EXHIBIT 4.10
Version 01.06.2006 - NK
THIS AGREEMENT is made as of 2 June 2006
between Xxxx Xxxxxxx Holding A/S
Company Registration No. (CVR) 13356572
Vinkelvej 18
DK-6270 Tonder
(hereinafter referred to as HS)
and VIDA Holding ApS
Company Registration No. (CVR) 26714958
Vidagade 29
DK-6270 Tonder
(hereinafter referred to as VH)
(hereinafter collectively referred to as
the Seller)
and Aktiv Gruppen Holding A/S
Company Registration No. (CVR) 20358645
Xxxxxxx 0
XX-0000 Xxxxxxx
(hereinafter referred to as the Purchaser)
SHARE TRANSFER AGREEMENT
1. RECITALS
1.1. WHEREAS HS is the owner of 50% and VH is the owner of 50% of 2S
Ejendomsinvest ApS, Company Registration No. (CVR) 26848652, hereinafter
referred to as "the Company" and the Seller therefore is the owner of
100% of the shares in the Company, equal to nominal DKK 125,000.00; and
1.2. WHEREAS the Company is the parent company in a group of companies,
comprised of the following wholly-owned subsidiaries:
o Silkegade Invest ApS
o RGW A/X
x Xxxx Golf A/X
x Xxxx Golf & Wellness A/X
x Xxxx Ferie ApS; and
WHEREAS the Purchaser is desirous of obtaining all of the Seller's shares in the
Company; NOW, THEREFORE, the Parties agree that the Seller shall transfer all of
its shares in the Company to the Purchaser subject to the terms and conditions
set forth in this Share Transfer Agreement.
2. SUBJECT MATTER OF THIS SHARE TRANSFER AGREEMENT
2.1. By this Agreement, the Seller transfers 100% of its shares in the
Company (nominal DKK 125,000.00) to the Purchaser.
2.2. The transfer includes the shares in the Company and its subsidiaries, as
set forth under Clause 1.2., and the activities/projects related
thereto, including the Xxxx Project, the Mommark Marinepark Project and
the Adal Strandpark Project plus all other assets/activities, which are
owned by the Company or its subsidiaries.
2.3. The Seller represents that an additional project related to the Xxxx
Project is being discussed at present, and in case this project turns
out to become a sound project, it shall pass to the Purchaser without
further consideration. The project, which is situated at Sylt, provides
30 houses/accommodations and shared facilities, a total gross area of
2,560 sq metres.
3. DATE OF COMPLETION
3.1. The Parties have fixed 02 June 2006 as the date of completion.
3.2. The Purchaser shall take over the financial rights and the managerial
powers pertaining to the shares transferred as of the date of
completion. The Purchaser shall have the full right to dividend and
other financial rights for the whole of the financial years 2005 and
2006.
4. PURCHASE PRICE AND PAYMENT
4.1. The purchase price is agreed at DKK 134,160,000.00, say Danish kroner
one hundred and thirty-four million one hundred and sixty-thousand only.
4.2. The purchase price shall be paid as follows:
a) DKK 38,060,000.00 shall be paid on the date of completion to the
Seller's bank, cf. Clause 7.
b) DKK 43,380,000.00 shall be paid on 01 November 2006 to the Seller's
bank.
c) DKK 43,380,000.00 shall be paid on 20 December 2006 to the Seller's
bank.
d) DKK 9,340,000.00 shall be paid on 20 December 2006, provided that
the Company before this date - directly or indirectly - regardless
of the date of completion - has sold not less than 100
houses/accommodations (units) to external purchasers. The Purchaser
and the Company shall be under an obligation to contribute to
achieving these sales targets. In case of failure to achieve such
sales targets not later than by 20 December 2006, this portion of
the purchase price shall lapse.
A house/accommodation unit shall be deemed "sold" once a conditional
conveyance, signed by a purchaser, and down payment and guarantee
for the remaining purchase price have been provided.
For the purpose of this Agreement, the term "external purchasers"
means other purchasers than the Company and any of the Company's
affiliated companies.
Upon signing this Agreement, the Purchaser grants a first priority
pledge of the subject matter of this Agreement, i.e. the shares in the
Company, amounting to nominal DKK 125,000.00 as security for the payment
of the portion of the purchase price, as set forth under Clauses 4.2.b,
c. and d. The pledge shall be registered in the Company's register of
shareholders. The Seller shall not be entitled to exercise the voting
right attached to the pledged shares unless the Purchaser commits breach
of the provisions of this Share Transfer Agreement.
Until the total purchase price has been paid, any payment or
distribution of funds from the Company or from the subsidiaries set
forth under Clause 1.2. hereof to the Purchaser and/or other companies
affiliated with Eurotrust A/S shall be subject to prior written approval
by the Seller. The same applies to companies and persons that either
directly or indirectly are shareholders of Eurotrust A/S or any such
companies' or persons' next of kin/closely related relatives.
Until the total purchase price has been paid, any transfer of assets or
capital participation from the Company and its subsidiaries to the
Purchaser and/or other companies affiliated with Eurotrust A/S shall be
subject to prior written approval by the Seller. The same applies to
companies and persons that either directly or indirectly are
shareholders of Eurotrust A/S or any such companies' or persons' next of
kin/closely related relatives.
Failure of fulfilling the condition set forth under Clause 6.5 hereof as
at 01 November 2006 will require an amount of DKK 3,000,000.00 of the
portion of the purchase price as set forth under Clause 4.2. b. to be
deposited in the Seller's name in Tonder Bank for release to the
Purchaser or the Seller according to the provisions set forth under
Clause 6.5.
5. INFORMATION
5.1. In connection with the negotiations and the due diligence exercised by
the Purchaser, the Purchaser has been given access to documents, e.g.
containing legal, financial and
technical information concerning the Company and the companies
affiliated with the Company and to the projects placed in the hands of
these companies.
The Parties have agreed that these documents shall be deposited in
Tonder Bank for a period of 2 years reckoned from the date of completion
and subject to the terms that the Parties are given jointly access to
inspect and copy the contents hereof.. In the event that one Party
wishes to be given access to the deposited material, the other Parties
shall contribute to giving the Party supervised access to the deposited
documents.
5.2. Moreover, the Purchaser has obtained the following oral information:
o That the equity capital in the Company as of 31.12.2005 amounts
to approx. DKK 5,500,000 - excluding profits pertaining to the
Xxxx Project.
o That the final operating permit pertaining to the Silkegade
Project has not yet been obtained and that the Seller shall pay
any expenditure in excess of DKK 100.000,00 concerning the
application for the final operating permit.
5.3. SELLER GUARANTEES:
THAT the draft accounts for the Company for 2005, as submitted, gives a
true and fair view of the operations in the financial period and of
the financial state of affairs at the end of that year. Thus no
obligations of material nature apart from those appearing from the
aforesaid draft accounts are chargeable to the Company as at the
end of 2005. Obligations arising from soil pollution or other soil
problems, if any, unknown to the Company and therefore not booked
are excluded from this guarantee.
5.4. SELLER REPRESENTS:
THAT to the best knowledge and belief of the Seller, there is nothing
new of material nature as from the presentation of the accounts for
2005 to date, except for the information given about circumstances
pertaining to the transferred projects,
THAT the transferred shares in the Company are pledged to Tonder Bank,
THAT the Company or the companies within the group of companies shall
have the right or option to acquire the title to the land on which
the projects contained in this Agreement, are to be constructed at
the purchase prices contained in the budgets prepared by the
Seller,
THAT to the best knowledge and belief of the Seller, the building
project, Xxxx Golf & Wellness, can be implemented and to the best
knowledge and belief of the Seller, no objections have been lodged
by authorities, plot owners or others that might jeopardize the
implementation of the project. Due to the early stage of the
projects, Adal Strandpark and Mommark Marinepark, the Seller needs
the necessary basis to say with certainty that these projects can
be implemented so as to meet the expected design and size,
THAT to the best knowledge and belief of the Seller, the latest budget
introduced pertaining to Xxxx Golf and Wellness including the
adjustments made in connection with the due diligence exercised by
the Purchaser resulting in the budgeted proceeds being reduced by
DKK 40 million, has been prepared on a realistic basis. In all
essentials, the estimates pertaining to Adal Strandpark and Mommark
Marinepark, as supplied, are based on the Seller's best estimate
and are therefore not the result of an actual budgeting procedure,
THAT to the best knowledge and belief of the Seller, no events have been
observed that should rebut the budgets or indicate that the budget
objectives cannot be achieved or that any such event should have
been included in the budgets,
THAT until the date of completion, the Seller will carry on the group of
companies subject to the previous conduct of business in compliance
with the directions according to which the Company has previously
been carried on thereby having regard to the Purchaser's
acquisition thereof,
THAT until the date of completion, the Seller shall not enter into any
essential or onerous agreements or enter into any agreements, which
would materially change the basis for the building projects unless
receiving the prior written approval by the Purchaser,
THAT to the best knowledge and belief of the Seller, any information
about this Share Transfer Agreement given during the negotiations
is correct,
THAT to the best knowledge and belief of the Seller, any information set
forth in this Share Transfer Agreement and Appendices thereto and
in the material otherwise supplied by the Seller is correct,
THAT the Seller has informed about all essential circumstances
pertaining to the Company and the group of companies that the
Seller knows about,
THAT otherwise to the best knowledge and belief of the Seller, no
essential obligations of whatsoever nature, about which information
has not been given or cannot be obtained from the material supplied
under this Agreement, are chargeable to the Company or its
subsidiaries,
THAT to the best knowledge and belief of the Seller, there are no
pending actions, arbitration proceedings, complaints actions,
actions on behalf of public authorities or public investigations
against the group of companies apart from two legal disputes
concerning painting pertinent to the Silkegade Project about which
detailed information has been given in connection with exercising
the due diligence, and operationally only the usual matters
involving authorities, such as building applications, etc.,
THAT to the best knowledge and belief of the Seller, the group is not in
current or
anticipatory breach of its obligations contained in any contractual
relationship,
THAT to the best knowledge and belief of the Seller, unless otherwise
provided by the accounts for 2005, no claims or reservation of
claims for the payment of taxes and dues have been raised against
the group of companies by any authorities, and the group of
companies has paid all taxes and dues.
5.5. Claims for damages can alone be raised against the Seller if evidenced
that at the time of the Agreement, the Seller misrepresented facts or on
any other grounds if evidenced that the Seller has committed fraud or
gross negligence in the form of gross professional mistakes. However,
this shall not apply to matters contained in the guarantee set forth
under Clause 5.3. Thus, the Purchaser can alone claim damages and cannot
cancel the purchase or raise any claim on the basis of the rules
applying to a pro rate reduction.
Compensation for any separate claim under DKK 2 million will not be
paid. For any separate claim above this limit, compensation will alone
be paid at a rate equal to 60% of the documented loss. In the event that
the Purchaser can advance several separate claims, these claims will not
accumulate in relation to this provision.
The Parties agree that the purchase price has been fixed taking into
consideration the limitation of the Seller's liability as agreed.
5.6. No claim for damages can be raised against the Seller due to matters
that the Purchaser knew about or should have known about from the
information that has been provided either in writing or orally to the
Purchaser prior to entering into this Agreement.
5.7. Where the Purchaser feels entitled to claim damages in consequence of
guarantee failure, lack of information or misrepresentations or on any
other grounds, a written notice to that effect shall be given to the
Seller without unreasonable delay after the Purchaser became or should
have become aware of matters forming the basis of the claim. If such
notice is not given by the Purchaser not later than one year after the
date of completion, any claim will be forfeited.
6. CONDITIONS
6.1. This Share Transfer Agreement is subject to Tonder Bank renouncing the
pledge of the shares in the Company.
6.2. This Share Transfer Agreement is subject to the Seller and Xxxx Xxxxxxx
and Xxxx Xxxxxxx personally being discharged of any guarantees and
warranties that they have undertaken for the debts and liabilities of
the Company and its subsidiaries in relation to Tonder Bank, EIK Bank
and Kaupthing Bank, Luxemburg.
However, the Seller, Xxxx Xxxxxxx and Xxxx Xxxxxxx are prepared to
continue providing a limited security for the liabilities of 2S
Ejendomsinvest ApS' group of
companies in relation to EIK Bank and Tonder Bank in conformity with the
provisions set forth in Appendix 6.2 attached hereto.
For the sake of good order, it is pointed out that the Purchaser shall
indemnify the Seller, Xxxx Xxxxxxx and Xxxx Xxxxxxx, for any loss caused
by any such security.
6.3. Furthermore, this Agreement is subject to the 'clear title final and
conclusive conveyance' to RGW A/S pertaining to the property of title
number: 428 m.fl.(and others) Kirkeby, Romo, not later than as of the
date of completion.
6.4. Furthermore, this Agreement is subject to Eurotrust A/S, Company
Registration No. (CVR) 10298148 by endorsement on this Share Transfer
Agreement undertakes vicarious liability as guarantor assuming primary
liability for the Purchaser's proper performance of all of its
obligations towards the Seller according to this Agreement.
6.5. On the Purchaser's part, this Agreement is subject to an agreement being
made with DanParcs not later than by 20 December 2006 to the effect that
the term, during which the contract made between the Company and
DanParcs is not terminable, can be changed. Either in a way enabling the
Company to terminate the contract by giving 12 months' prior written
notice to expire on the last day of any month to expire at the earliest
as of 31.12.2009, though, or subject to any other terms that are
acceptable to the Purchaser. If this condition is not fulfilled before
the said date, the purchase price shall be reduced by DKK 3,000,000.00,
and the portion of the purchase amount on deposit according to Clause
4.2. shall be repaid to the Purchaser. However, if this condition is
fulfilled within the said date, the amount on deposit shall be released
to the Seller.
7. CLOSING
7.1. If the conditions set forth under Clauses 6.1., 6.2., 6.3. and 6.4. are
fulfilled, the Parties shall meet at the Purchaser's premises on the
date of completion at 11:00 a.m. for completion of the transaction by
a) the Seller handing over to the Purchaser the register of
shareholders in the Company, stating the Purchaser as the owner of
the total share capital in the Company, and simultaneously an
endorsement as regards the pledge of the shares in the Company as
set forth under Clause 4.2.
b) Documentation to the effect that an annual general meeting has been
held in the Company and the Company's subsidiaries, which are
included in the transfer prior to the date of completion, if
according to the rules in force from time to time, these
subsidiaries are under an obligation to prepare accounts as of
31.12.2005. At the same time, it must be documented that Xxxxxx X.
Xxxxxxxx is the only registered member of the management of the
Company
c) Transfer of the first instalment of the purchase price in the amount
of DKK 38,060,000.00 to a bank account in Tonder Bank according to
instructions to be given by the Seller.
d) The Seller submitting documentation to the effect that the shares in
the Company have been released from the pledge to Tonder Bank,
perhaps subject to the payment of the first instalment of the
purchase price in the amount of DKK 38,060,000.00 to Tonder Bank.
e) The Purchaser submitting documentation to the effect that the
Seller, Xxxx Xxxxxxx and Xxxx Xxxxxxx personally, subject to
effecting the transfer, have been released from the obligations
listed under Clause 6.2.
f) The Seller undertaking the limited security towards EIK Bank as set
forth under Clause 6.2.
g) Signing of the Consultancy Agreements attached as Appendix 8.1
hereto.
8. XXXX XXXXXXX AND XXXX XXXXXXX
8.1. This transfer is subject to Xxxx Xxxxxxx and Xxxx Xxxxxxx via the
companies, LBS Consult ApS and Rorkaer Ingeniorfirma ApS, signing the
Consultancy Agreements attached as Appendix 8.1 pertaining to the
completion of projects in progress.
8.2. The Purchaser is under an obligation to indemnify the Seller and Xxxx
Xxxxxxx and Xxxx Xxxxxxx for any guarantees and financial warranties,
they might have undertaken pertaining to the building projects
transferred and for any operating credits from the companies transferred
to the extent these liabilities appear from the accounts or otherwise
can be documented to be chargeable to the Company or to any subsidiary
and forming part of the budgets for the building projects introduced.
9. XXXXXX X. XXXXXXXX
9.1. The Parties agree that Xxxxxx X. Xxxxxxxx'x employment with the Company
shall remain in full effect at a similar level and on minimum the same
terms of employment as during his previous employment with the Company
and a level of salaries that is equal to his market value. Xxxxxx X.
Xxxxxxxx'x employment shall be governed by separate written agreement to
be executed not later than as of the date of completion.
10. NON-COMPETITION
10.1. For a period of 2 years from the date of the transfer, the Seller, Xxxx
Xxxxxxx and/or Xxxx Xxxxxxx ("the Obligators") shall not either directly
or indirectly have any financial interests in or otherwise have
interests in enterprises carrying on project development in Denmark in
the field of holiday and housing projects. Within the same period of
time, Xxxx Xxxxxxx and Xxxx Xxxxxxx cannot either be employed in any
enterprises that are interested in such projects.
This non-competition clause shall not prevent the Obligators from
engaging in normal investment in real property, including modernisation
and development such properties.
Furthermore, not withstanding the non-competition clause, the Obligators
shall be entitled to commercially carry on project development of
holiday and housing projects subject to the total investment framework
in connection with the individual project does not exceed DKK 20 million
or for purely sale of land projects DKK 10 million.
At the time of entering into this Agreement, the Obligators are directly
or indirectly involved in a range of investments in real property. These
property investments are specified on the list attached to this
Agreement as Appendix 10.1. The Parties agree that the Obligators shall
remain entitled to own, modernise and develop these properties without
thereby committing breach of this non-competition clause.
10.2. In case of breach by either Obligator of this non-competition clause,
the Obligator in breach shall pay an agreed penalty in the amount of DKK
2 million to the Purchaser for any one breach hereof. In addition to
paying the penalty, the Obligator in breach shall surrender the
contribution margin/gross profits gained by committing breach of the
non-competition clause to the Purchaser.
10.3. Any breach of the aforesaid provision can be defended by injunctive
relief without posting bond.
11. NUMBER OF COPIES
11.1. This Share Transfer Agreement shall be executed simultaneously in 4
copies of which the Purchaser, Eurotrust A/S, HS and VH shall keep one
counterpart.
Kolding, 02 June 2006
As Sellers: As Purchaser:
For Vida Holding ApS For Aktiv Gruppen Holding A/S
and Xxxx Xxxxxxx
(SIGNATURES ILLEGIBLE) (SIGNATURES ILLEGIBLE)
---------------------------- -----------------------------
For Xxxx Xxxxxxx Holding A/S
and Xxxx Xxxxxxx:
(SIGNATURE ILLEGIBLE)
----------------------------
The undersigned Company Eurotrust A/S, Company Registration No. (CVR) 10298148
agrees to hold itself primarily liable as a guarantor for the Purchaser's proper
performance of its obligations towards the Seller, Xxxx Xxxxxxx and Xxxx
Xxxxxxx, in conformity with the aforesaid Share Transfer Agreement.
For Eurotrust A/S:
(SIGNATURES ILLEGIBLE)
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