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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 22, 1998 (October 7, 1998)
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THE SCOTTS COMPANY
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(Exact name of registrant as specified in its charter)
OHIO 1-11593 31-1414921
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
14111 SCOTTSLAWN ROAD, MARYSVILLE, OHIO 43041
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (937) 644-0011
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NOT APPLICABLE
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(Former name or former address, if changed since last report.)
Index to Exhibits is on Page 5.
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On October 7, 1998, Scotts France Holdings S.A.R.L. ("Scotts
France Holdings") and Scotts France S.A.R.L. ("Scotts France"), wholly-owned
indirect subsidiaries of The Scotts Company (the "Registrant") acquired all of
the outstanding shares of Rhone-Poulenc Jardin ("RPJ"), from Rhone-Poulenc Agro
("RPA"), in a privately-negotiated transaction. The consideration paid and to be
paid for the RPJ shares is comprised of: (a) 55 million French Francs paid on
October 7, 1998; and (b) 496,856,800 French Francs to be paid on or before
December 15, 1998. Scotts France Holdings acquired 359,900 of the RPJ shares and
Scotts France acquired 100 of the RPJ shares.
Also on October 7, 1998, Scotts Celaflor GmbH & Co. K.G. ("Scotts
KG"), a wholly-owned indirect subsidiary of the Registrant, acquired all of the
shares of Celaflor GmbH from Rhone-Poulenc Agro Europe GmbH ("RPAEG"), in a
privately-negotiated transaction. The consideration to be paid for the Celaflor
GmbH shares is comprised of: (a) 337 million French Francs to be paid on or
before December 15, 1998; and (b) four installments of 21 million French Francs
to be paid on October 1 of each of the years 1999 through 2002.
Also on October 7, 1998, "David" Sechsundfunfzigste Beteiligungs
und Verwaltungsgesellschaft GmbH (now known as Scotts Holding GmbH) ("Scotts
GmbH"), a wholly-owned indirect subsidiary of the Registrant, acquired all of
the shares of Celaflor Handelsgesellschaft from RPAEG, in a privately-negotiated
transaction. The consideration for the Celaflor Handelsgesellschaft shares is 36
million French Francs to be paid on or before December 15, 1998.
Also on October 7, 1998, Scotts Belgium 2 B.V.B.A. ("Scotts
Belgium 2"), a wholly-owned indirect subsidiary of the Registrant, acquired from
Rhone-Poulenc Agro S.A. ("RPA S.A.") the home and garden business of RPA S.A. in
Belgium and the assets related thereto (the "Belgian Home and Garden Business"),
in a privately-negotiated transaction. The consideration for the Belgian Home
and Garden Business is 16 million French Francs to be paid on or before December
15, 1998.
Each of the foregoing acquisitions was consummated in accordance
with the terms of a Master Contract, dated September 30, 1998 (the "Master
Contract"), among RPA, the Registrant, Scotts KG, Scotts GmbH, RPAEG, Scotts
France Holdings, Scotts France and Scotts Belgium 2. On September 30, 1998, two
transfer deeds were also signed between (1) Scotts KG and RPAEG for the transfer
of the Celaflor GmbH shares and (2) Scotts GmbH and RPAEG for the transfer of
the Celaflor Handelsgesellschaft shares. In addition, Scotts Belgium 2 and RPA
S.A. were parties to a separate Agreement for the Sale and Purchase of the Home
and Garden Business Assets of Rhone-Poulenc Agro S.A., dated September 30, 1998
(the "Belgian Purchase Agreement"), in respect of the sale of the Belgian Home
and Garden Business. The consideration payable in the acquisitions is subject to
adjustment in accordance with the terms of the respective agreements.
Scotts France Holdings used, and Scotts France Holdings, Scotts
France, Scotts KG, Scotts GmbH and Scotts Belgium 2 (collectively, the
"Subsidiary Purchasers") will use, funds available under the Credit Agreement,
dated February 26, 1998 (the "Credit Agreement"), to which the Registrant and
the Subsidiary Purchasers are parties, in order to pay the respective amounts
payable under the terms of the Master Contract and the Belgian Purchase
Agreement. The contractual obligations of the Subsidiary Purchasers to pay the
remaining consideration on or before December 15, 1998 are backed by letters of
credit issued under the Credit Agreement in favor of the respective sellers. The
identity of the financial institutions which are parties to the Credit Agreement
has been omitted as contemplated under Item 2(a) of Form 8-K and filed
separately with the Securities and Exchange Commission.
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RPJ, Celaflor GmbH, Celaflor Handelsgesellschaft and the Belgian
Home and Garden Business together comprise continental Europe's largest producer
of consumer lawn and garden products. They manufacture and sell a full line of
consumer lawn and garden pesticides, fertilizers and growing media in France,
Germany, the Benelux countries, Austria, Italy and Spain.
Neither the Registrant nor the Subsidiary Purchasers have any
present intention to devote any material amount of the assets related to the
operation of RPJ, Celaflor GmbH, Celaflor Handelsgesellschaft and the Belgian
Home and Garden Business to purposes other than the production of consumer lawn
and garden pesticides, fertilizers and growing media.
The consummation of the acquisition of RPJ, Celaflor GmbH,
Celaflor Handelsgesellschaft and the Belgian Home and Garden Business is
described in the press release issued on October 7, 1998, which is included
herewith as Exhibit 99.
As a part of the purchase price, Scotts France Holdings, Scotts
KG, Scotts GmbH and Scotts Belgium 2 have agreed to pay 156 million French
Francs over a four-year period for access rights for specific research and
development services to be provided by RPA. Funds available from operations or
under the Credit Agreement will be used to make such purchase.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of businesses acquired:
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It is impracticable for the Registrant to provide the financial
statements required by this Item 7(a) at the time of this filing. The Registrant
will file any required financial statements as soon as practicable under cover
of Form 8-K/A but no later than December 21, 1998.
(b) Pro forma financial information:
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It is impracticable for the Registrant to provide the pro forma
financial information required by this Item 7(b) at the time of this filing.
The Registrant will file any required pro forma financial information as soon as
practicable under cover of Form 8-K/A but no later than December 21, 1998.
(c) Exhibits.
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EXHIBIT NUMBER DESCRIPTION
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2 Master Contract, dated September 30, 1998, by and between
Rhone-Poulenc Agro; The Scotts Company; Scotts Celaflor GmbH &
Co. K.G.; "David" Sechsundfunfzigste Beteiligungs und
Verwaltungsgesellschaft GmbH; Rhone-Poulenc Agro Europe GmbH;
Scotts France Holdings S.A.R.L.; Scotts France S.A.R.L.; and
Scotts Belgium 2 B.V.B.A. (the "Master Contract")
99 Press Release issued October 7, 1998
Schedules to the Master Contract have not been filed. A list of
the omitted Schedules has been attached to the Master Contract
briefly identifying their content. The Registrant hereby agrees
to furnish supplementally a copy of any omitted Schedule to the
Securities and Exchange Commission upon its request.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
THE SCOTTS COMPANY
Date: October 22, 1998 By: /s/ Jean H. Mordo
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Jean H. Mordo, Executive Vice President and Chief
Financial Officer
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INDEX TO EXHIBITS
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EXHIBIT NUMBER DESCRIPTION PAGE NO.
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2 Master Contract, dated September 30, 1998, by and *
between Rhone-Poulenc Agro; The Scotts Company;
Scotts Celaflor GmbH & Co. K.G.; "David"
Sechsundfunfzigste Beteiligungs und
Verwaltungsgesellschaft GmbH; Rhone-Poulenc Agro
Europe GmbH; Scotts France Holdings S.A.R.L.;
Scotts France S.A.R.L.; and Scotts Belgium 2
B.V.B.A.
99 Press Release issued October 7, 1998 *
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*Filed herewith
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Exhibit 2
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MASTER CONTRACT
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MASTER CONTRACT
THIS MASTER CONTRACT is made the 30th day of September 1998, by and between:
RHONE-POULENC AGRO, a French "Societe Anonyme" with a capital of 5,031,515,000
French Francs with its registered office at 14-20, rue Pierre Baizet 69009 LYON
- - FRANCE, registered in Lyon under number B 969 503 309, represented by Mr.
Philippe Dumont duly authorised in this capacity by a power of attorney granted
by Mr. Alain Godard himself duly empowered by virtue of a Board resolution dated
18 September 1998, a certified copy of which is attached hereto (SCHEDULE A),
Hereinafter referred to as the "VENDOR",
AS THE FIRST PARTY,
THE SCOTTS COMPANY, a company organised under the laws of the State of Ohio,
U.S.A., the registered office of which is at 14111 Scottslawn Road, Marysville,
Ohio, and represented by Mr. Jean H. Mordo, duly authorised in this capacity by
virtue of a Board resolution, a certified copy of which is attached hereto
(SCHEDULE B).
Hereinafter referred to as "SCOTTS",
AS THE SECOND PARTY,
SCOTTS CELAFLOR GMBH & CO. K.G., Oberlindau 54-56, 60323 Frankfurt a M, a
company duly organised and existing under the laws of Germany, represented by
Mr. Matt Reed duly authorized Hereinafter referred to as "SCOTTS KG"
AS THE THIRD PARTY,
"DAVID" SECHSUNDFUNFZIGSTE BETEILIGUNGS UND VERWALTUNGSGESELLSCHAFT GMBH,
registered in the Commercial Register at the Local Court in Frankfurt am Main
under HRB 43447, in future under the Company name Scotts Holding GmbH, a company
duly organised and existing under the laws of Germany, represented by Mr. Matt
Reed duly authorised Hereinafter referred to as "SCOTTS GMBH".
AS THE FOURTH PARTY,
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and
RHONE POULENC AGRO EUROPE GMBH, a German company having an address at Engesser
Str. 8, 79108 Freiburg, Germany represented by Mr. Philippe Dumont, duly
authorised Hereinafter referred to as "RPAEG".
AS THE FIFTH PARTY
SCOTTS FRANCE HOLDINGS S.A.R.L., a French societe a responsabilite limitee,
having an address c/o Clifford Chance, 112 avenue Kleber, 75116 PARIS,
represented by Mr. Matt Reed, Hereinafter referred to as "Scotts France
Holdings".
AS THE SIXTH PARTY
SCOTTS FRANCE S.A.R.L., a French societe a responsabilite limitee, having an
address at B.P. 161 CEDEX-2, 77 MARNE-LA-VALLEE 2, France, represented by
Mr.Matt Reed, Hereinafter referred to as "Scotts France".
AS THE SEVENTH PARTY
SCOTTS BELGIUM 2 B.V.B.A, a Belgian company having an address c/o Clifford
Chance, Avenue Louise 65, Box 2, 1050 Brussels, Belgium, represented by Mr. G.
Robert Lucas, Hereinafter referred to as "Scotts Belgium 2".
AS THE EIGHTH PARTY
RECITALS
WHEREAS :
The Vendor owns directly or indirectly at least the majority of the shares and
voting rights in the following companies, each of which being part of the group
of the Vendor:
1. RHONE-POULENC JARDIN (hereinafter "RPJ") whose registered office
is at: 14-20 rue Pierre Baizet 69009 LYON, France, is a French
"societe anonyme" which shall be transformed into a French societe
par actions simplifiee prior to the Closing.
RPJ has a nominal share capital of FF 36,000,000 divided into
360.000 shares of FF 100 each, fully paid up (hereinafter "RPJ
SHARES") 359.992 of which are owned by the Vendor, and 8 by Quisa,
Societe de Developpement Rhone-Poulenc Investissement, Mrs.
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Dominique Takizawa, Mr. Christian Ringuet, Mr. Thierry Bourgeron,
Mr. Alain Godard and Mr. Pascal Housset, holding one share each in
trust for the Vendor.
2. CELAFLOR HANDELSGESELLSCHAFT (hereinafter the "C HG"), a limited
liability company organised under the laws of Austria, with a
share capital of 12,500,000 ATS and whose registered office is at
Bergheim.
C HG has a nominal share capital of 12,500,000 ATS represented by
one share fully paid up, (hereinafter "C HG SHARE") owned by
RPAEG, a company organised under the laws of Germany.
3. CELAFLOR GMBH (hereinafter the "C GMBH"), a company organised
under the laws of Germany, with a share capital of 5,050,000
Deutsche marks, whose registered office is in Ingelheim
C GmbH has a nominal share capital of 5,050,000 Deutsche marks
represented by one share fully paid up, (hereinafter "C GMBH
SHARE"), owned by RPAEG, a company organised under the laws of
Germany.
4. RHONE-POULENC AGRO SA, a company organised under the laws of
Belgium, with a share capital of 20,000,000 Belgian Francs, whose
registered office is in Brussels which holds assets in the home
and garden business in Belgium.
RPJ Shares are or shall become legally and beneficially owned by the Vendor and
the Vendor shall be able to procure their transfer to Scotts France Holdings
SARL, a French societe a responsabilite limitee, and Scotts France SARL, a
French societe a responsabilite limitee.
C HG Shares are or shall become legally and beneficially owned by RPAEG, and
RPAEG shall transfer CHG Shares to Scotts GmbH, a company incorporated under the
laws of Germany.
C GmbH Shares are or shall become legally and beneficially owned by RPAEG and
RPAEG shall transfer C GmbH Shares to Scotts KG.
The Vendor shall procure the sale of the home and garden business and assets in
Belgium, as listed in Schedule 3 (hereinafter the "BELGIAN BUSINESS"), by
Rhone-Poulenc Agro SA to Scotts Belgium 2, a Belgian company. The RPJ Shares,
the C HG Share and the C GmbH Share are hereinafter referred to as the "SHARES".
Scotts France Holdings SARL, Scotts France SARL, Scotts GmbH, Scotts KG and
Scotts Belgium 2 are hereinafter referred to as the "PURCHASING SUBSIDIARIES".
RPJ, C HG, C GmbH are hereinafter referred to each as a "Company" and together
as the "COMPANIES".
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The Companies operate businesses in home and garden products through food and
specialist distribution channels within EU countries.
The Vendor desires to sell whether directly or through its subsidiaries and
Scotts, which has interests in the same field of business as that of the
Companies, desires to purchase the Shares and the Belgian Business, through the
Purchasing Subsidiaries mentioned above, in order to extend its activities in
Europe, on and subject to the terms and conditions contained in this Agreement.
The Vendor has decided to stop its activities in the "Territory" and in the
field of "Plant Care Products", for sale and use by the general public as such
terms are defined in Schedule 11.1 (as regards countries outside the Territory,
the Vendor may still decide to carry on such activities) and Scotts and its
Affiliates desire to carry on and develop these activities.
It has also been decided, as regards Household Insecticides (as defined in
Schedule 11.1) and termite products for sale to and use by the general public,
that these activities can be carried on by the Vendor and its Affiliates as well
as by Scotts and its Affiliates.
In order to carry on these activities it is necessary that the Vendor grants to
RPJ a licence to use Fipronil.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the Parties hereto agree as follows:
CLAUSE 1. DEFINITIONS
In this Agreement the words and expressions set out hereunder
shall, unless the context otherwise requires, have the meanings
respectively set opposite them:
1.1 "AFFILIATE" means any entity that directly or indirectly, through
one or more intermediaries, now or hereafter controls or is
controlled by or is under common control with a Party hereto,
except that in countries where ownership of a majority or
controlling interest by a foreign entity is not permitted by law,
rule or regulations, the parent's direct or indirect voting
interest may be less than a majority or controlling interest.
"CONTROL" (including the terms "controls" "controlled by",
"controlling" and "under common control with") means the
possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a person or entity
whether through the ownership of voting security, by contract or
otherwise.
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1.2 "AGREEMENT" means this Master Contract and the Schedules attached
hereto, the Additional Contracts, the Purchase Agreement, the
Ancillary Agreements and all other documents and certificates
referred to herein or therein.
1.3 "AUDITED BALANCE SHEETS" means the balance sheets of RPJ, C HG and
C GmbH as at 31 December, 1997, prepared by the Companies and
restated in accordance with United States Generally Accepted
Accounting Principles ("US GAAP"), consistently applied in the
Rhone-Poulenc Group and as audited by Coopers & Lybrand ("C&L").
1.4 "BEST OF VENDOR'S KNOWLEDGE" means any item known by managers of
the Vendor, having made usual, diligent enquiries.
1.5 "CLOSING" means the closing of the sale and purchase of the Shares
and the Belgian Business in accordance with the provisions of this
Agreement.
1.6 "CLOSING ACCOUNTS DATE" means 30 September 1998.
1.7 "CLOSING ACCOUNTS" are the balance sheets of RPJ, Celaflor HG,
Celaflor GmbH and the transferred assets of the Belgian Business
at Closing Date stated in accordance with US GAAP, consistently
applied in Rhone-Poulenc Group.
1.8 "CONTEMPLATED TRANSACTIONS" means all of the transactions
contemplated by this Agreement, including :
(a) the sale of the Shares and the Belgian Business by the
Vendor to the Purchasing Subsidiaries,
(b) the purchase of the Shares and the Belgian Business by
the Purchasing Subsidiaries,
(c) the execution, delivery, and performance of the
Agreements ; and
(d) the performance by the Vendor and Scotts and their
respective subsidiaries of their respective covenants
and obligations under the Agreements.
1.9 "FIELD" has the meaning set forth in SCHEDULE 11.1.
1.10 "FIXED ASSETS" means tangible and intangible assets as reported in
the Closing Accounts of RPJ, C HG and C GmbH and in the financial
statements of the Belgian assets at Closing Date.
1.11 "GLOBAL PROVISIONAL PRICE" shall have the meaning set forth in
Clause 5.
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1.12 "INTELLECTUAL PROPERTY RIGHTS" means letters patent, trademarks,
registered designs, utility models, home and garden product
registrations, applications for any for the foregoing, copyrights,
inventions, know-how and business trade and brand names.
1.13 "SELL" means to sell, assign, transfer and convey, and/or to
procure the sale, assignment, transfer or conveyance.
1.14 "TERRITORY" means countries set forth in SCHEDULE 11.1.
1.15 "WARRANTIES" or "WARRANTIES" means each of the warranties referred
to in Clause 8.
1.16 "WORKING CAPITAL" means the difference between (i) the sum of (a)
inventory and (b) accounts receivable and (ii) the sum of accounts
payable of each Company plus (i) the sum of (a) inventory and (b)
accounts receivable of the Belgian Business.
1.17 "WORKING CAPITAL IN THE CLOSING ACCOUNTS" means Working Capital on
the Closing Accounts Date.
CLAUSE 2. SALE OF SHARES AND SALE OF BELGIAN BUSINESS
2.1 Subject to the fulfillment of the conditions precedent set out at
Clause 6 hereof, the Vendor and Scotts undertake as follows:
(a) The Vendor undertakes to sell to Scotts France SARL and
Scotts France Holdings SARL, and Scotts agrees and
undertakes that its subsidiaries, Scotts France SARL
and Scotts France Holdings SARL purchase, 360.000
shares of RPJ, comprising the entire share capital of
RPJ.
(b) RPAEG undertakes to sell the C HG Share to Scotts GmbH
and Scotts GmbH agrees and undertakes to purchase one
share of C HG from RPAEG, comprising the entire share
capital of C HG.
(c) RPAEG undertakes to sell the C GmbH Share to Scotts KG
and Scotts KG agrees and undertakes to purchase from
RPAEG one share of C GmbH, comprising the entire share
capital of C GmbH.
(d) The Vendor undertakes to procure the sale of the
Belgian Business by Rhone-Poulenc Agro SA. to Scotts
Belgium 2 and Scotts agrees and undertakes that Scotts
Belgium 2 purchases the Belgian Business.
2.2 At the Closing, the Purchasing Subsidiaries shall take the Shares
with good title free of all encumbrances, liens, charges, purchase
agreements, pre-emption rights or any other
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restriction of whatsoever nature, and such Shares shall be freely
transferable and shall not be the subject of any litigation or
claim which may in any way prevent or hinder the unencumbered
transfer to the Purchasing Subsidiaries of good title to the
Shares.
2.3 The Purchasing Subsidiaries shall benefit from any subscription
rights and participation rights attaching to the Shares
transferred to them under this Agreement, as from 1st October,
1998.
2.4 The Purchasing Subsidiaries, as from October 1, 1998, shall be
subrogated to all rights and liabilities attaching to the Shares
transferred to them under this Agreement.
CLAUSE 3. TRANSFER OF SHARES AND TRANSFER OF THE BELGIAN BUSINESS
3.1 At the Closing, the Shares shall be transferred with full title,
at the same time to each of the Purchasing Subsidiaries and the
Belgian Business shall be transferred to Scotts Belgium 2.
It is an essential condition of this Agreement that all the Shares
and the Belgian Business are transferred at the Closing.
3.2 The transfers of the C HG Share and the C GmbH Share are, in
addition, subject to the provisions of the two additional
contracts included in Schedule 3.2 (hereinafter collectively the
"ADDITIONAL CONTRACTS") in order to fulfill the particular
requirements of Austrian law and German law.
3.3 The transfer of the Belgian Business is, in addition, subject to
the provisions of a specific contract (hereinafter the "PURCHASE
AGREEMENT") in order to fulfill the particular requirements of
Belgian law and to provide for the transfer of the Belgian
Business.
3.4 The Parties hereto expressly agree that the transfers of ownership
of the Shares and of the Belgian Business shall only result from
the carrying out of the procedures set out in Clause 4 hereafter.
CLAUSE 4. CLOSING
4.1 CLOSING. The Closing shall take place at a date and time mutually
agreed upon, but in no event later than 7 October 1998.
4.2 The fulfillment of the last of the conditions precedent shall be
notified by each of the Parties to the other(s) on the date of
such fulfillment by registered letter with acknowledgment of
receipt (or such other method of communication expressly agreed in
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writing between the Parties such as facsimile).
4.3 As fundamental conditions in the absence of which the Parties
would not have entered into this Agreement, as at the Closing, the
following shall take place:
4.3.1 Delivery by the Vendor:
(a) The Vendor shall deliver to Scotts:
(i) share transfer forms or notarised deeds
relating to the Shares, duly signed by
Rhone-Poulenc Agro and Rhone-Poulenc Agro
Europe GmbH;
(ii) any existing share accounts, share transfer
books, in respect to the Companies;
(iii) satisfactory evidence to Scotts that all the
records of the Companies, including among
others all tax records such as detail
schedules of tax depreciation of assets, all
open years tax returns, all files and
workpapers supporting tax returns, and a
listing of dates and amounts of advance tax
payments are in the premises of the Companies
or an undertaking from the Vendor that they
shall be transferred to the premises within 3
weeks of the Closing;
(iv) resignation letters in the form set out in
SCHEDULE 4.3.1 (a) (iv) hereto signed by the
following members of the board of directors
of each of the Companies taking effect as at
the Closing: for Rhone-Poulenc Jardin, Alain
GODARD, Dominique TAKIZAWA, Thierry
BOURGERON, Pascal HOUSSET, Societe de
Developpement Chimique (represented by
Martine FOLLIOT), Societe QUISA (represented
by Arnaud de JAUREGUIBERRY).
(v) resignation letter of the statutory auditors
of each of the Companies (except if the
statutory auditor is C&L or Deloitte &
Touche);
(vi) a certified copy of the resolutions of the
board of directors of each of the Companies
accepting respectively the Purchasing
Subsidiaries as the new shareholders;
(vii) certified copy of the convocation by the
board of directors of the Companies of the
Ordinary General Meetings of the Companies in
order to name the new directors appointed by
the Purchasing Subsidiaries;
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(viii) a certified copy of the Articles of
association of the Companies and all
amendments thereto as of the Closing;
(ix) an "ETAT DES PRIVILEGES ET NANTISSEMENTS" and
any German and Austrian equivalent documents
dated after 24 July, 1998, evidencing that
there are no liens or encumbrances on the
Shares;
(x) a certificate from the "CONSERVATION DES
HYPOTHEQUES" in each "DEPARTEMENT" where
Rhone-Poulenc Jardin owns real property
assets, dated after 31 July, 1998 and any
German or Austrian equivalent, confirming
that there are no mortgages, charges or liens
over any of these real property assets;
(xi) any credit cards or telephone cards held by
the outgoing members of the boards of the
Companies;
(xii) a list of all authorised signatories to the
Companies' bank accounts as well as new
instructions signed by the previous
authorised signatories naming the persons
whose name will be provided by Scotts and the
Vendor as new signatories to these accounts;
and
(xiii) satisfactory evidence to Scotts that
originals of all commercial contracts
concluded by the Companies which have a
minimum duration of one year and/or which are
necessary for the course of business, are
physically in safekeeping on the premises of
the Companies or in the legal department of
RPA; in this last case they shall be
transferred to the Companies at the end of
the Transitional Service Agreement set out in
Clause 18;
(xiv) all documents, correspondence and supporting
details relating to all tax examinations
relating to the Companies (physically located
on the premises of the Companies);
(xv) the original of the Ancillary Agreements set
out in Clause 18 duly signed; and
(xvi) the documents relating to the transfer of the
Belgian Business as listed in the Purchase
Agreement included in SCHEDULE 4.3.1(a)
(xvi).
(b) In the event that one or any of these documents shall
not be produced at the Closing by the Vendor, Scotts
reserves the right:
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(i) After having first called upon the Vendor to
remedy such non-performance, to give notice
to the Vendor by registered letter with
acknowledgment of receipt, of the termination
of this Agreement, if such request has
received no response for a period of 3 months
from the date of its receipt by the Vendor.
(ii) to reschedule the Closing to another date at
its sole discretion and to sue for specific
performance of the contract; or
(iii) to accept the non-delivery of one or more of
the documents as set out in Clause 4.3.1.
(a).
(c) It is hereby agreed between the Parties that Scotts
shall be entitled to exercise one or all of the rights
conferred upon Scotts by the provisions by Clause 4.3.1
(b) hereto without prejudice to any right it may have
to institute proceedings for damages.
4.3.2 Delivery by Scotts:
(a) Scotts shall procure the payment of the first
installment of the Global Provisional Price as set
forth in Clause 5.2 by way of transfer of immediately
available funds to the bank account to be specified by
the Vendor. Scotts shall further deliver :
(i) evidence satisfactory to the Vendor that
payment of the first installment of the
Global Provisional Price of fifty-five
million French Francs (55,000,000 FF) as set
forth in Clause 5.2.1. has been made;
(ii) evidence satisfactory to the Vendor that an
irrevocable letter of credit for an amount of
eight hundred and eighty million French
Francs (880,000,000 FF), has been issued in
favor of the Vendor, as set forth in Clause
5.2.1. and SCHEDULE 4.3.2.(ii);
(iii) a certified copy of the resolutions of the
boards of directors of each of the Purchasing
Subsidiaries authorising the purchase of the
Companies and the Belgian Business.
(b) In the event that one or any of these documents shall
not be produced at the Closing by Scotts, the Vendor
reserves the right:
(i) After having first called upon Scotts to
remedy such non-performance, to give notice
to Scotts by registered letter with
acknowledgment of receipt, of the termination
of this Agreement, if such request has
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received no response for a period of 3 months
from the date of its receipt by Scotts.
(ii) to reschedule the Closing to another date at
its sole discretion and to sue for specific
performance of the contract; or
(iii) to accept the non-delivery of one or more of
the documents as set out in Clause 4.3.2 (a).
(c) It is hereby agreed between the Parties that the Vendor
shall be entitled to exercise one or all of the rights
conferred upon the Vendor by the provisions by Clause
4.3.2 (b) above without prejudice to any right it may
have to institute proceedings for damages.
CLAUSE 5. PRICE
5.1 The Global Provisional Price for the Shares and the Belgian
Business, in consideration of the Fixed Assets, tangible and
intangible, and the Working Capital of the Companies is one
billion twenty-four million eight hundred fifty-six thousand,
eight hundred French Francs (1,024,856,800 FF) with Working
Capital estimated at three hundred and sixteen million French
Francs (316,000,000 FF) , this value of Working Capital being
determined in the historical statement of the Companies and
Rhone-Poulenc Agro Belgium for the period 1st October 1997 - 30
September 1998.
5.2 The Global Provisional Price shall be payable as follows:
5.2.1 At Closing (i) a payment of fifty-five million French Francs
(55,000,000 FF) shall be made by Scotts France Holdings SARL, in
consideration of the transfer of RPJ shares, and (ii) an
irrevocable letter of credit issued by The Chase Manhattan Bank in
conformity with the model presented in Schedule 5.2.1. shall be
delivered to the Vendor for an amount of eight hundred and eighty
million French Francs (880,000,000 FF) by Scotts. This irrevocable
letter of credit will be called upon by the Vendor in case the
Purchasing Subsidiaries do not fulfill their obligations of
payment of Clause 5.2.2. below on or before 31 December, 1998; the
irrevocable letter of credit will cease to have effect upon
payment by the Purchasing Subsidiaries of the sum due. No interest
shall be due on the amount of the irrevocable letter of credit
until 15 December, 1998. Interest after such date shall be on the
basis of 5% per annum.
5.2.2 On or before December 15, 1998, or by mutual agreement at a date
not later than December 31, 1998, the Purchasing Subsidiaries will
pay to the Vendor the amount of eight hundred and eighty-five
million, eight hundred and fifty-six thousand and eight
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hundred French Francs (885,856,800 FF) excluding interest payments
resulting from the granting of a delay of payment beyond December
15, 1998, as follows:
(a) Four hundred and ninety-six million, eight hundred and
fifty-six thousand, eight hundred French Francs
(496,856,800 FF) shall be paid by Scotts France
Holdings SARL and Scotts France SARL to the Vendor, in
consideration of the transfer of RPJ Shares;
(b) Thirty-six million French Francs (36,000,000 FF) shall
be paid by Scotts GmbH to RPAEG , in consideration of
the transfer of C HG Shares;
(c) Three hundred and thirty-seven million French Francs
(337,000,000 FF) shall be paid by SCOTTS KG to RPAEG,
in consideration of the transfer of C GmbH Shares;
(d) Sixteen million French Francs (16,000,000 FF) shall be
paid by Scotts Belgium 2 to the Vendor, in
consideration of the purchase of the Belgian Business.
5.2.3 A payment of eighty-four million French Francs (84,000,000 FF)
shall be made in four installments which will take place as
follows:
Four installment payments of twenty one million French Francs
(21,000,000 FF) each shall be made by Scotts KG to RPAEG , on 1st
October 1999, 1st October 2000, 1st October 2001 and 1st October
2002, in consideration of the transfer of C GmbH Shares.
5.3 The Global Provisional Price as defined in Clause 5.1 will be
reduced by the amount of liabilities transferred at the Closing
other than accounts payable already included in the Working
Capital as set forth in Clause 5.1 and increased by the amount of
cash and short term assets, other than inventories and
receivables. It is stated that all provisions for retirement as
indicated in all the balance sheets of the Companies at the
Closing Accounts Date will be deducted from the Global Provisional
Price when the Change Amount will be calculated. If the Purchasing
Subsidiaries accept the provisions for retirement as indicated in
the Closing Accounts, the Purchasing Subsidiaries shall not
thereafter seek to modify such provisions.
The Companies and the Vendor shall also settle all outstanding
short-term financing arrangements at the time the payment due
under CLAUSE 5.2.1.(ii) IS MADE.
5.4 The Global Provisional Price as set out in Clauses 5.1 and 5.3
hereof, is also subject to adjustment as set out in Clause 5.5.
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5.5 The difference between (i) the Working Capital in the Closing
Accounts (hereinafter "A") and (ii) the Working capital as set
forth in Clause 5.1 (hereinafter "B"), shall be determined by the
Companies on the basis of the US GAAP applied in the Rhone Poulenc
group and audited according to the procedure set forth below and
in Clauses 5.5.1 through 5.5.8.
If A is higher than B, the difference (A - B) will be paid by
Scotts or the Purchasing Subsidiaries to the Vendor or its
nominee(s) within five business days after the end of the
procedure set out in Clauses 5.5.1 through 5.5.8.
If A is lower than B, the difference (B - A) will be paid by
Vendor or its nominee(s) to Scotts or the Purchasing Subsidiaries
within five business days after the end of the procedure set out
in Clauses 5.5.1 through 5.5.8.
Such difference will be referred to as "Change Amount".
The Change Amount shall bear interest on a rate of 5% per annum,
from the Closing Accounts Date until the effective payment.
In the event that the introduction of the Euro currency would
affect the economic balance of this Agreement negatively, or
render the above-referenced rates and indexes obsolete, the
Parties agree to meet in order to decide, within the framework of
existing laws and regulations, upon a different currency for
payment or upon different rates and indexes that will achieve the
same purpose.
The Global Provisional Price adjusted by the Change Amount shall
be the Price of the Shares and the Belgian Business.
5.5.1 In order to calculate the Change Amount, the Vendor shall procure
that within fifty (50) days after the Closing a balance sheet as
at Closing for each Company and a balance sheet as at Closing in
respect of the Belgian Business ("THE CLOSING ACCOUNTS"), shall be
prepared in co-ordination respectively with the Companies and
Rhone-Poulenc Belgium and audited by C & L on behalf of the
Vendor.
5.5.2 Within thirty (30) days of receipt by Scotts of the Closing
Accounts, including the Change Amount as calculated by the Vendor
and audited by C&L, Scotts will inform the Vendor in writing
whether or not it accepts the Closing Accounts and the Change
Amount, and if not, shall set out its objections in writing to the
Vendor setting out in reasonable detail the amount and nature of
any item or items which it does not accept. During this period of
thirty (30) days, Scotts shall be permitted to inspect C&L's audit
papers and present questions to the auditors in charge of the
audit and the Vendor and Scotts must bear the costs of their
respective advisers. If Scotts confirms in writing that it accepts
the Closing Accounts and the Change Amount, or if it fails to
inform the Vendor within thirty (30)
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days of receipt whether or not it accepts them, the Closing
Accounts and the Change Amount shall be final and binding on the
Parties. Any payment due by the Purchasing Subsidiaries or Vendor,
as the case may be, in respect of the Change Amount shall be made
within five (5) business days of the Change Amount becoming final.
5.5.3 If Scotts informs the Vendor in writing, in accordance with the
previous clause, that it does not accept the Closing Accounts and
the Change Amount, Scotts and the Vendor will hold discussions in
good faith with a view to agreeing on the Closing Accounts. If
such agreement is reached, and is confirmed in writing by the
Vendor and Scotts, it shall be final and binding on the Parties.
The Parties shall endeavor to settle amounts due under the Change
Amount on 15 December, 1998. Any portion of the Change Amount that
is undisputed shall be paid at such date.
5.5.4 Any dispute about the Closing Accounts which remains unresolved
thirty (30) days after receipt thereof by the Vendor shall, at the
request of the Parties be referred for final settlement to the
"Paris" office of KPMG located at 3, Cours Valmy, 92923 Courbevoie
Paris, La Defense Cedex (the "ACCOUNTING FIRM") within thirty (30)
days of its appointment. Upon application by the most diligent
party, the President of the Commercial Court of Paris will appoint
a third party expert (the "EXPERT").
5.5.5 The terms of reference of the Accounting Firm or of the Expert,
acting as a third party expert in the meaning of Article 1592 of
the French Civil Code, will be to determine, within sixty (60)
days of its appointment, and after hearing each Party and/or its
advisors, the final Closing Accounts and the level of the Change
Amount, taking into account all the conditions which reflect the
intention of the Parties as set out in this Agreement.
5.5.6 The decision of the Accounting Firm or the Expert will be binding
on the Parties without any right of appeal, which is irrevocably
and expressly agreed by the Parties. However, it is here stated
that, notwithstanding the designation of the Accounting Firm or
the Expert, the Parties will be entitled to continue to negotiate
between themselves in order to reach an agreement with regard to
the Closing Accounts and the Change Amount, and they may continue
to do so until the date on which the Accounting Firm or the Expert
renders its decision, in which case the Parties will inform the
Accounting Firm or the Expert of the termination of its
assignment.
5.5.7 The fees and charges of the Accounting Firm and/or the Expert will
be borne equally by the Vendor on the one hand, and the Purchasing
Subsidiaries on the other hand. However, for the period during
which the Closing Accounts and the Change Amount are in the
dispute resolution process provided hereunder, starting from the
date of written notification by Vendor under Clause 5.5.3 hereof,
interest due on the Change Amount shall be equal to an interest
rate of 5% per annum until the date of effective payment.
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5.5.8 Scotts and the Vendor will co-operate fully with each other and,
if applicable, with the Accounting Firm and/or the Expert to whom
any dispute is referred (including giving all reasonable access to
records, information and to personnel of the Companies) with a
view to enabling the Closing Accounts and the Change Amount to be
agreed between Scotts and the Vendor, and in particular Scotts
shall make sure that the Companies shall permit the Vendor and
their advisers (and, if applicable, the Accounting Firm and/or the
Expert) to have access to, and to take copies of any books,
records or information of, relating to or belonging to the
Companies.
5.6 In addition to the Global Provisional Price and as part of the
transaction encompassed by this Agreement, the Parties have agreed
on the purchase by the Purchasing Subsidiaries from Vendor of
access rights for specific research and development services, for
a total amount of one hundred and fifty six million French Francs
(FF156,000,000) payable over four years as provided for in the
Research and Development Services Agreement in Clause 18.
CLAUSE 6. CONDITIONS PRECEDENT
6.1 The effectiveness of this Agreement is conditional upon the
realisation of the following conditions precedent:
(a) Transformation of RPJ from a societe anonyme into a
"societe par actions simplifiee";
(b) Notification by Scotts of the transaction to the German
Federal Cartel Office.
(c) Agreement of the Parties on the conclusions of the
Environmental Audit conducted by an external firm
(Woodward & Clyde), appointed by the Parties during
August-September 1998, such conclusions must be
communicated to the Parties before the Closing. The
commitment of the Vendor to remedy shall not in any
case exceed the cost of remediation estimated in the
Environmental Audit. The Vendor shall complete the
remedial action before June 30, 1999. If such remedial
action is not completed before June 30, 1999, Scotts
will have the remedial action completed and the cost
will be borne by the Vendor within the limited amount
stated in the Environmental Audit. It is expressly
agreed that the cost of remediation shall be borne
fully by the Vendor and therefore the thresholds set
out in Clauses 9.2.1 and 9.2.2 shall not apply.
6.2 Both Scotts and the Vendor shall do their best efforts to obtain
the realisation of the conditions precedent set out in Clause 6.1
in the most expeditious and efficient manner.
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CLAUSE 7. CONDITIONS OF CLOSING
The obligation of the Purchasing Subsidiaries to purchase the
Shares and the Belgian Business shall be subject to the
fulfillment or written waiver of each of the following conditions:
7.1 All the pre-emption rights set out in any shareholders agreement
shall have been waived to the reasonable satisfaction of Scotts.
7.2 The Companies shall not have filed a petition for bankruptcy or
for "REDRESSEMENT JUDICIAIRE" and such petitions for bankruptcy or
"REDRESSEMENT JUDICIAIRE" have never been filed by a third party
against them.
7.3 No judgment, order, rule, injunction, decree, law or regulation
shall exist that restrains or prohibits the consummation of any
other transactions contemplated therein.
7.4 The absence throughout the period between the signature of the
present Agreement and the Closing, of any event specifically
concerning the Companies of a nature to directly, adversely and
significantly affect the financial situation, the functioning and
the future profitability of the Companies.
CLAUSE 8. REPRESENTATIONS AND WARRANTIES OF THE VENDOR
The Vendor hereby represents and warrants to Scotts and to the
Purchasing Subsidiaries, and save as disclosed in any of the
Schedules hereto or expressly provided for hereunder and subject
to any matter or thing hereafter done or omitted to be done at the
request or with the approval of Scotts, that each of the
warranties set forth below is true and accurate at the Closing.
It is expressly agreed between the Parties that when a French law
or regulation is referred to in the following declarations and
warranties, the equivalent German and Austrian law or regulations
shall be deemed to be referred to as regards, respectively, C HG
and C GmbH. By "equivalent German law or regulations" the Parties
understand any provision of German or Austrian law being as close
in substance as possible to the French law or regulation referred
to in the representations and warranties, but not necessarily
identical to such provisions of French law.
The warranties applying to the purchase of the Belgian Business
will be expressly stated in the Purchase Agreement.
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8.1 Representations
8.1.1 Authority of the Vendor
The Vendor has full authority to enter into this Agreement and to
perform the obligations or obtain the rights provided for
hereunder. No consent, permission or court decision is required in
this respect. This Agreement constitutes a valid obligation of the
Vendor which is enforceable, in accordance with its terms.
8.1.2 Title to shares
The Vendor warrants that it has good, free and marketable title to
the RPJ Shares, clear of any liens and encumbrances. There are no
restrictions on dividend payments or capital restrictions other
than those imposed by law.
RPAEG warrants that it has good, free and marketable title to the
C HG Share and the C GmbH Share, clear of any liens and
encumbrances. There are no restrictions on dividend payments or
capital restrictions other than those imposed by law.
8.1.3 Shareholdings
The Companies have no subsidiary or any shareholding in any
company, association, commercial organisation or any other entity
of whatsoever nature and have never held any shareholding in any
entity in respect of which the retiring shareholder remains liable
vis-a-vis third parties for the whole of the debts in such entity
prior to its departure. As at the Closing, the Companies will not
hold any shares except short term investment of funds in
securities made in the context of normal day-to-day management.
8.1.4 Incorporation and Authorisations to do Business
(a) SCHEDULE 8.1.4.(a) hereto sets out with respects to the
Companies (i) their company name (ii) their business
name (iii) details of their incorporation and
registration (iv) their share capital (v) the members
of their board of directors or manager (vi) their
statutory auditors and (vii) their financial year.
(b) The Companies are duly incorporated and operate in
accordance with law and their Articles of Association,
an up to date certified copy of which has been
delivered by the Vendor to Scotts.
(c) The Companies hold all authorisations, certificates,
licences, permits or titles necessary for the business
as currently conducted, a list of which is as per
SCHEDULE 8.1.4 (c) (hereinafter the "Permits"). The
transfer of the Shares to the Purchasing Subsidiaries
shall not affect the Permits.
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(d) The minute books of meetings of the board of directors
and of the shareholders general meetings of the
Companies, together with the registers of attendance of
the board of directors and the attendance sheets of the
general meetings of the Companies comply with material
regulations currently in force and all the signatures
and initials relating to the board of directors and the
general meetings and, more generally, to all decisions
of the business taken to date have been affixed
thereto.
(e) All necessary publicity formalities following
resolutions passed at meetings of the Companies have
been carried out both by way of appearing in legal
gazettes and at the Commercial and Companies
Registries, in accordance with regulations in force.
(f) The originals of all the official documents of the
Companies are held at the respective registered offices
of the Companies or in the Legal Department of Vendor.
(g) More generally, all material legal, statutory and other
legal requirements currently in force have been
complied with particularly in respect to the
incorporation of the Companies, decisions taken in
meetings thereof and all business activities carried
out by the Companies.
8.1.5 Share capital - Shares issued by the Companies
(a) The share accounts, the share transfer register and the
share transfer forms of the Companies are and will be
as at the Closing in compliance with material
regulations currently in force and will be up to date.
The transfers of the Shares have been carried out in
accordance with material regulations currently in
force. The Shares of the Companies are not quoted on
the official list of a Stock Exchange or on a Unlisted
Securities Market and have not appeared within the last
five years on the daily listing of securities or on the
"HORS COTE" market.
(b) The Shares are nominative, fully paid up, and are not
encumbered by any mortgage or charge of any kind
whatsoever, are freely negotiable and transferable and
are not subject to any breakdown in ownership (i.e.
"USUFRUIT" and "NUE-PROPRIETE"), option, pre-emption
right, preference right or any right of any nature
whatsoever.
(c) Except for the three stock option plans currently in
force and disclosed in SCHEDULE 8.1.5 (c), no option,
priority right, preference or pre-emption arrangement
exists over the Shares.
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(d) The Companies have never issued any preference
shares, non-voting preference shares, any
convertible debentures into shares, exchangeable
against shares or with a right to subscribe for
shares, any industrial shares ("PARTS D'INDUSTRIE")
and, more generally, the Companies have never issued
any securities giving rise to the right, either by
way of conversion, exchange, reimbursement,
presentation of warrants or in any other way to the
allocation at any time on a fixed date of securities
which, to this effect, are or would be issued and
would represent a proportion of the share capital in
the Companies.
No shares exist in the Companies with a double voting
right and no limitation has been imposed upon the right
to vote pursuant to Article 177 of the law dated 24
July 1966.
(e) No issue of debentures is currently in progress.
No subscription for such loan notes is currently in
progress.
8.1.6 Sureties, guarantees, "AVALS", undertakings and letters of comfort
granted by the Companies or the Vendor
The Companies have not granted any sureties, guarantees, "AVALS"
undertakings or letters of comfort for the performance of
obligations entered into either by third parties, or by any of the
Companies, and the Vendor has not granted any sureties,
guarantees, "AVALS", undertakings or letters of comfort for the
performance of obligations entered into by the Companies other
than those sureties, guarantees, "AVALS", undertakings or letters
of comfort appearing at SCHEDULE 8.1.6. More generally, no
off-balance sheets commitments exist other than those set out in
SCHEDULE 8.1.6.
8.1.7 Balance Sheets and Annual Accounts
The combined balance sheets as well as the profit and loss
accounts and schedules to the annual accounts of the Companies
respectively as at 31st December 1997, audited by C&L (hereinafter
referred to as the "ANNUAL ACCOUNTS") as appearing at Schedule
8.1.7 (a) and the situation appearing in the 30 June 1998 Balance
Sheet, have been prepared in conformity with US GAAP ,
consistently applied by Rhone-Poulenc and in accordance with
applicable laws and regulations. They fairly represent in all
material respects the financial and patrimonial situation of the
Companies for the period to which they relate.
(a) In the Closing Accounts, the 30 June 1998 Balance Sheet
and the Annual Accounts, all outstanding payments
including all holiday payments, profit sharing and
other personnel expenses, even which are non tax
deductible, and, more generally, all payments relating
to the business activities of the Companies and to the
trading activities carried out by the Companies have
been taken into
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account.
(b) The approval of the accounts relating to the financial
year ending 30 September 1998 by the Purchasing
Companies in ordinary general meetings of the Companies
shall not result in any derogation from the terms
hereof nor any discharge from the liabilities
undertaken by the Vendor.
(c) The Companies benefit from losses and depreciation
deemed to be carried forward and appearing in the
Annual Accounts.
(d) More generally, except as disclosed to Scotts, none of
the Companies has any liabilities not appearing in
their accounts.
8.1.8 Employees of the Companies - Employment regulations
(a) The individuals employed by the Companies are indicated
in the list attached at SCHEDULE 8.1.8 (a). The
originals of all the contracts of employment, as well
as details of the stock option plans, retirement and
pensions scheme and other employment benefit schemes
relating to the Companies, the employee profit sharing
schemes, and employee participation agreements relating
to the Companies are held at the respective registered
offices of the Companies.
A note on the loans granted to executives, employees
and workers of the Companies and to the organisations
which collect compulsory investment subsidies in the
construction field and guarantees granted by the
Companies for such loans is set forth in SCHEDULE 8.1.8
(a).
(b) Scotts has received a copy of the Collective Bargaining
Agreement relating to each of the Companies, that is to
say : CONVENTION COLLECTIVE DE LA CHIMIE, together with
the Internal Rules of each of the Companies.
(c) No employment contract, service contract or particular
benefits given by any of the Companies to any of their
Directors or Chairman, excepting those accorded to the
Managing Director as is set forth in SCHEDULE 8.1.8
(c), will be in force as at the Closing.
(d) None of the Companies has granted any employment
advantage, subsidy or bonus and has not entered into
any pay agreement outside its usual field of business
activity, and no employee of any of the Companies
benefits from any particular advantage differing from
the general provisions of the relevant contracts or
from any clauses more favourable than those provided
for by the law or within the context of the relevant
Collective Bargaining Agreement.
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(e) The Companies are not in breach of any clause of such
contracts. All salaries, commissions, other payments
and repayments and payment of expenses due to the
beneficiaries of the said contracts and undertakings
and, more generally, to all of the employees as at the
Closing, have been duly and fully paid in respect of
which a provision has been duly made.
(f) The Companies have at all times, up to the date hereof
or shall have at the Closing, complied with all social
security regulations. The Companies are up to date in
the payment of their contributions relating to Social
Security, family allowances and the various
organisations dealing with retirement and unemployment
and, more generally, with all other contributions or
payments connected with social welfare. No claim,
investigation or dispute exists in connection with the
social welfare organisations as at the date hereof.
(g) To the best of Vendor's knowledge, no employment unrest
or threat of strike within the Companies exists as at
the date hereof.
(h) C GmbH will not have to pay any amount or indemnity
whatsoever pursuant to a restriction of the scope of
the AUH - UNTERSTUTZUNGSKASSE.and it has fulfilled all
its obligations under section 16 of the mandatory
German Act for the Improvement of Company Pensions
(GESETZ ZUR VERBESSERUNG DER BETRIEBLICHEN
ALTERSVERSORGUNG - <>).
(i) C HG will not have to pay any amount or indemnity
whatsoever pursuant to any invalid provisions of its
pensions schemes.
8.1.9 Real Property (land and buildings)
(a) SCHEDULE 8.1.9 (a) lists for each of the Companies all
the buildings and other real property including land
("PROPERTY"):
(i) fully owned and indicating any securities
granted and any easements in respect
thereof,
(ii) occupied pursuant to any lease or option
arrangements,
(iii) occupied pursuant to a commercial lease,
(iv) occupied without security of tenure
("convention d'occupation"), together with a
brief description of the Property.
(b) The Companies have full title to the Property of which
they are owners free of all liens, mortgages, other
security or any other encumbrance of whatsoever
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nature, other than those set out in SCHEDULE 8.1.9
(b) and the Companies have the right freely to use or
dispose thereof. The Companies have not entered into
any agreement for the transfer of all or any part of
the Property either by way of gift for valuable
consideration or otherwise, to encumber the whole or
any part of the Property with any right whatsoever in
favour of third parties.
(c) The Companies enjoy the possession of the Property
they own without any restriction.
(d) The Companies have no right or obligation to purchase
any other property, land or premises whatsoever.
(e) The Companies are lessees of the premises and/or
Property in which they carry on their business
activities, as such leases are set out in SCHEDULE
8.1.9(a), it being understood that such Property and/or
premises may be used for the purposes of which they are
intended and conform with all relevant legislation and
regulations. The Companies enjoy commercial ownership
("propriete commerciale") with regard to all the
premises which the Companies occupy except as set forth
in Schedule 8.1.9 (a).
(f) The Companies are not the beneficiaries of any other
lease, any sale and lease back agreement or any other
rights to occupy relating to any property which does
not appear in any of the Schedules listed above.
(g) The Companies are not in material default under
regulations relating to the construction, occupation
and use of the Property and, in particular, with all
orders, local housing regulations, specifications,
rules of co-ownership and internal regulations. To the
best of Vendor's knowledge, there are no town planning
provisions or other regulations which restrict the use
or reduce the value of the Property.
(h) No easement exists over the Property other than those
resulting from the natural location of the Property and
the town planning rules applying thereto and those
indicated in the title deeds of the Companies. Each
Property and the use thereof respects such easements.
(i) The Property is free of all actions for revocation,
cancellation or rescission, and is not subject to any
proceedings for expropriation, requisition or any steps
leading to such proceedings.
(j) The Property is not subject to any right of pre-emption
or preference.
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(k) All demolition permits, building permits and all other
necessary declarations or authorisations and approvals
(the "Authorisations") have been properly applied for,
obtained and published as far as the construction of
each Property is concerned and all works relating
thereto, including maximum load factors for the
occupation of each floor and the legal density limit
(COS and PLD). To the best of Vendor's knowledge, the
Authorisations are not subject to any objection by
third parties or withdrawal during the legal time
limits which have yet to expire. The corresponding
certificates of conformity have been obtained.
(l) The Property is in a normal state of repair,
maintenance and functioning, free of all major defects
and subject to appropriate security measures. All
reserves made at the time of the delivery of the
Property have been released. The Property meets
material regulations currently in force (in particular
with regard to security, hygiene and work conditions)
relating to the different business activities carried
out therein and all necessary opening authorisations
("autorisations d'ouverture") have been duly obtained.
All the observations made by the security commission
during its inspections of the Property or otherwise
have been duly taken into account.
(m) Each Property is covered by the insurance policies
referred to in SCHEDULE 8.1.9 (m). These policies are
still in force and all premiums have been duly paid up
to the Closing.
(n) None of the Parties to any contracts relating to the
Property is in default. In particular, all rents,
charges, property taxes, rental payments and other
costs which may be due or will become due by the
Companies have been paid or an appropriate provision
has been made in respect thereof.
(o) The Companies shall validly be able to exercise, as
from the proper date, the options that they hold under
the terms of the sale and lease back agreements or
contract providing for a purchase option. The
Companies have not entered into any purchase deed
relating to any parcel of land which has entailed the
giving up on an undertaking to build.
(p) The Companies have not granted any lease or sub-lease,
all the Property being used for their own needs and
business activities and they do not include any
private accommodation including employees
accommodation ("logement de fonction").
(q) The Property is included in the accounts for each of
the Companies as fixed assets.
8.1.10 Fixtures, plant and machinery
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(a) Each of the Companies have full ownership, as at the
date hereof, of the fixtures, fittings, plant,
installations and equipment and other elements of the
assets set out in the Annual Accounts, free of any
claim, restriction or any encumbrance whatsoever with
the exception of any equipment rented under
hire-purchase and leasing contracts as set out in
SCHEDULE 8.1.10 (a).
(b) All these fixtures, fittings, plant, machinery and
equipment appearing as assets in the Annual Accounts
are not, as at the date hereof, subject to any pledge
or other lien save for the pledges and liens set out
in SCHEDULE 8.1.10 (b).
(c) The Companies may validly exercise on the due date the
options held under the terms of the sale and lease
back agreements and the Companies have satisfied all
terms and conditions to which they are bound pursuant
to such sale and lease back agreements.
(d) All the fixtures, installations, plant, equipment and
fittings are in good working order and may be used for
the purposes for which they are intended and conform
to all applicable legislation and regulations. All
these assets are globally sufficient for the Companies
to carry out their activity as such activity is
currently carried out.
8.1.11 Contracts in force
(a) SCHEDULE 8.1.11.(a) (i) comprises a list of all
contracts in force except for employment contracts,
commercial leases, purchase agreements, contracts for
an amount inferior to FF. 500,000 or having a duration
inferior to twelve (12) months and other contracts
specifically mentioned or set out elsewhere in this
Agreement or in its schedules, entered into by the
Companies. Scotts has also been given by the Vendor a
list and a summary of all contracts in force (other
than those set out above in SCHEDULE 8.1.11.(a) (i))
for an amount of at least FF. 500,000 or having a
duration of at least 1 year which are set out in
SCHEDULE 8.1.11.(a) (ii). Since Scotts has not had the
opportunity to review these contracts, it is expressly
agreed that it will have a period of 30 days from
Closing to examine these and if, in the opinion of
Scotts, they impact in a material adverse manner the
value of the Companies to Scotts, as at 30 September
1998 and as previously conducted by Vendor, the
Parties will discuss in good faith an adjustment to
the Global Provisional Price of the Shares or the
Price as the case may be. If no agreement can be
reached within a further period of 30 days, the
Parties expressly agree that they shall put in motion
the Settlement of Disputes procedure set out in Clause
23. It is further agreed that any reduction in the
Global Provisional Price or the Price as the case may
will be
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excluded from the thresholds set out in Clauses 9.2.1
and 9.2.2 and therefore, such reduction shall be due
in full.
(b) All the contracts entered into by the Companies are in
force and are not subject to any dispute or legal
action except those set out regarding litigation in
SCHEDULE 8.1.11.(b) and the Fisons contracts which are
under renegotiation as listed in SCHEDULE 8.1.11.(a).
To the Vendor's knowledge none of the parties to those
contracts intend to discontinue those or significantly
modify their terms. The contracts are valid and
enforceable according to their terms.
(c) The Companies are not bound within the sphere of their
trading activities with third parties by any
particular contract, particularly by way of
sub-contract which may contain clauses conferring upon
these third parties any rights other than those which
are usual and normal. There are no onerous or unusual
contracts binding upon the Companies. Third parties
and damage risks are fully covered in these contracts
with financially sound and reputable insurance
policies against all risks customarily insured. All
insurance policies are in full force.
(d) With the exception of those set out in SCHEDULE
8.1.11(d), no contract exists providing for early
termination, early payment or amendment to its
provisions in the event of a change of control in each
of the Companies, and the transfers of the Shares in
favour of the Purchasing Subsidiaries shall not cause
the early termination of any subsidies, any contract
such as leases, loan agreements, hire contracts,
leasing agreements, supply or distribution agreements
or any others and, more generally, supply or
distribution agreements or any others and, more
generally, the transfer of the Shares in favour of the
Purchasing Subsidiaries shall have no prejudicial
effect on the contractual obligations of the Companies
vis a vis all third parties.
8.1.12 Suppliers and customers
A list is attached in SCHEDULE 8.1.12 showing the top ten
customers and suppliers of the Companies by volume of sales in
French Francs and purchase respectively for each of the fiscal
years ended 31 December 1996 and 31 December 1997.
The Companies have not received any indication from any material
supplier to the effect that they have no reason to believe that
such suppliers will stop, or materially decrease the rate of, or
change the terms with respect to supplying materials, products or
services to the Companies.
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The Companies have not received any indication from any of their
customers to the effect and they have no reason to believe that
such customers will stop, or materially decrease the rate of
purchase of the products of the Companies.
8.1.13 Bank accounts
The Companies have opened the bank accounts or postal accounts and
possess those credit and charge cards appearing in SCHEDULE 8.1.13
together with the list of the authorised signatories to these
accounts.
8.1.14 Litigation
(a) The Companies are not involved, nor to their knowledge
are they threatened by, any proceedings, claim,
litigation, demand or administrative enquiry, or any
arbitration and no procedure, claim or arbitration of
any nature whatsoever is about to be issued by the
Companies or against any person whose acts are likely
to give rise to a liability on the part of the
Companies, with the exception of those proceedings
listed in SCHEDULE 8.1.11 (b) and provided for in the
Annual Accounts, and the 30 June 1998 Balance Sheet.
The Vendor certifies that the said provisions are
sufficient to cover the risks relating to such
disputes.
(b) The Companies are not at risk of any criminal
liability by virtue of an infringement of law or a
regulation in accordance with the provisions of
Article 121-2 of the New Penal Code, except as
disclosed in SCHEDULE 8.1.11 (b).
(c) None of the penalties provided for by Articles 131-37
to 131-49 of the New Penal Code has been imposed upon
the Companies. Likewise, no proceedings are in
progress against the Companies which might result in
the imposition of one of the penalties provided for in
the above mentioned Articles.
8.1.15 Conformity with various regulations
(a) The Companies have acted in accordance with the various
laws or other regulations applying to them and
conducted their businesses in accordance.
The companies hold all products registrations,
accreditation and other certifications relating to the
conduct of their businesses as currently conducted
except as is set forth in SCHEDULE 8.1.15(a).
(b) The services and procedures of the Companies have not
been the subject of any criticism on the part of any
consumer watchdog organisations or the press.
Furthermore, the Companies have maintained normal
commercial relations with their suppliers and their
clients and they have acted in accordance with French
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economic legislation, together with European Union
legislation, in particular with regard to price and
competition, and no claim or investigation for
infringement of the legislation relating to prices or
competition is in existence.
8.1.16 Stocks and Products
(a) The Companies' stocks are made up of goods of a
sufficient quantity and are of good and merchantable
quality, and may be used and sold in the normal course
of business. The goods which are no longer on the
market and those of inferior quality or slow-moving
have been depreciated in the accounting books of each
of the Companies to their effective resale value, or
corresponding provisions have been made in respect of
them.
(b) The value of the stocks as at 31 December 1997 and as
in the Closing Accounts has been established in
accordance with the usual rules of valuation that have
always been employed by each of the Companies, in
conformity with US GAAP, consistently applied within
the Rhone-Poulenc Group.
(c) There have not been any product recalls, withdrawals or
seizure with respect to any products manufactured,
sold, leased or delivered by the Companies or with
respect to any services rendered by the Companies
during the last year.
(d) The Companies do not have any liability arising out of
any injury to individuals or property as a result of
the ownership, possession or use of any products or
equipment manufactured, sold, leased, or delivered by
the Companies or with respect to any services rendered
by the Companies.
8.1.17 Accounts Receivable and Provisions
(a) The receivables of the Companies outstanding in the
Closing Accounts are certain and will be payable within
one year after Closing and provision has been made for
them in accordance with the accounting principles in
force. To the best of Vendor's knowledge, none are
subject to counter claim or compensation, nor are any
due and payable which remain unpaid as at the date
hereof, with the exception of those in respect of which
provision has been made in the Closing Accounts.
(b) The Companies have made all necessary provisions in
respect of refunds, rebates or any other benefits or
regular or annual undertakings given in favour of their
clients and, more generally, the necessary provisions
have been made in respect of all taxation, whether
direct of indirect, imposed or which may be imposed
upon the Companies.
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8.1.18 Intellectual property rights - Proprietary information
(a) The Companies have valid, full and unrestricted, title
to their company names, except for RPJ, and commercial
names and this right cannot be contested and does not
infringe the right of first use of any other entity nor
the rights of any other holder of any trademark or any
name.
(b) The Companies have valid, full and unrestricted title,
by reason of having registered, applied for
registration, or protected them, to the trademarks,
patents applications, designs and copyrighted works in
(countries) full list of which is set out in SCHEDULE
8.1.18 (b), in all countries in which such trademarks,
patent applications, designs and copyrighted works have
been registered. This Schedule also comprises a list of
trademarks, patents drawings, designs and copyrights
which the Companies are entitled to use under license.
Trade names held in reserve by the Companies for use in
their home and garden businesses in (countries) are
also listed in this Schedule.
(c) These rights have been properly protected and
registered and are enforceable in accordance with
legislations in force in (countries), without
restriction or dispute.
(d) Except as disclosed in SCHEDULE 8.1.18 (d), the
Companies are the only owner or holder of these rights,
free from any lien, pledge, licence or other contract
or restriction.
(e) The Companies have not received notice of any claim,
dispute or notification relating to these intellectual
property rights which furthermore are not the object of
any dispute or infringement.
(f) The Companies have carried out all necessary
formalities, have paid all amounts and taken all
necessary steps to maintain and protect these rights in
respect of any authorities and third parties.
(g) These rights are not subject to any other charge,
restriction tax, condition or payment obligation except
for those mentioned in the agreements listed in
Schedule 8.1.18(d).
(h) No action claim, suit, threat or similar risk (or
proceedings concerning any one of these risks) relating
to the infringement or breach of any patent, know-how,
trademark or business name, has been made against any
of the Companies and no fact or omission may serve as a
basis for any such claim. The business, operations and
activities of the Companies have not been and are not
subject to
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any claim for the infringement of any right belonging
to a third party relating to patents, trademarks,
know-how, technology and other similar protected or
registered rights.
(i) In addition, the Companies have as at the date hereof,
and shall continue to have good title to the know-how
and the business trade in order for them to carry-on
with the business after the date hereof and after the
Closing in the same conditions as before.
The Companies will continue to be provided and
supplied by companies affiliated to the Rhone-Poulenc
Group with specific contracts or products in
accordance with the Ancillary Agreements.
8.1.19 Insurance
(a) SCHEDULE 8.1.19 (a) comprises a list of insurance
policies taken out by the Companies with reputable
insurance companies covering the assets and risks
deemed to be usually covered according to normal
conditions and in particular in respect of all loss of
trading and product liability.
(b) The Companies are up-to date in the payment of all
premiums, and have complied with all formalities and
contractual clauses set out in these insurance
policies.
(c) These policies comply with the provisions of the
contracts referred to herein and, in particular, with
all contractual, legislative or obligatory provisions
which apply to the Companies.
(d) The Companies have not suffered any damage which could
hinder the uninterrupted pursuit of their normal
activities, or having affected in any manner their
ability to obtain insurance.
8.1.20 Loans and dividends
The Companies have the benefit of banking facilities and loans
which may or may not have to be reimbursed as indicated in
SCHEDULE 8.1.20. Also appearing in this Schedule are the loans and
other facilities granted by the Companies to third parties. All
these loans and facilities have been validly granted at usual and
normal conditions, more particularly in relation to remuneration
and depreciation. Dividends which may have been allocated during
the financial years preceding the current financial year have
effectively been paid to their beneficiaries.
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8.1.21 Environment
(a) The Companies are not in breach under any material
French, German and Austrian and European transport,
pollution, environmental and health regulations.
(b) The Companies have undertaken, conducted and carried
out their business activities for the production,
packaging, preservation or the stocking of hazardous
or dangerous products and materials in accordance
with all material and applicable French, German,
Austrian, Belgian and European laws and regulations
relating to the transportation, production,
packaging, labelling, handling, storage and
distribution of hazardous or dangerous products and
materials.
(c) The Environment Audit is set forth in SCHEDULE
8-1-21(c).
(d) None of the Companies have caused any off-site
releases of any products, materials, substances,
preparations, packaging or waste that would cause
any future remediation liability or financial
penalties for the Companies or the Purchasing
Companies.
(e) There is no judgment, ruling, judicial or
administrative decision compelling or charging the
Companies to stop all or any part of its activities
due to some nuisance affecting the neighbourhood or
due to pollution.
8.1.22 Business ("FONDS DE COMMERCE")
The Companies are the owners of the businesses having created them
at the time of their incorporation or having validly acquired such
business. The businesses of the Companies have always been run in
a normal and proper way with the object of maintaining their
activities and preserving their existence as businesses. These
businesses are free from all liens.
8.1.23 Receivership
None of the Companies is and has ever been subject to any winding
up, liquidation or dissolution procedure, ("REDRESSEMENT
JUDICIAIRE" or "LIQUIDATION JUDICIAIRE") have never suspended
payments ("CESSATION DE PAIEMENT"). None of the Companies is
subject to a "PROCEDURE D'ALERTE" or composition procedure.
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8.1.24 Tax regulations
(a) Definitions:
(i) the words "tax regulation" used in
this Agreement mean tax or customs law
as well as decrees, orders,
memorandums or other texts of
application or interpretation or such
regulation applicable in a given
country as well as any international
treaty (including the derivative tax -
directive, regulations or others - of
this treaty).
(ii) the terms "tax" or "taxation" used in
this Agreement mean any taxes, duties,
rights, deductions, contributions or
charges, including especially income
tax , withholding tax, deductions,
indirect taxes, local taxes, V.A.T.,
sales taxes, standby or monopoly
charges, registration or stamp duties,
customs duties, wage taxes and social
contributions imposed or collected by
any State or by organisation or local
authority, national or supranational,
or any organisation and including the
interest, penalties, fines,
reassessments and other related
charges.
(b) The Companies are in complete compliance with the
tax regulations applicable to them, whether they be
French, German, Austrian or from other countries.
(c) The Companies are, and always have been up to date
in the payment of their taxes (including advance
payments), or have constituted sufficient provisions
or registered sufficient charges to be paid, in the
Closing Accounts to face the payment of the said
taxes. All the payments made by the Companies which
should give rise to a withholding tax have always
been paid, at the due date, to the tax authorities
having jurisdiction over the said tax. A listing of
all dates and amounts of advance tax payments is set
forth in SCHEDULE 8.1.24(c) for 1998 and 1999.
(d) All the tax returns and in a general way all the
formalities or documents imposed by the tax
regulation (intended notably, but without this being
limited, to the calculation or examination of the
amount of a tax or of its basis) have always been
accomplished, subscribed or deposited by the
Companies within the time limits allowed by the tax
authorities. To the best of Vendor's knowledge,
these returns or documents have always been and
remain, true and complete. The Companies have always
replied within the time limits and in a complete and
true manner to any request emanating from a
competent tax authority and have always satisfied
within the time limit granted to them in which to
reply or produce documents or information or give
their comments in any administrative or judicial
procedure with a competent tax authority.
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There are no taxes to be assessed against the
Companies from 1 October 1998, which relate to any
event or any period of time that took place entirely
or partly before such date.
In the event that such taxes would be assessed
against the Companies, the Vendor undertakes to
indemnify the Companies for the amount paid by these
Companies in consideration of such taxes.
(e) The basis and the amount of tax which each Company
has owed, still owes or will owe in whatsoever
respect, have always been properly determined in
compliance with tax regulations.
(f) The Companies have available all the documents
needed to justify the information contained in the
returns or documents referred in Clause 8.1.24 (d),
as well as the applied tax or customs regulations.
The Companies have available all the documents
necessary to justify the existence and the amount of
any tax losses to be carried forward (whether it
concerns an ordinary deficit or deferred
depreciation ("AMORTISSEMENT REPUTES DIFFERES"),
whatever be the original financial year, of any tax
credits or claims it may have on any tax or
administrative authority whatsoever, which it will
have used (by deduction or otherwise) or obtained
reimbursement in the future. More generally, the
Companies have fulfilled and will remain in a
position to fulfill their obligations concerning
time limits in which to preserve documents, as these
time limits are provided in commercial or fiscal
regulations (and in particular, without this being
limitative, by L 102 B of the Book of Tax
Procedure).
In particular, the Companies shall have available
all tax records such as detail schedules of tax
depreciation of assets, all open years tax returns,
all files and workpapers supporting tax returns.
(g) The Companies are not subject of a current tax
examination (nor is any one of them aware that any
such direct or indirect examination is forthcoming)
or to an enquiry instigated by an administrative
authority leading, or likely to lead to the payment
of a tax or a reassessment of the tax basis. The
Companies have not received any notice of
reassessment nor has any one of them been otherwise
informed (in writing or orally) by an administrative
authority of its intention to carry out any
reassessment whatsoever.
The Vendor undertakes to indemnify the Companies for
any additional tax payment resulting from a future
tax examination of financial statements of the
Companies related to periods up to and including 30
September, 1998.
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In the event that the Companies are or have been
subject to such tax examinations or enquiries, all
documents, correspondence and supporting details
should be provided to Scotts.
(h) The Companies have not concluded any deed or been
party to any transaction which is likely to be
reassessed, rejected or re-qualified for the reason
that the Companies had attempted to evade,
circumvent or diminish its tax obligations or that
of another person.
(i) The Companies have not concluded an agreement or
transaction or obtained a concession, tolerance or
abatement in respect of a tax, with any
administrative or political authority whatsoever
that is not grounded on a strict application of the
tax rules.
(j) With the exception of that detailed in SCHEDULE
8.1.24 (j), the Companies have never been party to a
transfer, sale, exchange, contribution or transfer
of any sort whatsoever for which they would not have
paid registration, contribution or transfer taxes,
stamp duties, real estate publicity taxes or others,
or that they would be legally or contractually
liable to pay after the Closing.
(k) The Companies have not operated an enterprise nor
directly or indirectly hold shares, units, financial
interests or voting rights in a company or grouping
in the conditions provided by Article 209 B of the
General Tax Code. The Companies do not owe any
monies, nor have they made any payments or
settlements mentioned in Article 238 A of the
General Tax Code. The Companies have not transferred
any part of their assets outside France in the
conditions defined in Article 238 bis 01 of the
General Tax Code. The Companies are not nor have
ever been a service supplier in the meaning of
Article 155 A of the General Tax Code.
(l) The transfers of the Shares are in no way liable to
involve by themselves any taxation at the expense of
any of the Companies or the loss of carry-forward
tax losses or any rights of a fiscal nature. The
Companies do not benefit from any particular tax
regime which could cease or be questioned in
particular by the transfer of the Shares of by
reason of any act or omission prior to the Closing .
(m) The Companies do not benefit from a specific tax
regime subordinated to the respect of any
undertaking whatsoever by these Companies or by any
other person. As regards the Companies which benefit
from such special regimes, the undertakings to which
the specific tax regime is subordinated have always
been and remain fully respected.
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(n) The Companies do not benefit nor have they ever
benefited from a tax advantage or a favourable tax
regime subordinated to the granting of an approval
by the competent representative of any
administrative or political authority whatsoever.
(o) The Companies do not benefit, nor have benefited
from, by reason of a transaction made prior to the
Closing, a suspension, postponement or deferral of
tax.
(p) The differences between the values of the assets and
liabilities shown in the Annual Accounts, of each of
the Companies and the fiscal value of such assets
and liabilities is set forth in SCHEDULE 8.1.24(p).
(q) The Companies have not consented to a guarantee or
granted a security bearing on any of the property,
assets or rights of the Companies, for taxes due (or
allegedly due according to the competent tax
authority) and unpaid.
(r) The Companies are and always have been exclusively
resident in their countries of constitution for tax
purposes.
(s) All the Companies which are party (or which have
come into the rights of a Company that was a party)
to any reorganisation operation (such as merger,
partial contribution of assets, split-up, exchange
or contribution of shares or otherwise) have
properly taken (or re-taken) all the commitments to
which had been subordinated the tax regime under
which they were and which they had applied at the
time and further to the said reorganisation
operations, and that these commitments have always
been and remain integrally respected. Generally, all
the formalities and all the commitments necessary to
ensure the tax neutrality of the said reorganisation
operation have been properly accomplished,
subscribed and respected.
(t) The totality of the carried forward tax losses of
each of the Companies (or of each tax group in the
meaning of Article 223 A of the General Tax Code),
whether it concerns ordinary deficits or deferred
depreciation, and whatever their original financial
year, are shown in the tax return submitted by each
of the Companies (or by the parent company in each
tax group) in respect of the last financial year.
These carried forward tax losses are true and
accurate, capable of being justified in both
principle and amount, and capable of being fully set
off against later profits realised by each Company
(or by the tax group concerned) within the periods
and time limits provided by the tax regulations.
(u) The Companies have not proceeded with a carry-back
of tax losses.
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(v) The Companies are not a member or parent company of
a tax group constituted in application of the
provisions of Article 223 A and following of the
General Tax Code.
8.1.25 Intermediary Period
(a) Since 1 January 1998 there has been:
(i) No damage, destruction or loss (whether or
not covered by insurance) or other event
affecting in a materially unfavourable manner
the assets, business or prospects of the
Companies.
(ii) Except as disclosed in Schedule 8.1.25
(a)(ii), no decision in respect of the
distribution or payment of dividends or any
other distribution by the Companies to their
shareholders, the dividends for the Shares
being due to the Purchasing Subsidiaries, nor
has there been any depreciation, increase or
reduction of their capital.
(iii) No change in the accounting methods and
practices used by the Companies, nor any
changes concerning the depreciation or
redemption rules nor any change in the rates
used, and more generally the net equity
("capitaux propres") of the Companies is not
less at the Closing than their net equity as
at 31 December 1997. Since this date, the
Companies have not undertaken any actual or
potential commitment other than those
incurred or borne in the normal course of
business.
(iv) The Vendor declares that from 1 January 1998
to the date hereof, the Companies have been
reasonably managed ("en bon pere de famille")
and more particularly, the Companies :
(1) have from 1 January 1998 and up to
the date of this Agreement, only
carried out the operations falling
within their usual activity and
that, without litigation, they have
not transferred or acquired any
tangible or intangible assets ;
(2) the management of the Companies has
been carried on in a usual and
normal way and the Companies have
carried on their activities in the
same way they have usually done
without any material change being
made ;
(3) have not realised from 1 January
1998 and up to the date of this
Agreement any operation which could
affect the value of
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their business ("fonds de
commerce"), their tangible and
intangible assets ;
(4) have complied with all social, tax,
economic, customs, transport,
temporary employment, environment,
hygiene or other regulations ;
(5) have not recruited or dismissed any
employee, other than mentioned in
SCHEDULE 8.1.25(iv)(5) , and
(6) have continued to honour their
commitments, recovered all sums due
to them and more generally carried
on their activities in compliance
with the declarations listed in
this Agreement.
8.1.26 Other declarations
All facts and circumstances concerning the Companies, their
activities, businesses, contracts, goods, accounts and
results being of sufficient importance to be revealed to
Scotts, have been effectively and entirely disclosed in
writing to Scotts.
8.2 Warranties
8.2.1 The Vendor guarantees to Scotts and to the Companies, for the
benefit of the Purchasing Subsidiaries:
8.2.2 That the above representations relating to the Companies are as at
the date of this Agreement and shall be at the Closing full and
accurate.
8.2.3 To bear any decrease affecting any of the assets, (after
depreciation and provisions) of the Companies or increase
affecting any item of the liabilities of the Companies following
the appearance of an unaccounted liability or the increase of a
liability for which no provision or insufficient provision has
been made in respect of such assets or liabilities in the Closing
Accounts as long as the cause or source of the increase of such
liabilities or the decrease in such assets is prior the Closing.
8.2.4 To bear any damage which may result from an inaccuracy, omission
(whether intentional or not) or failure concerning any of the
declarations mentioned in Clause 8.1. above in the event that such
damage will not have fully been indemnified pursuant to Clauses
8.2.3. above. In this respect, the present warranties shall not be
limited or affected in any manner whatsoever by any knowledge that
Scotts and the Purchasing Subsidiaries may
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have acquired concerning the Companies in relation to any of the
declarations contained in the Clause 8.1.
8.2.5 The determination of the sums due pursuant to Clauses 8.2.2., and
8.2.3. and 8.2.4. above shall be made after having taken into
account:
(a) The amount of all interests, fines, costs and
expenses of any nature incurred by the Companies
including without limitation all legal and experts
fees incurred in relation to this Agreement or its
execution.
(b) All taxes due by the Companies pursuant to the
payment of such sums by the Vendor.
(c) In respect of tax, any tax which merely constitutes
a timing difference of the corresponding charge
(reintegration of depreciation, reintegration of
provisions, etc.) shall only be taken into account
for the costs of any surcharges, penalties, late
payment interest or fines as well as for the effects
resulting from a possible decrease of applicable
taxes, excluding therefore the principal which may
be recovered subsequently by taking into account the
disputed deductions.
(d) Any insurance proceeds actually received under
insurance policies taken out by the Companies
covering the damage in respect of which a claim is
being made under this Agreement.
8.2.6 The Vendor undertakes to pay the sums due pursuant to this Clause
8, upon written instructions of Scotts, to the Companies, the
Vendor acting also as Promissor of the "STIPULATION POUR autrui"
of which Scotts is the "STIPULANT", within a period of one month
from the receipt by the Vendor of the notification sent by Scotts
to the Vendor setting forth the reasons leading to the application
of this Agreement. Beyond such period the sum shall bear interest
without prior notification to the benefit of the Companies at an
annual rate 5% per annum, without such provision being interpreted
as the granting of a delay of payment.
If court or arbitration proceedings were to be necessary to obtain
payment of any amount due under this Agreement, and if the court
or arbitration decision were to be in favour of Scotts, the
Purchasing Subsidiaries or the Companies in whole or in part, the
amount allocated to the Purchasing Subsidiaries and/or the
Companies shall bear interest at the above rate, prorata temporis
and compounded if such interest is due or is deemed due for a
whole year, with effect from the first request for payment made by
Scotts or Purchasing Subsidiaries and until full payment of the
amount due notwithstanding any more recent date which the
competent jurisdiction may decide as triggering the payment of
interest.
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8.2.7 Any increase in assets or reduction in liabilities in the Closing
Accounts shall not give rise to any reimbursement, set-off or
payment in favour of the Vendor, except for those occurring in the
Working Capital to be taken into account in the calculation of the
Change Amount.
8.2.8 For the application of Clause 8.2.3., the value of the following
assets: (i) stocks of the Companies at the Closing, (ii) fixed
assets of the Companies at the Closing, (iii) intangible assets of
the Companies, listed in the Closing Accounts, shall not be
challenged except if such assets do not exist or were no longer
owned by the Companies at the Closing.
Notwithstanding the above, the warranty set out in Clause 8.2.4.,
shall apply, should the state of such assets be misrepresented to
Scotts by the Vendor.
CLAUSE 9. LIMITS TO WARRANTIES OF VENDOR
9.1 Duration
9.1.1 Any claim made under Clause 8 concerning any order to pay tax,
customs or social security arrears (hereinafter referred to as the
"CLAIMS") shall be made within a period expiring one (1) month
after the expiry of the longest of the time-limit period for
exercising a claim by each of the authorities mentioned above and
as far as other claims made under Clause 8 are concerned
(hereinafter referred to as the "OTHER CLAIMS"), shall be made
within a period of two (2) years from the Closing.
9.1.2 Scotts shall be entitled to claim any provision contained in this
Agreement until the last day of the appropriate notice as defined
above notwithstanding the fact that any sum due pursuant to a
Claim or Other Claim would not be known or impossible to determine
on the last day of the aforesaid notice period provided that:
(a) as far as any Claim is concerned, a tax, custom or
social security control shall have started or any
notification of being served.
(b) as far as any Other Claim is concerned, Scotts shall
have notified such Other Claim to the Vendor.
9.1.3 In the event that, in the course of any tax, custom, social
security or economic regulations dispute, the Companies shall have
to procure to such authorities a guarantee or security until the
definitive settlement of such disputes, the Vendor undertakes, at
the election of Scotts, either (i) to grant itself such guarantees
or securities required by such authorities in lieu of the
Companies or (ii) to procure to the benefit of the Companies bank
guarantees or suretes reelles, of the same amount and which would
be acceptable to the Companies.
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9.1.4 Furthermore, in the event that, notwithstanding the counterclaims
initialised before the relevant authorities or courts, the
concerned authorities would request the payment of any tax,
penalty or interest, the Vendor undertakes to grant to the
concerned Companies an advance without interest and of the same
amount as the amount of such taxes, penalties or interest. In the
event that such proceedings or claims would not succeed, the
advance granted to Scotts by the Vendor shall be reimbursed within
(15) fifteen days from the notification to the Companies of the
end of the dispute.
9.2 Indemnification Threshold and Ceiling
9.2.1 The Vendor shall not be liable in respect of an Other Claim unless
the amount of such Other Claim exceeds 100,000 FF provided that
for the purpose of this Clause 9.2.1 a series of Other Claims
resulting from the same cause or effect shall be regarded and
aggregated as an single Other Claim.
9.2.2 The Vendor shall not be liable to indemnify the Purchasing
Subsidiaries (on behalf of the Companies) with respect to Other
Claims unless and until the sum of Other Claims accumulated by the
Companies and meeting the requirements of Clause 9.2.1 shall have
reached ten million French Francs (10,000,000 FF), at which time
Vendor shall be immediately liable to indemnify the Companies for
such total amount as well as any Other Claims meeting the
requirements of Clause 9.2.1 and the time limitation of Clause
9.1.1. The threshold set out in Clause 9.2.1 and in this Clause
9.2.2 shall not apply to any sums which may be due by the Vendor
to Scotts under Clauses 6.1 (c), 8.1.8(h) and (i), or 8.1.11 (a)
(ii), the Parties will use good faith best efforts to settle any
amounts which may be due under said clauses by 15 December 1998.
9.2.3 Vendor's maximum liability to the Purchasing Subsidiaries, acting
on behalf of the Companies, shall not exceed a total amount equal
to three hundred and fifty million French Francs (350,000,000 FF)
of the Global Provisional Price, except if such liability results
from or relates to:
(i) Any untrue declaration(s) and representation(s) made
by the Vendor under Clause 8;
(ii) Any misrepresentation made by the Vendor under
Clause 8, or
(iii) fraud;
in which cases Vendor's maximum liability to the Purchasing
Subsidiaries shall be 100% of the Global Provisional Price
increased or decreased by the Change Amount.
9.3 Information and Intervention of the Vendor
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9.3.1 When an event occurs which might give rise to a Claim or Other
Claim under this Agreement, Scotts shall inform the Vendor within
twenty (20) days of learning of the occurrence of such event by
registered letter with acknowledgment of receipt.
9.3.2 As of the date of notification provided for in Clause 9.3.1. the
Vendor shall if it so requires have the right to receive
information or any documents which may be useful or necessary for
the Vendor to defend its interests and to be able to carry out all
verifications of such documents with the agreement of Scotts. This
right to receive information extends to, for example, all books of
accounts and accounting documents of the Companies.
9.3.3 The Vendor will also have a period of 30 business days to notify
Scotts of its remarks or points it wishes to contest.
9.3.4 If there is no response within 30 business days of the
above-mentioned notification, the Vendor will be deemed to have
accepted the substance of such Claim(s) or Other Claim(s) and
Scotts shall thus be entitled to assume that the Vendor has
considered such Claim(s) or Other Claim(s) as properly arising.
9.3.5 In the event of an Other Claim made by a third party, or of any
Claim , the Vendor, if it has informed Scotts that it considers
such Other Claim or Claim as properly arising, will be entitled to
ensure that Scotts and/or the Companies are represented by the
legal advisors of Vendor's choice who will consult with the
advisors of the Companies in all discussions and transactions, and
this shall be exclusively at Vendor's expense and sole
responsibility. Vendor may at its option control entirely the
defence of such Claim or Other Claim.
9.3.6 Any settlement must have received the prior agreement of the
Vendor, if the Vendor is not controlling the defence.
9.3.7 Failure by Scotts to carry out its duty to give information to the
Vendor within the period laid down in Clause 9.3.1. may give rise
to the termination of the right of Scotts to obtain
indemnification from Vendor with respect to the Claim or Other
Claim concerned, but only to the extent of the effective prejudice
suffered by the Vendor in view of the failure to provide
information within such period.
9.4 Investigations made by Scotts
Notwithstanding the due diligence investigations and audit
effected by Scotts, the warranties contained in this Clause 9
shall have full effect with respect to matters not disclosed in a
Schedule.
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9.5 Benefit of the warranties
The warranties contained in this Agreement are expressly given for
the benefit of the Purchasing Subsidiaries on behalf of the
Companies and any other corporate entity which Scotts may have
designated to acquire the Shares and/or the Belgian Business as
well as all their assignees provided that in all cases, such
beneficiaries belong to the same group as Scotts including without
limitation all companies which would succeed to the Purchasing
Subsidiaries in the event of merger or transfer of all or part of
the Shares.
The warranties shall remain applicable in the event of
dissolution, absorption, contribution or transfer of all or part
of the assets of the Companies.
Scotts and the Purchasing Subsidiaries shall be able to call upon
the present warranties even though they are no longer shareholders
of the Companies.
CLAUSE 10. REPRESENTATIONS AND WARRANTIES OF SCOTTS AND THE PURCHASING
SUBSIDIARIES
Scotts and the Purchasing Subsidiaries hereby represent and
warrant to the Vendor that each of the representations and
warranties is true and accurate at the date of this Agreement and
will be true and accurate at the Closing.
It is expressly agreed between the Parties that when a French law
or regulations is referred to in the following warranties, the
equivalent German and Austrian law or regulations shall be deemed
to be referred to.
10.1 Representations
10.1.1 Authority of Scotts and the Purchasing Subsidiaries
Scotts and the Purchasing Subsidiaries have full authority to
enter into this Agreement and to perform the obligations or obtain
the rights provided for hereunder. No consent, permission or court
decision is required in this respect. This Agreement, constitutes
legal and valid obligations of Scotts and the Purchasing
Subsidiaries which are enforceable, in accordance with their
respective terms.
Scotts and the Purchasing Subsidiaries are corporations duly
organised, validly existing and in good standing under the laws of
their jurisdiction of incorporation and have all requisite power
and authority to own, lease and operate their respective assets,
properties and businesses and to carry on their respective
business as now conducted.
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10.1.2 Benefit of the warranties
The warranties contained in Clause 10 of this Master Contract are
expressly given for the benefit of the Vendor, or its assignees at
the sole discretion of the Vendor.
The warranties shall remain applicable in the event of
dissolution, absorption, contribution or transfer of all or part
of the assets of the Companies.
CLAUSE 11. NON-COMPETE UNDERTAKING BY VENDOR
11.1 The Vendor hereby undertakes to Scotts that should the Vendor take
any controlling interest, directly or indirectly, in any capacity
or any form whatsoever (in particular as shareholder, promoter, de
facto or de jure manager) in any enterprise having sales at least
ten percent (10%) of which would be included in the Field and/or
in the Territory (as those terms are defined in SCHEDULE 11.1)
Within three months from the date on which the investment in
question shall become effective, Vendor shall first offer to
divest that portion of the enterprise in question having
activities in the Field and/or in the Territory at a bona fide
arm's length price to Scotts.
Scotts shall inform the Vendor in writing of its interest in
negotiating such purchase within a period of sixty (60) days from
the date of the offer. If the Parties are unable to reach
agreement within one hundred and twenty (120) days from the date
of Vendor's offer, the Vendor shall be free to divest the portion
at issue of the enterprise in question to any Third Party of its
choice.
11.2 The undertakings set out in Clause 11.1 apply to the Territory for
a duration of five 5 years as from the Closing.
11.3 The Vendor further undertakes, whether directly or through any
individual or corporate entity, not to:
(a) constitute or establish any business having a
competitive or similar activity to any of the
activities in the Field and in the Territory for a
duration of 7 years as from the Closing ;
(b) file, purchase or use in the Field and in the
Territory, either directly or indirectly and without
Scotts' prior agreement, any trademarks, patents,
drawings or models relating wholly or partly to
products or activities similar to those activities set
out in SCHEDULE 11.1 by the Companies and the Belgian
Business in the context of their businesses, except as
permitted under the Agreement, for a duration of 7
years as from the Closing ;
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(c) provide or supply with competitive products any
individual or corporate entity in the Field and in the
Territory who is, at the date of such provision or
supply, or who was during the previous twelve months, a
customer of the Companies and / or the Belgian
Business, except as permitted under (the Agreement),
for a duration of 7 years as from the Closing ;
(d) supply competitive products to customers in the Field
in the Territory or to knowingly supply active
ingredients to be used in competitive products to those
in the Field, in the Territory (as defined in SCHEDULE
11.1), for a duration of 7 years as from the Closing ;
(e) up to and until 31 December, 2000 except otherwise
agreed by the Parties, solicit away from the Companies
any person who is, at the time of the solicitation an
officer, commercial agent, salaried consultant or
employee (including commercial representatives) of the
Companies and the Belgian Business and who was on the
payroll of the Companies at the Closing ; or
(f) up to and until 31 December, 2000 except otherwise
agreed by the Parties, employ or engage or attempt to
employ or engage or negotiate the employment, for
activities which relate to those set out in SCHEDULE
11.1, by any other person, firm or company, any person
who is at the Closing (or who was at any time during
the previous twelve months) an officer, commercial
agent, salaried consultant or said employee of the
Companies and the Belgian Business.
11.4 Notwithstanding RP's undertaking in Clause 11.3, RP may supply
Fipronil or any fiprole insecticide to a competitor of Scotts in
the Territory for use as a household insecticide, except for such
countries of the Territory where Scotts, the Purchasing
Subsidiaries or the Companies have negotiated an exclusive
distributor agreement for Fipronil as a household insecticide.
CLAUSE 12. UNDERTAKINGS BY SCOTTS
12.1 It is expressly agreed that the registrations and active
ingredients in the products of the Companies and the Belgian
Business are for use in the Field and in the Territory (as defined
in SCHEDULE 11.1). Use of such registrations and marketing, use or
sale of the active ingredients of the products outside of the
Field and outside of the Territory could violate the rights and
obligations of Vendor, and Scotts on behalf of the Purchasing
Subsidiaries and the Companies agrees to use diligent efforts to
avoid improper use of registrations and marketing of such active
ingredients outside of the Field. The undertaking hereunder is
limited in time to the life of the active ingredients and
registrations in question, including any renewals thereof.
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12.2 Scotts shall cause Purchasing Subsidiaries and the Companies to
diligently collect outstanding accounts receivable as at the
Closing.
CLAUSE 13. POST CLOSING OBLIGATIONS
13.1 The Purchasing Subsidiaries shall be liable for the payment of the
registration duties and stamp duties arising out of the transfer
of the Shares and the transfer of the Belgian Business.
13.2 The Purchasing Subsidiaries shall also be liable for the payment
of the notarial fees incurred by the transfer of C GmbH Shares and
C HG Shares.
13.3 All taxes attributable to the Companies (or any subsidiary or
branch thereof) or properties, assets, operations, capital stock
or surplus of the Companies (or any subsidiary or branch thereof)
for periods from and/or after 1 October 1998, shall be the
responsibility of the Purchasing Subsidiaries or Scotts.
13.4 For products already packaged or launched on the market, Scotts
shall discontinue the use of the name " Rhone-Poulenc Jardin " not
later than 30 September 2001 and shall take all steps necessary at
its expense to accomplish the change of name. For new products not
already packaged or launched, Scotts, on behalf of the Purchasing
Subsidiaries shall use best efforts to discontinue the use of the
name "Rhone-Poulenc Jardin" as soon as practicable after the
Closing and not later than one year after the Closing.
13.5 The Vendor will cooperate with Scotts to adopt a procedure
relating to change of name and change of ownership which minimises
any disruptive impact on the Companies.
CLAUSE 14. SUBSTITUTION
14.1 Neither Party may sell, assign, encumber, hypothecate or otherwise
transfer in any manner (including through any contractual grant of
its economic or voting rights) all or part of its rights and
obligations hereunder except with the prior written consent of the
other Party, which it shall be in the sole discretion of such
other Party to grant or withhold.
14.2 Scotts will have the right to substitute for itself or to
associate to itself one or several companies of its choice (owned
and controlled by Scotts and/or to which the Vendor has no
objection) (hereafter referred to as the "NOMINEE"), PROVIDED,
however, such Nominee is designated in a written notice delivered
to the Vendor not less than thirty (30) days prior to the Closing
and PROVIDED, further, that the substitution of such Nominee shall
not otherwise delay or impair the consummation of the transaction
contemplated herein.
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In any event Scotts shall remain jointly and severally liable for
the substituted entities in respect of all the rights and
obligations entered into by Scotts either on its own behalf or on
behalf of the Purchasing Subsidiaries under this Agreement. Scotts
shall further guarantee the performance by such Nominee of the
obligations hereunder.
CLAUSE 15. FEES
Regardless of whether or not the transactions contemplated hereby
are consummated, each Party shall pay its own respective expenses
(including, without limitation, the fees, disbursements and
expenses of its attorneys, accountants and investment advisors) in
connection with the negotiation, preparation and execution of this
Agreement and the transactions contemplated hereby, except as
otherwise provided in this Agreement.
CLAUSE 16. ELECTION OF DOMICILE - NOTICES
16.1 For the purposes of this Master Contract, the Parties elect
domicile at their respective addresses shown on pages 2 and 3 of
this Master Contract.
16.2 All notices (or copies of notices) from one of the Parties will be
delivered by registered letter with acknowledgment of receipt (the
postmark being proof of delivery) to the other Party at the above
mentioned addresses or to any other address which has been
notified in the same manner.
CLAUSE 17. CONFIDENTIALITY AND ANNOUNCEMENTS
17.1 With the exception of their professional advisers and Affiliates,
the Parties shall keep terms and contents of this Master Contract
and the Schedules attached hereto, the Additional Contracts, the
Purchase Agreement, the Ancillary Agreements and all other
documents and certificates referred to herein or therein
(hereafter the "AGREEMENT") confidential and neither Party shall
publish the same or refer publicly thereto without the consent of
the other, except if a Party is obligated to do so by a legal
constraint. The Parties shall cause their professional advisers
and Affiliates to comply with secrecy undertakings not less
cumbersome than those set forth herein. Should either Party be
required by applicable law or competent judicial governmental or
other authority to disclose any of the documents included in the
Agreement, such Party agrees, prior to any such disclosure, to :
(a) immediately notify the other Party thereof,
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(b) consult with the other Party on the advisability of
taking steps to resist or narrow any disclosure
request, and,
(c) cooperate with the other Party in any attempt it may
make to obtain a protective order or other appropriate
remedy or assurance that confidential treatment will be
afforded the Agreement. The disclosing Party shall
furnish only that portion of information in relation to
the Agreement which is legally required to be disclosed
as advised by such Party's counsel.
Notwithstanding anything herein contained the disclosing Party
will make all reasonable efforts to prevent any such disclosure.
17.2 The Vendor and Scotts shall consult together as to the terms,
times and manner of any announcement or communication to
customers, suppliers, staff, or to the press or otherwise of the
fact of the sale and purchase hereby agreed and no such
announcement shall be made except as agreed between the Vendor and
Scotts, except as may be required by law.
CLAUSE 18. ANCILLARY AGREEMENTS
18.1 To ensure the continuity of the business, it is expressly stated
that the Purchasing Subsidiaries wish to enter into this Agreement in
consideration of the performance of the following Ancillary Agreements with the
Vendor and/or its affiliates and the Companies and the Belgian Business and/or
the Purchasing Subsidiaries in exact conformity with those set out in SCHEDULE
18, which will be delivered at Closing :
- RPA and RPJ Trademark License Agreements (from RPA
to Scotts Affiliates, and from Scotts Affiliates to
RPA.)
- RPA Products and RPA New Products Supply Agreement
- Fipronil Supply Agreement (Current Products, Future
Products and Nexa(TM)Technology Products)
- Research & Development Services Agreement
- Nexa(TM) Technology Cross-License Agreement
- Transitional Services Agreement
- RPA and RPJ Patent License Agreements
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CLAUSE 19. FURTHER ACTION
19.1 This Agreement insofar as its remains to be performed shall
continue in full force and effect notwithstanding Closing.
19.2 Each Party will, both before and after the Closing, do everything
reasonably necessary or desirable to give full effect to this
Master Contract and the Schedules attached hereto, the additional
contracts, the Purchase Agreement, the Ancillary Agreements and
all other documents and certificates referred to herein or
therein.
CLAUSE 20. WAIVER
No waiver by any of the Parties of any of the requirements hereof
or of any of its rights hereunder shall have effect unless given
in writing and signed by a director or other duly authorised
officer of each Party.
CLAUSE 21. SEVERABILITY
If any provision(s) of this Master Agreement and the Schedules
attached hereto, the additional contracts, the Purchase Agreement,
the Ancillary Agreements and all other documents and certificates
referred to herein or therein shall, to any extent, be held to be
invalid, illegal or unenforceable in any give jurisdiction, or any
governmental agency or authority shall require the Parties to
delete any provision of this Agreement as a condition of validity,
legality or enforceability of the remainder of this Agreement in
any given jurisdiction, such invalidity, illegality,
unenforceability or deletion shall not impair or effect the
remaining provisions of this Agreement or the validity or
enforceability of such provision in any other jurisdiction. The
Parties shall endeavour through good faith negotiations to replace
the invalid, illegal, unenforceable or deleted provision by valid
provisions the economic effect of which comes as close as legally
possible to that of the invalid, illegal unenforceable or deleted
provision. If the Parties fail to reach agreement concerning
replacement of such provision, the matter shall be referred to
arbitration in accordance with Clause 23 hereof.
CLAUSE 22. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance
with, French law without regard to its conflict of laws
principles.
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CLAUSE 23. SETTLEMENT OF DISPUTES
23.1 Amicable settlement
Each of the Parties agrees to use diligent, good faith efforts to
settle amicably any dispute which arises out of or in connection
with this Agreement. Whenever a dispute arises, any Party may
serve written notice upon the other Party stating that a dispute
has arisen and containing a brief statement describing the nature
of the dispute. Vendor and Scotts, respectively, shall communicate
such notice to the President of Rhone-Poulenc Sante Vegetale et
Animale ("RPSVA") and the Chief Executive Officer of Scotts,
respectively, with the request that they negotiate a settlement of
any such dispute. For such purpose, the President of RPSVA and the
Chief Executive Officer of Scotts may have access to personnel of
both Parties for assistance in arriving at a resolution. Any
settlement accepted by both the President of RPSVA and the Chief
Executive Officer of Scotts in accordance with this Clause 23.1
shall be binding on the Parties for all purposes. If the President
of RPSVA and the Chief Executive Officer of Scotts are unable to
resolve any such dispute within thirty (30) days of its having
been referred to them hereunder, the arbitration provisions of
Clause 23.2 shall apply.
23.2 Composition of the Arbitration Tribunal
Any dispute between Scotts and the Vendor arising out of or in
connection with this Agreement which the Parties are unable to
resolve amicably in accordance with the provisions of Clause 23.1
shall be finally settled by arbitration in accordance with the
Rules of Conciliation and Arbitration of the International Chamber
of Commerce ("ICC") (1998).
The arbitration tribunal will be composed of three arbitrators,
one appointed by RPA and one appointed by Scotts, and the third
appointed by the two other arbitrators. The arbitration panel
should decide in law and not as "amiables compositeurs". Unless
otherwise agreed between the Parties in writing, the arbitration
shall take place in Paris, France. The language of the arbitration
shall be English.
23.3 Confidentiality
The Parties shall keep confidential the fact of the arbitration,
the dispute being arbitrated, the decision of the arbitrator, and
any documents produced by the Parties in the course of the
arbitration. Notwithstanding the foregoing, the Parties may
disclose information about the arbitration to persons who have a
need to know, such as directors, trustees, management employees,
witnesses, experts, investors, attorneys, lenders, insurers, and
any other persons who may be directly affected.
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CLAUSE 24. ENTIRE AGREEMENT
This Master Agreement and the Schedules attached hereto, the
additional contracts, the Purchase Agreement, the Ancillary
Agreements and all other documents and certificates referred to
herein or therein constitute the entire understanding of the
Parties hereto regarding the sale and purchase of the Shares and
the Belgian Business, and cancel and supersede all previous
agreements, promises, representations and understandings, written
or oral, between the Parties hereto with respect to the subject
matter hereof. No modifications of this Master Contract, and the
Schedules attached hereto, the additional contracts, the Purchase
Agreement, the Ancillary Agreements and all other documents and
certificates referred to herein or therein shall have any effect
unless made in the form of an amendment in writing and signed by a
director or other duly authorised officer of each Party.
NOW, WHEREFORE, the Parties have caused this document to be
executed in duplicate by their duly authorised representatives as
of the dates indicated below.
Rhone-Poulenc Agro The Scotts Company
Name: /s/ Philippe Dumont Name: /s/ G. Robert Lucas
--------------------- ----------------------
Title: Vice President Title: Sr. V.P.
--------------------- ----------------------
Date: September 30, 1998 Date: 30 Sep 98
--------------------- ----------------------
Rhone-Poulenc Agro Europe GmbH Scotts Celaflor GmbH & Co. K.G.
Name: /s/ Philippe Dumont Name: /s/ Matthew Reed
--------------------- ----------------------
Title: Vice President Title: Director
--------------------- ----------------------
Date: September 30, 1998 Date: 30-9-98
--------------------- ----------------------
<> Sechsundfunfzigste Beteiligungs Scotts France Holdings S.A.R.L.
und Verwaltungsgesellschaft GmbH
Name: /s/ Matthew Reed Name: /s/ Matthew Reed
--------------------- ----------------------
Title: Director Title: Director
--------------------- ----------------------
Date: 30-9-98 Date: 30-9-98
--------------------- ----------------------
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Scotts France S.A.R.L. Scotts Belgium 2 B.V.B.A.
Name: /s/ Matthew Reed Name: /s/ G. Robert Lucas
--------------------- ----------------------
Title: Attorney-in-fact Title: Director
--------------------- ----------------------
Date: 30-9-98 Date: 30 Sep 98
--------------------- ----------------------
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MASTER CONTRACT
LIST OF OMITTED SCHEDULES
-------------------------
Schedules Description
--------- -----------
A Rhone-Poulenc Agro Board Resolution
B Scotts Company Board Resolution
3 Assets and Liabilities of the Belgian Business
3.2 Additional Contracts (for Germany and Austria)
4.3.1(a) Model of Director's resignation letter
5.2.1 Letter of Guarantee
8.1.4(a) Incorporation Formalities
8.1.4(c) Permits
8.1.5(C) Stock Option Plans
8.1.5(d) Preferred Shares
8.1.6 Sureties, guarantees, "avals", undertakings and letters of
comfort granted by the Companies or the Vendor
8.1.7(a) Annual Accounts
8.1.7(b) Disclosure on Accounts
8.1.8(a) Individuals employed by the Companies; Loans granted by
Companies to Individuals
8.1.9(a) Properties and Leases of the Companies
8.1.9(b) Liens, mortgages, securities and encumbrances related to the
Properties
8.1.9(m) Certificates of insurance
8.1.10(a) Equipment rented under hire-purchase and leasing contracts
8.1.10(b) Pledges and liens on equipment, etc.
53
Schedules Description
--------- -----------
8.1.11(a) Contracts in force
8.1.11(b) Litigation
8.1.11(d) Change in Control Clauses
8.1.12 Top ten customers and suppliers
8.1.13 Bank Accounts
8.1.18(b) List of Patents, Trademarks, Designs, Copyrights
8.1.18(d) Restrictions or liens or other obligations on Trademarks,
Patents, designs and copyrights
8.1.19(a) List of insurance policies
8.1.20 Loans and banking facilities
8.1,21(b) Handling of Hazardous or Dangerous Substances
8.1.24(c) Dates and amounts of advance tax payments
8.1.24(j) Non-payment of Certain Taxes
8.1.24(o) Tax deferral or postponement
8.1.24(p) Differences between the value of the assets & liabilities in
the accounts and the fiscal value
6.1.25(a)(ii) Dividends since January 1, 1998
8.1.25(iv)(5) Employee changes since January 1, 1998
11.1 Field and Territory
18 Form of Ancillary Agreements
1
Exhibit 99
[SCOTTS LOGO]
THE SCOTTS COMPANY NEWS
- --------------------------------------------------------------------------------
For Immediate Release
- ---------------------
THE SCOTTS COMPANY COMPLETES ACQUISITION OF
EUROPEAN LAWN AND GARDEN CARE BUSINESSES
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EXPECTS ORTHO DEAL TO CLOSE ON SCHEDULE
Marysville, Ohio, October 7, 1998 -- The Scotts Company (NYSE: SMG) today
announced that it has completed the acquisition of Rhone-Poulenc Jardin,
continental Europe's largest consumer lawn and garden products, from
Rhone-Poulenc. The companies had signed a letter of intent for the transaction
on July 10, 1998 and signed a definitive agreement on September 30, 1998.
Rhone-Poulenc Jardin manufactures and sells a full line of consumer
lawn and garden pesticides, fertilizers, and growing media products in France,
Germany, the Benelux countries, Austria, Italy and Spain. Its leading brands
include KB(R), Fertiligene(R), Celaflor(R) and Nexalotte(R). Rhone-Poulenc
Jardin had 1997 sales of approximately $150 million (FF 850 million) and employs
approximately 420 people.
In addition, Scotts said that it expects to complete its acquisition
and associated financing of the Ortho pesticides business from Monsanto Company
(NYSE: MTC) as originally planned around the end of the 1998 calendar year.
"As Scotts lead banker, we continue to have confidence in Scotts'
ability to finance the contemplated transactions in the capital markets," said
Randy Barker, Managing Director and head of high-yield at Salomon Smith Barney.
The Scotts Company is a leading supplier of consumer products for the
lawn and garden care, professional turf care and professional horticulture
businesses in both the U.S. and U.K., and is expanding operations in other
international businesses. The Company owns what are by far the industry's most
recognized brands. In the U.S. lawn care business, consumer awareness of the
Company's Scotts(R) family brand outscores the nearest competitors by about
6-to-8 times, as does awareness of the Company's Miracle-Gro(R) family of brands
in the U.S. garden care business. In the U.K., the Company's brands include
Weedol(R) and Pathclear(R), the top-selling consumer herbicides, Evergreen(R),
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the leading lawn fertilizer line, the Levington(R) line of lawn and garden
products, and Miracle-Gro(R), the leading plant fertilizer.
STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION ACT OF 1995: Forward-looking
statements represent challenging goals for the Company, and the achievement
thereof is subject to a variety of risks and assumptions. Certain
forward-looking statements contained in this press release, include, but are not
limited to, information regarding the future economic performance and financial
condition of the Company, the plans and objectives of the Company's management,
and the Company's assumptions regarding such performance and plans. Actual
results may differ materially from the forward-looking information in this
release, due to a variety of factors, including, but not limited to:
- - The effects of weather conditions on sales of the Company's products,
especially during the spring selling season;
- - The success of the Company's advertising and promotional programs;
- - The Company's ability to maintain favorable profit margins on its products
and to produce its products on a timely basis;
- - The possibility of new competitors entering into the pesticides business
and/or the Company's existing lines of business;
- - Inherent risks of international development including currency exchange
rates, economic conditions, regulatory and cultural differences;
- - Changes in economic conditions in the U.S. and Europe and the impact of
changes in interest rates;
- - Ability to successfully integrate the operations of acquired companies;
and
- - Environmental issues and consumer perceptions.
Additional detailed information concerning a number of the important factors
that could cause results to differ materially from the forward-looking
information contained in this release is readily available in the Company's
publicly-filed quarterly and annual reports.
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Contacts:
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William Jenks Rebecca Bruening
Broadgate Consultants, Inc. The Scotts Company
212/232-2222 937/644-7290
