EXECUTION COPY
SHARE PURCHASE AGREEMENT
Dated as of 15 May 2001
among
LIZ CLAIBORNE, INC.
LIZ CLAIBORNE 2 B.V.
LCI ACQUISITION U.S., INC.
and
AMEX HOLDING B.V.
MOVEMENT TRADING B.V.
HOUSEVIEW LIMITED
CITICORP CAPITAL INVESTORS EUROPE LTD.
CAPITAL INVESTORS NOMINEES LTD.
and
XX X. XXXXXX
XX X. XXXXXXX
XX X. XXXXX
XX X. XX
XX X. XXXXX
MR J.A.M. OUWENDIJK
and
STICHTING ADMINISTRATIEKANTOOR MEXX
relating to the sale and purchase of
MEXX GROUP B.V.
TABLE OF CONTENTS
CLAUSE 1 - DEFINITIONS....................................................6
CLAUSE 2 - PURCHASE PRICE, PAYMENT AND TRANSACTION STRUCTURE.............12
CLAUSE 3 - TRANSFER OF THE SHARES........................................14
CLAUSE 4 - [INTENTIONALLY DELETED].......................................14
CLAUSE 5 - MANAGEMENT BOARD, SUPERVISORY BOARD...........................14
CLAUSE 6 - ACTIONS PENDING COMPLETION....................................15
CLAUSE 7 - COMPLETION MATTERS............................................16
CLAUSE 8 - REPRESENTATIONS AND WARRANTIES................................17
CLAUSE 9 - SELLERS' LIABILITY FOR BREACHES...............................18
CLAUSE 10 - GUARANTEE.....................................................22
CLAUSE 11 - NON-COMPETITION AND CONFIDENTIALITY...........................23
CLAUSE 12 - CONDITIONS PRECEDENT (OPSCHORTENDE VOORWAARDEN)...............24
CLAUSE 13 - TERMINATION...................................................25
CLAUSE 14 - MISCELLANEOUS.................................................26
SCHEDULES
SCHEDULE 1 Deed of Transfer
SCHEDULE 2 Data Room Index
SCHEDULE 3 Disclosure Letter
SCHEDULE 4 Earn-out Agreement
SCHEDULE 5 Lease Agreement
SCHEDULE 6 LCI Services Agreement
SCHEDULE 7 Representations and Warranties
SCHEDULE 8 Sellers' Allocation Schedule Payment of Basic Purchase Price
SCHEDULE 9 Form Employment Agreements Key Employees
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SCHEDULE 10 List of Tax Loss Carry Forwards
SCHEDULE 11 Commitment Letter
ANNEXES
ANNEX A Overview of Issued and Outstanding Share Capital of the Company
ANNEX B List of Affiliate Transactions
ANNEX C Overview of Depositary Receipts
ANNEX D List of Group Companies
ANNEX E Identified Assumed Contracts
ANNEX F Overview of the Options
ANNEXES TO THE REPRESENTATIONS AND WARRANTIES
ANNEX I Structure Chart of the Group Companies
ANNEX II Consolidated Annual Accounts 1998, 1999 and 2000
ANNEX III Group Companies Financial Projections for 2001 and 2002
ANNEX IV Facilities Containing Change of Control and Prepayment Penalties
ANNEXES AND SCHEDULES TO THE DISCLOSURE LETTER
ANNEX 1 Disclosures Qualifying Representations and Warranties
SCHEDULE 1 Joint Venture Agreement of IMX India
SCHEDULE 2 Material Terms of Distribution Arrangement with MEXX Canada Ltd.
SCHEDULE 3 Tax Ruling of 11 April 2000 Regarding Retail and Wholesale
Agreements
SCHEDULE 4 Agreement Regarding MEXX France SA Receivable
SCHEDULE 5 List of Material Leases of Assets
SCHEDULE 6 Material Terms of Proposed Warehouse Financing
SCHEDULE 7 Material Terms of Proposed Bridge Financing
SCHEDULE 8 Schedule of Executive Compensation
SCHEDULE 9 Lease Agreement for MEXX India
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THIS AGREEMENT is made as of 15 May 2001 among:
1. LIZ CLAIBORNE INC., a corporation with limited liability, incorporated and
existing under the laws of the State of Delaware, having its corporate seat
in New York and its principal office at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000,
U.S.A., validly represented by Xx X. Xxxxxx, hereinafter also referred to
as "LIZ";
2. LCI ACQUISITION U.S., Inc., a corporation with limited liability,
incorporated and existing under the laws of the State of Delaware, having
its corporate seat in New York and its principal office at 0000 Xxxxxxxx,
Xxx Xxxx, XX 00000, U.S.A., validly represented by Xx X. Xxxxxx, and a
wholly-owned subsidiary of Liz ("LIZ ACQUISITION US");
3. LIZ CLAIBORNE 2 B.V., a private company with limited liability (B.V.)
incorporated and existing under the laws of the Netherlands, having its
corporate seat in Amsterdam and its principal office at 1076 EE Frederik
Xxxxxxxxxxxx 000, Xxxxxxxxx, xxx Xxxxxxxxxxx, validly represented by Xx X.
Xxxxxx, and a wholly-owned subsidiary of Liz Acquisition US ("LIZ CLAIBORNE
2 BV");
the parties referred to in 1, 2 and 3 are hereinafter collectively also referred
to as the "PURCHASER"
4. AMEX HOLDING B.V., a private company with limited liability (B.V.),
incorporated and existing under the laws of the Netherlands, having its
corporate seat in Wassenaar and its principal office at Xxxxxxxx 00, 0000
XX Xxxxxxxxx, validly represented by Xx X. Xxxxxx ("AMEX");
5. MOVEMENT TRADING B.V., a private company with limited liability (B.V.),
incorporated and existing under the laws of the Netherlands, having its
corporate seat in Leiden and its principal office at Xxxxxxxxxxx 00, 0000
XX Xxx Xxxxx, xxx Xxxxxxxxxxx, validly represented by Xx X. Xxxxxxx
("Movement");
6. HOUSEVIEW LIMITED, a private company with limited liability, incorporated
and existing under the laws of Hong Kong, having its corporate seat in Hong
Kong and its principal office at Shield Industrial Centre, 84-92 Chai Xxx
Xxx Street, Tsuen Wan, New Territories, Hong Kong, validly represented by
an attorney-in-fact ("HOUSEVIEW");
7. CITICORP CAPITAL INVESTORS EUROPE LIMITED, a corporation incorporated and
existing under the laws of the State of Delaware, U.S.A., having its
corporate seat in Newcastle and its principal office at Newcastle Corporate
Commons, Xxx Xxxx'x Xxx, Xxxxxxxxxx 0 Xxxxxxxx, Xxxxxxxxx, Xxxxxxxx, X.X.X.
(hereinafter also referred to as "CCIEL"), validly represented by X. xxx
Xxxxxxx;
8. CAPITAL INVESTORS NOMINEES LIMITED, a private company with limited
liability, incorporated and existing under the laws of England and Wales,
having its corporate seat in London and its principal office at 000
Xxxxxxxxxx Xxxxxx, XX0X 0XX Xxxxxx, Xxxxxxx (hereinafter also referred to
as "CINL"), validly represented by X. xxx Xxxxxxx;
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9. STICHTING ADMINISTRATIEKANTOOR MEXX, a private foundation incorporated
under the laws of the Netherlands, having its registered office in
Voorschoten and with its principal office at Xxxxxxxxx 000, 0000 XX
Voorschoten, validly represented by Xx X. Xxxxx, hereinafter referred to as
the "STICHTING MEXX";
10. XX X. XXXXX, a private person living in Wassenaar, the Netherlands,
hereinafter "MEHTA";
11. XX X. XXXXX, a private person living in Wassenaar, the Netherlands,
hereinafter "ARORA";
12. MR J.A.M. OUWENDIJK, a private person living in Wassenaar, the Netherlands,
hereinafter "OUWENDIJK";
the entities and private persons referred to in 4 up to and including 12 are
hereinafter collectively also referred to as the "SELLERS" and each of them as a
"SELLER";
13. XX X. XXXXXX, a private person living in Wassenaar, the Netherlands,
hereinafter "XXXXXX";
14. XX X. XXXXXXX, a private person living in The Hague, hereinafter "ADVANEY";
15. XX X. XX, a private person living in Hong Kong, hereinafter "HO";
and
16. MEXX GROUP B.V., a private company with limited liability (B.V.),
incorporated and existing under the laws of the Netherlands, with its
corporate seat in Voorschoten and with its principal office at Xxxxxxxxx
000, 0000 XX Voorschoten, validly represented by Xx X. Xxxxxx, hereinafter
referred to as "MEXX" or the "COMPANY";
WHEREAS:
(a) the Sellers (directly or indirectly) own all the issued and outstanding
ordinary and preference shares in the capital of the Company, their
shareholding being in accordance with the overview attached hereto as ANNEX
A (hereinafter referred to as the "SHARES");
(b) the Company is the sole owner, directly or indirectly, of the issued and
outstanding share capital of each of the companies specified in ANNEX D
hereto;
(c) the Company is engaged in the design, marketing, wholesale, retail and
licensing of a wide range of fashion and fashion-related products for
women, men and children under the various MEXX brands;
(d) Liz has incorporated Liz Acquisition US, a direct wholly-owned subsidiary
of Liz organized under the laws of the State of Delaware, and Liz Claiborne
2 BV, a direct wholly-owned subsidiary of Liz Acquisition US incorporated
and existing under the laws of the Netherlands, to acquire the Shares from
the Sellers on the terms of and subject to the conditions, representations
and warranties set forth in this Agreement;
(e) on or prior to the Completion Date, Liz intends to borrow approximately
Euro 350 million from a third party lender and then make an equity
contribution to Liz Acquisition US from the net pro-
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ceeds of such borrowing in an amount sufficient to permit consummation of
the transactions contemplated by this Agreement. Euro 293.1 million of such
equity contribution will then be loaned (the "PURCHASER SUBSIDIARY LOAN")
by Liz Acquisition US to Liz Claiborne 2 BV;
(f) on the Completion Date, the capital stock of MEXX Investment B.V., the sole
asset of which is that certain property and building located at Xxxxxxxxx
000, 0000 XX Voorschoten, will be sold and transferred to Amex Investment
B.V. MEXX Investment B.V. will subsequently lease such property to the
Company pursuant to the Lease Agreement;
(g) upon completion of the transactions described in (e) and (f) above, Liz
Claiborne 2 BV will acquire 52% of the ordinary Shares in the Company from
the Sellers for aggregate consideration of Euro 128.7 million and all of
the Company's outstanding preference Shares class D for Euro 28,203,000
(which amount includes (x) accrued and unpaid dividends thereon through and
including 15 May 2001 and (y) those ordinary Shares that would otherwise be
purchased from holders of the preference Shares class D by certain of the
Sellers upon a redemption of such preference Shares class D), plus an
amount equal to the dividends accruing thereon from 16 May 2001 to the
Completion Date calculated at a rate of 8% per annum on a principal amount
of Euro 15,882,000, and all of the Company's outstanding preference Shares
class E for Euro 2,618,000 (which amount includes all accrued and unpaid
dividends thereon through and including 15 May 2001), plus an amount equal
to the dividends accruing thereon from 16 May 2001 to the Completion Date
calculated at a rate of 4% per annum on a principal amount of Euro
2,155,000 (collectively, the "FIRST TRANCHE");
(h) concurrently with the purchase of the First Tranche by Liz Claiborne 2 BV,
Liz Acquisition US will acquire 48% of the ordinary Shares from the Sellers
for aggregate consideration of Euro 25.3 million and payments, if any, to
be made under the Earn-out Agreement, and thereafter contribute such
purchased ordinary Shares (the "SECOND TRANCHE") to Liz Claiborne 2 BV in
the form of a capital contribution in exchange for additional capital stock
of Liz Claiborne 2 BV;
(i) the Company agrees to and acknowledges the provisions of this Agreement and
in evidence thereof shall co-sign this Agreement;
(j) for the purpose of section 1:88 of the Dutch Civil Code, Xxx Xxxx Xxxxx,
Xxx Xxxxxxx Xxxxx, Xxx Xxxxxx Xxxxxxxxx, Xxx Xxxxxx Xxxxxxx-Xxxxxxxx and
Xxx Xxxx Xxxxxx-Xxxxxxxx agree to and acknowledge the provisions of this
Agreement and in evidence thereof have signed a spouse declaration;
(k) to the extent applicable, the Parties have fulfilled their (respective)
obligations under the Works Councils Act (WET OP DE ONDERNEMINGSRADEN) and
the SER Merger Code (SER FUSIEGEDRAGSREGELS 1975), as amended;
NOW THEREFORE IT IS AGREED as follows:
CLAUSE 1 - DEFINITIONS
1.1 In this Agreement including all Schedules and Annexes thereto, the
following terms have the meaning set forth hereafter, unless this
Agreement bears to the contrary:
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"ACCOUNTS DATE" 31 December 2000;
"AFFILIATE TRANSACTIONS" the transactions listed in ANNEX B
hereto imposing any debt, liability
or obligation of any Group Company
to any Seller, Key Employee or any
other affiliated third party or in
which any Seller, Key Employee or
other affiliated third party
(including any family member of any
Seller or Key Employee) provides
any material benefit to any company
of the Group;
"AGREEMENT" this Agreement of sale and purchase
of the Shares, including all
Schedules and Annexes thereto;
"AMEX" Amex Holding B.V.;
"ANNEX" an annex to this Agreement or to a
Schedule;
"ANNUAL ACCOUNTS" the annual accounts of each
individual Group Company
(consisting of a profit and loss
account, balance sheet and
explanatory notes thereto and all
other documents and statements
thereto) and a consolidated
auditors report, all for the
financial years ending on 31
December 1998, 1999 and 2000,
determined in accordance with Dutch
GAAP;
"BASIC PURCHASE PRICE" shall have the meaning as ascribed
thereto in clause 2.3 hereof;
"BREACH" either or both of (i) any breach of
a Representation or Warranty given
by the Sellers as included in the
Representations and Warranties, and
(ii) any non-fulfillment of or
failure to perform any (other)
obligation arising from or provided
for in this Agreement;
"BUSINESS" the business of design, marketing,
wholesale, retail and licensing of
a wide range of fashion and
fashion-related products for women,
men and children under the various
MEXX brands as performed by the
Group on the date hereof;
"BUSINESS DAY" a day, other than a Saturday or a
Sunday, on which banks are
generally open for business in
Amsterdam;
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"CASH" cash on hand or deposited at a bank
or cash equivalents, held by a
Group Company, including any
interest accrued with respect
thereto;
"CCIEL" Citicorp Capital Investors Europe
Ltd.;
"CINL" Capital Investors Nominees Ltd.;
"COMPANY" MEXX Group B.V.;
"COMPLETION" the completion of the sale and
delivery of the Shares to the
Purchaser, by means of the
execution of the Deed of Transfer
and the effectuation of all other
actions contemplated to be
undertaken pursuant to this
Agreement at that time;
"COMPLETION DATE" the date on which the Deed of
Transfer is executed and the
transactions contemplated by this
Agreement are consummated which is
23 May 2001 or such other date as
the Parties may agree in writing;
"CONSOLIDATED ANNUAL ACCOUNTS" the consolidated and audited annual
statutory accounts of the Group
Companies (consisting of a profit
and loss account, balance sheet and
explanatory notes thereto and all
other documents and statements
thereto), and an audit report, all
for the financial years ending on
31 December 1998, 1999 and 2000,
which have been aggregated in
accordance with the methods usually
applied to consolidation and
determined in accordance with Dutch
GAAP;
"CONTINGENT PURCHASE PRICE" the contingent purchase price, if
any, payable by Liz Acquisition US
to the Sellers as specified in
clause 2.6 hereof;
"DAMAGE" the actual damage (VERMOGENSSCHADE
as referred to in section 6:96
paragraph 1 of the Dutch Civil
Code) suffered as the consequence
of a Breach;
"DEED OF TRANSFER" the notarial deed of transfer of
the First Tranche and the Second
Tranche substantially in the form
attached hereto as SCHEDULE 1;
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"DEPOSITORY RECEIPTS" all 142,000 depository receipts
issued by Stichting MEXX for
142,000 ordinary Shares A owned by
it, an overview of which is
attached hereto as ANNEX C;
"DISCLOSURE" information which qualifies the
Representations and Warranties made
by the Sellers;
"DISCLOSED INFORMATION" the due diligence information
prepared by the Sellers in
connection with the financial,
legal and business due diligence
conducted by the Purchaser as
listed in the data room index
attached hereto as SCHEDULE 2;
"DISCLOSURE LETTER" the letter from the Sellers to the
Purchaser attached to this
Agreement as SCHEDULE 3, dated the
date hereof, which qualifies
Representations and Warranties made
by the Sellers;
"EARN-OUT AGREEMENT" the agreement among certain of the
Xxxxxxx, Xxx Acquisition US and Liz
(as guarantor) referred to in
clause 2.6 attached hereto as
SCHEDULE 4;
"ENCUMBRANCE" any and all rights of pledge
(PAND), mortgage (HYPOTHEEK),
usufruct (VRUCHTGEBRUIK),
attachments (BESLAGEN), obligations
in the sense of section 6:252 of
the Dutch Civil Code (KWALITATIEVE
VERPLICHTINGEN) or any other
encumbrances (BEZWARENDE RECHTEN
MET ENIGERLEI ABSOLUTE XXXXXXX);
"ENVIRONMENT" means any air, water, and land,
surface land and sub-surface land
and any and all living organisms,
ecosystems and substances or goods
used in or part of property;
"ENVIRONMENTAL CLAIM" the claims as defined in section 50
of the Representations and
Warranties;
"ENVIRONMENTAL LAWS" the laws and rules as defined in
section 46 of the Representations
and Warranties;
"FACILITIES" the financial facilities as defined
in section 13 of the
Representations and Warranties;
"FIRST TRANCHE" shall have the meaning as ascribed
thereto in paragraph (g) of the
preamble to this Agreement;
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"GROUP" the Company, its Subsidiaries and
its Participations as listed in
ANNEX D;
"GROUP COMPANY" a company which belongs to the
Group and which is listed in ANNEX
D (including for the avoidance of
doubt the Company);
"HOUSEVIEW" Houseview Limited;
"INDEPENDENT BOARD MEMBERS" those members of the supervisory
board who are neither employed by
Liz nor by a company which is a
direct or indirect subsidiary of
Liz;
"IDENTIFIED ASSUMED CONTRACTS" means the contracts identified by
the Sellers and the Purchaser
listed in ANNEX E in respect of
which the consent or approval of
any third party is required to
enable the Company to continue to
perform such contract after the
Transfer on substantially the same
terms as currently in effect;
"INTELLECTUAL PROPERTY RIGHTS" the intellectual property rights as
referred to in section 43 of the
Representations and Warranties;
"KEY EMPLOYEES" means any of X. Xxxxxx, J.A.M.
Ouwendijk, X. Xxxxx, X. Xxxxxxx, X.
Xxxxxxxx, X. Xxxx, X. Xxxxx, X. Xx,
Y. Laijawalla, T. van der Aardweg,
X. Xxxxxxx, X. Xxxx, X. Xxxxxx and
L. Cantagalli;
"LEASE AGREEMENT" the lease agreement between MEXX
Investment B.V. and the Company or
its designee with respect to the
premises at Xxxxxxxxx 000 in
Voorschoten attached hereto as
SCHEDULE 5;
"LCI SERVICES AGREEMENT" the agreement between the Company,
MEXX Far East Ltd. and Liz referred
to in clause 7.1 sub (ix) hereof;
"MATERIAL ADVERSE EFFECT" shall mean for purposes of this
Agreement any effect that
materially limits or impairs the
ability of the Purchaser to own the
Company or operate the Business as
it is currently being operated or a
diminution in the value of the
Company or the Business or the
incurrence of Damages in excess of
Euro 1,000,000;
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"MATERIAL CONTRACT" shall have the meaning as ascribed
thereto in section 21.1 of the
Representations and Warranties;
"MOVEMENT" Movement Trading B.V.;
"OPTIONS" all 35,500 options granted by the
Company to certain Sellers and
employees, an overview of which is
attached hereto as ANNEX F;
"ORDINARY COURSE" in the ordinary course of the
day-to-day operations of the Group
and, in any event, without regard
to the transactions contemplated by
the Agreement;
"PARTIES" the parties referred to in the
preamble of this Agreement;
"PARTICIPATIONS" a company in which the Company has
a participation and which is listed
in ANNEX D;
"PURCHASER" Liz Claiborne, Inc., Liz Claiborne
2 B.V. and LCI Acquisition U.S.,
Inc.;
"REPRESENTATIONS AND WARRANTIES" the Representations and Warranties
attached to this Agreement as
SCHEDULE 7;
"SCHEDULE" a schedule to this Agreement;
"SECOND TRANCHE" shall have the meaning as ascribed
thereto in paragraph (h) of the
preamble to this Agreement;
"SELLERS" OR "SELLER" the entities and private persons
referred to in 4 up to and
including 12 in the preamble of
this Agreement;
"SHARES" the shares in ANNEX A referred to
in the preamble of this Agreement;
"SIGNING DATE" the date on which the Agreement is
signed;
"SUBSIDIARY" a company which is a subsidiary of
the Company and which is listed in
ANNEX D;
"TANGIBLE NET WORTH" the sum of the cash, accounts
receivable,
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inventory, prepaid assets, property
plant and equipment, other notes
receivable, investments in
affiliates and other assets of the
Company and its Group Companies on
a consolidated basis LESS the sum
of the trade payables, accrued
expenses and other Debt (excluding
the Company's preference Shares) of
the Company and its Group Companies
on a consolidated basis, all as
prepared in accordance with Dutch
generally accepted accounting
principles;
"TAXES" the taxes as referred to in section
7 of the Representations and
Warranties;
"TRANSFER" the transfer of the First Tranche
and the Second Tranche by means of
the Deed of Transfer.
1.2 In this Agreement, unless otherwise specified,
(a) references to clauses, schedules and annexes are to clauses of,
and Schedules and Annexes to this Agreement;
(b) references to this Agreement are also to the Schedules and
Annexes to this Agreement;
(c) references to statutory provisions are to statutory provisions
which are in force at the Completion Date;
(d) words denoting the singular include the plural and vice versa,
except where the context requires otherwise.
1.3 Headings to clauses are for convenience only and do not affect the
interpretation of this Agreement.
CLAUSE 2 - PURCHASE PRICE, PAYMENT AND TRANSACTION STRUCTURE
2.1 The Sellers hereby sell the Shares to the Purchaser, in each case on
the terms of and subject to the conditions set forth in this Agreement,
taking into consideration the Representations and Warranties contained
in this Agreement.
2.2 Upon the Deed of Transfer taking effect, the Purchaser shall be
entitled to exercise all rights attached or accruing to the Shares
(including without limitation the right to receive dividends,
distributions or return of capital) and the benefit and risk with
regard to the Shares and the Group Companies shall pass to the
Purchaser.
2.3 The portion of the aggregate purchase price to be paid on the
Completion Date for the ordinary Shares shall be Euro 154,000,000, of
which Euro 25.3 million shall be payable by Liz Acquisition US in
respect of the ordinary Shares it is purchasing (i.e., 48% of the
ordinary
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Shares) and Euro 128.7 million shall be payable by Liz Claiborne 2 BV
in respect of the ordinary Shares it is purchasing (i.e., 52% of the
ordinary Shares) and the portion of the aggregate purchase price to be
paid by Liz Claiborne 2 BV on the Completion Date for the preference
Shares class D shall be Euro 28,203,000 (which amount includes (x)
accrued and unpaid dividends thereon through and including 15 May 2001
and (y) those ordinary Shares that would otherwise be purchased from
holders of the preference Shares class D by certain of the Sellers upon
a redemption of such preference Shares class D), plus an amount equal
to the dividends accruing thereon from 16 May 2001 to the Completion
Date calculated at a rate of 8% per annum on a principal amount of Euro
15,882,000, and the portion of the aggregate purchase price paid by Liz
Claiborne 2 BV on the Completion Date for the preference Shares class E
shall be Euro 2,618,000 (which amount includes all accrued and unpaid
dividends thereon through and including 15 May 2001), plus an amount
equal to the dividends accruing thereon from 16 May 2001 to the
Completion Date calculated at a rate of 4% per annum on a principal
amount of Euro 2,155,000 (such amounts in respect of the ordinary
Shares and the preference Shares being referred to collectively as the
"BASIC PURCHASE PRICE"). Any allocation of the Basic Purchase Price or
the Contingent Purchase Price shall be made in a manner consistent with
the foregoing.
2.4 Notwithstanding any of the foregoing, in the event that, immediately
prior to the purchase of the Shares, the Purchaser has elected to
purchase the capital stock of MEXX International Holding B.V. (either
directly or through such subsidiary or subsidiaries of the Purchaser
that are, except for directors' qualifying shares, wholly-owned by the
Purchaser) by providing notice from the Purchaser to the Company
indicating that MEXX International Holding B.V. shall be purchased
directly by the Purchaser (in which case, unless the context otherwise
requires, the term "Purchaser" shall include such subsidiary or
subsidiaries of the Purchaser), the Purchaser shall have the right to
require that the purchase price paid to acquire MEXX International
Holding B.V. be (x) retained by the Group Companies or (y) distributed
as a dividend to the Company and then to the Sellers, and all amounts
of such dividends paid to the Sellers shall reduce the Basic Purchase
Price payable by the Purchaser under this Agreement. Any of such
additional payments paid by the Purchaser to the Company hereunder
shall be treated as an adjustment to the Basic Purchase Price for tax
purposes.
2.5 The Basic Purchase Price shall be allocated among the Sellers as set
forth on SCHEDULE 8 and shall be paid by the Purchaser to the Sellers
on the Completion Date by means of a telephonic transfer by the
Purchaser to bank account number 00.00.00.000 with the ABN AMRO Bank
N.V. in the name of Stibbe Derdengelden Notariaat. The Sellers hereby
grant discharge to the Purchaser for the payment of this amount. The
Stichting MEXX hereby confirms that it shall pay the part of the Basic
Purchase Price and the Contingent Purchase Price (if any) received by
it to each of the holders of Depository Receipts in proportion to the
number of Depository Receipts held by them.
2.6 In addition to the Basic Purchase Price, Liz Acquisition US shall pay
to those Sellers executing the Earn-out Agreement attached hereto as
SCHEDULE 4 in respect of their ordinary Shares an amount constituting
the Contingent Purchase Price, as calculated in accordance with such
Earn-out Agreement in respect of any one (but not more than one) of the
financial years ending on 31 December 2003, 2004 or 2005, provided,
however, that while the Stichting MEXX will be a party to the Earn-out
Agreement, Xx Xxxxxx Xxxxx Xxxxxxxxx (a
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holder of Depositary Receipts in Stichting MEXX) will not receive any
payments, if any, under the Earn-out Agreement.
CLAUSE 3 - TRANSFER OF THE SHARES
On the Completion Date, subject to the Basic Purchase Price being paid,
the Sellers shall transfer title to and ownership of (DE EIGENDOM VAN)
the Shares to Liz Acquisition US and Liz Claiborne 2 BV, respectively,
by means of the Deed of Transfer. The Transfer of the Shares will be
effectuated by signing the Deed of Transfer in the presence of
civil-law notary Mr H.B.H. Kraak or his substitute, holding office at
Strawinskylaan 2001 or Xxxxxxx Xxxxxxxxxxx 00 at the offices of Stibbe
in Amsterdam. The Company shall acknowledge the Transfer by co-signing
the Deed of Transfer. The Sellers declare to be aware of the fact that
Mr H.B.H. Kraak or his substitute is associated with Stibbe in
Amsterdam, acting as the external legal adviser of the Purchaser. With
reference to the provisions of articles 9 and 10 of the "Guidelines
concerning the forms of cooperation between civil-law notaries and
lawyers" (RICHTLIJNEN MET BETREKKING TOT VORMEN VAN SAMENWERKING VAN
NOTARISSEN ONDERLING EN MET ADVOCATEN) as determined by the Board of
the Royal Notarial Regulatory Body (KONINKLIJKE NOTARIELE
BEROEPSORGANISATIE), the Sellers explicitly declare to consent to the
civil-law notary's execution of the Deed of Transfer and to the fact
that the Purchaser will also be assisted by Stibbe in all other cases
that are connected with these Deeds and all potential conflicts arising
therefrom.
CLAUSE 4 - [INTENTIONALLY DELETED]
CLAUSE 5 - MANAGEMENT BOARD, SUPERVISORY BOARD
5.1 Prior to or on the Completion Date, the Sellers shall deliver to the
Purchaser letters from Amex (in its capacity as the sole managing
director of the Company), Xxxxxx (in his capacity as supervisory
director C), Mr L.R.J. xxx Xxxxxxx (in his capacity as supervisory
director B), Mr H.F.M. Wiegerinck (in his capacity as supervisory
director A) and Mr A.H. Land (in his capacity as supervisory director
A) in which they:
(a) resign as members of the management board or the supervisory
board (as applicable) concurrently with the effectiveness of the
Transfer;
(b) agree to terminate any management contract/employment contract
with any Group Company;
(c) state that they waive any claims against the Company or any of
its Subsidiaries that they may have or will have in the future in
connection with the performance of their duties as managing
directors or otherwise up to the effectiveness of their
resignation.
5.2 [intentionally deleted]
5.3 Effective as of Completion, immediately following the Transfer, the
Purchaser shall adopt a shareholders resolution by which Xxxxxx will be
appointed as the sole managing director of the Company and Messrs. Xxxx
X. Xxxxxxx, Xxxxx Xxxxxxxxx and Xxxxxxx Xxxxxx will be appointed as
members of the supervisory board. Amex covenants and agrees that as
long as
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Xxxxxx is a managing director of Amex it shall not appoint a
supervisory director C pursuant to article 22.4 of the articles of
association of the Company (as amended on 16 May 1997).
5.4 Without limitation to any of the provisions in the Earn-out Agreement
with respect to the corporate governance of the Company during the
Earn-out Period (as defined therein), the supervisory board of the
Company shall consist of 5 (five) persons that shall be appointed by
the Purchaser from time to time. Included among the persons to be
appointed by the Purchaser shall be at least 2 (two) Independent Board
Members. The Purchaser shall act in good faith to seek to cause the
Independent Members of the supervisory board to be European citizens.
If for any legal or regulatory reason it becomes necessary to appoint
additional members to the supervisory board, then the Purchaser shall
be entitled to appoint additional members to the supervisory board such
that control of the supervisory board shall be held by persons
appointed by the Purchaser that are neither Independent Board Members
nor other persons required to be appointed. In the event the Company
shall adopt the (limited) structure regime applicable to large
companies under the Dutch Civil Code (by amending its articles of
association), the parties shall endeavor that any person designated by
the Purchaser as a member of the supervisory board will be appointed
and that only persons that are designated by the Purchaser will be
appointed. The supervisory board shall establish supervisory board
rules (COMMISSARISSENREGLEMENT) setting out the above principles. Each
person designated as a member of the supervisory board shall be
requested to abide by these principles by signing the supervisory board
rules prior to his appointment.
5.5 Until the date on which a Notice of Election (as defined in the
Earn-out Agreement) is delivered in accordance with the Earn-out
Agreement, certain decisions of the management board of the Company
shall require the prior approval of the supervisory board. A
non-exhaustive list of such decisions is included in the Earn-out
Agreement. The articles of association of the Company shall be amended
to reflect the new shareholding and corporate governance principles
after the Transfer as reflected in the Earn-out Agreement and other
documents forming part of this Agreement. Until such time that the new
articles of association of the Company shall have become effective,
Parties shall act as if the articles of association had already been
amended in accordance with the provisions of this Agreement and the
Earn-out Agreement.
CLAUSE 6 - ACTIONS PENDING COMPLETION
6.1 The Sellers agree to use their best efforts to take, or cause to be
taken, all actions, and to do, or to cause to be done, all things
necessary, proper or desirable to obtain a new power of attorney
executed by CINL conveying all of the Shares owned by it in favour of
Xx X. xxx Xxxxxxx and deliver such power of attorney to the Purchaser
within 72 hours of the date hereof. Upon written notice to the Sellers,
the Purchaser may terminate this Agreement at any time prior to
Completion if the Sellers fail to deliver such power of attorney within
such 72-hours period.
6.2 From and after the date hereof, until the earlier of the Completion or
the termination of this Agreement in accordance with its terms, the
Sellers shall not, in any manner, Transfer (as hereinafter defined),
directly or indirectly, all or any portion of their Shares in any
manner that could impede the ability of the Purchaser to purchase all
of the Shares. For purposes of this Section 6.2 only, the term
"Transfer" means any direct or indirect sale, transfer, pledge
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or other disposition of Shares, including any disposition of the
economic or other risks of ownership through hedging transactions or
derivatives involving Company's securities.
CLAUSE 7 - COMPLETION MATTERS
7.1 On Completion the Sellers shall deliver or make available to the
Purchaser:
(i) letters of all resigning members of the management board and of
the supervisory board of the Company in which they undertake to
resign concurrently with the effectiveness of the Transfer;
(ii) evidence of termination of the verbal management contracts with
Amex and Movement;
(iii) evidence that the Affiliate Transactions have been settled on
terms, including economic terms, acceptable to the Purchaser in
its sole discretion;
(iv) sufficient evidence that the articles of association of the
Stichting MEXX have been amended and that the Stichting MEXX is
fully authorized to transfer the Shares for which the Depositary
Receipts have been issued and that the holders thereof have been
or shall be fully compensated at no additional cost to Liz;
(v) sufficient evidence that the Options have been cancelled or
exercised (as the case may be) and that each holder of Options
has waived all of its rights under the Options at no additional
cost to Liz;
(vi) a notarial deed of transfer evidencing that immediately before
the Transfer the shares of MEXX Investment B.V. have been
transferred out of the MEXX Group and that any and all Taxes
payable upon such transfer have or will be paid at no additional
cost to Liz or any Group Company by Xxxxxx;
(vii) the Lease Agreement attached hereto as SCHEDULE 5 duly signed by
MEXX Investment B.V.;
(viii)the employment agreements attached hereto as SCHEDULE 9 duly
signed by the Key Employees;
(ix) the LCI Services Agreement attached hereto as SCHEDULE 6 duly
signed by the Company;
(x) the Earn-out Agreement attached hereto as SCHEDULE 4 duly signed
by the Sellers which are a party thereto;
(xi) written evidence that the Company has made the necessary filing
with the Trade Register with respect to its qualifying for the
structure regime;
(xii) subject to the Basic Purchase Price being paid, the Deed of
Transfer shall be executed by each Seller.
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7.2 Against compliance by the Sellers of the foregoing provisions, on
Completion the Purchaser shall:
(i) pay the Basic Purchase Price in the manner specified in clause
2.5;
(ii) execute counterparts of any documents or agreements referred to
in clause 7.1 if so required by the Sellers and to which the
Purchaser or its designee is a party;
(iii) execute the Deed of Transfer.
7.3 If the foregoing provisions of the clauses 7.1 and 7.2 are not fully
complied with by the Sellers on the one hand and the Purchaser on the
other by or on the date set for Completion, the non-defaulting Party
may elect to defer the Completion Date to allow the defaulting Party to
remedy its defaults or to require the defaulting Party to provide the
non-defaulting Party with adequate compensation where such remedy is
not practically possible. If the non-defaulting Party has not elected
to defer the Completion Date or if, at the expiry of such deferral, the
defaulting Party has failed to remedy its defaults or to provide
adequate compensation therefor, then the non-defaulting Party may (in
addition to and without prejudice to all rights or remedies available
to it, including the right to claim damages) by notice served on the
Completion Date as originally set or deferred (as the case may be)
elect not to effect Completion and to terminate this Agreement, or to
effect Completion so far as practically possible having regard to the
defaults which have occurred.
7.4 After the Transfer, the shareholders register of the Company, in which
the Transfer shall be validly registered, shall be delivered to the
Purchaser.
7.5 After the Transfer, Liz Claiborne 2 BV will become part of the existing
MEXX fiscal unity for corporate income tax purposes provided the
financial years of the Group Companies comprising a part of the fiscal
unity have been changed shortly after Completion to coincide with the
financial year end of Liz Claiborne 2 BV, which is 30 June.
7.6 Amex, Houseview and Movement shall use their best efforts to procure
that the management of the Company shall initiate the amendment of the
articles of association of the Group Companies comprising part of the
fiscal unity for corporate income tax purposes to change the financial
year end to 30 June.
CLAUSE 8 - REPRESENTATIONS AND WARRANTIES
8.1 Each of Amex, Movement and Houseview hereby represents jointly and not
severally (GEZAMENLIJK EN NIET HOOFDELIJK) to the Purchaser that on the
date hereof each and every one of the Representations and Warranties
(except for the Representations and Warranties given in sections 1.1,
1.2, 1.3, 3.2 and 58.2 of the Representations and Warranties), as such
Representations and Warranties are qualified in the Disclosure Letter,
is true, accurate and not misleading and will be true, accurate and not
misleading in any respect through the Completion Date.
8.2 Each Seller hereby represents and warrants to the Purchaser that, as to
themselves only, the Representations and Warranties given in sections
1.1, 1.2, 1.3, 3.2 and 58.2 of the Rep-
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resentations and Warranties, as such Representations and Warranties are
qualified by the Disclosure Letter, are true, accurate and not
misleading and will be true, accurate and not misleading in any respect
through the Completion Date.
8.3 The Representations and Warranties are given for the benefit of both
the Purchaser and the Group Companies.
8.4 Each of the Sellers acknowledges that the accuracy of the
Representations and Warranties is essential for the Purchaser's
decision to enter into this Agreement on the terms herein contained.
None of the Sellers has knowledge of facts or circumstances which have
not been disclosed to the Purchaser prior to the date of this Agreement
and which facts or circumstances can reasonably be considered as having
any relevance for a well founded decision of the Purchaser to enter
into this Agreement and to effect Completion.
8.5 The Representations and Warranties purport that the disadvantageous and
harmful consequences of the incorrectness and/or incompleteness of a
Representation or a Warranty are completely at the risk of the Sellers
except that the Purchaser recognizes that it shall be deemed to have
knowledge of what is readily apparent from the Disclosed Information
and such knowledge qualifies the Representations and Warranties.
8.6 The Representations and Warranties are given by the Sellers on the
basis of statutory provisions which are in force at the Completion
Date.
8.7 Each of the Sellers undertakes to the Purchaser that after the
occurrence of anything constituting a Breach at any time prior to the
Completion Date it will forthwith disclose such a Breach to the
Purchaser; provided, that the Sellers will remain liable for such
Breach if the Purchaser decides to proceed to Completion.
8.8 The Purchaser hereby warrants and represents to the Sellers in the
terms of part 2 of the Representations and Warranties.
CLAUSE 9 - SELLERS' LIABILITY FOR BREACHES
9.1 Each of Amex, Houseview and Movement hereby jointly and not severally
(GEZAMENLIJK EN NIET HOOFDELIJK) covenants and agrees that it shall
compensate the Purchaser - or, at the sole discretion of the Purchaser,
the pertinent Group Company - for any and all Damages from Breaches of
the Representations and Warranties made pursuant to clause 8.1 and
Damages from Breaches of Representations and Warranties by Stichting
MEXX made pursuant to clause 8.2 and any other Breaches of its
obligations under this Agreement. Amex, Houseview and Movement shall
collectively be liable for 100% of the Damages specified in the
preceding sentence, allocated 75% to Amex, 15% to Houseview and 10% to
Movement.
9.2 Each Seller hereby covenants and agrees that it shall compensate the
Purchaser - or, at the sole discretion of the Purchaser, the pertinent
Group Company - for any and all Damages from Breaches of its
Representations and Warranties made by it pursuant to clause 8.2 and
any other Breaches of its obligations under this Agreement.
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9.3 The Damage suffered by the Purchaser is fixed at the amount of money
that is necessary to bring the Company or any other Group Company in
the position in which it or they (as the case may be) would have been
if the relevant Breach had not occurred.
9.4 The Damage also includes:
(i) the reasonable costs incurred by the Purchaser in order to
prevent, limit or assess the Damage;
(ii) the reasonable costs incurred by the Purchaser in order to obtain
compensation for the Damage, including its external legal and
other advisers' fees and its costs of litigation.
9.5 In calculating the Damage in respect of the Breach of a Representation
and Warranty (solely with respect to clauses 9.1 and 9.2 and not when
calculating Damages in respect of the Breach of a covenant hereunder or
pursuant to the Indemnity Clauses, as such term is defined in clause
9.17):
(i) any compensation received from third parties, including but not
limited to monies received from an insurance company; and
(ii) any tax savings that are realized by a Group Company and that
relate directly to the Damage claimed by the Purchaser,
shall be taken into account in assessing the liability.
9.6 The Sellers cannot invoke FORCE MAJEURE against a claim based on a
Breach.
9.7 No claim shall be brought against the Sellers in respect of any Breach
of a Representation and Warranty unless the Sellers have received
written notice of such claim specifying in reasonable detail to the
extent then known the facts or matters that give rise to the Breach or
claim, the nature of the Breach and the amount or the best estimate of
the Damages:
(a) without limitation in time with respect to section 3 of the
Representations and Warranties or the Breach of a covenant
contained in this Agreement;
(b) on or before the later of (i) the date on which the payment of
the Contingent Purchase Price is due and payable or (ii) 31
December 2003, with respect to all other matters.
9.8 Except with respect to claims arising out of the Representations and
Warranties set forth in section 3 or the Breach of a covenant contained
in this Agreement, which claims shall not be subject to the limitations
set forth in this clause 9.8, the Sellers' liability shall not arise
unless and until all claims of Breaches of a Representation and
Warranty against any or all of the Sellers exceeds an aggregate amount
of Euro 500,000 and in such event the Sellers shall be liable for the
excess amount only (i.e. over and above Euro 500,000).
9.9 In determining the liability set forth in clause 9.8, individual claims
(other than a series of related claims in respect of a Breach) based on
a Breach of a Representation and Warranty
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asserted pursuant to the Agreement of less than Euro 25,000 each shall
not be taken into account.
9.10 The aggregate liability of Amex, Houseview and Movement for a Breach of
a Representation and Warranty shall not exceed the sum of 100% of the
Basic Purchase Price and the Contingent Purchase Price paid or payable
(without reduction for any amounts that may have been previously set
off pursuant to the Earn-out Agreement) to all of the Sellers and the
liability of the other Sellers (not being Amex, Houseview and Movement)
shall always be limited to their pro rata portion of the Basic Purchase
Price and the Contingent Purchase Price paid or payable (without
reduction for any amounts that may have been previously set off
pursuant to the Earn-out Agreement).
9.11 The Purchaser will take such measures (or procure that all measures are
taken by the Company or the relevant Group Company) as may reasonably
be expected in order to avoid, dispute, mitigate or defend any Damages.
9.12 Each of Amex, Houseview and Movement hereby jointly and severally
(GEZAMENLIJK EN HOOFDELIJK) indemnifies the Purchaser against any
Damages which any Group Company may suffer or incur, directly or
indirectly, as a result of any liabilities or claims, including the
costs of defense, remediation or clean-up involving the Environment
that arise out of or result from (i) any known or unknown condition of
pollution or contamination on any presently or previously owned or
leased properties of any of the Group Companies resulting from actions
or circumstances occurring prior to the Completion Date, and (ii) any
known or unknown condition of pollution or contamination as a result of
the operation of the businesses of the Group Companies prior to the
Completion Date, including without limitation and for the avoidance of
doubt, any Damages resulting from any known or unknown contamination of
the location of MEXX Investment B.V. at Voorschoten (Land Registry
number community of Voorschoten, Section A, number 3208).
Notwithstanding the foregoing, each of Amex, Houseview and Movement
shall not be liable under this clause 9.12 with respect to:
(i) any Damages resulting from non-compliance with, violation of, or
lack of permits under statutory, provincial or municipal acts,
regulations, directives or other legislation which are not yet in
force at the Completion Date (provided, that this clause 9.12 (i)
shall not in any way reduce the liability of Amex, Houseview and
Movement for any such non-compliance, violation or lack of
permits at or prior to Completion);
(ii) any expenses incurred in connection with re-locating the
operations of the Company as a result of the termination of the
Lease Agreement caused by a clean-up of any pollution at and/or
in the vicinity of this location, as stipulated in the Lease
Agreement;
(iii) any Damages from non-compliance with, violation of, or lack of
permits under any statutory, provincial or municipal acts,
regulations, directives or other legislation caused by a change
in the Business of the Company or any Group Company following
Completion.
9.13 Each of Amex, Houseview and Movement hereby jointly and severally
(GEZAMENLIJK EN HOOFDELIJK) indemnifies the Purchaser against any
Damages which any Group Company may suffer or incur, directly or
indirectly, as a result of any liabilities or claims, including the
cost of defense, involving the violation of any customs or trade laws,
including without limitation laws pertaining to country-of-origin,
marking or labeling.
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9.14 Amex, Houseview and Movement shall be jointly and severally
(GEZAMENLIJK EN HOOFDELIJK) liable for any of the following Taxes
(whether deferred or not and including any interest and penalties, if
any) which become payable by the Company (including any assessment or
demand for payment directly against any of the Group Companies) (i)
Taxes which are attributable or arising from any circumstance or event
in any taxable year or period ending on or before the Completion Date,
(ii) with respect to taxable years or periods beginning before the
Completion Date and ending after the Completion Date, Taxes which are
attributable to the portion of such taxable year or period ending on
the Completion Date and (iii) any and all Taxes payable upon or
directly or indirectly caused by the transfer of MEXX Investment B.V.
out of the MEXX Group (including, without limitation, any triggering of
the 16th Standard Condition), provided, however that any tax loss carry
forward contained in SCHEDULE 10 shall be taken into account in
computing liability under clauses (i) and (ii) above, except that (x)
any such tax loss carry forward shall only be taken into account to the
extent actually available to reduce the tax liability for which
indemnification under this section 9.14 is otherwise being sought
(including without limitation availability as to tax jurisdiction) and
(y) the total amount of tax loss carry forwards that may be taken into
account in reducing the liability of Amex, Houseview and Movement under
this clause 9.14 shall not exceed Euro 1.5 million. For the avoidance
of doubt, (a) Taxes for which Amex, Houseview and Movement are liable
pursuant to this clause 9.14 include Taxes payable in connection with
the transactions contemplated by this Agreement, and (b) Taxes for
which Amex, Houseview and Movement are not liable pursuant to this
clause 9.14 include Taxes with respect to which Liz has sole liability
(other than those Taxes, if any, described in clause (a) of this
sentence.
9.15 Amex, Houseview and Movement shall be jointly and severally
(GEZAMENLIJK EN HOOFDELIJK) liable for (A) repayment of any dividend or
distribution made by MEXX to its shareholders since the Accounts Date
and (B) any and all costs or expenses incurred by the Company (whether
directly or indirectly) relating to (i) the cancellation of the
Depository Receipts by Stichting MEXX; (ii) the cancellation or
exercise of the Options (as the case may be) including all Taxes in
respect of the exercise of the Options, whether payable or to be
withheld by the Company or another Group Company or payable by the
holders of the Options in respect of the exercise of the Options, the
sale of the Shares or the (DE FACTO) cancellation by the Company of the
obligation of the holders of the Options to repay the benefit they have
derived through the sale of the Shares acquired through exercise of the
Options in the event that the Company would not be a listed company at
the latest 1 October 2003; (iii) the settlement and termination of the
Affiliate Transactions on terms, including economic terms, acceptable
to the Purchaser in its sole discretion; and (iv) any fees payable by
the Company to Credit Suisse First Boston in excess of the Euro 4.25
million referred to in clause 14.10.
9.16 Amex, Houseview and Movement jointly and severally (GEZAMENLIJK EN
HOOFDELIJK) indemnifies the Purchaser against any Damages which any
Group Company may suffer or incur, directly or indirectly, as a result
of any liabilities or claims, including the cost of defense, in
connection with any claims against the Company by Fauve Holding B.V.
arising out of or resulting from actions or circumstances prior to
Completion, including without limitation that lawsuit captioned
2000/1514.
9.17 Any non-fulfillment of obligations and/or liability under clauses 9.12,
9.13, 9.14, 9.15 and 9.16 (the "INDEMNITY CLAUSES") shall not be
considered a breach or a non-fulfillment of the Representations and
Warranties. The liability of Amex, Houseview and Movement with re-
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spect to the Indemnity Clauses shall be unlimited (not subject to the
limitation in clause 9.10) and shall not count towards the threshold
specified in clause 9.8 hereof, nor shall any claim brought hereunder
be subject to the procedures and time limits described in clause 8 or
clause 9.7 of this Agreement; provided, however, that any claim under
the Indemnity Clauses in clauses 9.12, 9.13 and 9.14 shall be brought
prior to expiration of any period set forth in applicable Environmental
Laws, customs or trade laws or Tax laws or other applicable laws, as
the case may be, any claim under clause 9.15 shall be brought prior to
the 5th (fifth) anniversary of Completion and any claim under clause
9.16 may be brought without limitation in time (i.e., clause 9.16 shall
survive indefinitely). Unless expressly stated otherwise, the liability
of Amex, Houseview and Movement under the Indemnity Clauses shall be
jointly and severally. For the avoidance of doubt, it is acknowledged
and agreed that clause 9.5 shall not be applicable when calculating
Damages in respect of the Indemnity Clauses and that any information
contained in the Disclosure Letter or the Disclosed Information shall
not reduce or in any way limit the indemnification obligations of Amex,
Houseview or Movement under the Indemnity Clauses.
9.18 The Sellers shall never be liable towards the Purchaser or any Group
Company for any consequential damages (such as for example loss of
opportunity, loss of goodwill, loss of profit) and all claims arising
out of or in connection with this Agreement shall be limited to the
damages actually suffered.
9.19 No claim shall be brought against the Purchaser in respect of any
breach of a representation and warranty made pursuant to clause 8.8
hereof unless the Purchaser shall have received written notice of such
claim specifying in reasonable detail to the extent then known the
facts or matters that give rise to the breach or claim, the nature of
the breach and the amount or best estimate of the actual damages
(VERMOGENSSCHADE as referred to in section 6:96 paragraph 1 of the
Dutch Civil Code): on or before the later of (i) the date on which the
payment of the Contingent Purchase Price is due and payable or (ii) 31
December 2003.
CLAUSE 10 - GUARANTEE
10.1 Each of Xxxxxx (in its capacity as the sole shareholder of Amex), Ho
(in its capacity as the sole shareholder of Houseview) and Advaney (in
its capacity as the sole shareholder of Movement), unconditionally and
irrevocably guarantees to the Purchaser the due and punctual discharge
and performance by each of Amex, Houseview and Movement, respectively,
pursuant to this Agreement (such obligations in this clause 10 the
"GUARANTEED OBLIGATIONS") and agrees that if at any time or from time
to time any Guaranteed Obligation of Amex, Houseview or Movement is not
discharged or performed in full on the due date therefore, each of
Xxxxxx, Ho and Advaney will promptly after being given not less than 5
(five) Business' Days notice of the failure of any of Amex, Houseview
or Movement to discharge or perform such obligations (and if such
failure is not remedied by Amex, Houseview or Movement in the interim)
unconditionally discharge or perform or procure the discharge or
performance of the relevant amount or obligation to the Purchaser.
10.2 The obligations of Xxxxxx, Ho and Advaney under clause 10.1 above:
(i) shall be continuing obligations and shall not be satisfied,
discharged or affected by any intermediate payment or settlement
of account or any change in the constitution or con-
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trol of, or the insolvency of, or any liquidation, winding up or
analogous proceedings relating to any of Amex, Houseview or
Movement (as applicable) or any change in the terms or nature of
the Guaranteed Obligations; and,
(ii) shall not be discharged, prejudiced, lessened, affected or
impaired by any act, omission or circumstance whatsoever which
but for this provision might operate or release or exonerate
Amex, Houseview or Movement from all or any part of the
Guaranteed Obligations.
10.3 As a separate and independent stipulation each of Xxxxxx, Ho and
Advaney agrees that if any of the Guaranteed Obligations are not
enforceable or recoverable from Amex, Houseview or Movement by reason
of any legal limitation, disability or incapacity or any fact or
circumstances otherwise, they shall nevertheless be enforceable against
and recoverable from Xxxxxx, Ho or Advaney as though the same had been
incurred by any of them and Xxxxxx, Ho or Advaney were the sole or
principal obligor in respect thereof and shall be performed and paid by
any or all of Xxxxxx, Ho or Advaney.
10.4 This guarantee shall constitute the primary obligations of Xxxxxx, Ho
and Advaney (and not merely on collection, BORGTOCHT). Each of Xxxxxx,
Ho and Advaney waives and agrees not to exercise any and all rights,
privileges and exceptions granted to sureties and/or guarantors, which
might otherwise be deemed applicable under Netherlands law, more
particularly the rights, privileges and exceptions referred to in
section 6:139 of the Dutch Civil Code and book 7 chapter 14 thereof.
CLAUSE 11 - NON-COMPETITION AND CONFIDENTIALITY
11.1 Each of Xxxxxx, Xxxxxxx and Ho covenants and agrees that it shall not
until the 2nd (second) anniversary of the payment of the Contingent
Purchase Price, anywhere in the world either directly or indirectly:
(a) conduct an enterprise, in whatever form, equal or comparable to
that of the Group at the Completion Date;
(b) have a financial interest in such an enterprise, in whatever
form, or have a share or other interests in it, whether potential
or not, with the exception of shares in a company listed on the
stock exchange not exceeding a percentage of 5%;
(c) aid or assist such an enterprise in whatever form, with or
without compensation;
(d) engage or procure third parties to engage in any form of
commercial or other activities, equal or comparable to those of
the Group at the Completion Date.
11.2 Each of Xxxxxx, Advaney and Ho warrants and represents that none of its
holding companies (including Amex, Houseview and Movement),
subsidiaries or participations, none of the members of the management
board or other key employees of any of them shall engage in any of the
activities mentioned in clause 11.1 for the same period.
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11.3 Without prejudice to clause 11.1, each of Xxxxxx, Xxxxxxx and Ho
covenants and agrees that it shall not until the 2nd (second)
anniversary of the payment of the Contingent Purchase Price, anywhere
in the world either directly or indirectly solicit any of the employees
working for any of the Group Companies at the Completion Date or any
persons who have been such employees at any moment during the period of
2 (two) years prior to the Completion Date, either to enter (directly
or indirectly) into the employment of any of Xxxxxx, Advaney and Ho,
its holding companies (including Amex, Houseview and Movement),
subsidiaries or participations or to render services to any of Xxxxxx,
Advaney and Ho, its holding companies (including Amex, Houseview and
Movement), subsidiaries or participations in a direct or indirect
manner, without the prior written consent of the Purchaser. Each of
Xxxxxx, Xxxxxxx and Ho warrants and represents that its holding
companies (including Amex, Houseview and Movement), subsidiaries and
participations will also refrain from the aforesaid activities.
11.4 Each of Xxxxxx, Advaney and Ho shall, for the benefit of the Purchaser,
forfeit a directly due and payable penalty - without any prior notice
of default or warning being required - in the amount of Euro 2 million
for any violation by it and/or any of the persons or legal entities for
which it is a guarantor under clause 11.1 up to and including 11.3 of
this Agreement as well as a penalty in the amount of Euro 250,000 for
every single day that the violation continues, without prejudice to the
right of the Purchaser to claim performance of the Agreement and/or its
actual damages under this Agreement.
11.5 Each of the Sellers covenants and agrees that it shall not provide to
any third party any information that has come to its knowledge
regarding the Company, the Purchaser or their respective subsidiaries
of which such Seller knows or should have known that it is of a
confidential nature, unless such Seller is compelled to do so by law or
by any applicable stock exchange regulation.
11.6 Each of the Sellers warrants and represents that all of its employees
and advisers, its subsidiaries and participations and their employees
and advisers shall also comply with the provisions of clause 11.5.
11.7 None of the Parties shall, without the prior written consent of the
other Parties, inform any person other than its advisors about the
contents of this Agreement or any of the transactions effectuated
pursuant to this Agreement unless it is compelled to do so by law or by
any applicable stock exchange regulation.
11.8 All publicity with respect to this Agreement, internally as well as
externally, shall be agreed upon between the Parties, with respect to
the contents as well as with regard to the form and the time of the
publication.
CLAUSE 12 - CONDITIONS PRECEDENT (OPSCHORTENDE VOORWAARDEN)
12.1 The obligation of the Purchaser to consummate the Completion is subject
to the satisfaction of the following conditions precedent:
(i) the Purchaser must have obtained the financing contemplated in
the commitment letter attached as SCHEDULE 11 on the terms and
conditions set forth therein;
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(ii) no Material Adverse Effect shall have occurred, provided,
however, that for purposes of this clause 12.1 (ii) only, a
Material Adverse Effect shall mean a diminution in the equity
value of the Company or the Business or the incurrence of Damages
in excess of Euro 20,000,000 such diminution to be finally
determined in an arbitral proceeding in accordance with clause
14.15;
(iii) the articles of association of the Stichting MEXX shall have been
amended and the Depository Receipts shall have been cancelled by
the Stichting MEXX so that the Stichting MEXX is fully authorized
to transfer the Shares for which the Depository Receipts have
been issued and the holders thereof have been or shall be fully
compensated at no additional cost to Liz.
12.2 The obligation of the Purchaser and the Sellers to consummate the
Completion is subject to the satisfaction of the following conditions
precedent:
(i) no court or governmental entity of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any law,
order, injunction or decree (whether temporary, preliminary or
permanent) that is in effect and restrains, enjoins or otherwise
prohibits consummation of the transactions contemplated by this
Agreement. No court or governmental entity shall have instituted
any proceeding or threatened to institute any proceeding seeking
any such law, order, injunction or decree;
(ii) all necessary governmental consents to the transaction pursuant
to any applicable national competition rules shall have been
obtained, all required notifications to governmental
organisations shall have been made and all waiting periods with
respect thereto shall have expired.
12.3 The Parties shall use all reasonable endeavours to fulfil the aforesaid
conditions precedent and shall notify the other Parties immediately
upon becoming aware of the satisfaction of such conditions. The
Completion of the transactions contemplated by this Agreement shall
take place (a) on 23 May 2001 at the offices of Stibbe in Amsterdam or
(b) at such other place and time and/or on such other date as the
parties may agree in writing.
12.4 The Party to whose benefit the conditions precedent are made shall be
entitled to waive, to such extent as it thinks fit, the conditions
mentioned in clauses 12.1 and 12.2. If the conditions in the clauses
12.1 and 12.2 have not been satisfied or waived (as the case may be),
this Agreement may be terminated pursuant to clause 13.1 and shall
thereafter have no further effect.
CLAUSE 13 - TERMINATION
13.1 This Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to Completion as follows:
(a) by mutual written consent of the Purchaser and the Sellers;
(b) by either the Purchaser or the Sellers, if Completion shall not
have occurred on or before 31 July 2001; provided, however, that
the right to terminate this Agreement under
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this clause 13.1 (b) shall not be available to the Party whose
failure to fulfill any obligation under this Agreement shall have
been the cause of, or resulted in, the failure of Completion to
occur on or before such date.
13.2 In the event of termination of this Agreement pursuant to clauses 6.1,
7.3 or 13.1, this Agreement shall have no further effect and there
shall be no liability under this Agreement on the part of the Purchaser
or the Sellers and all rights and obligations of each Party hereto
shall cease; provided, however, that nothing in this Agreement shall
relieve any Party from liability for willful (OPZETTELIJK) breach of
any of its representations and warranties or the willful breach of any
covenants or agreements set forth in this Agreement, any liability
under clause 7.3 or the obligation to pay the Termination Fee (defined
below) in accordance with clause 13.3. In addition, the obligations of
the Parties arising from clauses 11.7 and 11.8 will remain in full
force and will not be affected in any manner if this Agreement is
terminated.
13.3 Notwithstanding the provisions of clause 13.2, the Parties agree that
if the Agreement is terminated because the condition precedent
contained in clause 12.1 (i) has not been satisfied or waived, the
Purchaser shall pay the Company a Termination Fee in the amount set
forth in the next sentence; provided, however, that the Purchaser shall
not be liable to pay the Termination Fee if (i) an adverse change at
the Company has caused the condition precedent in clause 12.1 (i) not
to be fulfilled; (ii) the commitment letter referred to in clause 12.1
(i) has expired in accordance with its terms because the Completion
Date has been delayed as a result of the Company's or any Seller's
failure to fulfill its obligations under this Agreement; (iii) the
Sellers are in material breach of any of their Representations and
Warranties and covenants set forth in this Agreement or (iv) Completion
cannot occur or has been delayed because the Company or the Sellers
have not otherwise fulfilled their obligations under this Agreement.
The Termination Fee payable under this Agreement shall be (x) Euro
5,000,000 in the event that on 23 May 2001 all of the Completion
matters set forth in clause 7.1 and the condition precedent contained
in clause 12.1 (iii) shall have been satisfied and (y) Euro 1,500,000
in the event that any such Completion matter or such condition
precedent shall not have been satisfied on 23 May 2001.
CLAUSE 14 - MISCELLANEOUS
14.1 Subject to the terms and conditions of this Agreement, each of the
Sellers and the Purchaser agrees to use all reasonable endeavors in
good faith to take, or cause to be taken, all actions, and to do, or
cause to be done, all things necessary, proper or desirable, or
advisable under applicable laws, so as to permit consummation of the
transactions contemplated hereby as promptly as practicable and
otherwise to enable consummation of the transactions contemplated
hereby and shall cooperate fully with the other Parties hereto to that
end.
14.2 The Sellers agree that upon reasonable prior notice and subject to
applicable laws relating to the exchange of information, and in a
manner so as to not interfere with the normal business operations of
the pertinent Group Company, they shall afford the Purchaser and its
officers, employees, counsel, accountants and other authorized
representatives, such access during normal business hours throughout
the period from the date hereof to the Completion to the books,
records, officers, employees, agents, properties, offices and other
facilities of the pertinent Group Company as the Purchaser (or any such
representative) may reasonably request.
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14.3 This Agreement including the Schedules hereto (including without
limitation the Earn-out Agreement) contain the entire Agreement among
the Parties with respect to the purchase and sale of the Shares and
this Agreement supersedes all earlier agreements, either verbally or in
writing, between the Parties.
14.4 The Schedules and the Annexes to this Agreement form an integral part
of this Agreement. Any references to this Agreement include a reference
to the aforesaid Schedules and Annexes and vice versa.
14.5 This Agreement can only be amended by a written agreement of the
Parties.
14.6 Each of the Sellers and the Purchaser shall sign all documents and
execute all other instruments and undertake and perform all acts
necessary for the fulfillment of its obligations arising from this
Agreement.
14.7 Liz may assign its rights under this Agreement, either wholly or
partly, to (one of) its subsidiaries or participations, provided, that
each of Liz Claiborne 2 B.V. and LCI Acquisition U.S., Inc. may assign
its rights and/or transfer its obligations to (one of) Liz's
subsidiaries or participations and/or procure that (one of) its
subsidiaries or participations substitute(s) any of Liz Claiborne 2
B.V. and LCI Acquisition U.S., Inc. as a Party to this Agreement.
14.8 If any provision of this Agreement should be invalid or in any other
way non-binding, such invalidity or non-binding status shall in no way
affect the validity of the other provisions of this Agreement. In such
event the Parties shall after mutual consultation as well as in the
spirit of this Agreement amend such provision insofar as it is
necessary by replacing the provision that is invalid or non-binding by
a provision which resembles the invalid or non-binding provision as
closely as possible and which is valid and binding.
14.9 Any notice required to be delivered to the Parties pursuant to this
Agreement shall be in writing and sent by regular mail, by telefax or
telegram to the addresses set forth below:
To the Purchaser:
Name: Liz Claiborne, Inc.
Address: 0000 Xxxxxxxx
Xxx Xxxx, XX 00000
X.X.X.
For the attention of: General Counsel
Telephone: x0 000 000 0000
Telefax: x0 000 000 0000
With copies to:
Name: Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
Address: 0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, XX 00000
X.X.X.
To the attention of: Xx Xxxxxx Xxxxxxx, Esq.
Telephone: x0 000 000 0000
Telefax: x0 000 000 0000
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Name: Stibbe
Address: XX Xxx 00000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
To the attention of: Xx Xxxxx van Lanschot
Telephone: x00 00 000 0000
Telefax: x00 00 000 0000
To the Sellers:
IF TO AMEX:
Address: Xxxxxxxx 00
0000 XX Xxxxxxxxx
The Netherlands
Attention: Mr Rattan Xxxxxx
Telephone: +31 70 - 514 02 33
Telefax: +31 70 - 517 97 50
IF TO MOVEMENT:
Address: Xxxxxxxxxxx 00
0000 XX Xxx Xxxxx
Xxx Xxxxxxxxxxx
Attention: Xx Xxxx Xxxxxxx
Telephone: +31 70 - 363 14 14
Telefax: +31 70 - 345 55 02
IF TO HOUSEVIEW:
Address: Xxxxxxxx Xxxxxxx
0xx xxxxx X-0
0 Xxxxxxx xxxx
Xxxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Attention: Xx Xxxxxxx Xx
Telephone: x000 00 00 00 00
Telefax: x000 00 00 00 00
IF TO CCIEL:
Address: 0 Xxxxx Xxx
Xxxxxxxxxx 0 Xxxxxxxx
Xxxxxxxxx
Xxxxxxxx, 00000
XXX
Attention: Mr Xxxx Xxxxx
Telephone: x0 000 000 00 00
Telefax: x0 000 000 00 00
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IF TO CINL:
Address: 000 Xxxxxx Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Xx Xxxxxx Xxxxxx
Telephone: x00 000 000 00 00
Telefax: x00 000 000 00 00
IF TO STICHTING MEXX:
Address: Xxxxx Management Services
Xxxxxxxx 00x
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Mr Luuts Xxxxxxxx
Telephone: +31 20 - 626 25 35
Telefax: +31 20 - 624 77 11
IF TO MEHTA:
Address: Xxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telephone: +31 70 - 517 91 71
Telefax: +31 70 - 517 63 35
IF TO ARORA:
Address: Xxxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telephone: +31 70 - 511 13 18
Telefax: +31 70 - 514 18 75
IF TO OUWENDIJK:
Address: Xxxxxxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telephone: +31 70 - 511 73 92
Telefax: +31 70 - 514 12 90
To the Company:
Name: MEXX Group B.V.
Address: Xxxxxxxxx 000
0000 XX Voorschoten
The Netherlands
For the attention of: Xx X. Xxxxxx
Telephone: x00 00 000 0000
Telefax: x00 00 000 0000
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or to such other address or representative as a Party may notify the
other Parties of in the manner set forth above. Of every notice a copy
shall be sent at the same time to the fax number of the other Party. A
statement which does not comply with this clause shall have no effect.
This clause shall also apply to notices given in connection with
agreements which are connected with this Agreement, unless the relevant
agreement expressly provides otherwise.
14.10 Each of the Sellers and the Purchaser shall bear its own costs and
expenses (including in respect of legal, accounting and investment
banking fees) made or incurred with respect to this Agreement; provided
that the Company shall pay the fees payable to Credit Suisse First
Boston in an amount not to exceed Euro 4.25 million.
14.11 Each of the Parties explicitly waives all its rights to rescind
(ONTBINDEN) or avoid (VERNIETIGEN) this Agreement after Completion.
14.12 No failure on the part of any Party to exercise, and no delay in
exercising, any right hereunder, in the event of a Breach by any Party,
shall operate as a general waiver of that right under this Agreement.
14.13 This Agreement may be executed in any number of counterparts, each of
which when executed shall be an original but all the counterparts
together shall constitute one and the same instrument.
14.14 This Agreement and the rights and obligations arising from it shall be
governed by and construed in accordance with the laws of the
Netherlands.
14.15 All disputes arising out of or in connection with this Agreement or the
legal relationships established thereby, shall be - unless any
imperative rule of law dictates otherwise - finally settled in
accordance with the Arbitration Rules of the Netherlands Arbitrations
Institute (NEDERLANDS ARBITRAGE INSTITUUT). The arbitral tribunal shall
be composed of three arbitrators. The place of arbitration shall be in
the Netherlands. The arbitral procedure shall be conducted in the
English language.
[remainder of this page intentionally left blank]
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THUS signed and executed on the day and year first above written,
LIZ CLAIBORNE, INC. LCI ACQUISITION U.S., INC.
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
----------------------------- -----------------------------
By: Xxxxxxx Xxxxxx By: Xxxxxxx Xxxxxx
Title: Vice President, Chief Title: Vice President, Chief
Financial Officer Financial Officer
LIZ CLAIBORNE 2 BV
/s/ Xxxxxxx Xxxxxx
-----------------------------
By: Xxxxxxx Xxxxxx
Title: Vice President, Chief
Financial Officer
AMEX HOLDING B.V. STICHTING ADMINISTRATIEKANTOOR MEXX
/s/ X. X. Xxxxxx /s/ X. Xxxxx
----------------------------- -----------------------------
By: X. X. Xxxxxx By: X. Xxxxx
Title: Title:
MOVEMENT TRADING B.V. HOUSEVIEW LIMITED
/s/ Xxxx Xxxxxxx /s/ X. X. Xxxxxx
----------------------------- -----------------------------
By: Xxxx Xxxxxxx By: X. X. Xxxxxx
Title: Director Title:
CCIEL CINL
/s/ X. xxx Xxxxxxx /s/ X. xxx Xxxxxxx
----------------------------- -----------------------------
By: X. xxx Xxxxxxx By: X. xxx Xxxxxxx
Title: Authorized Representative Title: Authorized Representative
-31-
XX X. XXXXXXX XX X. XXXXXX
/s/ X. Xxxxxxx /s/ X. Xxxxxx
----------------------------- -----------------------------
XX X. XXXXX XX X. XXXXX
/s/ X. Xxxxx /s/ X. Xxxxx
----------------------------- -----------------------------
XX X. XX MR J.A.M. OUWENDIJK
/s/ X. Xx /s/ J. A. M. Ouwendijk
----------------------------- -----------------------------
XX X.X. XXX SHARMA
/s/ P. K. Sen Sharma
-----------------------------
For its agreement and acknowledgement with the provisions of this Agreement,
MEXX GROUP B.V.
/s/ X. X. Xxxxxx
-----------------------------
By: X. X. Xxxxxx
Title: Director
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