EXHIBIT 35
PURCHASE PLAN
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Purchase Plan, dated July 30, 2003 (this "Purchase Plan"), between
Pinault-Printemps-Redoute, a company organized under French law as a societe
anonyme a conseil de surveillance et directoire, having its registered office
00, xxxxx Xxxxx Xxxxxxx, 00000 Xxxxx (Xxxxxx), registered at the Commercial
Registry of Paris under number 552 075 020 ("PPR") and Credit Agricole Indosuez
Cheuvreux, a company organized under French law as a societe anonyme, having its
registered office 0 xxxx xx Xxxxxxxxx Xxxx Xxxxxx, 00000 Xxxxxxxxxx (Xxxxxx),
registered at the Commercial Registry of Nanterre under number 788 108 223
("CAIC").
WHEREAS, PPR, on behalf of its wholly owned subsidiary Scholefield Xxxxxxx
BV ("SG"), desires to purchase up to FOUR MILLION (4,000,000) common shares of
Gucci Group N.V. (the "Issuer"), nominal value NLG 1.02 per share (the "Stock"),
between August 1, 2003 and October 19, 2003, subject to the provisions of this
Purchase Plan, when PPR would otherwise be unable to purchase the Stock as a
result of the Issuer's Xxxxxxx Xxxxxxx Policies; and
WHEREAS, PPR desires to appoint CAIC to purchase shares of Stock in
accordance with this Purchase Plan;
NOW, THEREFORE, PPR and CAIC hereby agree as follows:
1. PPR hereby gives to CAIC an irrevocable mandate, subject to Section 2(iv)
below, to purchase up to an aggregate of FOUR MILLION (4,000,000) shares of
Stock (or, if CAIC receives written notice from PPR that such number would
result in PPR holding more than 70% of the outstanding Stock or more than
SEVENTY MILLION (70,000,000) shares of Stock, in either case such aggregate
lesser number of shares of Stock which would not cause such result; provided
that CAIC shall have no liability for exceeding such thresholds with respect to
purchases made before any such notice was received) by market purchases within
the applicable volume limitations set out in section b-4 of Rule 10b-18 under
the US Securities Exchange Act of 1934, as amended (the "Exchange Act"). No
purchase shall be made by CAIC under this plan prior to August 1, 2003. CAIC
shall purchase shares of Stock on each day on which The New York Stock Exchange
(the "NYSE") is open for trading and the Stock trades regular way on the NYSE,
at the then prevailing market (bid) price provided that:
(a) such price does not exceed a maximum price (the "NYSE Maximum Purchase
Price") being defined as $99.00 per share (excluding any commission,
commission equivalent, xxxx-up or differential and other expenses of
purchase) and provided also that the USD/EUR exchange rate at the time of
the relevant purchase (as reported on Reuters page EUR =) is above 1.07,
and
(b) the total number of shares to be purchased on any day shall not exceed the
then applicable volume limitation of Rule 10b-18 under the Exchange Act
(the "Daily Volume Limitation"), and
(c) all such purchases are otherwise in compliance with Rule 10b-18 under the
Exchange Act.
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To the extent that CAIC determines in its sole discretion that market
circumstances will permit, CAIC may purchase shares of Stock on the Amsterdam
Euronext Stock Exchange (the "ASX") on days when the ASX is open for trading
provided that (i) such price does not exceed a maximum price (the "ASX Maximum
Purchase Price") being defined as EUR 92.52 per share (excluding any commission,
commission equivalent, xxxx-up or differential and other expenses of purchase),
(ii) all such purchases shall be included into the calculation of the Daily
Volume Limitation and (iii) all such purchases shall otherwise be in full
compliance with all of the requirements of the ASX and Rule 10b-18 under the
Exchange Act.
The NYSE Maximum Purchase Price, the ASX Maximum Purchase Price and the global
amount of shares to be purchased shall be adjusted automatically on a
proportionate basis to take into account any stock split, reverse stock split or
stock dividend with respect to the Stock, including the announced dividend of
EUR 13.50 per share of Stock, or any change in capitalization with respect to
the Issuer that occurs during the Plan Period (as defined below). No purchases
of shares of Stock will be made on the NYSE prior to the close of trading on the
ASX. All such purchases by CAIC on the NYSE or the ASX shall be on a basis
consistent with ordinary courses of execution.
CAIC shall deliver on each trading day a written report regarding the prior
day's purchases hereunder to PPR by sending a fax to the following persons:
Xxxxxx Xxxxxx of PPR at 00.00.00.00.00 and Xxxxxxx Xxxxx at 00.00.00.00.00, and
Xxxxx X. Xxxx, counsel to PPR, at 000 000-000-0000 and Xxxxxx X. Xxxxxxxx,
counsel to PPR, at 000 000-000-0000.
2. This Purchase Plan shall become effective on August 1, 2003 and shall
terminate on the earliest to occur of (i) October 19, 2003 at the closing time
of the NYSE (or, if the publication of the Issuer's first half results is
postponed, 5 trading days after the date on which such results are published),
(ii) the date on which CAIC receives notice of the commencement or impending
commencement of any proceedings in respect of or triggered by the Issuer's
bankruptcy or insolvency (the "Plan Period"), (iii) FOUR MILLION (4,000,000)
shares of Stock (or, if CAIC receives written notice from PPR that such number
would result in PPR holding more than 70% of the outstanding Stock or more than
SEVENTY MILLION (70,000,000) shares of Stock, in either case such aggregate
lesser number of shares of Stock which would not cause such result; provided
that CAIC shall have no liability for exceeding such thresholds with respect to
purchases made before any such notice was received) are purchased pursuant to
this Purchase Plan, or (iv) subject to its allowability under applicable law,
upon five trading days prior written notice to CAIC from PPR. For the avoidance
of doubt, it is specified that, except as provided in Section 2(iv) above, this
Purchase Plan is irrevocable and cannot be terminated or modified by PPR prior
to October 19, 2003.
3. CAIC agrees to comply with Rule 10b-18 under the Exchange Act and the
rules of the ASX in effecting any purchase of Stock pursuant to this Purchase
Plan. CAIC represents that it has the corporate authority to act pursuant to the
terms of this Purchase Plan and that CAIC has all necessary regulatory and other
approvals to fulfill its obligations under this Purchase Plan.
4. PPR represents and warrants that the purchase of Stock pursuant to this
Purchase Plan has been duly authorized by PPR, is not prohibited by any legal or
regulatory restriction or undertaking binding on PPR or SG and does not breach
any provisions of (i) the Issuer's xxxxxxx xxxxxxx regulations, or (ii) PPR's or
SG's organizational documents. PPR shall immediately notify CAIC if it becomes
subject to a legal or regulatory restriction or undertaking, or any
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provision of any material contract, that would prevent CAIC from making
purchases pursuant to this Purchase Plan, and, in such a case, PPR and CAIC
shall cooperate to amend or otherwise revise this Purchase Plan solely to take
account of such legal or regulatory restriction or such undertaking (provided
that neither party shall be required to revise this Purchase Plan to take
account of any such contractual provision or to take any action that would be
inconsistent with the requirements of Rule 10b5-1(c), the ASX and/or the Dutch
securities law). In the event that PPR and CAIC shall not be able to amend this
Purchase Plan consistent with the provisions of the preceding sentence, this
Purchase Plan shall immediately terminate and no further purchases of shares of
Stock shall be made under the terms of this Purchase Plan.
5. PPR agrees that PPR shall not, directly or indirectly, communicate any non
public information relating to the Stock or the Issuer to any salesperson, sales
trader, compliance officer or other employee of CAIC or any of its affiliates or
subsidiaries who is involved, directly or indirectly, in the implementation of
this Purchase Plan at any time while this Purchase Plan is in effect.
6. PPR has consulted with PPR's own advisors as to the legal, tax, business,
financial and related aspects of, and has not relied upon CAIC or any person
affiliated with CAIC in connection with PPR's adoption and implementation of
this Purchase Plan. PPR acknowledges that CAIC is not acting as a fiduciary or
an advisor for PPR. CAIC, in agreeing to act as an independent agent and to
enter into this Purchase Plan has consulted with its own advisors and has not
relied upon PPR or any person affiliated with PPR in so proceeding, other than
to the extent provided in this Purchase Plan.
7. PPR agrees that until this Purchase Plan has been terminated PPR shall
not, directly or indirectly, (i) enter into a binding contract with respect to
the purchase or sale of Stock with another broker, dealer or financial
institution (each, a "Financial Institution"), (ii) instruct another Financial
Institution to purchase or sell Stock, (iii) adopt a plan for trading with
respect to Stock other than this Purchase Plan or (iv) take any other action
that would permit, or omit to take any action that would prevent, the
implementation of this Purchase Plan (including, without limitation, purchases
of the maximum Daily Volume Limitation of shares of Stock pursuant hereto) to
violate or not comply with Rule 10b-18 or Rule 10b-5-1 under the Exchange Act or
the rules of the ASX or the NYSE.
8. PPR agrees to make all filings, if any, required under Section 13(d) of
the Exchange Act or otherwise required by US federal securities laws or any
other filings and notifications required under Dutch law, in a timely manner, to
the extent any such filings are applicable to PPR or SG. CAIC acknowledges that
PPR will file this agreement as an exhibit to its Schedule 13D by filing an
Amendment to the Schedule 13D currently on file with respect to the Issuer.
9. PPR understands that CAIC may not be able to effect a purchase due to a
market disruption, a change in legal or regulatory situation applicable to CAIC
occurring after the date of execution of this Purchase Plan (other than any such
change arising primarily from CAIC's failure to comply with applicable laws or
regulations), or due to any failure of PPR to comply with applicable laws or
regulations.
10. At the time of the execution of this Purchase Plan by PPR, PPR represents
and warrants that neither it nor SG is aware of material, nonpublic information
concerning the Issuer or its securities and that PPR is entering into this
Purchase Plan in good faith and not as part of a plan
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or scheme to evade compliance with the U.S. federal securities laws, including
the prohibitions of Rule 10b5-1 under the Exchange Act and/or with Dutch
securities laws.
11. It is the intent of the parties that this Purchase Plan comply with the
requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and this Purchase
Plan shall be interpreted to comply with the requirements of Rule 10b5-1(c)
under the Exchange Act.
12. PPR agrees to indemnify and hold harmless CAIC and its directors,
officers, employees and affiliates from and against all claims, losses, damages
and liabilities (including, without limitation, any reasonable legal or other
expenses incurred in connection with defending or investigating any such action
or claim) arising out of or attributable to CAIC's actions taken or not taken in
compliance with this Purchase Plan or arising out of or attributable to any
breach by PPR of this Purchase Plan (including PPR's representations and
warranties hereunder) or any violation by PPR of applicable laws or regulations,
except to the extent such claim, loss, damage, liability or expense is finally
determined pursuant to the arbitration procedure referred to below, or, if
applicable, by a court of competent jurisdiction, to have arisen from the gross
negligence, bad faith or willful misconduct of CAIC or any of its employees or
representatives. In each case, PPR and its counsel shall be notified by CAIC, by
letter or facsimile transmission, of the written assertion of a claim against
CAIC or of any other action commenced against CAIC in respect of which indemnity
may be sought hereunder, promptly after CAIC shall have received any such
written assertion or shall have been served with a summons in connection
therewith, provided that failure to provide such notice shall not relieve PPR
from any liability that it may otherwise have on account of this indemnity,
unless (and only to the extent that) PPR did not otherwise learn of such claim
or other action and such failure results in PPR being materially prejudiced
thereby. PPR shall be entitled to participate at its own expense in the defense
of any such claim or other action and, if PPR so elects in writing, PPR shall
assume the defense of any suit brought to enforce any such claim. In the event
that PPR shall assume the defense of any such suit and so notifies CAIC in
writing, PPR shall not be liable for the fees and expenses of any additional
counsel thereafter retained by CAIC, so long as PPR shall retain counsel
reasonably satisfactory to CAIC to defend such suit, and so long as CAIC has not
determined, in CAIC's reasonable judgment, that an actual or potential conflict
of interest exists between CAIC and PPR. PPR shall be liable for any settlement
of any claim effected with PPR's prior consent, which consent shall not be
unreasonably withheld. PPR shall not be liable for any settlement of any claim
effected without PPR's prior consent which has not been unreasonably withheld.
PPR shall not, without the prior written consent of CAIC (which consent shall
not be unreasonably withheld), settle or compromise any claim, or permit a
default or consent to the entry of any judgment in respect thereof, unless the
settlement, compromise or consent includes, as an unconditional term, the giving
by the claimant to CAIC of an unconditional and irrevocable release from all
liability in respect of such claim. The provisions of this section shall survive
termination of this Purchase Plan.
It is agreed that for the purchase of the Stock as described hereabove, CAIC
shall be acting as independent agent for PPR; delivery of the Stock for each
transaction will be made by CAIC to PPR's custody bank on a normal three-day
settlement basis against payment by PPR of the total purchase price for all
shares of the Stock purchased for such transaction and against payment of any
commission, commission equivalent, xxxx-up or differential and other expenses of
purchase to be paid to CAIC by PPR consistent with the terms of the following
sentence.
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13. It is agreed that PPR shall pay or, if applicable, repay to CAIC, any
ordinary course brokerage fees, and ordinary course commissions, as well as any
taxes and stamp duties to be incurred in connection with the implementation of
this Purchase Plan. Brokerage fees and commissions shall not exceed 0.20 percent
gross per share of Stock purchased.
14. All reasonable out-of-pocket costs, charges and expenses to be incurred
by CAIC in connection with the negotiation or preparation of this Purchase Plan
shall be paid by PPR on first demand of CAIC.
15. Except as otherwise specified in this Purchase Plan, all notices to CAIC
under this Purchase Plan shall be given to Xxxxxxxx Xxxxxxxx, CAIC's compliance
office, in the manner specified by this Purchase Plan by telephone at
00.0.00.00.00.00, by facsimile at 00.0.00.00.00.00 or by certified mail to the
address below:
Xxx Xxxxxxxx Xxxxxxxx
Compliance Officer
Credit Agricole Indosuez Cheuvreux
0, xxxx xx Xxxxxxxxx Xxxx Xxxxxx
00000 Xxxxx-xx-Xxxxxxx Cedex, France
with a copy to:
Xxxxx Xxxxxx
Credit Agricole Indosuez Cheuvreux
0 xxxx xx Xxxxxxxxx Xxxx Xxxxxx
00000 Xxxxx-Xx-Xxxxxxx Xxxxx, Xxxxxx
Tel.: 00.0.00.00.00.00
Fax: 00.0.00.00.00.00
All notices to PPR under this Purchase Plan shall be given to
PPR for the attention of Xxxxxx Xxxxxx in the manner specified
by this Purchase Plan by telephone at 00 00 0 00 00 00 16, by
facsimile at 00 33 1 44 90 62 16 or by certified mail to the
address below:
Pinault Printemps Redoute
00, xxxxx Xxxxx Xxxxxxx
00000 Xxxxx
Xxxxxx
with a copy to:
Xxxxx X. Xxxx
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-000-0000
Facsimile: 000-000-000-0000
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This Purchase Plan shall be governed by and construed in accordance with the
laws of the State of New York.
Any dispute which may arise regarding the validity, interpretation or
performance of the Purchase Plan, shall be finally settled according to the
Rules of Arbitration of the International Chamber of Commerce by 3 arbitrators
appointed pursuant to these Rules. The arbitration shall take place in Paris and
be conducted in English language.
16. This Purchase Plan may be executed in counterparts, each of which shall be
deemed to be an original and all of which together shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the undersigned have signed this Purchase Plan as of the
date first written above.
PINAULT-PRINTEMPS-REDOUTE
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
CREDIT AGRICOLE INDOSUEZ CHEUVREUX
By: /s/ Xxxx-Xxxxxx Bassien
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Name: Xxxx-Xxxxxx Bassien
Title: Directeur General Adjoint
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