Master Sale and Purchase Agreement
Category: Purchase Agreement
THE PARTIES AGREE as follows:
| 1. | INTERPRETATION |
| 1.1 | The schedules and the Disclosure Letter form part of this Agreement and any reference to this Agreement includes the schedules and the Disclosure Letter. In this Agreement and the Disclosure Letter, reference to a clause or schedule, unless the context otherwise requires, is a reference to a clause of, or schedule to, this Agreement. |
| 1.2 | Words which are written with initial capital letters and certain expressions which are used in this Agreement are defined in Schedule 1. |
| 1.3 | The concept of “reasonable best efforts” shall be interpreted as obligation de moyens under French law. |
| 2. | SALE AND PURCHASE; PURCHASE PRICE |
| 2.1 | Subject to the conditions set out in Clause 3, the Seller shall sell, or procure the sale of, and the Buyer shall buy, the Shares and the Assets and all rights attaching or accruing to the Shares and the Assets at or after the date of this Agreement free of all Third Party Rights (other than those relating to the Pakistani JV disclosed in the Disclosure Letter). The Buyer may direct that some or all of the Shares or Assets be purchased by an Affiliate of the Buyer by notification to the Seller not later than the earlier of 9 Business Days before the Closing Date and 60 calendar days after the date of this Agreement; provided that the purchase of any Shares or Assets by any Affiliate of the Buyer shall not cause any delay of the Closing. |
| 2.2 | The aggregate purchase price for the Shares and Assets (the “Purchase Price”), which is apportioned among the Shares and Assets as shown in Part A of Schedule 2, is as follows: |
| (i) |
€ 5,300,000,000 euros (A) minus the amount of the Estimated Closing Net Indebtedness and (B) plus the amount of the Estimated Closing Net Working Capital Adjustment (if the Estimated Closing Net Working Capital exceeds the Reference Working Capital) or minus the Estimated |
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| Closing Net Working Capital Adjustment (if the Estimated Closing Net Working Capital is less than the Reference Working Capital and (C) minus the Estimated Closing Intercompany Debt (such amount, the “Initial Purchase Price”); |
| (ii) | minus the absolute value of the Net Indebtedness Adjustment if Seller is obligated to pay the Net Indebtedness Adjustment; or plus the absolute value of the Net Indebtedness Adjustment if Buyer is obligated to pay the Net Indebtedness Adjustment; |
| (iii) | minus the absolute value of any Net Working Capital Adjustment if Seller is obligated to pay the Net Working Capital Adjustment; or plus the absolute value of any Net Working Capital Adjustment if Buyer is obligated to pay the Net Working Capital Adjustment; and |
| (iv) | minus the absolute value of any Intercompany Debt Adjustment if Seller is obligated to pay the Intercompany Debt Adjustment; or plus the absolute value of any Intercompany Debt Adjustment if Buyer is obligated to pay the Intercompany Debt Adjustment, |
all to be paid pursuant to the provisions of Clause 2.4.
2.3
| 2.3.1 | No later than ten (10) Business Days prior to the Closing Date: |
| (i) | Seller shall deliver to Buyer a statement setting forth the amount of Net Indebtedness expected as of the Closing Date (but excluding the transactions to take place at Closing contemplated by this Agreement) (the “Estimated Closing Net Indebtedness”). The statement of Estimated Closing Net Indebtedness shall be in the form set out in Schedule 11 and shall provide reasonable details, on an item-by-item basis, specifying the nature of each item of Indebtedness and Cash and Cash Equivalents, and the Group Company owing such Indebtedness or holding such Cash and Cash Equivalents, and shall include all statements from the banks and other relevant lenders (in respect of Indebtedness) and all bank statements and other records and documents (in respect of Cash and Cash Equivalents). The Estimated Closing Net Indebtedness shall include an estimate of the various adjustments described in the Indebtedness definition (points (a) to (d)). |
| (ii) | Seller shall deliver to Buyer a statement setting forth the amount of Net Working Capital expected as of the Closing Date (but excluding the transactions to take place at Closing contemplated by this Agreement) (the “Estimated Closing Net Working Capital”). The statement of the Estimated Net Working Capital shall be in the form set out in Schedule 13 and shall provide reasonable details, on an item-by-item basis, specifying the nature of each item of Estimated Net Working Capital for each Group Company. The “Estimated Closing Net Working Capital Adjustment” shall be the difference between the Estimated Closing Net Working Capital and the Reference Working Capital. |
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| (iii) | Seller shall deliver to Buyer a statement setting forth the amount of Intercompany Debt expected as of the Closing Date (but excluding the transactions to take place at Closing contemplated by this Agreement) (the “Estimated Closing Intercompany Debt”). The statement of Estimated Closing Intercompany Debt shall provide reasonable details as to each Group Company. |
The statements of Estimated Closing Net Indebtedness, Estimated Closing Net Working Capital and Estimated Closing Intercompany Debt shall be prepared in accordance with GAAP.
| 2.3.2 | Buyer shall use its reasonable best efforts to prepare and deliver to Seller within 45 days after the Closing Date (and shall deliver within 60 days after the Closing Date) statements setting forth the Closing Net Indebtedness, the Closing Net Working Capital and the Closing Intercompany Debt. The statement of Closing Net Indebtedness shall provide reasonable details, on an item-by-item basis, specifying the nature of each item of Indebtedness, Cash and Cash Equivalents and the Group Company owing such Indebtedness or holding such Cash and Cash Equivalents, and shall include all statements from the banks and other relevant lenders (in respect of Indebtedness) and all bank statements and other records and documents (in respect of Cash and Cash Equivalents). The statements of Closing Net Indebtedness, Closing Net Working Capital and Closing Intercompany Debt shall be prepared in accordance with GAAP. |
| 2.3.3 | Seller shall have forty (40) days after the delivery of the statements of Closing Net Indebtedness, Closing Net Working Capital and the Closing Intercompany Debt during which to review such statements. Unless Seller notifies Buyer in writing within such forty (40) day period of any good faith objection to any of the statements, specifying in reasonable detail the items and amounts subject to such objection (the “Disputed Items”), any of the statements to which no such objection shall have been so made shall be conclusive and binding on Seller and Buyer. If, within such forty (40) day period, a party notifies the other in writing of any such objection, then the parties shall use reasonable best efforts for twenty (20) days after the expiration of such initial forty (40) day period to resolve in good faith their differences and agree upon any adjustments to the statements of Closing Net Indebtedness, Closing Net Working Capital and the Closing Intercompany Debt, as the case may be. |
| 2.3.4 |
Any Disputed Items which are not resolved by the mutual agreement of Seller and Buyer within such twenty (20) day period shall be submitted for resolution to an internationally recognized independent certified public accounting firm that is mutually acceptable to Seller and Buyer (the “Independent Accounting Firm”). If the Independent Accounting Firm shall have refused its mission and Seller and Buyer shall not have succeeded within a ten (10) day period in naming a mutually acceptable replacement, either party shall be entitled to request the designation of an Independent Accounting Firm by the President of the Commercial Court (Tribunal de commerce) of Paris. Seller and Buyer shall instruct the Independent Accounting Firm to limit its examination to the unresolved Disputed Items, to resolve any such unresolved Disputed Items in |
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| accordance with the requirements of this Agreement for any such items, and to use its best efforts to make its determination thereon within sixty (60) days after the referral of the Disputed Items to it in accordance herewith. The Independent Accounting Firm shall first submit a draft of its proposed resolution of the Disputed Items to both the Buyer and the Seller for comments within 10 calendar days of receipt of such draft. The resolution of any such unresolved Disputed Items by such Independent Accounting firm shall be made in a writing delivered to Seller and Buyer and (save for manifest error) shall be final, conclusive and binding upon Seller and Buyer. The fees and expenses charged by the Independent Accounting Firm shall be shared equally by the parties. |
| 2.3.5 | For purposes of verifying the Closing Net Indebtedness, the Closing Net Working Capital and the Closing Intercompany Debt, Buyer shall promptly provide such access as Seller, its accountants or the Independent Accounting Firm may reasonably require, (i) to the books, records and accounts of the Group Companies, and (ii) to the personnel or accountants responsible for the finances and accounts of the Group Companies. Any delay in providing such access shall increase the relevant periods set forth above by a commensurate period. |
| 2.3.6 | If any financial or accounting information which the Buyer reasonably requires to prepare the statements of Closing Net Indebtedness, the Closing Net Working Capital and the Closing Intercompany Debt is missing, the Seller shall cooperate with the Buyer and deliver to the Buyer such financial and accounting information for the purposes of preparing such statements. |
| 2.3.7 | For purposes of Clause 2.4 hereof, the amounts agreed or determined following the procedures set forth in this Clause shall constitute the Closing Net Indebtedness, the Closing Net Working Capital and the Closing Intercompany Debt. |
| 2.4 | Payment of Purchase Price |
| 2.4.1 | At the Closing, Buyer shall pay to the Seller (or any Seller Affiliate nominated by the Seller) or cause any Buyer Affiliate designated pursuant to Clause 2.1 to pay to Seller (or any Seller Affiliate nominated by the Seller), for same day value, the Initial Purchase Price in accordance with Clause 4.4.3. |
| 2.4.2 | If the Closing Net Indebtedness is greater than the Estimated Closing Net Indebtedness, then Seller (on its own behalf and on behalf of any Seller Affiliates that shall sell Shares or Assets) shall pay to Buyer (on its own behalf or on behalf of any Buyer Affiliates that purchase Shares or Assets) the amount corresponding to the difference between the Closing Net Indebtedness and the Estimated Closing Net Indebtedness, and if the Closing Net Indebtedness is less than the Estimated Closing Net Indebtedness, then Buyer (on its own behalf or on behalf of any Buyer Affiliates that purchase Shares or Assets) shall pay to Seller (on its own behalf and on behalf of any Seller Affiliates that shall sell Shares or Assets) the amount corresponding to the difference between the Estimated Closing Indebtedness and the Closing Net Indebtedness (each a “Net Indebtedness Adjustment”). |
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