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Exhibit 4.8 DE BRAUW BLACKSTONE WESBROEK
CONTRIBUTION AGREEMENT
entered into between
NUTRECO HOLDING N.V.
and
STOLT SEA FARM INVESTMENTS B.V.
and
STOLT-NIELSEN S.A.
and co-signed for acknowledgement by
MARINE HARVEST N.V.
relating to
dated 3 December 2004
TABLE OF CONTENTS
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CONTRIBUTION AGREEMENT
THIS AGREEMENT IS MADE BETWEEN :
(1) NUTRECO HOLDING N.V. , a limited liability company incorporated in the Netherlands, with corporate seat in Boxmeer, the Netherlands, and having its address at 38 Veerstraat, 5831 JN, Boxmeer, the Netherlands (“ Nutreco ”);
(2) STOLT SEA FARM INVESTMENTS B.V. , a private company with limited liability incorporated in the Netherlands, with corporate seat in Schiedam, and having its address at Karel Doormanweg 25, 3115 JD Schiedam, the Netherlands (“ Stolt B.V. ”); and
(3) STOLT-NIELSEN S.A. , a limited liability company incorporated in Luxembourg, with corporate seat in Luxembourg, and having its address at 23 Avenue Monterey, L-2086 Luxembourg, Luxembourg (“ Stolt ”).
WHEREAS :
A. • Nutreco is an international food company with activities in various stages of the fish, poultry and pork production chains. Its business includes salmon and other fish farming activities in Australia, Canada, Chile, Ireland, Japan, Norway and Scotland, fish processing plants in Chile, France, Norway and Scotland and marketing operations with sales organisations covering the Americas, Europe and Asia Pacific (collectively: the “ Nutreco Activities ”, which exclude Nutreco’s interest in L&K Karlsen Holding AS).
B. • Stolt is an international company that, inter alia , at the time of the Agreement through its wholly-owned indirect subsidiary Stolt Sea Farm Holdings plc and at the time of Closing through its wholly-owned indirect subsidiary Stolt B.V., produces, processes and markets a variety of seafood with production sites in Belgium, Canada, Chile, Norway, Scotland and the United States of America, and is developing commercial activities in relation to other fish species and marketing operations with sales organisations covering North America, Europe and Asia Pacific (collectively: the “ Stolt Activities ”, which exclude the tuna and turbot (including sole) activities of Stolt).
C. • On January 27, 2004, Nutreco and Stolt entered into a Confidentiality Agreement pursuant to which Nutreco has provided certain confidential information regarding the Nutreco Activities to Stolt and Stolt has provided certain confidential information regarding the Stolt Activities to Nutreco.
D. • In the course of 2004, Nutreco and Stolt discussed the creation of a joint venture, to combine the Nutreco Activities and the Stolt Activities (the “ JV Activities ”) and to contribute these activities to Marine Harvest N.V., a limited liability company incorporated in the Netherlands (the “ Company ”)(the “ Transaction ”).
E. • On September 11, 2004, Nutreco and Stolt entered into a Memorandum of Understanding establishing
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certain principle terms with regard to the Transaction.
F. • In the period September 2004-November 2004, Nutreco and Stolt performed a financial, operational and legal due diligence investigation of the Stolt Activities and the Nutreco Activities, respectively.
G. • The Company has been incorporated by Nutreco and upon its incorporation issued the Nutreco Initial Shares to Nutreco for a subscription price of EUR 45,000 (forty five thousand euro) (the “ Nutreco Initial Contribution ”).
H. • The Parties now wish to enter into this Contribution Agreement, providing a framework agreement for the joint venture contemplated herein, and setting out the terms on which the JV Activities are intended to be contributed by Nutreco and Stolt B.V., respectively, to the Company.
I. • Stolt wishes to accept joint and several liability for the obligations of Stolt B.V. under this Agreement.
HAVE AGREED AS FOLLOWS :
1. Interpretation
In this Agreement, unless the context otherwise requires, the provisions in this Clause 1 apply throughout: Capitalised words, including those used in the preamble to this Agreement, shall have the meaning as defined in Schedule 1.
1.2 References to persons and companiesReferences to:
1.1.1 a person include any individual, company, partnership or unincorporated association (whether or not having separate legal personality); and
1.1.2 a company include any company, corporation or body corporate, wherever incorporated.
1.3 References to Clauses, Schedules, Paragraphs and PartsA reference in this Agreement to a Clause or Schedule is to the relevant Clause of or Schedule to this Agreement; to a Part is to the relevant Part of the relevant Schedule; and to a Paragraph is to the relevant Paragraph of (the relevant Part of) the relevant Schedule.
1.4 References to members of a Group; singular liability and right to claimNone of the members of the Nutreco Group or the Stolt Group, with the exception of a Party, shall have any liability under this Agreement and only the relevant Party shall be fully liable under this Agreement for any breach or non-performance thereof by any of the relevant members of the Nutreco
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Group or the Stolt Group. Each Party may only seek recourse against the relevant other Party for non-performance or breach by a relevant member of the Nutreco Group or the Stolt Group.
1.5 References to subsidiaries and holding companies
A company is a “subsidiary” of another company (its “holding company”) if the holding company, directly or indirectly, through one or more subsidiaries:
1.5.1 holds a majority of the voting rights in such company;1.5.2 is a member or shareholder of such company and has the right to appoint or remove a majority of its board of directors or equivalent managing body; or1.5.3 is a member or shareholder of such company and controls alone, or pursuant to an agreement with other shareholders or members, a majority of the voting rights in it.1.6 Reference to the PartiesWhenever used in this Agreement, references to “the other Party”, “each Party”, “the Parties”, should mean a reference to Nutreco on the one hand and Stolt B.V. on the other hand, Nutreco or Stolt B.V. or Nutreco and Stolt B.V., respectively , as appropriate, unless the context requires otherwise.
1.7 Other references1.7.1 Whenever used in this Agreement, the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.1.7.2 Any reference in this Agreement to any gender shall include all genders, and words importing the singular number only shall include the plural and vice versa , unless otherwise specified.1.8 InformationReferences to books, records or other information mean books, records or other information in any form including paper, electronically stored data, magnetic media, film and microfilm.
1.9 Legal termsIn respect of any jurisdiction other than the Netherlands a reference to any Dutch legal term shall be construed as a reference to the term or concept which most nearly corresponds to it in that jurisdiction.
1.10 Ordinary course of businessAn action taken by a person will be deemed to have been taken in the “ordinary course of business” only if:
1.10.1 such action is consistent with the past practices of such person and is taken in the ordinary course of the normal day-to-day operations of such person; and1.10.2 such action is similar in nature and magnitude to actions customarily taken, without any
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authorisation by the supervisory board or other governing board or body exercising similar authority (where applicable) of such person.1.11 Arm’s lengthWhere any provision is qualified or phrased by reference to an “arm’s length” basis or principle, such qualification or reference shall mean the conditions which would be obtained between comparable, independent persons in comparable transactions (taking into account the assets used, the responsibilities and risks assumed and the division of benefits between the parties) and comparable circumstances (taking into account the times and places of performance and the parties’ business strategies), thereby providing the closest approximation of the workings of the open market.
2 . Contribution2.1 ContributionOn and subject to the terms and conditions of this Agreement, Nutreco shall (and shall procure that the relevant members of the Nutreco Group shall) contribute the Nutreco Activities to the Company and Stolt B.V. shall (and shall procure that the relevant members of the Stolt Group shall) contribute the Stolt Activities to the Company and its subsidiaries (the “ JV Group ”).
2.2 Contribution StructureThe contributions of the JV Activities and the JV Group shall be structured in accordance with the contribution actions set out in Schedule 4 and the respective Contribution Plans, unless otherwise agreed by the Parties.
2.3 Allocation and adjustment2.3.1 The contributions of the JV Activities shall be allocated in accordance with Schedule 2 (Part 4) and Schedule 3 (Part 4), respectively, and Nutreco and Stolt B.V. shall procure that each relevant member of it’s Group, the Company and each relevant member of the JV Group shall effect such allocation for all purposes, including in respect of Tax.2.3.2 Any payment made by Nutreco and Stolt B.V. pursuant to the post Closing contributions adjustments set out in Clause 6 and the amount payable by Nutreco pursuant to Clause 7.7 shall be deemed to be made by way, to the extent possible, of adjustment to the (contributions of the) Nutreco Activities and/or, as the case may be and as applicable, the Stolt Activities.2.4 Share premium reserveNotwithstanding any other reserves which must be maintained by applicable Law or the articles of association of the Company, the Company shall have one share premium reserve to which each of
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Nutreco and Stolt B.V., as shareholders of the Company, are equally entitled in proportion to the number of shares in the share capital of the Company held by them.
3 . Conditions Precedent3.1 ConditionsSubject to Clause 5.4 (relating to the possibility of having a deferred Closing), Closing is conditional upon satisfaction or waiver of the following conditions precedent (the “ Conditions Precedent ”):
3.1.1 Either:(i) The European Commission:(a) taking a decision that the Transaction does not give rise to a concentration falling within the scope of the European Council Regulation (EEC) 139/2004 concerning the control of concentrations between undertakings (as amended) (the “ Regulation ”); or(b) taking a decision, whether or not conditional, under Article 6(1)(b) or, if the Commission has initiated proceedings pursuant to Article 6(1)(c), under Article 8(2) of the Regulation declaring the Transaction compatible with the common market, or being deemed to have done so under Article 10(6) of the Regulation; or(c) having referred the whole or part of the Transaction to the competent authorities of one or more Member States under Article 9(3) of the Regulation or having been deemed to have done so under Article 9(5) of the Regulation, and(x) each such authority granting a clearance, whether or not conditional, in respect of all those parts of the Transaction which were referred to it, or being deemed to have granted such a clearance; and(y) in respect of all those parts not referred to the competent authority of any Member State, the requirements of Clause 3.1.1(i)(b) being satisfied with respect to any part;
or
(ii) in the event that the Transaction does not constitute a concentration as referred to in Clause 3.1.1(i)(a), the competent authorities of each of the relevant Member States having granted clearance, whether or not conditional, under their respective competition laws for such part of the Transaction which falls under their jurisdiction, to the extent that such clearance is required, under mandatory Law, for Closing to take place;
3.1.2 the competent authorities in any non-EU member state having granted clearance, whether or not conditional, under their respective competition laws for such part of the Transaction which falls under their jurisdiction, to the extent that such clearance is required, under mandatory Law, for Closing to take place.
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3.1.3 all necessary approvals, licenses and consents from Governmental Authorities that are required for the implementation of the Transaction having been obtained, including, without limitation, any approvals or consents required in connection with the transfer of licenses and other authorisations required in connection with the transfer of the JV Activities;3.1.4 all necessary commitments, approvals, waivers and consents from current and prospective finance providers that are required for the implementation of the Transaction or that are otherwise required for the financing of the JV Group after the Closing having been obtained;3.1.5 the general meeting of shareholders of Nutreco having approved the Transaction;3.1.6 Nutreco having (and having procured that the relevant members of the Nutreco Group have) and Stolt having (and having procured that the relevant members of the Stolt Group have) fulfilled all their respective legal obligations to inform, obtain advice of and consult with employee representatives in connection with the Transaction;3.1.7 no Material Adverse Change having occurred between the Signing Date and the Closing Date; and3.1.8 no material breach of Nutreco Warranties or Stolt Warranties having occurred.3.2 Responsibility for satisfaction3.2.1 To the extent permitted under applicable Law, each of the Parties shall take all such reasonable actions within its power as are necessary to ensure satisfaction of and compliance with all of the Conditions Precedent.
3.2.2 Without prejudice to the generality of Clause 3.2.1, the Parties shall:
(i) as soon as practicable, and in any event not later than 10 January 2005, prepare and file with the competent Governmental Authorities the notices and applications necessary to satisfy the Conditions Precedent set out in Clauses 3.1.1, 3.1.2 and 3.1.3;
(ii) supply as promptly as practicable any additional information and documentary material that may be requested by any competent Governmental Authority in connection with any of the Conditions Precedent set out in Clauses 3.1.1, 3.1.2 and 3.1.3 provided that, with respect to any written submission, information or documentary materials, the other Party shall have the right to approve the same;
(iii) use their best efforts to cause the expiration or termination of any applicable waiting period under any applicable Law and the fulfilment (whether explicit or implicit) of all of the Conditions Precedent set out in Clauses 3.1.1, 3.1.2 and 3.1.3 as soon as practicable, including by agreeing to (a) take any action that may be required in order to obtain an unconditional clearance (including by agreeing to perform any disposition of assets or businesses that may be required by any relevant Governmental Authority) or (b) duly and promptly comply with any condition that any relevant Governmental Authority may impose to clear this Agreement and the Transaction, provided that (i) the proceeds of any disposition of companies, assets or businesses which are part of the JV Activities will be for the account and benefit of the Company and will be contributed to the Company and (ii) nothing in this Agreement shall require any of the
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Parties to agree to or take any action or comply with any condition which would, individually or in the aggregate, reasonably be expected to be materially adverse to the business, financial condition, assets or results of operations of the Nutreco Group or Stolt Group, respectively, in each case taken as a whole, after consummating the Transaction.
3.2.3 Without prejudice to Clause 15.9, all filing fees and other costs incurred in relation to any anti-trust or similar filing required to be made in any jurisdiction in connection with the Transaction and all costs, penalties and fines resulting from not filing in any jurisdiction where it is determined that filing should have taken place, shall be borne for 50% by Nutreco and for 50% by Stolt B.V.
3.2.4 Without prejudice to Clause 3.2.2, each of the Parties shall (i) promptly co-operate with and provide all necessary information and assistance reasonably required by any Governmental Authority in connection with the Conditions Precedent set out in Clauses 3.1.1, 3.1.2 and 3.1.3 upon being requested to do so by the other Party and (ii) promptly inform the other Party of any communication received from, or given by it to, any Governmental Authority with respect to any of the Conditions Precedent set out in Clauses 3.1.1, 3.1.2 and 3.1.3.
3.2.5 Subject to the obligations under Clauses 3.2.2(iii) and 3.2.3, in the event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority or any other person challenging (any part of) the Transaction, each Party shall co-operate in all respects with the other Party and use its reasonable best endeavours to defend, contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts the consummation of the Transaction.
3.3 Non-Satisfaction/Benefit and Waiver
3.3.1 Within 2 (two) Business Days of becoming aware of the same, each Party shall give notice to the other Party of satisfaction of any of the Conditions Precedent set out in Clause 3.1 insofar as it relates to the legal obligations of the notifying Party. `
3.3.2 The Conditions Precedent, other than the condition set out in Clause 3.1.8, can be invoked by each Party and may only be waived by written agreement between Nutreco and Stolt B.V.. The Condition Precedent set out in Clause 3.1.8 can only be invoked and waived by the Party in relation to which no material breach of Warranties has occurred.
3.3.3 Subject to Clause 5.4, if the Conditions Precedent are not satisfied or waived on or before 31 August 2005 Nutreco or Stolt B.V. may, in their sole discretion, terminate this Agreement by written notice and no Party shall have any claim against the other Parties save for any claim arising from breach of any obligation contained in Clause 3.2, provided that no such termination notice may be given by a Party which is in default of its obligations under this Agreement.
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4 . Pre-Closing covenants
4.1 Conduct of businessEach of Nutreco and Stolt B.V. undertakes to procure that between Signing and Closing, in respect of the Nutreco Activities and the Stolt Activities, the relevant members of the Nutreco Group and of the Stolt Group, respectively:
4.1.1 save as otherwise contemplated by the respective Contribution Plans, carry on the business of the relevant Group as a going concern in the ordinary course, maintain such business in the normal way and conduct it in all material respects in accordance with all applicable legal and administrative requirements in any relevant jurisdiction;
4.1.2 use their best efforts to (i) save as otherwise contemplated by the respective Contribution Plans preserve intact the present business organization, (ii) keep available the services of the present officers, managing directors and key employees and similar persons and (iii) preserve intact the present business relationships and goodwill;
4.1.3 pay all of their indebtedness and Taxes when due, prepare and file or cause to be prepared and filed on a timely basis all of their Tax returns that are due on or before the Closing Date and pay or perform any other material obligations, when due, subject in each case to good faith disputes with respect to the same;
4.1.4 notify the other Party without delay of (i) any change in the financial situation and prospects of its Group, (ii) any official investigation and complaint concerning its Group, any legal action taken against its Group as well as any notification or communication that gives notice of default to such Party or member of its Group under any material agreement and (iii) any breach of such Party’s Warranties which becomes apparent, occurs or threatens to occur;
4.1.5 keep its business and assets adequately insured against all common risks;
4.1.6 without prejudice to the generality of Clauses 4.1.1 to 4.1.5, save as contemplated by the respective Contribution Plans and any relevant provision of this Agreement or consented to in writing by the other Party, such consent not to be unreasonably withheld or delayed, do not:
(i) enter into any agreement or incur any commitment involving any capital expenditure in excess of EUR 500,000 (five hundred thousand euro) per item and EUR 1,000,000 (one million euro) in aggregate, in each case exclusive of VAT;
(ii) enter into or amend any contract or commitment which (a) is not capable of being terminated without compensation with 3 (three) months’ notice or less, or (b) is not in the ordinary course of business, (c) is not at arm’s length, or (d) involves or is likely to involve total annual expenditure in excess of EUR 500,000 (five hundred thousand euro), exclusive of VAT;
(iii) acquire or dispose of, or agree to acquire or dispose of, any material asset or material inventory involving consideration, expenditure or liabilities in excess of EUR 500,000 (five hundred thousand euro), exclusive of VAT, other than in the ordinary course of business;
(iv) acquire or agree to acquire any share, shares or other interest in any person, business or company;
(v) enter into joint ventures, partnerships or strategic alliances (including teaming agreements, pooling agreements and consortium agreements);
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(vi) reorganize or change the scope or nature of (the business of) its Group;
(vii) incur any additional borrowings or incur any other indebtedness in each case in excess of EUR 1,000,000 (one million euro) and otherwise than in the ordinary course of business;
(viii) create, allot or issue, or allow to be created, issued or allotted, any share capital of any company of its Group;
(ix) repay, redeem or repurchase, or allow to be repaid, redeemed or repurchased, any share capital of any company of its Group;
(x) declare, make or pay any dividend or other distribution to any shareholders of any of the companies of its Group;
(xi) other than pursuant to collective bargaining agreements applicable to the respective Group, increase the rate of compensation payable or to become payable to any key employee or enter into, amend or terminate any employment, severance or similar or related agreement or any benefit scheme of arrangement with any key employee;
(xii) create, or agree to create, any Encumbrance over its business or material asset of its business other than Permitted Encumbrances;
(xiii) commence material litigation, arbitration or binding advice procedures;
(xiv) apply for any of the companies of its Group to be declared bankrupt or for a suspension of payments (or their equivalents outside the Netherlands);
(xv) pass any resolution for the dissolution, liquidation or winding up (or their equivalents outside the Netherlands) of any of its Group companies; or
(xvi) approve, materially modify or materially deviate from any business plan or budget pertaining to the business of its Group (or part of it).
4.2 Excused conductClause 4.1 does not apply if and to the extent compliance with it would materially adversely affect the ability of a Party to continue to manage its Group or materially adversely affect the value of the relevant Group. It is further acknowledged that where circumstances require an urgent and immediate action from the other Party or management of the relevant Group, a Party may not be able to request the consent of the other Party in a timely fashion or await a response from such Party to such request, such Party shall nevertheless inform the other Party of any such action taken not in compliance with Clause 4.1 immediately thereafter.
4.3 Access to the business4.3.1 Subject to Clause 4.3.2, each Party undertakes to procure that, provided the other Party is in compliance with its obligations under this Agreement, until Closing or, if earlier, termination of this Agreement, its Group shall allow the other Party and its representatives upon reasonable notice in writing to such Party, access during normal working hours to the premises, books and records of or relating to the other Party’s JV Activities.
4.3.2 The obligation of each Party under Clause 4.3.1 shall be subject to the right to refuse access on the grounds that access:
(i) would be contrary to any applicable Law;
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(ii) would cause undue disruption to the relevant operations or management of such Group; or
(iii) would involve issues of commercial sensitivity and confidentiality such that access could materially damage the value or competitiveness of the member of the relevant Group.
4.4 Intra-group agreements
Each Party covenants that, except as expressly set out in this Agreement or otherwise agreed by the Parties, all existing agreements and arrangements between one or more members of its Group (excluding the JV Group) on the one hand and one or more members of the JV Group on the other hand shall be terminated prior to or at Closing.
4.5 Tuna Supply Agreement
Prior to the Closing the Parties shall negotiate in good faith and agree on the terms of the Tuna Supply Agreement pursuant to which the relevant members of the Stolt Group shall supply to the relevant members of the JV Group at least 75% (seventy five percent) of the tuna produced by the Stolt Group for a period of at least 1 (one) year as of the Closing Date at terms not less favourable than the existing tuna supply agreements, including, if applicable, a commission fee between a range of 4% (four per cent) and 6% (six per cent).
4.6 Benefits and losses JV Activities4.6.1 Each of the Parties shall, and shall procure that the relevant members of its Group shall, ensure that all benefits and Losses as from and including 31 August 2004 in respect of the Nutreco Activities and the Stolt Activities, respectively, will be attributed to, will remain with and will be re-invested in the Nutreco Activities and the Stolt Activities, respectively.
4.6.2 The Parties agree that (i) the prices and payment terms of the feed (to be) supplied by the relevant member of the Nutreco Group to the relevant Nutreco JV Companies and Nutreco JV Businesses between 31 August 2004 until the Closing Date will be (deemed to be) the prices and payment terms determined pursuant to the relevant provisions of the Supply Agreement and (ii) the prices and payment terms of the feed (to be) supplied by the relevant member of the Nutreco Group to the relevant members of the Stolt Group between 31 August 2004 until the Closing Date will be those set out in or determined pursuant to the existing feed supply agreements.
4.6.3 The Parties agree that (i) the severance payments payable to employees which are employed in the JV Group shall be for the account of the JV Group and (ii) that bonuses awarded to employees which are employed in the JV Group and incentive plans entered into for the benefit of such employees by members of the relevant Group prior to the Closing Date will be included and taken into account in the relevant Closing Financial Statements.
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5. Closing5.1 Date and placeSubject to Clause 5.4, Closing shall take place at 11.00 CET on the first Business Day of the month following the month in which notification of the satisfaction or waiver of the Conditions Precedent occurs and shall take place in Amsterdam, the Netherlands, at the offices of Nutreco’s Lawyers, or at such other location, time or date as may be agreed between the Parties.
5.2 Closing events5.2.1 It is agreed that each transaction and event set out in Clause 5.2.2 shall be regarded as a single transaction and event to be completed in succession in the order set out in Clause 5.2.2, provided that the completion of all of the transactions and events collectively constitute the Closing pursuant to this Clause 5, and no transaction or event shall be deemed to have taken place unless all transactions and events constituting the Closing shall have taken place (or shall have been waived by the Parties) in succession on the Closing Date.
5.2.2 At Closing, the Parties shall procure that:
(i) Nutreco and the relevant members of the Nutreco Group shall contribute the Nutreco Activities as non-stipulated share premium to the Company and the Company shall accept the same and, if applicable, the Company shall issue the Nutreco Additional Equity Instrument to Nutreco by execution of the deed of contribution as set out in Annex 1 to Schedule 4;
(ii) Stolt B.V. and the other relevant members of the Stolt Group shall contribute the Stolt Activities as non-stipulated share premium to the Company and the Company shall accept the same and shall issue the Stolt Shares against payment in cash and, if applicable, the Company shall issue the Stolt Additional Equity Instrument, by execution of the notarial deed of issue and contribution as set out in Annex 2 to Schedule 4;
(iii) the obligations and arrangements set out in Schedule 4 are performed by Nutreco and the relevant members of the Nutreco Group for the transfer and completion of the relevant Nutreco Activities to the Company and, if applicable, the Nutreco Additional Equity Instrument;
(iv) the obligations and arrangements set out in Schedule 4 are performed by Stolt B.V. and the relevant members of the Stolt Group for the transfer and completion of the relevant Stolt Activities to the Company and, if applicable, the Stolt Additional Equity Instrument;
(v) the obligations and arrangements set out in Schedule 4 are performed by the Company and the relevant members of the JV Group for the acceptance of the transfer and completion of the contributions of the JV Activities to the Company and the issuance of the shares and, if applicable, the Additional Equity Instruments, including the delivery of a description of the relevant contribution in kind prepared and signed by the management board of the Company, specifying the nature and value of
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such contribution, together with an appropriate auditor’s statement in relation to such contributions in kind;
(vi) the Company’s Amended Articles of Association shall be executed;
(vii) Mr J.C. den Bieman and one other person to be determined by the Parties shall be appointed managing director of the Company and W. Dekker, N.G. Stolt-Nielsen and two other persons to be determined by the Parties shall be appointed supervisory director of the Company;
(viii) the Managing Board Rules and the Supervisory Board Rules shall be adopted;
(ix) Nutreco and Stolt shall enter into the Shareholders Agreement and the Company shall sign the same for acknowledgement;
(x) the relevant members of the Nutreco Group, the relevant members of the Stolt Group and the relevant members of the JV Group shall enter into the following agreements:
(a) the Transitional Services Agreement;
(b) the Supply Agreement; and
(c) the Tuna Supply Agreement.
5.3 Shareholders loans; Repayment of intra-group indebtedness
5.3.1 Immediately following Closing, unless and to the extent the Parties agree to continue the existing intra group financing in respect of the relevant JV Activities for a certain (transitional) period after Closing:
(i) Nutreco and Stolt B.V. shall procure that the relevant members of their respective Groups shall provide subordinated shareholders loans to the relevant members of the JV Group on a pro rata parte basis to each Party’s relative stake in the Company if and to the extent at that time no adequate third party financing for the JV Group has been arranged at commercially acceptable conditions and if the Parties agree on the terms of such shareholders loans;
(ii) Nutreco and Stolt B.V. shall procure that each relevant member of its Group repays to the relevant member of the JV Group its respective Intra-Group Receivables; and
(iii) the Parties shall procure that the Company repays (and shall procure that any other relevant member of the JV Group repays) to each relevant member of the Nutreco Group and the Stolt Group, respectively, its respective Intra-Group Payables.
5.3.2 Any payment and repayments made pursuant to Clause 5.3.1 shall to the extent legally permissible, be aggregated and discharged by way of set-off.
5.4 Deferred ClosingIn the event that all Conditions Precedent have been fulfilled or waived, save for one or more of those Conditions Precedent that apply to certain part of the JV Activities in certain jurisdictions, the Parties can agree that the Closing will occur except with respect to such JV Activities (the “ Deferred Activities ”) and that the Closing in the relevant jurisdiction will be deferred until the relevant Condition Precedent has been fulfilled or waived (the “ Deferred Condition ”). In that case:
5.4.1 Clo sing shall proceed on the terms of Clause 5.1 in respect of all other JV Activities (other
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than the Deferred Activities with respect to which the conditions precedent have not been fully met or waived) as if the Deferred Condition was not Condition Precedent to said Closing, provided that the post Closing adjustments pursuant to Clause 6 shall exclude the Deferred Activities;5.4.2 Closing in respect of the Deferred Activities shall commence at 11.00 CET on the 3rd (third) Business Day after notification of the satisfaction or waiver of the Deferred Condition relating to the Deferred Activities (day of notification excluded), and shall take place at such location, time or date as may be agreed between the Parties;5.4.3 in respect of the Deferred Activities, references in the Agreement to Closing and Closing Date shall be deemed to be references to such deferred Closing and deferred Closing Date, and, unless Parties agree otherwise, the post-Closing adjustments pursuant to Clause 6 shall apply, mutatis mutandis , to such deferred Closing;5.4.4 the Parties shall co-operate to ensure that, until Closing occurs in respect of, or Clause 5.4.3 becomes applicable to, the Deferred Activities, services and commercial relations between, on the one hand, the JV Companies and JV Businesses in respect of which Closing did take place, and, on the other hand, the Deferred Activities, are maintained and rendered in the ordinary course of business.5.5 ARC EmployeesThe Parties agree that the employees which are employed at the Signing Date in the Nutreco Aqua Research Centre and are dedicated to the Nutreco JV Companies and Nutreco JV Businesses shall transfer and become employed with the Company or another member of the JV Group.
5.6 Benefit and riskThe benefit in and risk of loss or damage to the JV Activities shall pass to the Company or other relevant members of the JV Group as of 31 August 2004. Title to the JV Activities shall pass to the Company or other relevant members of the JV Group on the Closing Date.
6 . Post-Closing contributions adjustments6.1 Nutreco Closing Financial Statements6.1.1 As soon as practicable and in any event by no later than 6 (six) weeks after the Closing Date, Nutreco shall prepare and deliver to Stolt B.V. a draft of the Nutreco Closing Financial Statements.
6.1.2 The draft Nutreco Closing Financial Statements shall be prepared in accordance with the Nutreco Accounting Principles (adapted to IFRS) and will be accompanied by a (draft) unqualified auditor’s statement from Nutreco’s Accountant.
6.1.3 In order to enable Stolt B.V. to review and form an opinion on the preparation and determination of the draft Nutreco Closing Financial Statements, the Parties shall procure that the Company shall (or shall procure that the relevant members of the JV Group shall),
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subject to reasonable notice, make available such books and records, to the extent relating to the Nutreco Activities, to Stolt B.V. and its representatives and advisers during normal office hours, and shall co-operate with Stolt B.V. and its representatives and advisers both with regard to their review of the preparation and determination of the draft Nutreco Closing Financial Statements and in giving them explanations for fluctuations and movements apparent from the draft Nutreco Closing Financial Statements.
6.1.4 If and to the extent that Stolt B.V. does not within 20 (twenty) Business Days after receipt of the draft Nutreco Closing Financial Statements give written notice to Nutreco that it disagrees with said draft financial statements or any item thereof, the draft Nutreco Closing Financial Statements shall be final and binding on Stolt B.V. (and each relevant member of the Stolt Group) and the Company (and each relevant member of the JV Group) for all purposes. If Stolt B.V. does give such notice within said period, Nutreco and Stolt B.V. shall attempt in good faith to reach agreement in respect of the draft Nutreco Closing Financial Statements and, if they are unable to do so within 20 (twenty) Business Days of such notification, Nutreco or Stolt B.V. may by notice to the other Party require that the draft Nutreco Closing Financial Statements, in whole or in part, be referred to the Reporting Accountants in the terms of Schedule 7 (Part 3). The draft Nutreco Closing Financial Statements will upon their being agreed or determined be referred to as “Nutreco Closing Financial Statements”.
6.1.5 In order to enable the preparation and determination of the draft Nutreco Closing Financial Statements, the Parties shall procure that the Company shall (or shall procure that the relevant members of the JV Group shall) keep all books and records relating to the JV Group, to the extent relating to the Nutreco Activities up-to-date and, subject to reasonable notice, make such books and records available to Nutreco’s representatives and advisers during normal office hours and shall co-operate with such representatives and advisers with regard to the preparation and determination of the draft Nutreco Closing Financial Statements. The Parties shall procure that the Company shall (or shall procure that the relevant members of the JV Group shall), in so far as it is reasonable to do so, make available the services of the employees of the JV Group to assist Nutreco in the performance of Nutreco’s duties and exercise of Nutreco’s rights under this Clause 6.1.
6.2 Stolt Closing Financial Statements6.2.1 As soon as practicable and in any event by no later than 6 (six) weeks after the Closing Date, Stolt B.V. shall prepare and deliver to Nutreco a draft of the Stolt Closing Financial Statements.
6.2.2 The draft Stolt Closing Financial Statements shall be prepared by Stolt B.V. in accordance with the Stolt Accounting Principles and will be accompanied by a (draft) unqualified auditor’s statement from Stolt’s Accountant. Nutreco shall assist Stolt B.V. and adapt the draft Stolt Closing Financial Statements to IFRS, including the required IFRS adjustments for the assets, and Stolt B.V. shall assist, provide all relevant information and follow Nutreco’s instructions and explanations with regard to the adapting of the draft Stolt Closing Financial Statements to IFRS.
6.2.3 In order to enable Nutreco to review and form an opinion on the preparation and
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determination of the draft Stolt Closing Financial Statements, the Parties shall procure that the Company shall (or shall procure that the relevant members of the JV Group shall), subject to reasonable notice, make available such books and records, to the extent relating to the Stolt Activities, to Nutreco and its representatives and advisers during normal office hours, and shall co-operate with Nutreco and its representatives and advisers both with regard to their review of the preparation and determination of the draft Stolt Closing Financial Statements and in giving them explanations for fluctuations and movements apparent from the draft Stolt Closing Financial Statements.
6.2.4 If and to the extent that Nutreco does not within 20 (twenty) Business Days after receipt of the draft Stolt Closing Financial Statements give written notice to Stolt B.V. that it disagrees with said draft financial statements or any item thereof, the draft Stolt Closing Financial Statements shall be final and binding on Nutreco (and each relevant member of the Nutreco Group) and the Company (and each relevant member of the JV Group) for all purposes. If Nutreco does give such notice within said period, Stolt B.V. and Nutreco shall attempt in good faith to reach agreement in respect of the draft Stolt Closing Financial Statements and, if they are unable to do so within 20 (twenty) Business Days of such notification, Stolt B.V. or Nutreco may by notice to the other Party require that the draft Stolt Closing Financial Statements, in whole or in part, be referred to the Reporting Accountants in the terms of Schedule 7 (Part 3). The draft Stolt Closing Financial Statements will upon their being agreed or determined be referred to as “Stolt Closing Financial Statements”.
6.2.5 In order to enable the preparation and determination of the Stolt Closing Financial Statements, the Parties shall procure that the Company shall (or shall procure that the relevant members of the JV Group shall) keep all books and records relating to the JV Group, to the extent relating to the Stolt Activities up-to-date and, subject to reasonable notice, make such books and records available to Stolt B.V.’s representatives and advisers during normal office hours and shall co-operate with such representatives with regard to the preparation and determination of the Stolt Closing Financial Statements. The Parties shall procure that the Company shall (or shall procure that the relevant members of the JV Group shall), in so far as it is reasonable to do so, make available the services of the employees of the JV Group to assist Stolt B.V. in the performance of Stolt B.V.’s duties and exercise of Stolt B.V.’s rights under this Clause 6.2.
6.3 Closing Financial Statements Adjustments6.3.1 Nutreco Contribution Adjustment
If and to the extent that:
(i) the Nutreco Closing Financial Statements disclose that there have been actions (other than the change of accounting policy to IFRS as such) taken by Nutreco or any member of the Nutreco Group with regard to the Nutreco Activities in the period between 31 August 2004 and the Closing Date which are outside the ordinary course of business and/or in violation of the pre closing covenants set out in Clause 4.1; and
(ii) such actions have had or will have a negative impact on the JV Group or have had or will have the effect of removing benefits or value from the JV Group,
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Nutreco shall, to the extent required on behalf of the relevant member of its Group, pay an amount equal to the financial impact of such actions (i) to the Company or, at the option of Stolt B.V., (ii) to Stolt B.V., on a pro rata parte basis in proportion to Stolt B.V.’s relative stake in the Company, or (iii), if and to the extent the debt capacity of the JV Group is not adversely affected thereby, by another appropriate manner to be agreed between the Parties, provided that it is agreed that any impairment included in the Nutreco Closing Financial Statements in accordance with the instructions of Nutreco’s Accountant will be deemed to have been taken in the ordinary course of business and not in violation of Clause 4.1.
6.3.2 Stolt Contribution Adjustment
If and to the extent that:
(i) the Stolt Closing Financial Statements disclose that there have been actions (other than the change of accounting policy to IFRS as such) taken by Stolt, Stolt B.V. or any member of the Stolt Group with regard to the Stolt Activities in the period between 31 August 2004 and the Closing Date which are outside the ordinary course of business and/or in violation of the pre closing covenants set out in Clause 4.1; and
(ii) such actions have had or will have a negative impact on the JV Group or have had or will have the effect of removing benefits or value from the JV Group,
Stolt B.V. shall, to the extent required on behalf of the relevant member of its Group, pay an amount equal to the financial impact of such actions (i) to the Company or, at the option of Nutreco, (ii) to Nutreco, on a pro rata parte basis in proportion to Nutreco’s relative stake in the Company, or (iii), if and to the extent the debt capacity of the JV Group is not adversely affected thereby, by another appropriate manner to be agreed between the Parties, provided that it is agreed that any impairment included in the Stolt Closing Financial Statements in accordance with the instructions of Stolt’s Accountant will be deemed to have been taken in the ordinary course of business and not in violation of Clause 4.1
6.3.3 Interest
Any payment to be made in accordance with this Clause 6.3 shall include interest thereon calculated from 31 August 2004 or the date the relevant out of the ordinary course actions are taken, whichever occurs later, to the date of payment, both days inclusive, at the Interest Rate.
6.3.4 Payment
(i) The due date for any payment to be made under this Clause 6.3, shall be the 5 th (fifth) Business Day (i) after the relevant Closing Financial Statements has been finally determined in accordance with Clause 6.1.3 or 6.2.3 and (ii) it has been agreed or determined that the criteria set out in Clause 6.3.1 and/or 6.3.2, as the case may be, have been satisfied.
(ii) All payments (including interest payments) made under this Clause 6.3 shall be made on account of the relevant (contributed) JV Activities and the allocation of the (contributed) JV Activities shall be adjusted in accordance with Schedule 2 (Part 4) and Schedule 3 (Part 4).
(iii) To the extent possible, the payments to be made pursuant to this Clause 6.3, shall be
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aggregated and discharged by way of set-off.
7 . Post-Closing obligations7.1 Release of Guarantees7.1.1 The Parties shall procure that the Company shall (and shall procure that the relevant members of the JV Group shall) with effect from Closing or as soon as practicable thereafter, procure the release of each Party and any member of each Party’s Group from any (joint and/or several) Guarantees given by, assumed by or binding upon such Party or any member of such Party’s Group in relation to any of the liabilities of the JV Group. Pending such release the Parties shall procure that the Company shall indemnify, defend and hold harmless each Party and the other members of its Group against all amounts paid by any of them pursuant to any such Guarantees.
7.1.2 Each Party shall procure, with effect from Closing or as soon as practicable thereafter, the release of each JV Company from any (joint and/or several) Guarantees given by, assumed by or binding upon the JV Company in relation to any liability of a Party or any member of such Party’s Group. Pending such release, the relevant Party shall, as an irrevocable third party stipulation, indemnify, defend and hold harmless the Company and, as an irrevocable third party stipulation, the other members of the JV Group against all amounts paid by any of them pursuant to any such Guarantees.
7.2 Use of names7.2.1 The Parties shall procure that within a reasonable period after the Closing, but in any event within 3 (three) months after the Closing Date, to the extent applicable, each of the JV Companies changes its name so that it does not contain the name Nutreco, Stolt and Stolt Sea Farm, or any abbreviation thereof or any name or lettering which is likely to be confused with the same and shall provide the relevant Party with appropriate written evidence of such change of name.
7.2.2 The Parties shall procure that the Company shall not, and shall procure that no member of the JV Group shall, as soon as practicable after the Closing, but in any event 12 (twelve) months after the Closing Date, use any trading names, domain names, or registered or unregistered trade marks or logos which contain the name Nutreco, Stolt and Stolt Sea Farm, or any abbreviation thereof or any name or lettering which is confusingly similar to the same. Notwithstanding the foregoing, the Parties shall procure that the Company shall, as soon as practicable after the Closing, but in any event within 12 (twelve) months after the Closing Date, procure that all such trading names, domain names, trade marks and logos are removed from all products, business stationery and other assets held by any member of the JV Group or contributed to the Company pursuant to this Agreement, and from all premises occupied by the Company or any other member of the JV Group.
7.2.3 Notwithstanding the provisions of Clause 7.2.1 and 7.2.2, the Company and the relevant members of the JV Group shall be entitled to continue to use the (trading or domain) names,
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trade marks and logos on boats, vessels, plants and buildings until 24 (twenty-four) months after the Closing Date.
7.3 Retention of records7.3.1 The Parties shall procure that the Company shall (or shall procure that the relevant members of the JV Group shall) retain for a period of 5 (five) years from Closing, or such longer period as may be prescribed by applicable Law, all books, records and other written information relating to each Party’s Group which are at the properties of the JV Group immediately after Closing or which are held by any member of the JV Group pursuant to Closing and, to the extent reasonably required by the relevant Party, shall allow each Party, upon reasonable written notice, access during normal office hours to such books, records and other information, including the right to inspect and take copies (at such Party’s expense).
7.3.2 Each Party shall (or shall procure that the relevant members of such Party’s Group shall) retain for a period of 5 (five) years from Closing, or such longer period as may be prescribed by applicable law, any books, records or other written information relating to the JV Group which are not at the properties of the JV Group immediately after Closing or held by any member of the JV Group pursuant to Closing and, to the extent reasonably required by the Company, shall allow the Company or the relevant member of the JV Group upon reasonable written notice access during normal office hours to such books, records and information, including the right to inspect and take copies (at the Company’s expense).
7.4 Insurance7.4.1 Termination of coverage
As of the Closing Date, unless the Parties agree otherwise,
(i) all coverage with respect to the JV Group under the Insurance Policies in respect of events, occurrences or accidents occurring on or after the Closing Date shall be cancelled and terminated, excluding those Insurance Policies in respect of which a JV Group Company is the sole policy holder or named insured; and
(ii) the Parties shall procure that the Company shall put in place such insurance as it shall deem appropriate in relation to the JV Group.
For a period of 6 (six) months after the Closing Date, each Party shall cause the relevant members of its Group to make available to the JV Group (to the extent permitted under the relevant Insurance Policies), the rights of recovery of members of the relevant Party’s Group under the relevant Insurance Policies in relation to events, occurrences or accidents occurring prior to the Closing Date and which relate exclusively to a member of the JV Group insured by a member of such Party’s Group. Each Party shall, and shall procure that the relevant members of the JV Group shall, co-operate in connection with the handling and administration of these claims. Following this 6 (six) months’ period, the members of the JV Group shall not be entitled to any rights of recovery under any of the Insurance Policies for
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claims made in respect of events, occurrences or accidents occurring prior to the Closing Date.
7.4.3 Payment of proceeds in respect of insurance claims
Each Party shall (or shall procure that the relevant member of its Group shall) pay to the Company or relevant member of the JV Group the net proceeds (after deduction of all applicable deductibles) received by a member of such Party’s Group on or after the Closing Date in respect of any event which has occurred prior to the Closing and which relates exclusively to a member of the JV Group insured by a member of such Party’s Group, such payment to be made as soon as practicable after receipt by the relevant member of such Party’s Group and only to the extent that:
(i) the Losses in respect of which the claim is made have not been made good prior thereto; or
(ii) the Losses are not the subject of a Warranty, an indemnity or adjustment payable by the relevant Party under this Agreement.
7.4.4 Indemnity
In respect of claims made after the Closing Date and arising in respect of an event, occurrence or accident occurring after the Closing Date, the JV Group shall not have any right to recover any amounts from Nutreco or Stolt B.V. or any member of the Nutreco Group or the Stolt Group, or any of their insurers, and the Parties shall procure that the Company shall be responsible for and shall indemnify, defend and hold harmless each Party and the relevant member of such Party’s Group, from all Losses incurred by such Party or any member of its Group, or its insurers in respect of any claim or attempted claim made on or after the Closing Date under any Insurance Policy by the JV Group or any third party.
7.5 LicencesThe Parties shall endeavour that all material licences and permits necessary for the operations of the JV Activities shall be assigned to or shall be registered in the name of the relevant JV Company as soon as reasonably practicable after the Closing Date, unless advised otherwise by the local management of the relevant JV Activities.
7.6 Retirement BenefitsThe provisions of Schedule 8 shall apply in respect of Retirement Benefits in relation to the relevant JV Activities.
7.7 Cod impairment adjustmentIf and to the extent the performance of the JV Activities relating to Cod which are contributed to the JV Group by Nutreco materially deviate from the results of these activities envisaged in the business plan and budget of the Company in force as at the end of 2005, Nutreco shall pay to Stolt 25% of any impairment resulting therefrom to a maximum of EUR 1,250,000 (one million two hundred thousand euro) minus 25% of the impairment that has been included in the Nutreco Closing Financial Statements in respect of such activities.
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7.8 Tax indemnity and covenantsThe provisions of Schedule 9 shall apply in respect of Taxes in respect of the JV Activities and, if applicable, in respect of the issuance of the Additional Equity Instruments by the Company to Nutreco and Stolt B.V., respectively.
8. Warranties8.1 Nutreco Warranties8.1.1 Subject to the provisions of this Clause 8 and to Clauses 9 and 10, Nutreco represents and warrants to Stolt B.V. that the Nutreco Warranties are true and accurate in all material respects as at Signing.
8.1.2 Any Nutreco Warranty qualified by the expression “so far as Nutreco is aware” or any similar expression shall be deemed to refer to the knowledge of those members of Nutreco’s corporate staff and senior employees whose names are set out in Schedule 10 (Part 3), who shall be deemed to have knowledge of such matters about which they knew or which they would have discovered, had they made reasonable enquiries.
8.1.3 Nutreco further represents that neither Nutreco, nor any other member of the Nutreco Group nor any of their respective employees, agents or advisors is aware of any breach of the Stolt Warranties or of any fact or circumstance which could give rise to a breach of the Stolt Warranties.
8.2 Stolt Warranties8.2.1 Subject to the provisions of this Clause 8 and to Clauses 9 and 10, Stolt B.V. represents and warrants to Nutreco that the Stolt Warranties are true and accurate in all material respects as at Signing.
8.2.2 Any Stolt Warranty qualified by the expression “so far as Stolt is aware” or any similar expression shall be deemed to refer to the knowledge of those members of Stolt B.V.’s or Stolt’s corporate staff and senior employees whose names are set out in Schedule 11 (Part 3), who shall be deemed to have knowledge of such matters about which they knew or which they would have discovered, had they made reasonable enquiries.
8.2.3 Stolt B.V. further represents that neither Stolt B.V., Stolt, nor any other member of the Stolt Group nor any of their respective employees, agents or advisors is aware of any breach of the Nutreco Warranties or of any fact or circumstance which could give rise to a breach of the Nutreco Warranties.
8.3 Disclosure
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8.4 Updating of Warranties to Closing
8.5 Liability for breach8.5.1 In the event of any breach by a Party under this Agreement, the other Party shall not have the right to terminate or rescind this Agreement and the other Party, as its sole and exclusive remedy and subject to any limitations of liability set out in this Agreement, shall have the right to claim the Losses suffered or incurred by it as a result of such breach, it being agreed that a Loss suffered by the relevant member of the JV Group in respect of such breach shall, subject to Clause 8.5.2 and any limitations of liability set out in this Agreement, be deemed to be a Loss suffered by the Party claiming Losses pursuant to a breach of the other Party’s Warranties.
8.5.2 In the event of any breach of a Party’s Warranties, the other Party shall be entitled to claim the Losses suffered or incurred by it, the relevant members of its Group or the relevant members of the JV Group as a result of such breach, provided, that such Losses will be paid to the Company or relevant member of the JV Group, unless the Parties agree otherwise or the Loss concerned is only incurred by a Party or relevant member of its Group and not by any member of the JV Group, in which case the relevant Loss will be paid to such claiming Party itself or a relevant member of its Group on a pro rata parte basis in proportion to its relative stake in the Company.
8.5.3 For purposes of this Agreement, it is agreed that a breach of a Warranty shall occur where the same is untrue or inaccurate in any material respect as at any date on which the same is given.
9 . Limitation of liability9.1 Time limitationA Party shall not be liable for a breach of the Warranties given by it unless a notice of the claim is given by the other Party to that Party specifying the matters set out in Clause 11.2:
9.1.1 in the case of any claim under Tax warranties set out in the relevant Warranties, within 30 (thirty) days after expiry of the statutory limitation period applicable in the relevant jurisdiction for the Tax matter giving rise to such claims, including any applicable term during which additional assessments can be levied under the relevant applicable Law; and
9.1.2 in the case of any other claim, within 3 (three) years as of the Closing Date,
provided that there shall be no time limitation for giving notice of any claim under Paragraphs 1, 2.1 and 18.1, 18.2, 18.3, 18.4, 18.5 and 18.6 of Schedule 10 (Part 1) or Paragraphs 1 and 2.1 of Schedule 11 (Part 1).
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9.2 Minimum claimsSubject to any other limitations set out in this Agreement, a Party shall only be liable for any breach of the Warranties given by it in respect of any individual claim for a breach of its Warranties (or a series of claims arising from identical facts) if the liability agreed or determined in respect of any such claim or series of claims exceeds EUR 500,000 (five hundred thousand euro). For the avoidance of doubt, where the liability agreed or determined in respect of any such claim or series of claims exceeds EUR 500,000 (five hundred thousand euro), the relevant Party shall be liable for the full amount thereof.
9.3 Aggregate minimum claimsSubject to any other limitations set out in this Agreement, a Party shall only be liable for any breach of the Warranties given by it in respect of any claim or claims if the aggregate amount of such claim(s) exceeds EUR 2,500,000 (two and a halve million euro). For the avoidance of doubt, where the liability agreed or determined in respect of any such claim or claims exceeds EUR 2,500,000 (two and a half million euro), the relevant Party shall be liable for the full amount thereof.
9.4 Provisions
Nutreco or Stolt B.V. shall not be liable for any breach of the Warranties given by it in respect of any claim if and to the extent that any allowance, provision or reserve is made in the Nutreco Accounts or the Stolt Accounts, respectively (and not released prior to Closing) for the matter giving rise to the claim.
9.5 InsuranceA Party shall not be liable for any breach of the Warranties given by it in respect of any claim to the extent that the Losses in respect of which such claim is made are covered by a policy of insurance maintained in force by the Company or any member of the JV Group, provided that such Losses or part thereof are actually received under such policy of insurance.
9.6 Net financial benefitNeither Party shall be liable for any breach of the Warranties given by it in respect of any Losses to the extent of any corresponding savings by or quantifiable net financial benefit to the other Party’s Group or the JV Group arising in respect of such Losses or the facts giving rise to such Losses (whereby a corresponding saving is, for example, without limitation, the amount (if any) by which any Taxation for which a Party would otherwise have been accountable or liable to be assessed is actually reduced or extinguished as a result of the matter giving rise to such Losses).
9.7 Mitigation of LossesEach Party shall procure that all reasonable steps are taken and all reasonable assistance is given to avoid or mitigate any Losses which in the absence of mitigation might give rise to a liability in respect of any claim under this Agreement.
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9.8 Double claimsA Party shall not be entitled to recover from the other Party under this Agreement more than once in respect of the same Losses suffered. Subject to any other limitations set out in this Agreement, (i) in the event that any matter, act, omission or circumstance (or any combination thereof) giving rise to a breach of a Warranty or an indemnity under this Agreement is the subject of an adjustment under Clause 6.3 or payment under Clause7.7, the relevant Party’s claim shall be limited to a claim under said adjustment or payment and (ii) in the event any matter, act, omission or circumstance (or any combination thereof) giving rise to a breach of a Warranty is the subject of an indemnity under this Agreement, the relevant Party’s claim shall be limited to a claim under said indemnity.
9.9 No limitations on indemnitiesFor the avoidance of doubt, exceptions contained in the respective Disclosure Letters and the limitations of the Parties’ liability set out in Clause 9 shall not affect the relevant Party’s liability under the indemnities in relation to Retirement Benefits pursuant to Clause7.6 or Tax pursuant to Clause 7.8, save as provided in the relevant indemnities.
10 . Indemnities10.1 Nutreco indemnityNutreco shall indemnify, defend and hold harmless Stolt B.V. and the relevant members of the Stolt Group from and against any and all Losses incurred or suffered by any member of the Stolt Group and/or the JV Group directly or indirectly relating to or arising out of the following matters:
10.1.1 any liabilities not related to the Nutreco Activities being contributed or assumed by the JV Group pursuant to Nutreco’s process of disentanglement of the Nutreco Activities from the Nutreco Group under the Nutreco Contribution Plan, including
(i) any liability of Marine Harvest International B.V., Marine Harvest B.V. and Trouw International Fish B.V. pursuant to Section 2:334 (t) of the Netherlands Civil Code for obligations of Nutreco International B.V., Nutreco B.V. and Trouw International B.V., respectively;
(ii) any similar liability of members of the Nutreco Group for obligations of the JV Group resulting from the demerger of Nutreco Chile S.A ., if applicable, Marine Harvest Chile S.A. and Nutreco Holding AS pursuant to applicable local (demerger) law;
(iii) any liability of any Nutreco JV Company or Nutreco JV Business in respect of any activity that is not a Nutreco Activity;
10.1.2 To the extent not provided for in the accounts of a relevant member of the JV Group, (i) litigation in the US between Lafjord USA and Nutreco Holding NV/Marine Harvest Norway AS, (ii) litigation in Norway between Harvest Norway AS and the Central Taxation Office for Large-Sized Companies ( Sentralskattekontoret for storbedrifter ) before the appeal court ( lagmannsretten ), (iii) litigation in Norway between Nisja Trading AS and Vestmar AS where Harvest Norway AS is put on a third party notice, (iv) litigation in Canada between Nutreco Canada and AgriMarine Industries Inc. for breach of agreement by Nutreco Canada, (v) lawsuit in Chile filed by Sierramar against Marine Harvest Chile S.A., (vi) litigation in Norway
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between Marine Harvest Norway AS and Statlandet Eiendomsselskap AS and (vii) litigation in Ireland between Franklin –v- Fanad Sea Fisheries & Others;
10.1.3 The fatality involving a diver at Aultbea (May 2002).
10.2 Stolt indemnityStolt B.V. shall indemnify, defend and hold harmless Nutreco and the relevant members of the Nutreco Group from and against any and all Losses incurred or suffered by any member of the Nutreco Group and/or the JV Group directly or indirectly relating to or arising out of the following matters:
10.2.1 any liabilities not related to the Stolt Activities being contributed or assumed by the JV Group pursuant to Stolt’s process of disentanglement of the Stolt Activities from the Stolt Group under the Stolt Contribution Plan, including any liability of any Stolt JV Company or Stolt JV Business in respect of any activity that is not a Stolt Activity;
10.2.2 violations of the Labour Inspection Act in Belgium and improvements and investments resulting therefrom;
10.2.3 the decision of the relevant court in Canada, and possible appeals thereof, setting aside the decision of the Minister of Fisheries to permit the relocation of an aquaculture site from “Eden Island” to “Humphrey Rock”;
10.2.4 any currently unknown and unperformed obligations resulting from speculative trading in the Stolt Tokyo operation before 1 July 2003 not included or provided for in the Stolt Accounts; and
10.2.5 conducting trading activities through a non-registered “branch” of Stolt Cocoon AS in Singapore.
10.3 LiabilityIn the event of any liability of Nutreco or Stolt B.V. under the indemnities set out in Clause 10.1 or 10.2, the other Party shall be entitled to claim the Losses suffered or incurred by it, the relevant members of its Group or the relevant members of the JV Group as a result of such breach, provided, that such Losses will be paid to the Company or relevant member of the JV Group, unless the Parties agree otherwise or the Loss concerned is only incurred by a Party or relevant member of its Group and not by any member of the JV Group, in which case the relevant Loss will be paid to such claiming Party itself on a pro rata parte basis in proportion to its relative stake in the Company.
10.4 Indemnity CompanyThe Parties shall procure that the Company shall indemnify Nutreco and the relevant members of the Nutreco Group from and against any and all Losses incurred or suffered by any of them directly or indirectly relating to or arising out of:
10.4.1 any liability of Nutreco International B.V., Nutreco B.V. and Trouw International B.V. pursuant to Section 2:334(t) of the Netherlands Civil Code for obligations of Marine Harvest International B.V., Marine Harvest B.V. and Trouw International Fish B.V.; and
10.4.2 any similar liability of members of the Nutreco Group for obligations of the JV Group resulting from the demerger of Nutreco Chile S.A., if applicable, Marine Harvest Chile S.A.
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and Nutreco Holding AS under applicable local (demerger) laws.
10.5 No limitationsExceptions contained in the respective Disclosure Letters and the limitations of the Parties’ liability set out in Clause 9 shall not affect the relevant Party’s liability under this Clause 10.
11 . Claims11.1 Notification of potential claims11.1.1 If the Company or any member of the JV Group becomes aware of any matter or circumstance that may give rise to a claim of a Party (the “ Indemnified Party ”) against another Party (the “ Indemnifying Party ”) under this Agreement, the Company shall as soon as reasonably possible notify the Parties thereof.
11.1.2 If the Indemnified Party becomes aware of any matter or circumstance that may give rise to a claim against the Indemnifying Party under this Agreement, the Indemnified Party shall as soon as reasonably possible contact the Indemnifying Party and as soon as reasonably possible thereafter but in any event within 40 (forty) Business Days give a notice in writing to the Indemnifying Party setting out such information as is reasonably available to the Indemnified Party and is reasonably necessary to enable the Indemnifying Party to assess the merits of the claim and to act to preserve evidence.
11.2 Notification of claimsWithout detracting from Clause 11.1, notices of claims under this Agreement shall be given by the Indemnified Party to the Indemnifying Party within the time limits as specified in Clause 9 in the event of a claim for breach of a Warranty and within a reasonable period of time in the event of any other claims, specifying, to the extent reasonably available, information of the legal and factual basis of the claim and the evidence on which the Indemnified Party relies and, if practicable, an estimate of the amount of Losses which are, or are to be, the subject of the claim.
11.3 CostsIf a Party has initiated a claim against the other Party pursuant to the relevant Warranties or indemnities under this Agreement and such claim is awarded or determined pursuant to the relevant dispute settlement provisions set out in this Agreement, the Company shall pay and reimburse the reasonable costs incurred by the claiming Party in relation thereto.
11.4 Procedure for third party claimsIf the claim notified to the Indemnifying Party is a result of or in connection with a claim by or liability to a third party then:
11.4.1 no admissions in relation to such third party claim shall be made by or on behalf of the Indemnified Party or any member of the JV Group and the claim shall not be compromised,
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disposed of or settled without the prior written consent of the Indemnifying Party;
11.4.2 the Indemnifying Party shall be entitled at his own expense, by notice to the Indemnified Party and the Company (and the Parties shall procure that the Company and the relevant member of the JV Group shall co-operate with the Indemnifying Party) to take action to avoid, dispute, defend, appeal, compromise or contest such claim or liability and the Indemnified Party shall, and the Parties shall procure that the relevant members of the JV Group shall, at the reasonable request of the Indemnifying Party allow the Indemnifying Party to act in the name of and on behalf of the Indemnified Party or relevant member of the JV Group concerned and to control the conduct of any related proceedings, negotiations or appeals;
11.4.3 where the Indemnifying Party has issued a notice pursuant to Clause 11.4.2, the Indemnified Party shall, and the Parties shall procure that all relevant members of the JV Group shall give, subject to their being paid reasonable costs and expenses, all such information and assistance including access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and records, as the Indemnifying Party may reasonably request for the purpose referred to in Clause 11.4.2, including instructing such professional or legal advisers as the Indemnifying Party may nominate to act on behalf of the Indemnified Party or relevant member of the JV Group concerned but in accordance with the Indemnifying Party’s instructions, it being agreed that the Indemnifying Party shall keep the Indemnified Party and the Company informed of all relevant matters relating to the claim and shall forward or procure to be forwarded to the Indemnified Party and the Company copies of all material external correspondence (other than such correspondence as is subject to legal professional privilege) relating to the claim; and
11.4.4 the Parties shall give reasonable consideration to the interest of the Indemnifying Party hereunder in minimizing any compensation to be paid to the third party and the JV Group’s interest in maintaining a good business relationship between the JV Group and the third party.
11.5 InformationThe Company shall, subject to reasonable notice, make such books, records and other information available to the Parties as reasonably required by them in connection with the making of or, as the case may be, the defending against, claims referred to in this Clause 11.
12. Joint and several liability Stolt; relationship Stolt B.V. and Stolt12.1 Joint and several liabilityStolt shall be jointly and severally liable for all obligations of Stolt B.V. under this Agreement.
12.2 RepresentationTo the extent Stolt and Stolt B.V. both have the same rights under this Agreement, Stolt B.V. and Stolt shall be exclusively represented by Stolt B.V. and only Stolt B.V. shall have the right to exercise and
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enforce such rights on behalf of Stolt and Stolt B.V. together.
12.3 CommunicationFor the purpose of this Agreement, a notice, communication or the provision of information made by Nutreco to Stolt B.V. shall be deemed to have been made to Stolt as well.
13 . IPOThe Parties shall agree on an appropriate arrangement to enable the Company to enforce the rights of a Party pursuant to the Warranties and indemnities under his Agreement against the other Party, if and when the financial advisors involved in the process of an IPO advise that such an arrangement enhances the feasibility and conditions of the IPO.
14 . Confidentiality14.1 AnnouncementsNo announcement or circular in connection with the existence or the subject matter of this Agreement shall be made or issued by or on behalf of any member of a Party’s Group without the prior written approval of the other Party. This shall not apply to any announcement or circular required by Law or the rules of any recognised stock exchange on which the shares of either Party are listed, provided that the Party with an obligation to make an announcement or issue a circular shall consult with the other Party insofar as is reasonably practicable before complying with such an obligation.
14.2 Confidentiality undertaking14.2.1 The Confidentiality Agreement and the Memorandum of Understanding shall cease to have any force or effect from Closing.
14.2.2 Subject to Clause 14.2.1 and Clause 14.2.3 each of the Parties shall treat as strictly confidential and not disclose or use any information received or obtained as a result of entering into this Agreement (or any agreement entered into pursuant to this Agreement) which relates to:
(i) the provisions of this Agreement and any agreement entered into pursuant to this Agreement; or
(ii) the negotiations relating to this Agreement (and any such other agreement); or
(iii) a Party to this Agreement and the business carried on by it or any member of its Group and the JV Group.
14.2.3 Clause 14.2.2 shall not prohibit disclosure or use of any information if and to the extent:
(i) the disclosure or use is required by law, any regulatory body or any recognised stock exchange on which the shares of any Party are listed;
(ii) the disclosure or use is required to vest the full benefit of this Agreement in any Party;
(iii) the disclosure or use is required for the purpose of any judicial proceedings arising out of this Agreement or any other agreement entered into under or pursuant to this
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Agreement or the disclosure is made to a Tax Authority in connection with the Tax affairs of the disclosing Party;
(iv) the disclosure is made to professional advisers of any Party on terms that such professional advisers undertake to comply with the provisions of Clause 14.2.2 in respect of such information as if they were a party to this Agreement;
(v) the information is or becomes publicly available (other than by breach of the Confidentiality Agreement or of this Agreement);
(vi) the other Party has given prior written approval to the disclosure or use; or
(vii) the information is independently developed after Closing,
provided that prior to disclosure or use of any information pursuant to Clause 14.2.3(i),(ii), or (iii), the Party concerned shall promptly notify the other Party of such requirement with a view to providing the other Party with the opportunity to contest such disclosure or use or otherwise to agree the timing and content of such disclosure or use.
15 . Miscellaneous15.1 Further assurancesEach of the Parties shall, and shall procure that relevant members of its Group and the JV Group shall, from time to time do all things as may be required to give effect to, and to give any Party the full benefit of, this Agreement and all other agreements contemplated hereby, including the execution of all necessary deeds and documents, procuring the convening of all necessary meetings, the giving of all necessary waivers and consents and the passing of all necessary resolutions and otherwise exercising all powers and rights available to them.
15.2 Whole agreement15.2.1 This Agreement contains the whole agreement between the Parties relating to the subject matter of this Agreement at Signing, to the exclusion of any terms implied by law which may be excluded by contract, and supersedes any previous written or oral agreement between the Parties in relation to the matters dealt with in this Agreement.
15.2.2 Each Party acknowledges that it has not been induced to enter this Agreement by any representation, warranty or undertaking not expressly set out in this Agreement.
15.3 No assignmentExcept as otherwise expressly provided in this Agreement, no Party may, unless with the prior written consent of the other Parties, assign, grant any security interest over or otherwise transfer, in whole or in part, any of its rights and obligations under this Agreement.
15.4 WaiverNo waiver of any provision of this Agreement shall be effective unless in writing and signed by or on behalf of the waiving Party.
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15.5 VariationNo variation of this Agreement shall be effective unless in writing and signed by or on behalf of each of the Parties.
15.6 Third party rightsSave as expressly otherwise stated, this Agreement does not contain a stipulation in favour of a third party.
15.7 RescissionWithout prejudice to Clause 3.3.3, each Party waives its right to rescind this Agreement on the basis of Section 6:265 of the Netherlands Civil Code.
15.8 Method of payment15.8.1 Wherever in this Agreement provision is made for a payment to be made or procured by a Party, such Party shall arrange that such payment shall be made by it for itself and on behalf of the relevant member of its Group to the relevant other Party for itself and on behalf of the relevant member of its Group.
15.8.2 Any such payments shall be effected by the Party obliged to make the payment crediting for same day value the account specified by Party entitled to the payment (reasonably in advance and in sufficient detail to enable payment by telegraphic or other electronic means to be effected) on or before the due date for payment.
15.8.3 Payment of a sum in accordance with this Clause shall be a good discharge to the payer (and those on whose behalf such payment is made) of its obligation to make such payment and the payer (and those on whose behalf such payment is made) shall not be obliged to see to the application of the payment as between those on whose behalf the payment is received.
15.9 CostsUnless this Agreement provides otherwise, all costs (including any capital, stamp, transfer, registration, VAT, sales and other similar Taxes, duties, fees and charges and all notarial fees) which a Party has incurred or must incur in preparing, concluding or performing this Agreement are for its own account. All capital, stamp, transfer, registration, VAT, sales and other similar Taxes, duties, fees and charges and all notarial fees payable by the Company or a JV Company in connection with the transfer or completion of the relevant contribution of JV Activities under this Agreement shall be reimbursed in full by the Party responsible for making the relevant contribution, or, to the extent the relevant members of the JV Group have to pay such Taxes and fees, shall be reimbursed to the relevant member of the JV Group by such contributing Party.
15.10 InterestIf any Party defaults in the payment when due of any sum payable under this Agreement, the liability of that Party shall be increased to include interest on such sum from the date when such payment is due
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until the date of actual payment (as well after as before judgement) at the Interest Rate.
15.11 Notices15.11.1 Any notice in connection with this Agreement (a “ Notice ”) shall be:
(i) in writing in English; and
(ii) delivered by hand, fax, registered post or by courier using an internationally recognised courier company.
15.11.2 A Notice to Nutreco shall be sent to Nutreco at the following address, or such other person or address as Nutreco may notify to Stolt B.V. and the Company from time to time:
Nutreco :
15.11.3 A Notice to Stolt B.V. shall be sent to Stolt B.V. at the following address, or such other person or address as Stolt B.V. may notify to Nutreco and the Company from time to time:
Stolt B.V. :
15.11.4 A Notice to Stolt shall be sent to Stolt at the following address, or such other person or address as Stolt may notify to Nutreco and the Company from time to time:
Stolt :
15.11.5 A notice to the Company shall be sent to the Company at the following address, or such other person or address as the Company may notify to Nutreco and Stolt B.V. from time to time:
Marine Harvest :
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15.11.6 A Notice shall be effective upon receipt and shall be deemed to have been received:
(i) at the time of delivery, if delivered by hand, registered post or courier; and
(ii) at the time of transmission in legible form, if delivered by fax.
15.12 InvalidityIf any provision in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law:
15.12.1 such provision or part shall to that extent be deemed not to form part of this Agreement but the legality, validity or enforceability of the remainder of this Agreement shall not be affected;
15.12.2 the Parties shall use reasonable endeavours to agree a replacement provision that is legal, valid and enforceable to achieve so far as possible the intended effect of the illegal, invalid or unenforceable provision.
15.13 Notary Rules of Professional ConductWith reference to the Rules of Professional Conduct ( Verordening beroeps- en gedragsregels ) of the Royal Dutch Organisation of Civil Law Notaries ( Koninklijke Notariële Beroepsorganisatie ) all parties expressly agree that (i) De Brauw Blackstone Westbroek N.V. acts as counsel to Nutreco in connection with, or acts as counsel for or on behalf of Nutreco in the event of any dispute relating to, this Agreement or any related agreement, and that (ii) a civil law notary of De Brauw Blackstone Westbroek N.V. executes deeds connected with this Agreement or any related agreement.
15.14 CounterpartsThis Agreement may be entered into in any number of counterparts, all of which taken together shall constitute one and the same instrument. Any Party may enter into this Agreement by signing any such counterpart.
15.15 Completion of Schedule15.15.1 The Parties acknowledge and agree that Schedule 2 (Part 4) (Allocation of Nutreco Activities), Schedule 3 (Part 4) (Allocation Stolt Activities) and certain Schedules to Schedule 5 (Shareholders Agreement: Schedule 3 (Part 3) (Stolt Cod and Halibut Activities), Schedule 5 (Part 2 (Initial Budget) and Schedule 5 (Part 3) (management accounts)) need to be (further) prepared and agreed, supplemented and/or, as the case may be, amended after the Signing Date and prior to the Completion Date, if applicable on the basis of the draft of the Schedules as existing as per the Signing Date.
15.15.2 Each relevant Party shall use all reasonable endeavours and negotiate in good faith to
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complete and agree on the relevant Schedules referred to in Clause 15.15.1.
15.15.3 Upon completion and agreement on the relevant Schedules referred to in Clause 15.15.1, the Parties shall initial the relevant Schedule and add the Schedule to this Agreement, after which the Schedule wi | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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