount of the reserve.
Obsolete goods shall comprise only those finished goods in respect of which a reserve against the full value has been created, as reflected from the books and records of the Sellers' Group. For the avoidance of doubt, obsolete goods are excluded from the Purchased Inventory.
As soon as practicable following the physical stock take, GLCC (on behalf of the Sellers) shall prepare the Inventory Amount Statement and shall provide a copy of the same to BWA UK (one behalf of the Purchasers).
BWA UK (on behalf of the Purchasers) shall, within 15 Business Days of the Inventory Amount Statement being submitted to it, notify GLCC in writing either that it approves of the Inventory Amount Statement or that it disagrees with it in which event BWA UK shall in such notification give details of the matters with which it disagrees and the reasons for such disagreement and shall use all reasonable endeavours forthwith to resolve the matter or matters in dispute with GLCC.
GLCC shall use reasonable endeavours to procure that all records, working papers and other information within its possession or control as may be reasonably required by BWA UK and/or the Independent Accountants for the purposes of this schedule shall be made available upon a request for them and shall generally render all reasonable assistance reasonably necessary for the preparation of the Inventory Amount Statement.
For the purposes of this Agreement "Inventory Amount Final Confirmation" shall mean the final confirmation of the Inventory Amount, being either:
For the purposes of this Agreement "Inventory Amount Joint Resolution" shall mean the joint resolution between BWA UK (on behalf of the Purchasers) and GLCC (on behalf of the Sellers) as envisaged in paragraph 3.2(a);
For the purposes of this Agreement "Inventory Amount Statement" shall mean the statement showing the calculation of the Purchased Inventory as at the Completion Date to be prepared in accordance with this schedule 11 in order to calculate the value of the Purchased Inventory at the Completion Date.
The Purchasers and Sellers agree that the Initial Consideration shall be reduced by an amount equal to the difference between the accounts receivable and the accounts payable of the Business as at 31 January 2006, being the sum of US$10.185 million.
(Deliberately left blank)
Part 1 - BioLab Gulf
|
9 November 1999 in Frauenfeld, Switzerland |
||
|
CH-440.4.013.054-4 |
||
|
Bahnhofplatz 65, 8501 Frauenfeld, Switzerland |
||
|
CHF20,000, divided into 20,000 shares of CHF1 each |
||
|
CHF 20,000 comprising 20,000 shares all fully paid |
||
|
The issued share capital is held as follows: |
||
Number and class of shares |
Registered holder |
Beneficial owner |
|
20,000 shares |
Great Lakes Chemical (Europe) GmbH |
Great Lakes Chemical (Europe) GmbH |
|
|
Marcus Van Gerwen Colin Hogan |
||
|
None |
||
|
None |
||
|
Thurgau Kantonal Bank |
||
|
31 December |
||
|
None |
|
17.10.1420H (24 January 2000) in Jubail |
||
|
2055004521 |
||
|
Madina Street, City of Jubail |
||
|
P.O. Box 3863, Jubail 31952 |
||
|
Not applicable |
||
|
SR8 million, divided into 16,000 shares with a value of SR500 each, all fully paid |
||
|
The issued share capital is held as follows: |
||
Number and class of shares |
Registered holder |
Beneficial owner |
|
8,160 shares |
Al Hejailan Projects Engineering Company |
Al Hejailan Projects Engineering Company |
|
7,840 shares |
Biolab Gulf |
Biolab Gulf |
|
|
Paul Turgeon Myles Odaniell |
||
|
None |
||
|
Ernst & Young Int'l, Riyadh, Saudi Arabia |
||
|
SAMBA Financial Group & National Commercial Bank (both in Riyadh, Saudi Arabia) |
||
|
31 December |
||
|
All assets are mortgaged in favour of SIDF |
SIGNED by )
duly authorised for and on behalf )
of BIO-LAB, INC. )
SIGNED by )
duly authorised for and on behalf )
of GREAT LAKES CHEMICAL CORPORATION )
SIGNED by )
duly authorised for and on behalf )
of GREAT LAKES CHEMICAL )
(EUROPE) GmbH )
SIGNED by )
duly authorised for and on behalf )
of CHEMTURA JAPAN LIMITED )
SIGNED by )
duly authorised for and on behalf )
of GREAT LAKES CHEMICAL )
FAR EAST LIMITED )
SIGNED by )
duly authorised for and on behalf )
of GREAT LAKES CHEMICAL )
(S) PTE LIMITED )
SIGNED by )
duly authorised for and on behalf )
of GREAT LAKES MANUFACTURING )
(UK) LIMITED )
SIGNED by )
duly authorised for and on behalf )
of GREAT LAKES SALES (ITALY) Srl )
SIGNED by )
duly authorised for and on behalf )
of BAYROL IBERICA S.A. )
SIGNED by )
duly authorised for and on behalf )
of CHEMTURA CORPORATION )
SIGNED by )
duly authorised for and on behalf )
of BWA WATER ADDITIVES UK LIMITED )
SIGNED by )
duly authorised for and on behalf )
of BWA WATER ADDITIVES JAPAN K. K )
SIGNED by )
duly authorised for and on behalf )
of BWA WATER ADDITIVES USA LLC )
SIGNED by )
duly authorised for and on behalf )
of MCAW GROUP LIMITED )
This ‘8-K’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on: | 5/18/06 | None on these Dates | ||
For Period End: | 5/15/06 | |||
5/12/06 | ||||
3/24/95 | ||||
List all Filings |