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UNITED STATES
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
April 4, 2000
Date of Report (Date of Earliest event reported)
OM GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-22572 52-1736882
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Indentification No.)
50 Public Square, 3800 Terminal Tower, Cleveland, Ohio 44113-2204
(Address of principal executive offices)
(216) 781-0083
Registrant's telephone number, including area code
N/A
(Former name or former address, if changed since last report)
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Item 2 Acquisition or Disposition of Assets
On April 4, 2000, OM Group, Inc. (the Company) completed the
acquisition of all of the stock of Outokumpu Nickel B.V. (OKN), a
subsidiary of Outokumpu Oyj, for a cash purchase price of $173.7
million, arrived at through arm's length negotiations, subject to
purchase price adjustments based on the actual assets and liabilities
of OKN at the closing date. Registrant financed the purchase through a
bank loan arranged by National City Bank and DLJ Capital Funding, Inc.
A director of the Company is also a senior vice president of Outokumpu
Oyj. OKN is engaged, and will continue to be engaged, in nickel
refining and processing in Harjavalta, Finland.
Item 7 Financial Statements and Exhibits
(a) Financial Statements of Business Acquired
It is impracticable for the Company to provide the financial
statements for OKN required under Item 7 of Form 8-K at the time
this Form 8-K is being filed. The Company expects that the
required financial statements will be filed on or before June 16,
2000.
(b) Pro Forma Financial Information
It is impracticable for the Company to provide the pro forma
financial information required under Item 7 of Form 8-K at the
time this Form 8-K is being filed. The Company expects that the
required pro forma financial information will be filed on or
before June 16, 2000.
(c) Exhibits
2.1 Share Purchase Agreement as of February 23, 2000, by and
between Outokumpu Nickel B.V., Outokumpu Oyj, OM Group, Inc.
and OMG Kokkola Chemicals Holding B.V.
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SIGNATURE
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.
April 18, 2000 OM GROUP, INC.
/s/ James M. Materna
------------------------------------
James M. Materna
Chief Financial Officer
(Duly authorized signatory of OM Group, Inc.)
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Exhibit 2.1
SHARE PURCHASE AGREEMENT
BY AND BETWEEN
OUTOKUMPU NICKEL B.V.
AND
OUTOKUMPU OYJ
AND
OM GROUP INC.
AND
OMG KOKKOLA CHEMICALS HOLDING B.V.
23rd day of February, 2000
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TABLE OF CONTENTS
LIST OF SCHEDULES III
1. DEFINITIONS 2
2. FORMATION OF THE COMPANY 9
2.1 DE-MERGER OF THE NICKEL BUSINESS OPERATIONS 9
2.2 POST-FORMATION PRE-CLOSING COVENANTS 10
2.3 REGISTRATION OF THE COMPANY 11
3. PURCHASE AND SALE 11
3.1 OBJECT 11
4. PURCHASE PRICE 11
4.1 PURCHASE PRICE 11
4.2 CLOSING BALANCE SHEET AND DETERMINATION OF THE PURCHASE PRICE 12
4.3 PAYMENT OF THE PURCHASE PRICE 13
5. TRANSFER OF TITLE 14
6. CLOSING 14
6.1 CLOSING 14
6.2 CONDITIONS PRECEDENT 15
6.3 BEST EFFORTS TO CLOSE 16
6.4 DELIVERIES AT CLOSING 17
7. REPRESENTATIONS AND WARRANTIES OF OK AND SELLER 17
7.1 EXISTENCE 18
7.2 CORPORATE RECORDS AND DOCUMENTATION 18
7.3 TITLE AND AUTHORITY TO TRANSFER THE SHARES; CAPITALISATION 18
7.4 THE ACCOUNTS 19
7.5 TITLE TO ASSETS AND PROPERTIES 19
7.6 LEASEHOLD PROPERTIES 20
7.7 CONTRACTS 20
7.8 INTELLECTUAL PROPERTY RIGHTS 21
7.9 LICENSES 21
7.10 INSURANCE 22
7.11 PENSION AGREEMENTS AND EMPLOYMENT 22
7.12 CLAIMS; LITIGATION 23
7.13 ORDINARY COURSE OF BUSINESS 24
7.14 TAX WARRANTIES 25
7.15 TRUE AND CORRECT INFORMATION 26
7.16 STAND-ALONE STATUS 26
7.17 ENVIRONMENTAL MATTERS 26
7.18 NO CORRUPT PRACTICES 27
7.19 NO OTHER WARRANTIES 27
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER 27
8.1 EXISTENCE 27
8.2 POWER AND AUTHORITY REGARDING THE TRANSACTION 28
8.3 SUFFICIENCY OF FUNDS 28
9. INDEMNITY 28
9.1 INDEMNITY OF OK AND SELLER 28
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9.2 LIMITATION OF LIABILITY 29
9.3 THIRD PARTY CLAIMS AND RECOVERY 31
9.4 INDEMNITY OF PURCHASER 33
10. OTHER ARRANGEMENTS 33
10.1 EXCLUSION OF CERTAIN CONTRACTS 33
10.2 LICENCE OF CERTAIN INTELLECTUAL PROPERTY RIGHTS 34
10.3 EMPLOYEES 34
10.4 ENVIRONMENTAL UNDERTAKINGS 34
10.5 ELECTION OF NEW DIRECTORS 35
10.6 PRICE PARTICIPATION 35
10.7 COMPANY NAMES 35
10.8 OK'S OR SELLERS SPECIFIC INDEMNITY 35
11. MISCELLANEOUS 36
11.1 NOTICES 36
11.2 SCHEDULES INCORPORATED 37
11.3 HEADINGS 37
11.4 ASSIGNMENT 37
11.5 INTEGRATION 38
11.6 TRANSFER TAX 38
11.7 GOVERNING LAW 38
11.8 ARBITRATION 38
11.9 AMENDMENTS 38
11.10 PROVISIONS SEVERABLE 39
11.11 PUBLICITY 39
11.12 COUNTERPARTS OF AGREEMENT 39
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LIST OF SCHEDULES
Schedule 1 December Accounts
Schedule 2 List of all fixed assets and other long-term investments
forming part of the Nickel Refinery Operations
Schedule 3 Definition of the net working capital
Schedule 4 De-merger Plan
Schedule 5 Intended Agreements
Schedule 6 Raw Material Agreements
Schedule 7 List of employees to be transferred
Schedule 8 Outsourcing Agreements
Schedule 9 List of Patents
Schedule 10 Technology and License Agreement
Schedule 11 Price Participation Agreement
Schedule 12 List of other Material Contracts
OMG will provide these schedules to the Commission upon request.
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT is entered into on this 23rd day of February, 2000
by and between
Outokumpu Nickel B.V., a corporation incorporated and existing under the laws of
the Netherlands, having its registered domicile in Rotterdam, the Netherlands
("Seller")
And
Outokumpu Oyj, a corporation incorporated and existing under the laws of
Finland, having its registered office in Espoo, Finland (hereinafter separately
denoted as "OK");
And
OM Group, Inc., a company incorporated and existing under the laws of Delaware,
U.S.A. and having its principal office in Cleveland, Ohio, U.S.A. (hereinafter
separately denoted as "OMG" or "Purchaser")
And
OMG Kokkola Chemicals Holding B.V., a corporation incorporated and existing
under the laws of the Netherlands having its registered domicile in Rotterdam,
the Netherlands ("Purchaser').
All four companies collectively to be hereinafter denoted as the '"Parties"
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RECITALS:
A. OK indirectly owns one hundred percent (100%) of the shares of the Seller
and Seller owns one hundred per cent (100%) of the shares in Outokumpu
Harjavalta Metals Oy ("OKHA"), which owns and operates the metallurgical
production complex located in Harjavalta, Finland.
B. OKHA is currently undergoing a de-merger process pursuant to relevant
chapter of the Finnish Companies Act, as a result of which the business
operations of OKHA will be de-merged and transferred into two separate
companies to be established. The nickel refining operations of OKHA will
in the said de-merger process be transferred and assumed by Outokumpu
Nickel Oy (the "Company"), a corporation to be established under the De-
merger Plan (as defined below). The other operations of OKHA will be
transferred to and assumed by another new legal entity to be called
Outokumpu Harjavalta Metals Oy ("New OKHA").
C. Purchaser is a fully owned subsidiary of OMG.
D. OMG is willing to acquire, through the Purchaser, one hundred per cent
(100%) of the issued and outstanding shares of the Company and OK is
willing to cause that Seller will sell and transfer such shares to
Purchaser subject to the terms and conditions below.
NOW THEREFORE, the Parties (as defined below) hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, unless expressly otherwise stated or evident in the
context the following terms shall have the following meanings, the singular
(where appropriate) shall include the plural and vice versa and references to
Schedules and Sections shall mean Schedules and Sections of this Agreement:
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1.1 "Accounting Principles" shall mean Outokumpu Accounting
Standards which in all material
respects complies with US GAAP
except that the pension and post-
retirement benefits are treated in
accordance with the local
accounting principles.
1.2 "Affiliated Companies" shall mean any company directly or
indirectly Controlling, Controlled
by or under common Control with
another entity.
1.3 "Agreement" shall mean this Share Purchase
Agreement and the Schedules
hereto.
1.4 [..]
1.5 "Board" shall mean the Board of Directors
of the Company.
1.6 "Claim" shall mean any claim made by
Purchaser against Seller in
respect of any breach of this
Agreement.
1.7 "Closing" shall mean the consummation of the
transaction as contemplated in
Section 6 of this Agreement.
1.8 "Closing Payment" shall mean the Purchase Price, as
defined in Section 4.1, the amount
of which shall be payable at
Closing.
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1.9 "Closing Balance Sheet" shall mean the balance sheet of
the financial statements (and the
notes thereto) of the Company as
of the Closing Date, prepared by
Seller in accordance with the
Accounting Principles and as set
forth in Section 4.2..
1.10 "Closing Date" shall mean the date defined in
Section 6.1.
1.11 "Company" shall have the meaning set out in
the Recitals, Section B.
1.12 "Completion of the De- shall mean the registration of the
merger Process" Company with the Finnish Trade
Register.
1.13 "Confidential Information" shall mean any and all proprietary
information of any kind or nature
whatsoever, whether written or
oral, including, without
limitation, financial information,
trade secrets, client lists and
other proprietary business
information, regarding OKHA, the
Company or Seller or Purchaser,
which information is not known to
the general public.
1.14 "Control" (including the terms
"controlling", "controlled by"
and "under common control with")
shall mean the possession,
directly or indirectly, 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 securities, by contract, or
otherwise.
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1.15 "December Accounts" shall mean the pro-forma financial
statements of Nickel Business
Operations as of 31 December 1999,
set forth in Schedule 1 and
prepared by OKHA in accordance
with the Accounting Principles.
1.16 "Deferred Tax Liability" shall mean the deferred tax
liability arisen as a result of
accelerated depreciation and
capitalised interest payments
during construction as reflected
in December Accounts and as
adjusted pursuant to Section 4.2.
1.17 "De-merger Opening Accounts" shall mean the opening balance
sheet of The Company upon
Completion of the De-merger
Process.
1.18 "Directors" shall mean the members of the
Board of Directors of the Company
nominated under the De-merger
Plan.
1.19 "De-merger Process" shall have the meaning set out in
Section 2.1.
1.20 "De-merger Plan" shall mean the plan described in
Section 2.1.
1.21 "Due Diligence Review" shall mean the due diligence
review of Nickel Business
Operations carried out by
Purchaser referred to in Section
7.
1.22 "Estimated Net Asset Value" shall have the meaning set out in
Section 4.1.
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1.23 "Fixed Assets" shall mean the fixed assets and
other long-term investments of the
Company forming part of the Nickel
Business Operations and calculated
as set out in Schedule 2 and in
accordance with the Accounting
Principles.
1.24 "Material Adverse Effect" shall mean any effect which gives
rise to a material adverse effect
on the assets or financial
condition of the Company.
1.25 "Material Contracts" shall mean existing contracts of
the Company attached to this
Agreement (as provided for in
Schedules 5, 6, 8, 10 and 12) and
other contracts having an annual
turnover exceeding two million
Finnish markka.
1.26 "Net Asset Value" shall mean the sum of the book-
value of the Fixed Assets and the
Net Working Capital calculated
based on the Closing Balance Sheet
and determined as provided in
Section 4.2.
1.27 "Net Working Capital" shall mean the net working capital
of the Company calculated as set
out in Schedule 3 and in
accordance with the Accounting
Principles.
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1.28 "Nickel Business Operations" shall mean the nickel refining
operations carried out on the date
hereof by Seller at Seller's
premises in Harjavalta, Finland
and including all the assets,
contracts, personnel and rights
that are necessary to continue the
nickel refining operations on a
stand alone commercial basis and
which shall be de-merged to the
Company under the De-merger Plan.
1.29 "Party" "Parties" shall mean Seller, Purchaser, OK
or OMG as the case may be. And,
"Parties" shall mean collectively
OK, OMG, Seller and Purchaser.
1.30 "Purchase Price" shall have the meaning set out in
Section 4.1 below.
1.31 "Purchase Price Adjustment" shall have the meaning set out in
Section 4.2 (c).
1.32 "Purchaser" shall have the meaning set out in
the introductory paragraph hereof,
i.e. OM Group, Inc., OMG Kokkola
Chemicals Holding B.V. or a new
company to be established in
Finland being a subsidiary of
either OMG Kokkola Chemicals B.V.
or OMG Kokkola Chemicals Oy
1.33 "Purchaser's Auditors" shall mean Tilintarkastajien Oy
Ernst & Young.
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1.34 "Seller" shall have the meaning set out in
the introductory paragraph hereof,
i.e. Outokumpu Nickel B.V.
1.35 "Seller's Auditors'" shall mean SVH
PricewaterhouseCoopers Oy.
1.36 "Shares" shall mean all the outstanding
shares Nos. 1 - 125,000 of the
Company totalling 12,258,208.83
Euros to be issued to Seller
pursuant to the De-merger Plan.
1.37 "Taxes" shall mean all income tax, value
added tax and any other taxes,
customs duties and other official
charges imposed by any tax or
other competent authority,
including all penalties and
interest.
1.38 "Third Party Claim" shall mean any claim by a third
party (including tax and other
authorities) against the Company.
1.39 "Warranties" shall mean the representations and
warranties of OK and Seller and of
OMG and Purchaser respectively as
defined in Section 7 and 8.
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2. FORMATION OF THE COMPANY
2.1 De-merger of the Nickel Business Operations
OKHA owns and operates the metallurgical production complex located in
Harjavalta, Finland. OKHA is currently undergoing a de-merger pursuant to
Chapter 14a of the Finnish Companies Act (29 October 1978/734, as
amended), as a result of which the business operations of OKHA will be de-
merged and transferred into two separate companies (the foregoing process
is hereinafter referred to as the "De-merger" or the "De-merger Process").
The principle behind the de-merger of assets and liabilities of OKHA in
connection with the De-merger Process is established in the De-merger
Plan, attached hereto as Schedule 4. According to the De-merger Plan and
the principles set out in this Agreement, the following assets and
liabilities will be transferred to the Company upon Completion of the De-
merger Process and/or Closing:
(i) those assets which at the time of Completion of the De-merger
Process form part of the Nickel Business Operations, comprising of
fixed assets and other long-term investments as described in more
detail in Schedule 2 and of current assets (as described by line-
item basis in Schedule 1) including inventory (raw materials, work
in progress and finished goods) having a minimum level of 10.000
tonnes of nickel and maximum level of 20.000 tonnes of nickel at
Closing, and
(ii) those liabilities, which at the time of Completion of the De-merger
Process have arisen and exist out of or in connection with the
Nickel Business Operations.
It is acknowledged by the Parties that Purchasers auditors will perform a
historical audit of the December Accounts as required by U.S. reporting
standards and OK shall cause that OKHA personnel will assist the auditors
in their audit.
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2.2 Post-formation Pre-Closing covenants
Although the division of assets and liabilities according to the De-merger
Plan will form the basis of the assets and liabilities to be transferred
to the Company upon the Completion, the Parties however agree and OK
covenants to procure that the following modifications and changes are made
prior to Closing:
(i) all long term debt as well as all other liabilities (other than
current liabilities and the Deferred Tax Liability) reflected in
the balance sheet of the Company as well as all off balance sheet,
financing-related liabilities (which for purposes of this provision
shall be deemed to include all guarantees, pledges, mortgages or
other security obligations as well as financial leases, derivative
instruments or other similar financial undertakings to the
exclusion of any liabilities in the ordinary course of business)
shall be removed from the Company upon or after the Completion of
the De-merger Process at no cost to Purchaser and OK shall hold the
Company harmless with respect to any such debt or liability;
(ii) Company shall not become a party to and shall be relieved from all
obligations under a certain Management Consulting Agreement
concluded and dated on 1.1.1994 between OKHA and Outokumpu Metals &
Resources Oy and under a certain Technical Planning and Projects
Agreement concluded and dated on 1.5.1999 between OKHA and
Outokumpu Engineering Services Oy, latter exclusion of which shall
be subject to the Company entering into a new technical planning
and projects agreement with Outokumpu Engineering Services Oy;
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2.3 Registration of the Company
OK and Seller shall procure that between the date hereof and the Closing
Date the De-merger Process shall be carried out to the effect that the
Company will be duly existing and registered as contemplated under the De-
merger Plan and in this Agreement on or about March 31, 2000 and that the
Shares shall be issued to Seller upon Completion of the De-merger Process.
3. PURCHASE AND SALE
3.1 Object
Upon the terms and subject to the conditions set forth herein, OK shall
procure that Seller hereby sells and OMG shall procure that Purchaser
purchases the Shares effective on the Closing Date on the terms and
conditions set out in this Agreement.
4. PURCHASE PRICE
4.1 Purchase Price
The Purchase Price payable by Purchaser to Seller for the Shares shall be,
subject to adjustments as provided in Section 4.2, the sum of
(i) the book value of the Fixed Assets of the Company as of the Closing
Date which for the purpose of the calculation of the Closing
Payment is FIM 536.405.717 as established under the December
Accounts;
(ii) an amount equal to the Net Working Capital of the Company as of the
Closing Date, which for the purpose of the calculation of the
Closing Payment is FIM 375.271.325 as established under the
December Accounts; and
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(iii) a fixed amount of FIM hundred and sixty-two million (162,000,000).
Accordingly the Purchase Price without regard to the Purchase Price
Adjustment (as defined below) shall be FIM 1.073.677.042. (hereinafter
also referred to as the "Cosing Payment")
The sum of FIM 911.677.042 comprising of the amounts in (i) and (ii) above
shall be referred to as the Estimated Net Asset Value.
For the purpose of final determination of the Purchase Price, the Net
Asset Value shall be established based on the Closing Balance Sheet to be
prepared pursuant to Section 4.2 below. It is explicitly agreed that the
Deferred Tax Liability will be assumed by Purchaser through the Company
without any effect on the Purchase Price.
The Parties further agree to enter into a separate agreement on price
participation as provided under Section 10.6.
4.2 Closing Balance Sheet and Determination of the Purchase Price
(a) As promptly as practicable, and in any event not more than forty-
five (45) days following the Closing Date, Seller shall prepare and
deliver to Purchaser a Closing Balance Sheet as of the Closing
Date, including a calculation of the Net Asset Value and the
Inventory, if any, as of such date. Seller and Seller's Auditors
shall have access to all the records and book-keeping material
relating to the Company to the extent required for the purposes of
preparing the Closing Balance Sheet.
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(b) Purchaser's Auditors shall verify the Closing Balance Sheet, the
Net Asset Value and shall for such purpose have access to all
records and book-keeping material of the Company and, as the case
may be, of Seller to the extent required for the purposes of such
review. Purchaser may dispute the Closing Balance Sheet, the Net
Asset Value and/or the Inventory Levels by notifying Seller in
writing of the amount(s) in dispute and the basis for such dispute
within sixty (60) days from the receipt of the Closing Balance
Sheet. Seller and Purchaser shall in good faith endeavour to
resolve any dispute under this Section 4.2 (b) within thirty (30)
days from the date of receipt by Seller of Purchaser's written
notice of dispute, failing which the matter shall be resolved by an
independent auditor (from among the big 5) appointed jointly by the
Parties and failing that by Central Chamber of Commerce of
Helsinki, Finland [Keskuskauppakamari]. The Parties agree that the
resolution of such independent auditor shall be final and binding
upon the Parties with prejudice to Section 1 1.8.
(c) The Purchase Price shall be finally determined based on the Closing
Balance Sheet and the calculation of the Net Asset Value. The
Purchase Price shall be adjusted on markka for markka basis (i)
upwards to the extent the Net Asset Value calculated as provided in
this Section 4.2 exceeds the Estimated Net Asset Value or (ii)
downwards to the extent the Net Asset Value falls short of the
Estimated Net Asset Value (the net adjustment is hereinafter
referred to as the "Purchase Price Adjustment").
4.3 Payment of the Purchase Price
The Purchase Price shall be paid as follows:
(i) one billion seventy-three million and six hundred and seventy-seven
thousand and forty-two Finnish markka (FIM 1.073.677.042) shall be
paid at Closing as Closing Payment;
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(ii) the Purchase Price Adjustment shall be paid or repaid within forty-
five (45) days from the delivery by Seller to Purchaser of the
Closing Balance Sheet and the calculation for the Net Asset Value.
If the Purchase Price is in dispute the final settlement of the
Purchase Price will be made within fourteen (14) days from the
final resolution of the dispute.
The Purchase Price shall be paid in immediately available funds to the
bank account(s) identified by Seller.
5. TRANSFER OF TITLE
The full and unrestricted ownership of and title to the Shares shall pass
from Seller to Purchaser at Closing against payment of the Closing Payment
and fulfillment and completion of the Closing procedures set forth in
Section 6.
6. CLOSING
6.1 Closing
The Closing shall take place on the Closing Date starting at 11:00 a.m. at
the offices of Outokumpu or by simultaneously signing and delivering the
counter-part documents by courier, as may be agreed between the Parties
prior to Closing.
The Closing Date shall be April 3rd, 2000 or as soon thereafter as
practicable when all the conditions precedent for the Closing as set out
in this Section 6. have been fulfilled.
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6.2 Conditions Precedent
The obligation of Seller and Purchaser to close hereunder shall be subject
to the fulfillment, on or before the Closing Date, of the following but
only the following conditions (to the extent not expressly waived in
writing by the Party in whose favour the condition has been established):
(a) Registration of the Company
Seller shall have procured the registration of the Company in
all material respects in accordance with the De-merger Plan.
(b) Authority Approvals
OK, OMG, Seller and Purchaser, as the case may be, shall have
obtained all necessary authorisations, approvals and consents,
unconditionally or subject to conditions acceptable to the Parties,
from all relevant national or supra-national authorities, including
the competition authorities, as the case may be, required for the
lawful and valid consummation of the Agreement.
(c) Corporate Action
All corporate action necessary for the lawful and valid
consummation of this Agreement shall have been duly taken by OK,
OMG, Seller and Purchaser, by the time of signing this Agreement
and shall be in full force and effect.
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(d) Intended Agreements and Raw Material Agreements
The Intended Agreements as listed in Schedule 5 entered into
between the Company and New OKHA (in the form as attached hereto)
upon completion of the De-merger Process and Raw Material
Agreements listed in Schedule 6 shall be in full force and effect
and that OK has procured deeds of adherence or other relevant
instrument to ascertain the effective assignment of all the Raw
Material Agreements (including the agreements of Western Mining
Corporation and Mineracao Serra da Fortaleza Ltda) to the Company.
6.3 Best Efforts to Close
The Parties shall use their respective best efforts to cause all necessary
action to be taken in order to have all the conditions precedent for the
Closing as set out in Section 6.2 above to be fulfilled as promptly as
practicable.
Unless the Closing has taken place by 30 June 2000 the Parties will
negotiate in good faith towards finding a solution which is mutually
acceptable and fair to both Parties under the circumstances, but not
longer than until 31 August 2000 upon which date each of the Parties shall
be free to terminate this Agreement forthwith, and no Party shall have any
claims by reason of or in connection with such termination.
Each Party shall execute such documents including any transfer forms for
the transfer of the Shares and take such further action as may be
reasonably required or desirable to carry out the provisions of this
Agreement and the transactions contemplated herein, and to obtain in a
timely manner all necessary waivers, consents and approvals and to effect
all necessary registrations and filings.
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6.4 Deliveries at Closing
At Closing, the following deliveries shall take place:
(a) Seller shall sell, transfer and convey to Purchaser the Shares;
(b) Purchaser shall pay the Closing Payment to Seller;
(c) the Parties shall execute or cause to be executed, as the case may
be, the Transfer Form effecting the transfer of the Shares;
(d) any other document, condition, amount or matter herein called for
to be produced, delivered, released, paid or fulfilled at Closing
as a condition precedent shall be so produced, delivered, released,
paid and fulfilled.
7. REPRESENTATIONS AND WARRANTIES OF OK AND SELLER
The Parties acknowledge that OK and Seller has prior to the date hereof
availed itself over a substantial period of time for Purchaser's
investigations and that Purchaser has had an opportunity to review and
familiarise itself with substantially all the operations and assets
forming the Nickel Business Operations. In connection with such
investigations, Purchaser has received a confidential information
memorandum pertaining to the Nickel Business Operations, reviewed the data
room material (including all pertinent documentation concerning the De-
merger Process) pertaining to the same together with the information
provided to Purchaser pursuant to follow-up questions. In addition, the
Buyer has on several occasions had discussions with the relevant
management of OKHA (the "Due Diligence Review").
OK and Seller hereby makes the following Warranties as at the date hereof
repeated at the Closing Date (unless otherwise indicated).
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7.1 Existence
The Company is duly organised and validly existing under the laws of
Finland and has full corporate power to carry on its business as conducted
on the Closing Date.
7.2 Corporate Records and Documentation
(a) True, complete and current copy of the De-merger Plan regarding the
formation of the Company is attached hereto as Schedule 4.
(b) The corporate documentation of the Company and All Material Contracts
exist, are duly and effectively assigned to the Company and binding
the other party and are in the possession of the Company and safely
kept and correct.
7.3 Title and Authority to Transfer the Shares; Capitalisation
(a) Seller has full ownership to the Shares and has full power, capacity
and authority to sell and transfer such shares and to perform all
other undertakings set forth in this Agreement. The Shares are fully
transferable to Purchaser and are free and clear of all restrictions
on the ability to vote. The Shares are not subject to claims,
options, liens, charges or other encumbrances of any kind.
(b) The Shares have been legally and validly issued, are fully paid and
constitute one hundred percent (100%) of the issued capital of the
Company. There are no outstanding obligations, warranties, options,
depository receipts, subscriptions, pre-emptive rights, contracts or
agreements to which OK or Seller or the Company is bound, providing
for the issuance of any additional shares of the Company.
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(c) OK and Seller has the full legal power and corporate power to enter
into this Agreement and to consummate the transactions contemplated
hereby. The execution of this Agreement, the consummation of the
transactions contemplated hereby and the fulfilment of the terms
hereof do not contravene any contract to which OK or Seller is bound
nor is any consent, approval or action of any authority or person
required for the performance by OK or Seller or the Company by the
transactions contemplated hereby.
7.4 The Accounts
The December Accounts have been and the De-merger Opening Accounts will be
prepared in conformity with the Accounting Principles. There are no
obligations or liabilities, whether absolute, accrued, contingent or
otherwise (including without limitation, liabilities for taxes) which are
not reflected or disclosed in the December Accounts and in the De-merger
Opening Accounts, the accounts receivable (with the exception of
receivables from OMG group of companies) are good and collectable at the
recorded amounts. The December Accounts are correct and complete and
fairly reflect and represent Nickel Business Operations at the end of 1999
and are correctly based on the book keeping material of OKHA.
7.5 Title to Assets and Properties
The Company has exclusive title to all of the personal property including
all buildings and constructions and other assets recorded in the December
Accounts and to be recorded in the De-merger Opening Accounts except for
such assets which are leased or licensed. The assets are not subject to
any liens, mortgages, charges or other encumbrances, except for those
recorded in the December Accounts or to be recorded in the De-merger
Opening Accounts.
All machinery, tools and equipment of the Company are to a material extent
operational and useable, except for normal wear and tear, and fit for the
purpose intended.
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OKHA has and new OKHA will have exclusive title to the real property on
which the Harjavalta plant operates and has full and unencumbered power to
enter into the Land Lease Agreement included as part of the Intended
Agreements in Schedule 5 for the period provided therein.
All inventories have been recorded in the December Accounts and will be
recorded in the De-merger Opening Accounts in accordance with the
Accounting Principles and making such use of LIFO valuation as
consistently applied by OKHA.
The buildings and other structures to be transferred to the Company (and
to OMG) are in good and substantial repair and fit for the purposes for
which they are presently used. There are no disputes with any adjoining or
neighbouring owner or any other third party with respect to any easement,
rights or means of access to land or otherwise.
7.6 Leasehold Properties
There are no current leasehold interests or similar arrangements (as
defined under Section 1.25 Material Contracts) agreed by OK, Seller or
OKHA that shall be transferred to the Company other than the Land Lease
Agreement referred to above, which Agreement shall be made valid and
effective in accordance with its respective terms latest at the Closing.
7.7 Contracts
(a) There are no other Material Contracts than those which have been
listed in Schedule 5, 6, 8, 10 and 12.
(b) The Company has not received or given notice of termination of any
Material Contracts.
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(c) No party to any Material Contract has the right to terminate or
modify its obligations as a direct result of the transactions
contemplated hereby and all agreements and contracts shall be
effectively assigned to the Company by operation of law governing the
De-merger Process and will bind the counter party or parties in
accordance with their respective terms and conditions.
(d) The Company is not in default having a Material Adverse Effect under
any Material Contract.
7.8 Intellectual Property Rights
OK (or any of its affiliate company) owns all patents listed in Schedule 9
and know how and technology used by the Company to conduct Nickel Business
Operations free from any liens or encumbrances.
No third party has presented any claims against OK or Seller or the
Company alleging infringement by Seller or the Company of any intellectual
property rights belonging to such third party and, to OK's or Seller's
knowledge, no such claim is threatened.
7.9 Licenses
All licenses, permits and authorisations necessary for the Company to
carry on the Nickel Business Operations as conducted on the Closing Date,
including the separate Technology and License Agreement set out in
Schedule 10 and referred to in Section 10.2, will be in full force and
effect prior to or at the Closing and there are no currently existing
violations and, to OK's or Seller's knowledge, forthcoming violations of
any such licenses, permits or authorisations in the Nickel Business
Operations. There is no pending action or other proceeding which seeks the
revocation of any such existing licenses, permits or authorisations.
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7.10 Insurance
The present insurance policies of OK covering Seller and the Company
provide the types and amounts of adequate insurance coverage normal and
customary for similar companies in Finland.
7.11 Pension Agreements and Employment
(a) To the extent required by applicable law, other regulations and the
Accounting Principles, provisions have been made in the December
Accounts and will be made in the De-merger Opening Accounts, for the
full amount of all present and future liabilities in respect of
pension undertakings to be paid to current or former directors,
officers or other employees of the Company or to any authority.
(b) All past pension liabilities as well as all those future pension
liabilities which relate to period prior to Closing based on
Outokumpu collective bargaining agreement dated 31.5.1988 with regard
to those employees transferring to the Company are fully covered.
These voluntary additional pension liabilities have been transferred
to Henki-Sampo and OK will arrange to the Purchaser prior to Closing
a certificate issued by Henki-Sampo ascertaining that all past and
future pension liabilities prior to Closing are fully covered. All
past pension liabilities as well as all future pension liabilities
relating to period prior to Closing based on the so called Neliapila
pension fund with regard to employees transferring to Company at
Closing are correctly reflected in the balance sheet of OKHA as
pension liability and will be transferred to the Company after
Completion of the De-merger Process to the extent relating to
employees transferring to the Company.
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(c) OK represents and warrants that there is no shortfall in the coverage
of the pension liabilities of the Company or any uncovered pension
liability to the Company (whether based on applicable laws,
regulations or on OK internal current or past usage), with respect to
the current or former directors, officers or other employees in the
Company and that all contributions, whether statutory or otherwise,
in respect of pension undertakings to current or former Directors,
officers or other employees of the Company have been made in full up
to the Closing. For the avoidance of doubt New OKHA is responsible
for the employer's liability with respect to the capitalised pension
liability of all past employees who have entered the early retirement
schemes of OKHA prior to the Closing.
(d) OK and Seller are and OK, Seller and the Company will be on the
Closing Date in compliance in all material respects with all
applicable collective bargaining agreements and with all laws and
regulations regarding employment, including work environment, health
and safety and any obligation to notify and/or to negotiate with
employee representatives with respect to the transactions
contemplated herein. All salaries and other amounts due to the
employees and to the social security and tax authorities up to the
Closing Date have been paid when due.
7.12 Claims; Litigation
Unless otherwise disclosed to Purchaser, the Company has not been served
with any summons or notice to arbitrate and there are no actions,
arbitration, litigation or other legal proceedings pending, or to OK's or
Seller's knowledge, threatened, against Seller or the Company. There is no
action or other proceeding pending or, to OK's or Seller's knowledge,
threatened by Seller against any other person or entity.
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7.13 Ordinary Course of Business
During the period from December 31, 1999 until Closing OK or Seller will
not instruct or allow any action or measure which is outside the ordinary
course of business of the Company and which will have a Material Adverse
Effect, unless such action or measure is directly related to the
transactions contemplated hereby or has been approved in writing by
Purchaser. There has not since December 31, 1999 been
a) Material Adverse Change in the financial condition, operations,
assets or liabilities of the Nickel Business Operations;
b) any transactions or payments between OK or any other company
belonging to Outokumpu group and OKHA, other than those related to
Section 2.1. herein, or involving tangible assets given or
received except at fair market value in the ordinary course of
business and in accordance with sound business practices;
c) any additional long term debt related to Nickel Business
Operations or any additional current liabilities incurred except
in the ordinary course of business;
d) any contract, or commitment unless in the ordinary course of
business made with any party which cannot be terminated on less
than thirty (30) days notice;
e) unless disclosed to the Purchaser, any change in employment
compensation, pension and other employment benefits with respect
to the directors or employees of the Nickel Business Operations,
nor has there been any new employment or termination of
employment;
f) unless disclosed to the Purchaser, any amendment or termination
of any contracts of material nature other than in the ordinary
course of business;
g) any release or waiver of any dept, claim or right of a material
character;
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h) any damage, destruction, or loss whether covered by insurance or
not, materially and adversely affecting the business or any other
event or condition materially and adversely affected the business.
7.14 Tax Warranties
(a) OKHA has filed with the appropriate tax authorities all tax returns
and reports in respect of any and all Taxes required to be filed
with such tax authorities related to the Nickel Business
Operations. OKHA has paid in full to the appropriate tax
authorities all Taxes related to Nickel Business Operations and OK
shall procure that new OKHA shall hold the Company harmless from
any and all Tax liabilities or Tax claims of OKHA effectively
related to OKHA's Nickel Business Operations based on period prior
to Closing and to De-merger Process with the exception of Deferred
Tax Liability, which will be assumed by the Company. All Taxes
accruable since the filing of such returns have been accrued on
the books of the Company. No proceedings or other actions have
been taken, nor is there any basis for any proceeding or other
action for the assessment and collection of additional taxes for
any period for which returns have been filed, and no additional
taxes for such periods will be assessed or collected.
(b) All Taxes required to have been paid by the Company have been paid
in due time. The Company has not been given or granted any waiver or
extension by any tax authority of any period of limitation governing
the time of assessment or collection of any Taxes.
(c) All Taxes triggered by or payable by the Company due to the De-
merger shall be duly accounted for in the Closing Balance Sheet.
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7.15 True and Correct Information
This Agreement and any and all documents and other data regarding Seller,
it's financial condition and business disclosed by Seller to Purchaser in
the Disclosure Material, are true and correct in all material respects.
7.16 Stand-Alone Status
OK has prepared the De-merger Plan in good faith to ensure that the
Company will after the Closing Date be able to conduct the Nickel Business
Operations as a stand-alone entity relying on certain services as provided
for under certain agreements included in Schedule 5.
7.17 Environmental Matters
OK represents and warrants that OKHA is and has been in compliance with
all applicable environmental laws and that OKHA has obtained all permits,
licenses and approvals from governmental authorities and agencies that are
necessary for the Nickel Business Operations, and is and has been in
compliance with the requirements set out in such permits and that the
Company can maintain present waste and disposal levels without violating
such environmental permits currently in force.
The Company will after the completion of the De-merger have the
nonexclusive benefit of all the material environmental permits, licenses
and approvals of governmental authorities and agencies, whether held by
the Company or New OKHA, necessary for the Company to carry on the Nickel
Business Operations as conducted on the Closing Date. OK or Seller have
not received notice of any current violation of any applicable
environmental statute, regulation or decree binding upon it for the Nickel
Business Operations which have not been substantially corrected except for
violations that could not be reasonable expected to have a material
adverse effect. To OK's or Seller's knowledge, there are no matters likely
to result in any material claim or proceeding against the Company, based
on a violation of
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applicable law or conditions of permits relating to the Nickel Business
Operations or related emission, discharge or release into the environment
of any hazardous waste, hazardous substances or solid waste, except for
conditions that are curable by general repair and maintenance in the
ordinary course of the business.
7.18 No Corrupt Practices
Neither OK, Seller, OKHA nor any of their officers, directors, employees
or agents has, directly or indirectly, given or made or agreed to give or
make any illegal commission, payment, gratuity, gift, political
contribution or similar benefit material in amount to any customer,
supplier, governmental employee or other person who is or may be in a
position to help or hinder the business of the Nickel Business Operations.
7.19 No Other Warranties
It is specifically stated and agreed that Seller has not made, and
Purchaser has not relied on, any other warranties or representations than
the representations and warranties expressly given in the above in this
Section 7.
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby makes and gives the following Warranties:
8.1 Existence
OMG and Purchaser are duly organised, validly existing and have full
corporate power to carry on their businesses as conducted on the Closing
Date.
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8.2 Power and Authority Regarding the Transaction
OMG and Purchaser have the full legal and corporate power to enter into
this Agreement and to consummate the transactions contemplated hereby. The
execution of this Agreement, the consummation of the transactions
contemplated hereby and the fulfillment of the terms hereof, will not
result in a breach of any judgement, decree or order of any national or
supranational court, governmental or other body, any applicable law or
regulation or the Articles of Association of Purchaser.
8.3 Sufficiency of Funds
OMG and Purchaser have in hand, and/or have made arrangements with
reputable financial institutions to obtain all funds necessary to enable
Purchaser to finance the transaction and to otherwise perform under this
Agreement in accordance with its terms.
9. INDEMNITY
9.1 Indemnity of OK and Seller
OK and Seller, jointly and severally shall indemnify and hold OMG and
Purchaser harmless from and against any and all losses, damages, costs and
expenses (including reasonable attorneys' fees) actually suffered by or
incurred by OMG or Purchaser arising out of or resulting from
(i) any breach by OK or Seller under this Agreement;
(ii) any environmental contamination of soil, pollution of waters of
River Kokemaenjoki or ground waters or air emissions or any other
environmental violation relating to Nickel Business Operations
prior to Closing as well as any future environmental damage or
third-party claims due to contamination, pollution or emissions
caused by OKHA's operations
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prior to Closing. The Environmental Audit pursuant to Section 10.4
will serve as a prima facie basis for determining the foregoing
indemnity;
(iii) any claim relating to De-merger and the operation of OKHA prior to
Closing;
(iv) all taxes, fines, penalties relating to Nickel Business Operations
and arising prior to Closing; and
(v) all claims relating to employment by OKHA prior to Closing, which
for purposes of this indemnity shall mean claims for unpaid wages,
social security contributions, shortfall of any pension liability
coverage or welfare plans maintained by OKHA.
Thus if Seller is in breach of this Agreement, subject to the limitations
set forth in Section 9.2, the Purchase Price shall, as the sole and
exclusive remedy to Purchaser, be reduced by an amount corresponding to
the deficiency, damage or cost or loss or expense actually incurred by the
Company (less any tax deduction pursuant to Section 9.2 (b)) as a result
of such breach. Such reduction may not, however, in any event exceed five
hundred million Finnish marks (FIM 500.000.000) which constitute Seller's
maximum liability under this Agreement except for breach of the Warranties
under Sections 7.3, 7.5, 7.14 and 7.17 for which Seller's liability shall
not exceed the amount of the Purchase Price.
9.2 Limitation of Liability
Seller's liability under this Agreement is limited as follows:
(a) For the purposes of this Agreement, a liability, which is
contingent, shall not constitute a deficiency, cost or loss, unless
and until such contingent liability becomes an actual liability and
is due and payable.
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(b) If any deficiency, cost or loss referred to in Section 9.1 is a tax
deductible item the Claim that Purchaser may make shall be reduced
by an amount equivalent to the deficiency, cost or loss multiplied
by the corporate tax rates which are applicable in Finland at the
time of the reimbursement.
(c) Purchaser shall not be entitled to make any Claim to the extent
that a provision or allowance for the matter of the deficiency,
cost or loss (whether as a specific reserve or as a general
reserve) has been specifically made or is reflected in the Closing
Balance Sheet.
(d) No liability shall arise in respect of any breach of this Agreement
or otherwise:
(i) if and to the extent that any Claim occurs as a result of
any legislation not in force at the date hereof, or which
takes effect retrospectively, or occurs as a result of any
increase in the rate of tax in force at the date hereof or
any change in the practice of the relevant tax authorities;
(ii) if such liability would not have arisen but for an act,
omission or transaction carried out by Purchaser, or persons
deriving title from Purchaser after Closing.
(e) In the event it is found that there is a breach of this Agreement
for which Seller is liable, as set out above, Purchaser shall be
entitled, by way of a sole and exclusive remedy, to a reduction of
the Purchase Price as set out in Section 9.1. This remedy shall be
exclusive and it is specifically agreed that no remedy whatsoever
under the Finnish Sale of Goods Act (355/1987), including (but not
limited to) the right to rescind this Agreement, shall be available
to Purchaser. If the reduction of the Purchase Price shall be
effected by means of a return by Seller of a part of the Purchase
Price, OK shall be entitled to determine the manner in which such
refund shall be effected.
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(f) No reduction of the Purchase Price shall be made due to a breach of
this Agreement, unless the total amount of the Claims, which
Purchaser may make in this respect under this Agreement, amounts to
or exceeds thirty million Finnish marks (FIM 30.000.000). If such
Claims amount to thirty million Finnish marks (FIM 30.000.000) in
the aggregate, the reduction shall be made for the first markka.
This Section 9.2 (f) shall not be applied with respect to Purchaser
claims under the Section 9.1. (ii), (iv) and (v)
(g) No Claim shall be brought unless notice in writing of any such
claim, accompanied by all relevant particulars thereof specifying
the nature of the breach and the amount claimed in respect thereof,
has been given to OK or to Seller not later than twelve (12) months
and, in respect of any claims under Section 9.1 (ii), not later
than ten (10) years and, in respect of any claims under Section 9.1
(iv) and (v), six (6) years from the Closing Date.
(h) No ability shall arise in respect of any breach of this Agreement
in respect of any deficiency, cost or loss, to the extent it is
covered by a policy of insurance taken by Purchaser or the Company.
(i) Purchaser shall take all reasonable steps to mitigate losses and
Seller shall not be liable for any claim to the extent the
Purchaser could have mitigated, acting with normal care in the
ordinary course of business, any cost or loss resulting from a
breach of Agreement.
9.3 Third Party Claims and Recovery
In case Purchaser becomes aware of any Third Party Claim, which could lead
to a breach of this Agreement, Purchaser shall, in order to maintain the
right to bring a Claim against OK and Seller:
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(i) as soon as reasonably practicable, give notice thereof to OK or
Seller;
(ii) not make any admission of liability, agreement or compromise with
any person, body or authority in relation thereto, without obtaining
the prior consent of OK or Seller;
(iii) in any action resist, defend, appeal and compromise such claim in
the best interest of Seller;
(iv) give OK or Seller, or their duly authorised representatives,
reasonable access to the personnel of Purchaser and to any relevant
premises, accounts, documents and records within their respective
power, to enable OK or Seller, or their duly authorised
representatives, to examine such claim, premises, accounts,
documents and records and to take copies or photocopies thereof.
In case a Third Party Claim would arise that could lead to a breach of
this Agreement, any negotiations dispute or litigation relating thereto
with any third party shall be handled by OK or by Seller at OK's or
Seller's cost and after consultation with Purchaser. OK or Seller shall,
however, make all reasonable efforts to avoid interference with the
operations of the Company and shall at all times comply with the
applicable laws and governmental regulations.
If OK or Seller has made any payment to Purchaser as a settlement of any
claim and Purchaser has the right to recover from any third party any
amount payable as a result of facts or circumstances forming the basis of
such claim, then Purchaser shall, upon request of OK or Seller, either
assign that right to OK or Seller or, if OK or Seller so directs,
Purchaser shall at the direction and cost of OK or Seller pursue the said
recovery and account to OK or Seller for any monies or property,
recovered.
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Notwithstanding any of the foregoing, OK or Seller shall have no
obligation to satisfy any claim in respect of any Third Party Claim before
the matter is subject to a final non-applicable decision.
9.4 Indemnity of Purchaser
Purchaser shall as from the Closing Date indemnify and hold OK or Seller
harmless against any and all deficiencies or costs or direct losses
actually suffered or incurred by OK or Seller arising out of or resulting
from any breach by Purchaser of this Agreement. No indemnity shall,
however, be payable by Purchaser under this Agreement, unless the total
amount of any deficiencies or costs or direct losses actually suffered or
incurred by OK or Seller exceed in the aggregate the amount of thirty
million Finnish markka (FIM 30 million). If such deficiencies, costs or
direct losses amount in the aggregate to that limit, the indemnification
shall be made from the first markka.
For the avoidance of any doubt the Company shall be responsible for the
contamination of soil, pollution of waters of River Kokemiienjoki as well
as ground waters or air emissions after the Closing provided that such
events are caused by or are the result of the Company carrying on the
Nickel Business Operations after the Closing. The foregoing liability of
the Company and the Purchaser shall be unaffected by liability limitations
provided in this Agreement.
10. OTHER ARRANGEMENTS
10.1 Exclusion of Certain Contracts
Seller shall make available to Purchaser all hedging contracts entered
into in connection with the Nickel Business Operations and Purchaser shall
at its full discretion elect which hedging contracts Purchaser is willing
to assume through the Company on the Closing Date. The Parties shall
review the
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hedging contracts referred to herein as soon as practicable and at the
latest not later than ten (10) days before the Closing Date.
10.2 Licence of Certain Intellectual Property Rights
The Parties have negotiated a Technology License Agreement to be entered
into by and between the Company and OK upon Completion of the De-merger
Process in the form as attached hereto in Schedule 10.
10.3 Employees
Employees listed in Schedule 7 to this Agreement will be transferred to
the Company as "old employees" upon the Completion of the De-merger
Process retaining in all material respects their current terms of
employment.
10.4 Environmental Undertakings
The Parties shall jointly assign an independent consultant to perform on
or around the Closing Date a comprehensive environmental audit reviewing
and verifying the current environmental status and condition of Harjavalta
industrial site and the Nickel Business Operations of the Company (the
"Environmental Audit"). Parties acknowledge that the foregoing
Environmental Audit shall confirm the existing environmental status of the
real property on which the Harjavalta plant operates. The parties further
acknowledge that the respective liabilities of the parties vis-a-vis
environmental matters will be based upon the conclusions of the
Environmental Audit. Any future claims and/or responsibilities pertaining
to environmental matters will be scrutinised against the conclusions of
the Environmental Audit. The parties further undertake to engage
themselves and shall cause the Company and New OKHA to engage in good
faith negotiations to determine the cause for such contamination or
pollution, to identify the responsible party for the same and to determine
the feasible action(s) in accordance with the above.
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10.5 Election of New Directors
Seller shall procure that the Directors to be appointed for the Company
under the De-merger Plan shall resign on the Closing Date. Purchaser shall
elect new Directors for the Company and shall procure that the Directors
resigned on the Closing Date will be granted discharge of liability for
their term of office at the next annual general meeting of the Company.
10.6 Price Participation
As a part of the transactions contemplated herein, the parties have
negotiated that certain Price Participation Agreement, attached to this
Agreement as Schedule 11. The Parties shall cause the relevant signatories
to such Price Participation Agreement to execute the same prior to
Closing.
10.7 Company Names
Purchaser undertakes to change the names of the Company as soon as
practicable after Closing so that the word "Outokumpu" is removed from the
company names.
10.8 OK's or Sellers Specific Indemnity
Notwithstanding any other indemnity as agreed elsewhere in the Agreement,
OK and Seller shall indemnify and hold the Company and Purchaser harmless
of any liability which the Company and/or Purchaser may have pursuant to
the concept of secondary liability (Article 14a:6 of the Companies Act of
734/78, as amended) for the obligations of the OKHA, which are unrelated
to the Nickel Business Operations, after the Completion of the De-merger
Process. OK's and Seller's liability hereunder shall be limited to amount
of the Purchase Price but shall not be subject to any deductibles or other
reductions.
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11. MISCELLANEOUS
11.1 Notices
All notices, demands or other communication, which all shall be in the
English language, to or upon the respective Parties shall be deemed to
have been duly given or made when delivered by mail, telefax or cable to
the party in question as follows:
If to Purchaser:
address: OMG Kokkola Chemicals Oy
P.O. Box 286
67101 Kokkola, Finland
telefax: +358-6-228 0373
attention: Antti Aaltonen
with a copy to:
address: Makitalo Raikkonen & Co, Attorneys-at Law
Etelaesplanadi 18
00130 Helsinki
Finland
telefax: +358-9-68444141
attention: Keijo Raikkonen
If to Seller:
address: Outokumpu Oyj
Riihitontuntie 7 B,
P.O. Box 140,
02201 Espoo, Finland
telefax: +358-9-4214321
attention: Esko Paakkonen
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with a copy to:
address: Outokumpu Oyj
Legal Affairs and M&A
P.O. Box 280,
Riihitontuntie 7 D,
02201 Espoo, Finland
telefax: +358-9-421 2428
attention: Karri Kaitue
or at such other address as the respective party may hereafter specify in
writing to the other party.
11.2 Schedules Incorporated
Each Schedule to which reference is made herein and which is attached
hereto shall be deemed incorporated in this Agreement by such reference.
11.3 Headings
The headings and the table of contents of this Agreement are for
convenience of reference only and shall not in any way limit or affect the
meaning or interpretation of the provisions of this Agreement.
11.4 Assignment
This Agreement and the rights and obligations specified herein shall be
binding upon and inure to the benefit of the Parties and shall not be
assignable by either Party.
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11.5 Integration
This Agreement represents the entire understanding and agreement between
the Parties with respect to the subject matter hereof and supersedes all
prior negotiations, understandings and agreements relating to the subject
matter hereof.
11.6 Transfer Tax
Any transfer taxes assessed in connection with this Agreement and the
Related Agreements shall be borne by Purchaser.
11.7 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of Finland.
11.8 Arbitration
Any dispute, controversy or claim arising out of or relating to this
Agreement or the breach, termination or invalidity thereof shall be
finally settled by arbitration in accordance with the Arbitration Rules of
the Finnish Central Chamber of Commerce. The arbitration shall be held in
Helsinki and the arbitration proceedings shall be conducted in the Finnish
language.
11.9 Amendments
Any amendment to this Agreement shall be in writing and shall have no
effect before signed by the duly authorised representatives of both
Parties.
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11.10 Provisions Severable
If any part of this Agreement is held to be invalid or unenforceable, such
determination shall not invalidate any other provision of this Agreement,
however, the Parties hereto shall attempt, through negotiations in good
faith, to replace any part of this Agreement so held to be invalid or
unenforceable. The failure of the Parties to reach an agreement on a
replacement provision shall not affect the validity of the remaining part
of this Agreement.
11.11 Publicity
Unless otherwise agreed within 2 days from the date of execution of this
Agreement, OK and OMG shall issue a joint press release.
Save as required by law, governmental decree, applicable stock exchange
rules, any other applicable regulations or any official action, the
contents of this Agreement shall remain secret indefinitely. All press
releases and other public relations activities of the Parties with regard
to this Agreement shall be mutually approved by Seller and Purchaser in
advance.
11.12 Counterparts of Agreement
This Agreement has been executed in four (4) identical counterparts, two
(2) for Seller and OK and two (2) for Purchaser and OMG.
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IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement in
Helsinki as of the day and year first above written.
OUTOKUMPU NICKEL B.V. OUTOKUMPU OYJ
/s/Asko Ojanen /s/Esko Paakkonen /s/Asko Ojanen /s/Esko Paakkonen
- ---------------------------------- ----------------------------------
Asko Ojanen Esko Paakkonen Asko Ojanen Esko Paakkonen
by power of attorney by power of attorney
OM GROUP, INC. OMG KOKKOLA CHEMICALS HOLDING B.V.
/s/Antti Aaltonen /s/Antti Aaltonen
- -------------------------------- --------------------------------
Antti Aaltonen, President of OMG Antti Aaltonen, President of OMG
Kokkola Chemicals Oy, Kokkola Chemicals Oy,
by power of attorney by power of attorney
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