Exhibit 10.37
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SHARE PURCHASE AGREEMENT
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BETWEEN:
- LUK FIDEI L.L.C., having its registered office 0000, Xxxxxx Xxxxxx Xxx Xxxxxx
Xxxxxxx, Xxxxxxxx, (XXX), represented for the purposes of this Agreement by Xx.
Xxxx Xxxxxxxx, acting in his capacity as Vice-President, or its successor in
interest which holds the Shares (as defined below) as of the Date of Completion.
Hereinafter jointly and severally referred to as the "SELLER",
OF THE FIRST PART
AND
- HAMPTON TRUST PLC, having its registered office 000, Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxx WIK 3NW, represented by Xx. Xxxxxx Xxxxxxx, Chairman of the Board of
Directors, which shall substitute HAMPTON TRUST HOLDING (EUROPE) SA, a joint
stock company governed by the Laws of Luxembourg, with a share capital of EUR
100,000 having its registered office at 00, xxx Xxxx-Xxxxxxxx Xxxxxxxxx,
Xxxxxxx, 0000 Xxxxxxxxxx, registered with the Trade and Company registry of
Luxembourg under number B86120, represented for the purposes of this Agreement
by Xx. Xxxx X. Xxxxx, acting in his capacity as Administrateur Delegue.
Hereinafter jointly and severally referred to as the "BUYER",
OF THE SECOND PART
The SELLER and the BUYER shall be individually referred to as a "Party",
and collectively as the "Parties"
RECITALS
Whereas SELLER is the sole shareholder of COMPAGNIE FONCIERE FIDEI (hereafter
"FIDEI"), a French joint stock company ("societe anonyme") with a share capital
of EUR 2,017,870.07, having its registered office located at 00 xxx xx
Xxxxxxxxxx - 00000 Xxxxx, registered with the Trade and Company Registry of
Paris under number 000 000 000;
Whereas SELLER shall act solely in its own name and not on behalf of any other
person;
Whereas FIDEI owns, directly or indirectly a majority of the issued and
outstanding shares of each of the Subsidiaries listed on EXHIBIT 1 and, SELLER
shall undertake to cause FIDEI to wholly own, directly or indirectly, such
Subsidiaries as of the Date of Completion, provided, however, that FIDEI does
not own a majority of the issued and outstanding shares of DL Finance & Partners
and as of the Date of Completion, FIDEI SCA will either (i) wholly own, directly
or indirectly or (ii) not own any shares of DL Finance & Partners;
Whereas FIDEI is in the process of converting from a "societe anonyme" into a
"societe en commandite par actions" (hereafter the "Conversion") and after
giving effect to the Conversion, FIDEI shall be referred to as FIDEI SCA.
Whereas it is a condition to this Agreement that the Conversion be consummated
prior to the Date of Completion and the failure of the Conversion to occur on or
prior to June 1, 2002 shall result in the automatic termination of this
Agreement without liability of either Party under this Agreement.
Whereas, it is a condition to this Agreement that the limited partners of FIDEI
SCA receive at least Euro 52,000,000 pursuant to a share buy back proposed by
the Managing Director ("gerant") of FIDEI SCA after the Date of Signature but
prior to the Date of Completion.
Whereas SELLER agrees to sell to BUYER and BUYER agrees to purchase from SELLER,
according to the terms and conditions set forth below, all of the issued and
outstanding shares of FIDEI SCA and the Rights as General Partner as of the Date
of Completion.
NOW, THEREFORE, THE PARTIES HERETO HAVE AGREED AS FOLLOWS:
ARTICLE 1. DEFINITIONS
1.1 The terms set out hereunder shall have the following meaning for the purpose
of the Agreement:
- "Agreement": shall mean this agreement, including the Exhibits hereto,
executed by SELLER and BUYER ;
- "Available Funds": shall mean cash and/or the value of marketable securities
as indicated in the Financial Statements, adjusted to reflect the cash and/or
value of marketable securities of FIDEI SCA on the Date of Completion;
- "Bonds": shall mean all the issued and outstanding bonds of FIDEI; the
categories of issued and outstanding bonds of FIDEI are listed on EXHIBIT 2;
- "Business Day": shall mean a day (other than Saturday or Sunday and bank
holidays) on which banks are normally open in Paris for normal business;
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-"Conversion": shall mean the conversion of FIDEI from a societe anonyme into a
"societe en commandite par actions".
-"Date of Completion": shall mean the date that is (i) twenty-five days after
the deposit of the extract of the minutes of the shareholders meeting of FIDEI
SCA deciding of the share buy-back with the Paris Trade Register and (ii) after
the cancellation by the manager of FIDEI SCA to the redeemed shares, and shall
occur no later than June 30, 2002, with a best efforts to May 31, 2002, unless
otherwise agreed to by the Parties;
- "Date of Signature": shall mean the date on which this Agreement is executed
by the Parties;
- "FIDEI": shall mean COMPAGNIE FONCIERE FIDEI, as defined in the Recitals; and
"FIDEI SCA" shall mean FIDEI after its conversion into a "societe en commandite
par actions" as set forth in Section 6.1;
- "Financial Statements": shall mean the profit and loss accounts as well as the
balance sheet of FIDEI and the Subsidiaries, prepared in accordance with
generally accepted French accounting principles, applied on a consistent basis
and established on a consolidated basis for the financial year ending on 31
December 2001. These statements are attached in EXHIBIT 3.
-"Pro forma Balance Sheet": is the draft document being in Exhibit 7, a
definitive document being provided five (5) Business Days before Date of
Completion. Temporary Proforma Balance Sheet means the Proforma Balance Sheet
attached hereto at the Date of Signature. Final Proforma Balance Sheet means the
one issued Five (5) Business Days before the Date of Completion.
-"Rights as General Partner" : shall mean the rights owned by the sole General
Partner of FIDEI SCA and mentioned in the draft articles of association of FIDEI
SCA (EXHIBIT 5);
-"Shares": shall mean shares of FIDEI or FIDEI SCA, with a nominal value of EUR
0.76];
- "Subsidiaries" shall mean the entities that are majority owned by FIDEI and
listed on EXHIBIT 1, which entities SELLER shall undertake to be wholly owned,
either directly or indirectly, by FIDEI SCA on the Date of Completion, provided,
however, that FIDEI does not own a majority of the issued and outstanding shares
of DL Finance & Partners and as of the Date of Completion, FIDEI SCA will either
(i) wholly own, directly or indirectly or (ii) not own any shares of DL Finance
& Partners;
-"Transfer Order": shall mean the legal form ("Ordre de mouvement") according to
which SELLER will transfer the Shares of FIDEI SCA to BUYER.
1.2 Plural forms shall include singular forms and vice versa.
ARTICLE 2. SALE AND PURCHASE OF THE SHARES OF FIDEI SCA AND RIGHTS AS GENERAL
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PARTNER
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2.1 SELLER undertakes in its own name and not on behalf of any other person to
sell on the Date of Completion to BUYER and BUYER undertakes to purchase on the
Date of Completion from SELLER, all of the issued and outstanding shares of
FIDEI SCA.
2.2 SELLER undertakes in its own name and not on behalf of any other party to
sell on the Date of Completion and BUYER undertakes to purchase on the Date of
Completion from SELLER all of its Rights as General Partner.
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2.3 SELLER shall undertake to causes FIDEI SCA to directly or indirectly to
wholly own each of the Subsidiaries, on the Date of Completion, provided,
however, that as of the Date of Completion, FIDEI SCA will either (i) wholly
own, directly or indirectly or (ii) not own any shares of DL Finance & Partners.
ARTICLE 3. AGGREGATE PURCHASE PRICE OF THE SHARES OF FIDEI SCA AND RIGHTS AS
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GENERAL PARTNER
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3.1 On the Date of Completion, BUYER shall pay to SELLER, TWENTY THREE EUROS and
SEVENTY CENTIMES (EUR 23.70) per share for each share of FIDEI SCA issued and
outstanding, in accordance with Article 5 hereof.
The number of shares of FIDEI SCA to be purchased by BUYER on the Date of
Completion shall be EIGHT HUNDRED and TEN THOUSAND THREE HUNDRED and TWENTY FOUR
(810,324) and the aggregate purchase price for the shares of FIDEI SCA paid to
SELLER shall be NINETEEN MILION TWO HUNDRED SEVEN THOUSAND EUROS (EUR 19.207.00)
(hereafter the "Purchase Price").
3.2 On the Date of Completion, BUYER shall pay to SELLER an additional TWO
THOUSAND TWO HUNDRED and EIGHTY SIX EUROS (EUR 2,286), for SELLER's Rights as
General Partner (together with Purchase Price, the "Aggregate Purchase Price").
3.3 The Aggregate Purchase Price shall be adjusted in compliance with article
7.5.
ARTICLE 4. CLOSING OF THE SALE OF SHARES AND RIGHTS AS GENERAL PARTNER
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4.1 Subject to the satisfaction of the conditions contained herein, the closing
of the sale of Shares shall occur on the Date of Completion pursuant to the
execution of a Transfer Order by SELLER and BUYER.
The Parties undertake to have the transfer of the Shares registered in the books
and records of FIDEI SCA on the Date of Completion but in any event no later
than five (5) Business Days after the Date of Completion.
The above mentioned registration in the books and records of FIDEI SCA shall
only occur upon the receipt by SELLER of the Aggregate Share Purchase Price in
accordance with Article 5 below.
The Shares shall be transferred with full rights ("jouissance") as of the date
of their transfer.
Registration duties due to any person incurred by the transfer of Shares shall
be the sole responsibility of, and shall be borne by, BUYER.
4.2 Upon SELLER's receipt of the additional price of TWO THOUSAND TWO HUNDRED
and EIGHTY SIX EUROS (EUR 2,286) SELLER's Rights as General Partner shall be
transferred pursuant to a transfer agreement between the Parties. An
extraordinary shareholders' meeting shall be called and held by the BUYER to
modify the articles of association of FIDEI SCA in this respect.
Registration duties due to any person incurred by the transfer of Rights as
General Partner shall be the sole responsibility of, and shall be borne by,
BUYER.
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ARTICLE 5. PAYMENT OF THE PURCHASE PRICE
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BUYER shall pay the Purchase Price as set forth in Articles 3 and 4 above on the
Date of Completion by wire transfer in immediately available funds to an account
designated by SELLER at least three days prior to the expected Date of
Completion. The BUYER shall justify the wire transfer on the Date of Completion.
ARTICLE 6. CONDITIONS TO CLOSING
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6.1 In the event that the Conversion has not been consummated on or prior to
June 1, 2002 for any reason beyond the reasonable control of the SELLER, this
Agreement shall be considered as cancelled without liability of either Party
under this Agreement. However the Parties undertake to negociate in goodfaith an
equitable alternative transaction
6.2 In the event that creditors of FIDEI SCA request the repayment of an
aggregate amount of FIFTY MILLION EUROS (EUR 50,000,000) or more during the
twenty (20) day period after the notice of redemption be filled to the Paris
Trade Register, this Agreement shall be considered as cancelled without
liability of either Party under this Agreement. However the Parties undertake to
negociate in goodfaith an equitable alternative transaction
6.3 In the event that FIDEI SCA does not have Available Funds equal to or
greater than TWENTY FIVE MILLION (EUR 25,000,000) on the Date of Completion,
BUYER shall be entitled to cancel this Agreement without liability to either
Party under this Agreement by notifying SELLER in writing pursuant to the notice
provisions contained in Section 10.8 below on or before the Date of Completion.
6.4 At the Date of Completion, SELLER shall deliver to BUYER:
o the written resignation of the Managing Director ("gerant")
and all the members of the Supervisory Board of FIDEI SCA,
provided, however, that such resignations shall be accepted
and ratified at the next shareholders' meetings of FIDEI SCA
and the Subsidiaries as set forth in Section 6.6 below;
o the written resignation of all the members of each Board of
Directors and each Chairman or President of each of the
Subsidiaries, a list of such directors, Chairmen and
Presidents is set forth on EXHIBIT 4 hereto, provided,
however, that such resignations shall be accepted and
ratified at the next shareholders' meetings of FIDEI SCA and
the Subsidiaries as set forth in Section 6.6 below.
6.5 The replacement of the Managing Director and the members of the Supervisory
Board of FIDEI SCA and the members of the Board of Directors and each Chairman
or President of each of the Subsidiaries shall take place at the next
shareholders' meetings of FIDEI SCA and the Subsidiaries, which meetings shall
be convened no later than five (5) Business Days after the Date of Completion.
ARTICLE 7. REAL ESTATE PROPERTIES
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7.1 EXHIBIT 9 hereto lists all real property owned by FIDEI that are under a
commitment to sell ("promesse de vente" or "compromis de vente") as of the Date
of Signature, by FIDEI or the Subsidiaries, on the one hand, and third parties
on the other hand.
7.2 In the event that any property listed on EXHIBIT 9, other than Sevran lot n
3 which BUYER has agreed to purchase from FIDEI, is not sold in accordance with
the contract of sale, BUYER shall have the option to sell such property to
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SELLER (hereafter the "Put Right") by giving SELLER written notice no later than
90 days after the Date of Completion of its intent to sell such property to
SELLER. Upon giving such notice to SELLER, BUYER shall be obligated to sell to
SELLER and SELLER shall be obligated to purchase from BUYER any such property at
a price equal to the purchase price as set forth on EXHIBIT 9. The closing of
the sale of real property pursuant to a Put Right shall take place within 60
days after receipt by SELLER of the notice described above and SELLER shall pay
the purchase price by wire transfer in immediately available funds to an account
designated by BUYER at least three days prior to the expected closing date.
7.3 Prior to and after the Date of Completion, BUYER hereby agrees not to
intervene or interfere in the process of sale of the properties listed on
EXHIBIT 9 by FIDEI (or FIDEI SCA or the Subsidiaries, as the case may be) to any
third party, provided that the purchase price is at least equal to the purchase
price listed on EXHIBIT 9. After the Date of Completion, BUYER will use its good
faith efforts to fulfill the obligations of FIDEI SCA under such sale
agreements.
Any breach of BUYER's commitment shall result in the termination of the Put
Right with respect to the real property concerned.
7.4 SELLER hereby agrees that a representative of SELLER selected by Seller
shall assist in the sale of the properties listed on EXHIBIT 9 pursuant to the
contracts of sale. BUYER shall give SELLER written notice at least five (5)
Business Days prior to any meeting with a third party relating to the sale of
the properties listed on EXHIBIT 9 and shall permit SELLER's representative to
participate fully in any such meetings.
Any breach of BUYER's commitment shall result in the termination of the Put
Right with respect to the real property concerned.
7.5 EXHIBITS 8A through 8C list real estate property currently under lease
contracts ("credit bail") by FIDEI or the Subsidiaries. EXHIBITS 8D 8E and 8F
list real estate property currently owned by FIDEI or the Subsidiaries. The
Parties hereby agree that FIDEI (or FIDEI SCA) shall retain the properties set
forth on EXHIBITS 8A through 8F at the value set forth on such EXHIBITS.
The Parties hereby agree that the assets listed on EXHIBITS 8D shall be subject
to a revised valuation based on the revised rental situation (indicating for
each real estate, the identity of lessees and projected yearly rentals) of real
estate owned by FIDEI, FIDEI SCA or the Subsidiaries, as the case may be, five
Business Days prior to the expected Date of Completion (hereafter the "Valuation
Date"). Such revised valuation shall only occur if the rental situation is
modified between the Date of Signature and the Valuation Date and shall be based
upon the present value of the increase in rental income attributable to the
properties. The Parties hereby agree that the revised valuation shall not take
into account any new lease contracts that are for a term of less than two (2)
years ("Baux precaires"). In the event that the revised valuation results in an
increase to the valuation of the assets listed on EXHIBIT 8D, the Aggregate
Share Purchase Price shall be increased by such adjustment. In no event shall
the revised valuation result in a decrease in the Aggregate Share Purchase
Price. SELLER shall provide BUYER with an adjusted valuation of the Valuation
Date. In the event that BUYER objects to the revaluation, the consummation of
the transactions shall take place on the Date of Completion and BUYER shall pay
the Purchase Price, as adjusted pursuant to this Section 7.5; provided, however,
that BUYER and SELLER shall negotiate in good faith to agree on the revised
valuation. If not, article 10.2 will apply.
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ARTICLE 8. REPRESENTATIONS OF SELLER
8.1 SELLER hereby represents that as of the Date of Signature:
o FIDEI is a French "societe anonyme" (to be converted into an
"societe en commandite par actions"), with a share capital
of EUR 2,017,870.07 divided into 2,647,272 shares with a par
value of EURO 0.76, all of the same class and fully paid up
when issued, whose registered office is located at 00, xxx
xx Xxxxxxxxxx - 00000 Xxxxx, registered with the Trade and
Companies Register of Paris under number 000 000 000, as
certified by the "Extrait K-bis" attached hereto as EXHIBIT
6.
o the information given in the said "Extrait K bis" is true
and accurate in all material respects, and FIDEI was
incorporated in accordance with the French Companies Act and
all relevant regulations in effect under the form of a
"societe anonyme" by way of a private agreement that was
registered with the Trade and Companies Register of Paris on
29 October 1969.
o SELLER owns the issued and outstanding Shares of FIDEI free
and clear of any and all liens, encumbrances, pre-emptive
rights, seizures, or any other restrictions on transfer and
has the full power and authority to transfer the issued and
outstanding Shares of FIDEI.
o other than as set forth on EXHIBIT 1, FIDEI and the
Subsidiaries are not shareholders or partners in any other
companies and are not representatives of other companies or
members of a "groupement d'interet economique".
o the issued and outstanding categories of Bonds are listed on
EXHIBIT 2.
o to the knowledge of SELLER, other than the Bonds the
tangible and intangible property, personal and real property
of FIDEI is not encumbered by any collateral, mortgage or
security interest.
o to the knowledge of SELLER, FIDEI has not granted any
pledge, guarantee or personal guarantee of the performance
of any obligations entered into by FIDEI or any third party.
o to the knowledge of SELLER, other than the Conversion, the
implementation of a Share buy back, FIDEI has not entered
into any [material] financial transactions that are not
reflected on the Financial Statements.
o to the knowledge of SELLER, FIDEI is not a party to any loan
that is not reflected in the Financial Statements.
o to the knowledge of SELLER, FIDEI is insured in such amounts
and against such risks and losses as are customary for
companies conducting the business as conducted by FIDEI. To
the knowledge of SELLER, none of the insurance policies
taken out by FIDEI are cancelable as a result of the
Conversion or the transfer of the issued and outstanding
Shares of FIDEI SCA to BUYER. To the knowledge of SELLER,
the insurance policies of FIDEI are valid and in full force
and effect.
o to the knowledge of SELLER, other than as set forth on
EXHIBIT 10, there is no action, suit, proceeding or
investigation pending against FIDEI or the Subsidiaries.
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o The Financial Statements have been prepared in accordance
with generally accepted French accounting principles,
applied on a consistent basis during the periods involved.
To the knowledge of SELLER, the Financial Statements of
FIDEI fairly present in all material respects the
consolidated financial position of FIDEI as at 31 December
2001.
8.2 Tax Issues:
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SELLER represents to BUYER that the following amount of ordinary tax losses,
deferred tax losses (evergreen losses) and long term capital losses are as set
in the FY 2001 tax returns of the FIDEI Tax group and Fideicom:
i) FIDEI Tax group
- Tax group ordinary losses: EUR 18,152,170
Such ordinary losses are allocated as follows:
created in FY Amount
1999 EUR 18,152,170
2000 EUR 0
2001 EUR 0
- Tax group deferred losses: EUR 28,845,553
- Tax group long term tax losses: EUR 20,641,424
Such long term tax losses are allocated as follows:
created in FY Amount
1995 EUR 19,444,393
1996 EUR 1,197,031
ii) Fideicom tax losses:
- Ordinary tax losses : EUR 0
- Long term losses: EUR 0
- Deferred tax losses : EUR 30,712,158
The above amounts were determinated as follows:
o the amounts stated in the 2001 FIDEI consolidated tax return and the
2001 Fideicom tax return, as applicable,
o less the use of 1997 and 1999 FIDEI group ordinary tax losses
resulting from the de-booking of the long term capital gain reserve of
FIDEI as an ordinary reserve during FY 2002.
In the event that the French tax administration disallows any of the amounts
listed above as inaccurate, improper or incorrect under the tax laws of France
existing as of the Date of signature, SELLER shall indemnify and hold BUYER
harmless against any loss, liability, obligation or damage, and all assessments,
judgments and penalties incident to any such loss, liability, obligation or
damage (hereafter "Losses") incurred by BUYER; provided, however, that SELLER
shall have no obligation to indemnify BUYER unless and until such Losses exceed
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EURO 200,000 and provided, further, however, that SELLER shall not be liable to
BUYER for Losses in excess of EURO 979,102.
In the absence of an agreement between BUYER and SELLER, all sums due by SELLER
to BUYER by virtue of this indemnity shall be paid within thirty (30) Business
Days from such sums being adjudged finally due, as a result of a final and
non-appealable legal judgment handed down by any competent taxing authority.
In respect of the calculation of the indemnity which may be due by SELLER to
BUYER, it is agreed that:
o any tax reassessment involving a simple decrease of the
above mentioned tax losses of the FIDEI consolidated tax
group or of Fideicom shall be taken into account only if it
triggers an effective reduction on availability of the tax
losses for such consolidated tax group and for Fideicom;
o for the purpose of calculating the amount of any indemnity
payment to be made by SELLER to BUYER, such indemnity
payment shall be reduced by any benefit obtained or likely
to be obtained by the FIDEI consolidated tax group, by
Fideicom or by BUYER for any reason, including, without
limitation, by reason of an increase in liabilities or
decrease in assets giving rise to such indemnity payment,
such as (i) a tax decrease, saving or refund, (ii) the
creation or increase in deficits on the Date of Completion
(of any kind) or (iii) the receipt of proceeds from an
insurance policy or (iv) any adjustments made to tax returns
of prior years that result in any of the above.
It is agreed that the amount of indemnity to be paid under this specific tax
indemnity by SELLER to BUYER shall be determined by applying to the amount of
tax losses listed above that are effectively challenged by the French tax
authorities, the following rates:
- Ordinary tax losses:
created in FY Rate
1999 6%
2000 7%
2001 8%
- Deferred tax losses: 10%
- Long term tax losses: 7.5%
All claims under this indemnity must be made in writing with acknowledgement of
receipt addressed by BUYER to SELLER by the end of the relevant applicable
statute of limitation period for tax matters plus thirty (30) days.
This specific indemnity shall expire on 31 January 2005.
BUYER shall ensure that (i) SELLER will receive copies of complete documents
relating to any claims within eight (8) Business Days, (ii) neither BUYER, FIDEI
SCA nor the Subsidiaries shall accept liability for or compromise any claims
that give rise or could give rise to any claim for indemnification hereunder
without the prior consent of SELLER, (iii) BUYER, FIDEI SCA and the Subsidiaries
shall give SELLER and its advisors access to all documents and information
likely to be useful in the defense of any claim and (iv) BUYER, FIDEI SCA and
the Subsidiaries shall allow SELLER to select its own counsel who will act under
the instructions of SELLER to defend the interests of FIDEI, FIDEI SCA and the
Subsidiaries in respect of the tax claims. If BUYER, FIDEI SCA or the
Subsidiaries decide, contrary to the demand of SELLER, not to defend any claim,
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BUYER, FIDEI SCA and the Subsidiaries shall have no right to seek
indemnification from SELLER under this indemnity.
SELLER shall have the right but not the obligation (by providing BUYER notice
pursuant to Section 10.8 below) to represent the interests of FIDEI SCA and the
Subsidiaries in any tax audit or administrative or court proceeding relating to
the taxable periods of FIDEI SCA and the Subsidiaries which end on or before the
Date of Completion. BUYER agrees that it will cooperate fully with the SELLER
and its counsel in the defense against or compromise of any claim in any said
proceeding. SELLER shall bear the legal fees of its advisors or counsels.
BUYER shall cause FIDEI SCA and the Subsidiaries to give, free access to SELLER
and its advisors to all premises, documents and accounts of FIDEI SCA and the
Subsidiaries and will keep SELLER informed of the progression of all elements
reflected or which should be reflected in the accounts of FIDEI SCA and the
Subsidiaries. It is understood that this free access is limited to the scope and
the needs of Article 8.
BUYER undertakes to ensure that FIDEI SCA and the Subsidiaries shall keep and
maintain all books and records as may be needed to defend any claim from the tax
authorities and SELLER shall be relieved of its obligation to indemnify BUYER
for any Losses that SELLER could not adequately contest because of BUYER's
failure to ensure such books and records are maintained.
ARTICLE 9. REPRESENTATION OF BUYER
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BUYER represents that it (i) has received all the information it considers
necessary or appropriate for deciding whether to purchase the Shares and Rights
as General Partner, (ii) has had an opportunity to ask questions and receive
answers from FIDEI and the Subsidiaries regarding the business conducted by
FIDEI and the Subsidiaries and the business, properties and financial condition
of FIDEI and the Subsidiaries, (iii) has had the opportunity to visit and survey
the properties of FIDEI and the Subsidiaries, (iv) has had the opportunity to
properly examine and evaluate all documentation relevant to the properties and
(v) has had an opportunity to conduct a thorough and serious technical and
operational investigation into the various assets and liabilities of FIDEI and
the Subsidiaries for the purpose of the Agreement. BUYER has satisfied itself in
respect of all investigations and documentation received or requested from
SELLER.
ARTICLE 10. MISCELLANEOUS
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10.1 LANGUAGE - GOVERNING LAW
This Agreement is drawn up in English and shall be governed by and construed in
accordance with the laws of France. Should a French version be prepared, the
prevailing version shall be the English version.
10.2. DISPUTE RESOLUTION
The Parties agree to submit any dispute or disagreement arising from this
Agreement to an arbitral tribunal composed of three (3) arbitrators. The seat of
the arbitral tribunal shall be Paris.
Each Party shall appoint one arbitrator within 15 days from the notice sent by
the most diligent party appointing its arbitrator, by letter with acknowledgment
of receipt. If either Party fails to appoint its arbitrator, this Party shall be
notified to do so within 15 days by letter with acknowledgment of receipt.
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If such Party does not appoint its arbitrator within this schedule, such
appointment shall be requested to the President of the Tribunal de Commerce de
Paris, "statuant en la forme des referes", at the request of the most diligent
Party.
The two arbitrators shall appoint the third arbitrator within the month
following the appointment of the second arbitrator. If the two arbitrators fail
to do so, the appointment of the third arbitrator shall be requested to the
resident of the Tribunal de Commerce de Paris, "statuant en la forme des
referes", at the request of the most diligent Party.
The decisions of such arbitrators shall be final and not open to appeal.
The Parties shall be responsible for their own costs and expenses (including
legal fees) in connection with any arbitration; provided, however, that each
Party will be responsible for 50% of the fees and expenses of the arbitrators.
10.2 CONFIDENTIALITY
Prior to the Date of Completion, BUYER hereby agrees not to disclose any
confidential information currently in its possession or which may come into its
possession concerning FIDEI, FIDEI SCA and the Subsidiaries and not to use such
information for the benefit of any third party. After the Date of Completion,
SELLER hereby agrees not to disclose any confidential information currently in
its possession or which may come into its possession concerning FIDEI, FIDEI SCA
and the Subsidiaries and not to use such information for the benefit of any
third party
Neither BUYER, SELLER nor any of their representatives shall issue any press
release or public announcement concerning this Agreement or the transactions
contemplated hereby without obtaining the prior written approval of the other
party hereto, unless, disclosure is otherwise required by applicable law or by
the applicable rules of any stock exchange on which BUYER or SELLER or their
respective affiliates lists securities, provided, however, that, to the extent
required by applicable law or the rules of any stock exchange, the party
intending to make such release shall use its commercially reasonable efforts
consistent with such applicable law or rule to consult with the other party with
respect to the text thereof.
10.3 FEES AND EXPENSES
Each of the Parties shall bear its own costs and expenses (including legal fees
and expenses) incurred by either Party in connection with the preparation and
negotiation of this Agreement and the consummation of the transactions
contemplated hereby.
10.4 ENTIRE AGREEMENT; SEVERABILITY; AMENDMENTS
This Agreement constitutes the entire agreement among the Parties and supersedes
any prior and contemporaneous understandings, agreements, or representations by
or among the Parties, written or oral, to the extent they related in any way to
the subject matter hereof.
Any term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions of this Agreement or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction. However, the Parties hereto shall attempt, through
negotiations in good faith, to replace any provision of this Agreement so held
to be invalid or unenforceable by a provision of comparable effect. The failure
of the Parties to reach an agreement on a replacement provision shall neither
affect the validity of the remaining provisions of this Agreement nor the
validity of the valid or enforceable part of any provision held partly invalid,
which provision shall take effect to the maximum extent permitted by law.
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No amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by each Party.
10.5 BINDING EFFECT; ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Nothing in this Agreement
shall create or be deemed to create any third party beneficiary rights in any
person or entity not a party to this Agreement. Other than the Conversion and
the implementation of a Share buy back, no assignment of this Agreement or of
any rights or obligations hereunder may be made by either the SELLER or the
BUYER (by operation of law or otherwise) without the prior written consent of
the other parties hereto and any attempted assignment without the required
consents shall be void[; provided, however, that the SELLER may assign this
Agreement and any or all rights or obligations hereunder to any affiliate of
SELLER. Upon any such permitted assignment, the references in this Agreement to
the SELLER shall apply to any such assignee unless the context otherwise
requires].
10.6 WAIVERS
The failure of any Party hereto to exercise any right, power or remedy provided
under this Agreement or otherwise available in respect hereof at law or in
equity, or to insist upon compliance by any other Party hereto with its
obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such Party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
10.7 NOTIFICATIONS
All notices and other communications required or permitted hereunder shall be in
writing and, unless otherwise provided in this Agreement, will be deemed to have
been duly given when delivered in person or when dispatched by electronic
facsimile transfer (confirmed in writing by mail simultaneously dispatched) or
two Business Days after having been dispatched by a nationally recognized
overnight courier service to the appropriate party at the address specified
below
|X| To BUYER at:
HAMPTON TRUST HOLDINGS (EUROPE) SA
00, xxx Xxxx-Xxxxxxxx Xxxxxxxxx
Xxxxxxx
0000 Xxxxxxxxxx
Attn.: Xx. Xxxx X. Xxxxx, Administrateur Delegue
Facsimile:
With a copy to:
TESTU PACLOT MOITRY Me Xxxx-Xxxxxx Moitry 0, xxx xx Xxxxxxxx 00 000 Xxxxx
Facsimile:
To SELLER at :LUK FIDEI LLC
0000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
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With a copy to:
XX Xxxxxxxxxx
Colisee Mur
00, xxx xx Xxxxxxxxxx
X - 00000 Xxxxx
Facsimile:
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
10.8 LIST OF EXHIBITS
Exhibit 1 : List of Subsidiaries
Exhibit 2 : List of the categories of Bonds issued by FIDEI
Exhibit 3 : Financial Statements
Exhibit 4 : List of representatives and managers of FIDEI and
its Subsidiaries
Exhibit 5 : Draft of the articles of association of FIDEI SCA
Exhibit 6 : Articles of association and Extrait K bis of FIDEI and its
Subsidiaries
Exhibit 7: Temporary Pro forma Balance Sheet at the Date of Signature
Exhibit 8A
through 8F: Value of the real estate and financial lease contracts
owned by FIDEI and the Subsidiaries at the Date of
Completion
Exhibit 9: List of real estate properties under commitment to sell
Exhibit 10: Action, suit,proceeding or investigation pending against
FIDEI or the Subsidiaries
On the 17th April 2002,
In Paris,
Made in two (2) original copies
/s/ Xxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxx
-------------------------------- --------------------------------
SELLER BUYER
LUK FIDEI L.L.C and HAMPTON TRUST HOLDING
(EUROPE) XX XXXXXXX TRUST PLC
by: Xxxx X. Xxxxx
title: Administrateur Delegue
by: Xxxx Xxxxxxxx by: Xxxxxx Xxxxxxx
Title: Vice President Title: Chairman of the Board
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