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Exhibit 10.1
SHARE PURCHASE AGREEMENT
International Chemical Investors S.A., a corporation organized
under the laws of Luxembourg, whose registered office is located at
26, rue Philippe II, L-2340 Luxembourg, represented by its
authorized representatives Dr. Achim Riemann and Patrick F.
Schnitzer,
(hereinafter called the "Buyer"),
PARTY OF THE FIRST PART
Albemarle Corporation, a corporation organized under the laws of
the Commonwealth of Virginia, U.S.A., having its principal office
at 330 South Fourth Street, Richmond, Virginia 23219 (hereinafter
called "Albemarle"), and
Albemarle Overseas Development Corporation, a corporation
organized under the laws of the Commonwealth of Virginia, U.S.A.,
having its principal office at 330 South Fourth Street, Richmond,
Virginia 23219 (hereinafter called "AODC"),
(hereinafter collectively called the "Sellers"),
PARTIES OF THE SECOND PART
WITNESSETH:
WHEREAS, the Sellers are the owners of 100% of the shares of
Albemarle France, a société par actions
simplifiée organized under the laws of France having its
registered offices at 95, rue du Général de Gaulle,
68800 Thann, ("ASAS" or the "Company") which in turn is the owner
of all of the share capital of Albemarle PPC, a
société par actions simplifiée
organized under the laws of France having its registered offices at
95, rue du Général de Gaulle, 68800 Thann
("APPC");
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WHEREAS, APPC is the operator of a chemical
complex located in Thann, France;
WHEREAS, Buyer wishes to acquire, and Sellers wish to transfer
to Buyer, Sellers’ entire interest in the capital stock of
ASAS;
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NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
ARTICLE I - SALE OF SHARES, PRICE
1.1 Sale of Shares
Subject to the terms and conditions hereof, the Sellers agree to
sell to the Buyer and the Buyer agrees to purchase from the Sellers
15,679 shares of the capital stock of the Company (hereinafter
called the "Shares"), which constitute all of the capital stock of
the Company, in accordance with the allocation set forth opposite
the name of each of the Sellers in Exhibit 1.1 annexed hereto.
The purchase price for the Shares shall be one (1) Euro
(the "Purchase Price") to be paid in cash on the Closing Date
(defined below).
(a) The sale of the Shares (the "Closing") shall take place at
the offices of Winston & Strawn LLP, 25, Avenue Marceau,
75116 Paris or at such other place as the parties may mutually
agree, at a date to be mutually agreed by the parties which is no
later than ten (10) days after that date upon which all of the
conditions precedent set forth at Article IV hereof have been
satisfied or waived by mutual agreement (hereinafter called the
"Closing Date"). Closing shall be deemed to occur at 23:59 on the
Closing Date.
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(b) On the Closing Date, the Sellers will deliver
to the Buyer duly signed and completed stock powers ( ordres
de mouvement ) in favor of Buyer or its designee covering
the Shares, together with such other documents as the Buyer may
reasonably request for the purpose of assuring transfer of the
ownership of the Shares to the Buyer, including, without
limitation, the shareholder registry of the Company duly completed
to show the transfer of the Shares to the Buyer.
(c) Within thirty (30) days following the Closing Date,
Sellers and Buyer shall conduct or cause to be conducted a physical
inventory and verification of cash balances, accounts receivable
and accounts payable of APPC, in each case as of the Closing Date,
in conformity with the procedures for the determination of Net
Working Capital set forth at Exhibit 1.3(c) hereto.
(d) As of the Closing Date, the Buyer shall, upon payment of the
Purchase Price, be the owner of the Shares and shall have all
rights thereunder.
2.1 Sellers’ Warranties
In view of the purchase of the Shares by the Buyer, the Sellers
hereby represent and warrant as of the date hereof and the Closing
Date, irrevocably, jointly and severally, as follows:
(a) Incorporation of the Company
(i) The Company is a société par actions
simplifiée (corporation) whose registered office is
located at 95, rue du Général de Gaulle, 68800 Thann
and which is registered at the Registry of Commerce and Companies
of Mulhouse under the number 389 868 613. The Company is duly
organized and existing under French law and is not subject to any
insolvency or bankruptcy proceedings. The copy of the
statuts (articles and by-laws) of the Company, as amended to
date, which is annexed hereto as Exhibit 2.1 (a) (i) (the
"ASAS By-laws"), is true and complete.
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(ii) APPC is a société par
actions simplifiée (corporation) whose registered office
is located at 95, rue du Général de Gaulle, 68800
Thann and which is registered at the Registry of Commerce and
Companies of Mulhouse under the number 775 642 853. APPC is
duly organized and existing under French law and is not subject to
any insolvency or bankruptcy proceedings. The copy of the
statuts (articles and by-laws) of APPC, as amended to date,
which is annexed hereto as Exhibit 2.1 (a) (ii) (the
"APPC By-laws"), is true and complete.
(b) Share Capital
The Company has a share capital of € 11,947,398,
consisting of 15,679 shares, par value € 762 per
share, all of which are fully paid-up and validly issued and not
subject to any calls or assessments. There are no commitments
providing for the issuance of any additional shares of capital
stock of the Company (with or without voting rights), or providing
for the issuance of securities convertible into shares of capital
stock or providing for the issuance of other securities. The
Sellers are the owners of all of the issued and outstanding shares
of the Company.
(c) Title to Shares; Authority
(i) The Sellers have good and marketable title to the Shares and
to all of the rights afforded thereby, free of all options,
privileges, guarantees, liens and encumbrances, and has full power,
authority and capacity to consummate the transactions contemplated
by this Agreement (assuming that all necessary authorizations under
the ASAS By-laws shall have been obtained). Upon delivery by the
Sellers of the Shares against payment as provided for herein, the
Buyer will acquire good and marketable title to the Shares free of
all options, privileges, guarantees, liens and encumbrances.
(ii) Each of the Sellers and/or the Company and/or APPC, as
applicable, has full power and authority to execute this Agreement
and the Ancillary Agreements (as defined below) to which it is, or
is specified to be, a party and to consummate the
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Acquisition and the other transactions
contemplated hereby and thereby. The execution and delivery by the
Sellers and/or the Company and/or APPC, as applicable, of this
Agreement or the Ancillary Agreements to which it is, or is
specified to be, a party and the consummation by Sellers and/or the
Company and/or APPC, as applicable, of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate action and this Agreement constitutes, and each
Ancillary Agreement to which it is, or is specified to be, a party
will after the Closing constitute, the legal, valid and binding
obligation of the Sellers, and/or the Company and/or APPC, as
applicable, enforceable against them in accordance with its terms.
The execution and consummation of the transactions contemplated by
this Agreement have not resulted, and will not result, in a breach
or default of the terms of any law, regulation, agreement or
instrument, or any order, judgment or decree of any court or any
arbitration award by which any Seller and/or the Company and/or
APPC is bound.
(d) Subsidiaries and Affiliates
Except as indicated in Exhibit 2.1(d)(i), the Company has no
subsidiaries or any holdings or other interests in any corporation,
association, enterprise or other legal entity. APPC has a share
capital of € 7,274,880, consisting of 454,680 shares, par
value € 16 per share, all of which are fully paid-up
and validly issued and not subject to any calls or assessments.
There are no commitments providing for the issuance of any
additional shares of capital stock of APPC (with or without voting
rights), or providing for the issuance of securities convertible
into shares of capital stock or providing for the issuance of other
securities. The Company owns all of the issued and outstanding
shares of APPC, free and clear of all options, privileges,
guarantees, liens and encumbrances.
APPC owns all of the shares of capital stock of Albemarle Chimie
SAS ("Albemarle Chimie"), a French société par
actions simplifiée organized under the laws of France
having its registered offices at 95, rue du Général
de Gaulle, 68800
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Thann, free and clear of all options, privileges,
guarantees, liens and encumbrances. There are no commitments
providing for the issuance of any additional shares of capital
stock of Albemarle Chimie (with or without voting rights), or
providing for the issuance of securities convertible into shares of
capital stock or providing for the issuance of other securities.
Albemarle Chimie has never conducted any business operations, has
never had any significant tangible or intangible assets, has never
had employees and, to the best knowledge of Sellers, there are no
claims pending or threatened against Albemarle Chimie. The copy of
the statuts (articles and by-laws) of Albemarle Chimie, as
amended to date, which is annexed hereto as Exhibit 2.1 (d)(ii)
(the "Albemarle Chimie By-laws"), is true and complete.
(e) Title to Assets
The Company owns no assets other than (i) the shares in
APPC; (ii) cash and cash equivalents disclosed on the
Unaudited Interim Balance Sheet; and (iii) 99% of the shares
of capital stock of the Belgian Marketing Subsidiary. APPC has no
assets or liabilities other than (i) those relating to the
chemical complex located in Thann, France and the operations
thereof; (ii) all of the shares of capital stock of Albemarle
Chimie; and (iii) 1% of the shares of capital stock of the
Belgian Marketing Subsidiary. Except with respect to certain
software licenses, all current assets, movable or unmovable
properties, installations, equipment and any and all rights to use
or retain any properties, used or owned or otherwise retained by
APPC (the " Assets ") are either fully owned, or are used or
retained by APPC under the terms of a valid lease or license
agreement, and such Assets are not subject to any encumbrances
except as provided in Exhibit 2.1(e).
(f) Conduct of business since June 30, 2006
Since June 30, 2006 until the execution of this Agreement,
except as (i) set forth in Exhibit 2.1(f), (ii) with
respect to indebtedness, to the extent such indebtedness is
included within the calculation of Net Working Capital or
(iii) with
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respect to other matters, to the extent
consistent with the ordinary course of business of APPC, none of
the events referred to in Articles 3.2(b) through 3.2(j) has
occurred with respect to the Company or APPC.
(g) Unaudited Balance Sheet as of June 30, 2006
Attached at Exhibit 2.1(g) is an unaudited consolidated balance
sheet of the Company as of June 30, 2006 (the "Unaudited
Interim Balance Sheet"). To the best of Sellers’ knowledge,
the Unaudited Interim Balance Sheet (i) was prepared in
accordance with the books of account and other financial records of
the Company, (ii) gives a true and fair view of the assets,
liabilities and financial condition of the Company and APPC as of
June 30, 2006, and (iii) has been prepared in accordance
with the applicable French accounting principles applied on a basis
consistent with the past practices of the Company. The parties
acknowledge and agree that the Unaudited Interim Balance Sheet does
not reflect any reserves, accruals or liabilities for potential
environmental liabilities, and that any such future liability shall
not result in a breach of this warranty.
(h) General
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT
ARE THE ONLY REPRESENTATIONS OR WARRANTIES MADE BY SELLERS WITH
RESPECT TO THE SUBJECT MATTER HEREOF TO THE EXCLUSION OF ANY AND
ALL EXPRESS OR IMPLIED WARRANTIES, WHETHER UNDER LAW OR TRADE
USAGE.
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2.2 Buyer’s Warranties
In view of the agreements set forth herein of the Sellers, the
Buyer hereby represents and warrants as of the date hereof and the
Closing Date, irrevocably, as follows:
(a) Incorporation
Buyer is a corporation whose registered office is located at 26,
rue Philippe II, L-2340 Luxembourg and which is registered at the
Registry of Commerce and Companies of Luxembourg under the number B
105 416. Buyer is duly organized and existing under the laws of
Luxembourg and is not subject to any insolvency or bankruptcy
proceedings.
(b) Authority
Buyer has full power and authority to execute this Agreement and
the Ancillary Agreements to which it is, or is specified to be, a
party and to consummate the Acquisition and the other transactions
contemplated hereby and thereby. The execution and delivery by the
Buyer of this Agreement or the Ancillary Agreements to which it is,
or is specified to be, a party and the consummation by Buyer of the
transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action and this Agreement
constitutes, and each Ancillary Agreement to which it is, or is
specified to be, a party will, after the Closing constitute, the
legal, valid and binding obligation of the Buyer, enforceable
against it in accordance with its terms. The execution and
consummation of the transactions contemplated by this Agreement
have not resulted, and will not result in, a breach or default of
the terms of any law, regulation, agreement or instrument, or any
order, judgment or decree of any court or any arbitration award by
which the Buyer is bound.
(c) General
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT
ARE THE ONLY REPRESENTATIONS OR WARRANTIES MADE BY THE BUYER WITH
RESPECT TO THE SUBJECT MATTER HEREOF TO THE EXCLUSION OF ANY AND
ALL EXPRESS OR IMPLIED WARRANTIES, WHETHER UNDER LAW OR TRADE
USAGE.
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2.3 Any claims brought under this Article II must
be notified in reasonable detail in writing by the party asserting
the claim within one (1) year following the Closing
Date.
3.1 Guarantees
On or as soon as possible after the Closing Date, the Buyer
shall cause the Company and/or APPC to put in place or cause to be
put in place financial guarantees which satisfy in form and
substance the requirements of the guarantee holder, in substitution
for those financial guarantees listed in the attached Exhibit 3.1
which are currently in place for the account of Sellers (the
"Guarantees"). Buyer shall cause the Company and/or APPC to assist
the Sellers in obtaining such formal releases as may be required in
order to terminate all of the Guarantees currently in place and
shall promptly indemnify Sellers or their affiliates for any losses
suffered by them by reason of the exercise of any of such
Guarantees during the period commencing on the Closing Date and
ending on the date such Guarantees are terminated.
3.2 Conduct of Business
Between the date of this Agreement and the Closing Date, Sellers
will cause each of the Company and APPC to:
(a) carry on its business with due care and in the ordinary
course;
(b) except as requested or agreed to in writing by the Buyer or
provided for in this Agreement, make no change in the ASAS By-laws
or the APPC By-laws, nor in its capital, nor create any rights or
options relating to its capital;
(c) except as set forth in Exhibit 3.2(c) and except as
requested or agreed to in writing by the Buyer or provided for in
this Agreement, refrain from making any increase in the
remuneration of its officers, directors, salaried employees or
agents (except as provided by law), or any increase in employment
benefits, such as bonuses, profit sharing, pensions, or other
retirement benefits, or similar provisions;
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(d) except as requested or agreed to in writing
by the Buyer or provided for in this Agreement, refrain from
selling or transferring any assets, tangible or intangible, or
releasing any of its rights or claims (except for the disposal of
tangible personal property or the cancellation of rights or claims
in the ordinary course of business), refrain from incurring any
obligations or commitments not in the ordinary course of business
or subject to abnormal conditions, or refrain from liquidating, on
conditions not consistent with prudent management, any obligations
or commitments made prior to the date hereof.
(e) except as requested or agreed to in writing by the Buyer or
provided for in this Agreement, refrain from subjecting any of its
assets or properties (whether tangible or intangible) to any
encumbrances of a material nature;
(f) except as requested or agreed to in writing by the Buyer or
provided for in this Agreement, terminate any material agreement to
which it is a party as of the date hereof;
(g) except as set forth in Exhibit 3.2(g) and except as
requested or agreed to in writing by the Buyer or provided for in
this Agreement, refrain from making any loan or advance to, or
guaranteeing any indebtedness of, or otherwise incurring any
indebtedness not included in the calculation of Net Working Capital
hereunder on behalf of itself or any person;
(h) except as requested or agreed to in writing by the Buyer or
provided for in this Agreement, refrain from making any capital
expenditures or commitment for any capital expenditure, unless such
capital expenditure has already been approved in the budget of the
Company or APPC delivered to the Buyer prior to the date
hereof;
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(i) except as requested or agreed to in writing
by the Buyer or provided for in this Agreement, refrain from
hiring, firing, revoking or modifying the responsibilities,
functions or assignment of any employee, contractor, corporate or
executive officer; or
(j) refrain from taking any other action which could cause any
representation or warranty set forth in this agreement to be untrue
as of the Closing Date.
3.3 Access
Sellers confirm that until the Closing Date, Sellers will cause
the Company and APPC to give to the Buyer and its representatives
and counsel full access to the properties, books and records of the
Company and APPC, and will furnish to the Buyer of all such
documents and all such fina
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