Exhibit 10.20
______________________________________________
SHARE PURCHASE AGREEMENT
relating to the acquisition of
COMDISCO FRANCE SA and
PROMODATA SNC
______________________________________________
Dated 1st October 2002
Entered into between
(1) ECONOCOM AND
(2) COMDISCO GLOBAL HOLDING COMPANY, Inc.
(3) COMDISCO HOLDING COMPANY, Inc.
________________________________________________
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION..........................................................................2
2. PURCHASE OF SHARES AND OF THE INTERCOMPANY AMOUNT RECEIVABLES...........................................6
3. PURCHASE PRICE - PAYMENT................................................................................6
3.1 PURCHASE PRICE.................................................................................6
3.2 PAYMENT AND ADJUSTMENT TO THE PURCHASE PRICE...................................................6
4. PRE-COMPLETION AND POST-COMPLETION COVENANTS............................................................7
4.1 ORDINARY COURSE OF BUSINESS....................................................................7
4.2 ACCESS AND INFORMATION.........................................................................9
4.3 ACTIONS WITH A VIEW TO COMPLETION..............................................................9
4.4 THE SELLER'S TRADEMARKS AND LOGOS.............................................................10
4.5 COMPANY NAME CHANGE...........................................................................10
4.6 GUARANTEE.....................................................................................11
4.7 INSURANCE POLICIES............................................................................11
4.8 GE RECEIVABLE.................................................................................11
4.9 TRANSITIONAL SERVICES AGREEMENT...............................................................11
4.10 EUROPEAN MICHELIN ASSETS......................................................................12
4.11 MODIFICATION OF THE SCHEDULES.................................................................12
4.12 GOVERNMENTAL APPROVALS........................................................................12
5. CONDITIONS PRECEDENT...................................................................................12
5.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRER AND THE SELLER............................12
5.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRER...........................................12
5.3 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER.............................................13
5.4 BEST ENDEAVOURS TO FULFIL CONDITIONS PRECEDENT................................................13
5.5 CONDITIONS PRECEDENT NOT FULFILLED AT COMPLETION..............................................13
5.6 WAIVER OF CONDITIONS PRECEDENT................................................................13
5.7 TERMINATION OF THE AGREEMENT..................................................................14
6. COMPLETION.............................................................................................14
6.1 COMPLETION DATE...............................................................................14
6.2 DELIVERIES TO THE ACQUIRER....................................................................14
6.3 EXECUTION OF ANCILLARY AGREEMENTS.............................................................15
6.4 ACTIONS OR DELIVERIES BY ACQUIRER.............................................................15
7. REPRESENTATIONS AND WARRANTIES OF THE PARTIES..........................................................16
7.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER..................................................16
8. INDEMNIFICATION OBLIGATIONS............................................................................18
8.1 INDEMNIFICATION OBLIGATIONS OF THE SELLER.....................................................18
9. CONFIDENTIALITY........................................................................................18
10. NON-COMPETITION.......................................................................................19
11. ANNOUNCEMENTS.........................................................................................20
12. OTHER POST COMPLETION COVENANTS AND OTHER COVENANTS...................................................20
13. MISCELLANEOUS.........................................................................................20
14. GOVERNING LAW AND JURISDICTION........................................................................22
14.1 GOVERNING LAW.................................................................................22
14.2 ARBITRATION...................................................................................23
SHARE PURCHASE AGREEMENT
This share purchase agreement (the "Agreement") is made on this 1st day of
October 2002, by and between:
1. ECONOCOM Group SA / NV, a company whose registered office is at
Chaussee de Xxxxxxx 000, Xxxx Xxxxxxx 0000, 0000 Xxxxxxxx, Xxxxxxx
(the "Acquirer" or "ECONOCOM");
2. COMDISCO GLOBAL HOLDING COMPANY, Inc., a Delaware company, whose
registered office is at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx,
XXX ("COMDISCO GLOBAL HOLDING COMPANY, Inc." or the "Seller");
3. COMDISCO HOLDING COMPANY, Inc., a Delaware Company, whose registered
office is at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, XXX
("COMDISCO HOLDING COMPANY, Inc." or the "Guarantor");
The Acquirer and the Seller shall be hereinafter collectively referred to as
the "Parties" or individually as a "Party".
whereas:
A. The Seller holds 117,638 shares of COMDISCO FRANCE S.A., representing
99.9% of the issued share capital of COMDISCO FRANCE S.A. on the date
hereof. Six other individuals each hold individually 1 share of
COMDISCO FRANCE S.A., representing 0.1% of the issued share capital
of COMDISCO FRANCE S.A. on the date hereof. As a result, the Seller
and the six individuals hold together 100% of the issued share
capital of COMDISCO FRANCE S.A. on the date hereof. COMDISCO FRANCE
S.A. is a company with a share capital of Euro 1,793,471, registered
in France with the Register of Trade and Companies of Nanterre with
number 311 463 277, whose registered office is at 000 xxxxxx Xxxxxxx
xx Xxxxxx, 00000 Neuilly-sur-Seine ("COMDISCO FRANCE" or the
"Company").
B. The Company holds 218,448 shares of PROMODATA SNC representing 99.18%
of the issued share capital of PROMODATA SNC on the date hereof. CDS
Foreign Holdings, Inc. holds 1,802 shares of PROMODATA SNC
representing 0.82% of the issued share capital of PROMODATA SNC on
the date hereof. As a result, the Company and CDS Foreign Holdings,
Inc. hold together 100% of the issued share capital of PROMODATA SNC
on the date hereof. PROMODATA SNC is a company with a share capital
of Euro 3,357,689, registered with the Trade and Company Register of
Nanterre with number 392 945 358, whose registered office is at 000
xxxxxx Xxxxxxx xx Xxxxxx, 00000 Xxxxxxx-xxx-Xxxxx, Xxxxxx
("PROMODATA" or the "Subsidiary").
C. The Acquirer is willing to purchase from the Seller and the Seller is
willing to sell to the Acquirer the 117,644 shares comprising the
share capital of the Company (hereinafter the "Shares").
D. Prior to Completion, CDS Foreign Holdings, Inc. shall transfer to the
Company all of its shares in the Subsidiary.
E. Prior to Completion, each of the six individuals of the Company shall
transfer to the Seller, the one share they hold in the Company.
F. On Completion date, the Acquirer shall fund the Company in order to
enable the latter to fully reimburse the Spiritus loan (the "Loan")
due to Citibank, principal and interests included, such loan
amounting to Euro 69,403,475 as of 31 August 2002.
1. DEFINITIONS and interpretation
In this Agreement (including in the recitals thereto), unless the
context otherwise requires or unless otherwise specified hereinafter,
the following words shall have the following meaning:
"Affiliate" of any corporate Person means any other person that
directly or indirectly, through one or more intermediaries, controls,
is controlled by, or is under common control with the first mentioned
Person. A person shall be deemed to control another Person if such
first mentioned Person owns, directly or indirectly, 50% or more of
the voting rights of the second mentioned Person;
"Agreed Form" means in relation to any document, the draft of such
document which is either annexed to this Agreement and which has been
initialled by the Parties by way of their agreement in relation to
such draft document or is agreed later in writing between the
Parties;
"Agreement" has the meaning set forth in the Preamble;
"Ancillary Agreements" means, the Trademark and Software License
Agreement, the German License Agreement, the CEG Asset Sale Agreement
and the Transitional Services Agreement;
"Assignment of Receivables Agreement" means the agreement to be
entered into on the Completion Date between the Seller and the
Acquirer whereby the Seller shall irrevocably assign to the Acquirer
its right to the Intercompany Amount;
"Balance" has the meaning set forth in Clause 4.8;
"Business" means the business carried out by the Company and the
Subsidiary. The Subsidiary is engaged in the business of leasing and
providing remarketing services for distributed computing systems,
acquisition management and expenditure tracking and other services
that facilitate equipment procurement and expense tracking. The
Company is engaged in the business of leasing electronics equipment;
"Business Day" means any day other than a Saturday, a Sunday or a
legal holiday in France (within the meaning of Clause L. 222-1 of the
French Labour Code);
"CEG Asset Sale Agreement" shall have the meaning ascribed to it in
Clause 4.1;
"Company" shall mean COMDISCO FRANCE;
"Completion Date" shall have the meaning ascribed to it in Clause 6.1;
"Completion" means the transfer to the Acquirer by the Seller of the
shares of COMDISCO FRANCE;
"Computer Systems" means the computer systems used by the Company and
the Subsidiary in the conduct of the Business, but excluding
Portfolio Property;
"Damages" means direct damages, penalties, assessments, losses, costs
and expenses (including, but not limited to, reasonable attorneys'
fees) to the exclusion of indirect and consequential damages (which
indirect and consequential damages include for the avoidance of doubt
damage to reputation);
"Employee(s)" means the managing individuals, whether or not employed
by the Company or the Subsidiary, and all persons employed by the
Company and the Subsidiary as at the Completion Date;
"Encumbrance" means any encumbrance or security interest whatsoever
including (without limitation) any charge, mortgage, floating charge,
pledge, security, lien, right of pre-emption, option, right to
acquire, conversion right, third party right, interest and claim,
right of set-off, right of counterclaim, title retention, conditional
sale arrangement, and any other preferential right, agreement or
arrangement having similar effect except for any Permitted Lien;
"Governmental Approval" means each consent, waiver, authorisation,
approval, exemption, expiration or termination of a mandatory waiting
period or declaration of or by, or filing with, any Governmental
Authority that is reasonably required to be obtained or made by the
Parties in connection with the execution and delivery of this
Agreement by the Parties or the performance by such Parties of their
obligations hereunder, including (without limitation) such approvals
or consents be required on account of change of control provisions
contained in any Licence;
"Governmental Authority" means the government of any nation, state,
city, locality or other political subdivision thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any
of the foregoing;
"Intercompany Agreements" means all the agreements existing between
the Company and/or the Subsidiary and any member of the Comdisco
group, in particular the agreements listed in Schedule A;
"Intercompany Amount" shall have the meaning ascribed to it in Clause
3.2.2.
"Know How" means all confidential and proprietary information,
research in progress, algorithms, processes, formulaes, models,
methodologies and techniques which are used by the Company and/or the
Subsidiary in connection with the Business;
"Licence" means, in relation to the Company and the Subsidiary, any
licence, consent, permit, certificate, exemption, permission,
concession or other approval, filing of notification or return,
report and assessment, registration or authorisation required for, or
in connection with, any part of the Business of the Company and the
Subsidiary, or its ownership, use, possession of any of its assets or
occupation of one or more of the properties (where relevant);
"Permitted Lien" means (i) any mechanic's or material men's lien,
which an obligor, borrower or lessee under a lease agreement is
required to remove and which does not affect the value of the
portfolio property subject to such lien, (ii) any Encumbrance
pursuant to the refinanced lease agreements, (iii) any Encumbrance on
any portfolio property which is specifically permitted in accordance
with the terms of the related lease agreement and which does not
materially affect the value of the portfolio property subject to such
Encumbrance, or (iv) any Encumbrance resulting from the terms of the
applicable lease agreement that is reflected on the books and records
of the Company or the Subsidiary;
"Person" shall mean any individual, firm, company, government, state
or agency of a state or any joint venture, association or partnership
(whether or not being a separate legal entity) and shall include any
successor (by merger or otherwise) of such entity;
"Purchase Price" has the meaning ascribed to it in Clause 3.1.1;
"Restricted Period" has the meaning ascribed to it in Clause 10;
"Schedules" shall mean the disclosure schedules prepared by the
Seller and delivered to the Acquirer simultaneously with the
execution hereof, as amended or supplemented by the Seller pursuant
to the terms hereof;
"Securities" means any rights or securities giving their holder a
right (whether immediate or deferred in time, contingent or actual)
to subscribe for, convert, exchange or otherwise acquire shares or
giving access, immediately or not, to any share(s) or portion of the
share capital or the voting rights (including, for the avoidance of
doubt, warrants, stock options - whether vested or not -, options
over shares, convertible bonds, bonds redeemable or exchangeable in
shares and share subscription rights);
"Shares" means the 117,644 shares of the Company;
"Subsidiary" means PROMODATA SNC;
"Territory" means the territory of the European Union;
"Third Party Consent" means each consent, waiver, authorisation or
approval of any person other than a Governmental Authority that is
reasonably required to be obtained by the Parties in connection with
the execution and delivery of this Agreement by the Parties or the
performance by such Parties of their obligations hereunder, including
(without limitation) (i) such approvals or consents as may be
required on account of change of control provisions contained in any
agreement entered into by any of the Company (ii) any consents of
customers of the Company as may be required pursuant to the
stipulations of lease agreements entered into with such customers
(iii) the approval of the Transaction by any relevant bankruptcy
court;
"Trademark and Software License Agreement" means the license
agreement, including terms and conditions, which shall be entered
into between the Subsidiary and the Seller regarding in particular
the "Class" software and the "IT CAP", "IT Trak" and "TRO" Trademarks
substantially in the Agreed Form attached hereto as Schedule B;
"Trademarks" shall have the meaning set forth in Clause 4.4 of this
Agreement;
"Transaction" means the sale and purchase of the Shares and the
purchase of the Intercompany Amount and the advance by the Acquirer
to the Company pursuant to Section 6.4.3 of this Agreement to be made
on the Completion Date for purposes of the reimbursement of the Loan
in principal and interest to Citibank;
"Transitional Services Agreement" shall have the meaning set forth in
Clause 4.9 of this Agreement in the Agreed Form attached hereto as
Schedule C.
In this Agreement (including in the recitals thereto), unless
otherwise specified hereinafter:
1.1.1 references to Clauses, Schedules and Annexes to Schedules
are references to clauses (including all sub-clauses) of,
schedules to and annexes to schedules to this Agreement;
1.1.2 a reference to any statute or statutory provision shall be
construed as a reference to such statute or statutory
provision in effect on the date hereof;
1.1.3 references to times of the day are to Paris time;
1.1.4 headings to Clauses and Schedules are for convenience only
and do not affect in any way the interpretation thereof;
1.1.5 the Schedules, Annexes to Schedules and any other
attachments to this Agreement form an integral part of this
Agreement and shall have the same force and effect as if
expressly set out in the body of this Agreement and any
reference to this Agreement shall include the Schedules,
Annexes to Schedules and any other attachments to this
Agreement;
1.1.6 in case of conflict between the provisions of this Agreement
and those of any of the Ancillary Agreements, the provisions
of this Agreement shall prevail;
1.1.7 whenever the words "include", "includes" or "including" are
used in this Agreement they shall be deemed to be followed
by the words "without limitation";
1.1.8 the words "hereof", "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed
to refer to this Agreement as a whole and not to any
particular provision of this Agreement, and article,
section, paragraph, exhibit and schedule references are to
the articles, sections, paragraphs, exhibits and schedules
of this Agreement unless otherwise specified;
1.1.9 the meaning assigned to each term defined herein shall be
equally applicable to both the singular and the plural forms
of such term, and words denoting any gender shall include
all genders. Where a word or phrase is defined herein, each
of its other grammatical forms shall have a corresponding
meaning;
1.1.10 a reference to any party to this Agreement or any other
agreement or document shall include such party's successors
and permitted assigns;
1.1.11 a reference to any legislation or to any provision of any
legislation shall include any amendment to, and any
modification or re-enactment thereof, any legislative
provision substituted therefor and all regulations and
statutory instruments issued thereunder or pursuant thereto.
2. PURCHASE OF SHARES and of the Intercompany amount receivables
Upon the terms and conditions set forth in this Agreement and subject
to the satisfaction of the conditions precedent mentioned in Clause
5, the Seller hereby agrees to sell and transfer on the Completion
Date to the Acquirer and the Acquirer hereby agrees to purchase on
the Completion Date, the Shares, free and clear of any Encumbrance
and the Intercompany Amount.
3. Purchase price - payment
3.1 Purchase Price
The purchase price for the Shares and the Intercompany Amount (the
"Purchase Price") shall be equal to five hundred and ninety six
thousand five hundred and twenty six Euro (596,526), on the basis of
the Intercompany Amount as of 31 August 2002 allocated as follows:
- Euro 1 for the Shares;
- Euro 596,525 for the Intercompany Amount.
3.2 Payment and adjustment to the Purchase Price
3.2.1 On the Completion Date, the Purchase Price shall be paid in Euro by
wire transfer of immediately available funds to the account of the
Seller as notified by the Seller to the Acquirer no less than five
days prior to the Completion Date.
3.2.2 Schedule 3.2.2 contains a complete list of any and all payables to
the Company and the Subsidiary by any member of the Comdisco Group
(other than the Company and the Subsidiary) and a list of any and all
receivables owed by the Company and the Subsidiary to any member of
the Comdisco Group (other than the Company and the Subsidiary), in
both cases as of 31 August 2002. The net amount corresponding to the
difference between the above receivables and payables is referred to
herein as the "Intercompany Amount". The Intercompany Amount as of
August 31, 2002 amounts to Euro 1,409,122 (one million four hundred
and nine thousands and one hundred and twenty two).
Five Business Days prior to the Completion Date, the Seller shall
provide the Acquirer with the final Intercompany Amount, which cannot
be less than Euro 812,597, certified by the statutory auditors of the
Company together with all documentation evidencing the proper
transfer of the receivables to the Seller. If the final Intercompany
Amount is lower than the Intercompany Amount as of August 31, 2002,
(i.e. Euro 1,409,122), the part of the Purchase Price allocated to
the Intercompany Amount will be reduced accordingly on an euro per
euro basis and such adjusted Purchase Price will become the final
Purchase Price. If the final Intercompany Amount is higher than the
Intercompany Amount as of August 31, 2002 (i.e. Euro 1,409,122), the
part of the Purchase Price allocated to the Intercompany Amount will
be increased accordingly on an Euro by Euro basis. Such adjusted
Purchase Price will become the final Purchase Price.
Upon payment and assignment of the final Intercompany Amount, neither
the Company, the Subsidiary, nor any other member of the Comdisco
Group shall have any remaining reciprocal claim for repayment of any
receivables and payables.
The final Purchase Price shall bear interest at an annual rate equal
to 4.183% and accruing during the period from the date hereof until
the final Purchase Price is paid in full by the Acquirer to the
Seller.
4. Pre-Completion and post-completion Covenants
4.1 Ordinary Course of Business
Except as otherwise specified herein, after the date hereof and until
Completion, the Seller shall cause the Company and the Subsidiary to
operate and carry on the Business in the ordinary course and
consistent with past practices. Without limiting the generality of
the foregoing, the Seller shall procure that the Company and the
Subsidiary shall not take any of the following actions (except, and
to the extent, required to do so by (i) mandatory provisions of any
applicable laws or regulations, or (ii) by the terms of legally
binding obligations in existence on the date hereof, and, in each
such case, which has been specifically disclosed to the Acquirer in
this Agreement as giving rise to such an obligation), without the
prior written consent of the Acquirer:
(a) enter into any material contract or commitment outside the
ordinary course of business;
(b) dispose of an asset or supply any service or business
facility of any kind not on arm's length terms;
(c) acquire fixed assets in an overall amount exceeding Euro
50,000 other than those specifically included in the list
attached hereto as Schedule 4.1 (c) or sell, transfer, lease
or otherwise dispose of, or subject to any Encumbrance, any
assets (including any Intellectual Property Right), other
than the sale of inventory or services in such volumes and
prices as are consistent with past practices and the sale of
assets with an individual value of less than Euro 50,000
sold for fair or reasonable value in the ordinary course of
business and consistent with past practices;
(d) make any capital expenditure or capital addition or
improvement in an overall amount exceeding Euro 50,000 other
than those specifically included in the list attached hereto
as Schedule 4.1 (d);
(e) take any action or fail to take any action that would result
in the occurrence of an event of default entitling any third
party (with or without the giving of notice) to call for the
repayment of indebtedness of the Company or the Subsidiary
prior to the normal maturity date;
(f) amend their articles of association, by-laws or equivalent
organizational documents except as may be required by the
transactions contemplated herein;
(g) alter their issued share capital, or declare, set aside,
make or pay any dividend or other distribution in respect of
their share capital (in cash or otherwise), or purchase or
redeem any interests in their share capital, or issue or
grant any Securities;
(h) merge or consolidate with, purchase substantially all of the
assets of, or otherwise acquire any equity interest in any
business or any corporation, partnership, association or
other business organisation or division thereof, regardless
of whether such interest involves limited, unlimited or
joint liability;
(i) enter into any joint venture, partnership, co-operation or
similar arrangement;
(j) make any changes in their accounting methods, principles or
practices (unless required by a concurrent change in
applicable law);
(k) except as set forth in Schedule 4.1(k), cancel, terminate or
fail to maintain any material insurance policy comparable in
amount and scope to current coverage, except if replaced by
a new insurance policy providing for at least the same
coverage at premiums not materially higher than the
insurance policy being replaced;
(l) enter into any material contract or agreement, or amend,
cancel, terminate, relinquish, waive, release or fail to
perform any contract referred to in Schedule 4.1 (l), other
than in the ordinary course of business; or alter the terms
and conditions of any intra-group agreement or arrangement
which may impact the sums paid by the Company or the
Subsidiary to the Seller or any of its Affiliates;
(m) incur, assume or guarantee any loans, borrowings,
indebtedness or other form of funding or credits or
assistance, or enter into any foreign exchange contracts,
interest rate swaps, financial futures, guarantees or
agreements or other interest rate instruments;
(n) repay or discharge any obligations or liabilities to
creditors (including trade creditors and including any
receivables owed to any member of the Comdisco Group),
demand or collect payment of trade receivables, write down
the value of any inventory or asset or write off as
uncollectible any accounts receivable, or otherwise manage
debtors, creditors and inventory, other than in the ordinary
course of business;
(o) commence, compromise, settle or discontinue any proceedings
or litigation (other than routine debt collection);
(p) except as disclosed in Schedule 4.1 (p), pass any
shareholders' resolution in a general meeting of
shareholders, except in connection with the transactions
contemplated herein;
(q) commit itself to do any of the foregoing.
The Seller will purchase from the Company at Completion, at their net
statutory book value as at August 31, 2002, the CEG assets as defined
in Schedule 4.1 pursuant to the draft agreement (the "CEG Asset Sale
Agreement") substantially in the form attached as Schedule 4.1 (r).
The Seller will bear all costs and taxes induced by such transfer.
Upon request of the Seller, the Acquirer shall cause the Company and
the Subsidiary to reasonably assist the Seller after Completion for
purposes of repossessing the CEG assets, which were leased by the
company ASAT currently under bankruptcy proceedings.
4.2 Access and Information
4.2.1 The Seller shall procure that between the date hereof and the
Completion Date, the Acquirer and its advisers are promptly given
such information regarding the business, assets, liabilities,
agreements and affairs of the Company and the Subsidiary as the
Acquirer or its advisers may reasonably require in order to prepare
an orderly transition following the Completion Date, provided,
however, that any such access shall be conducted at the Acquirer's
expense, at a reasonable time, under the supervision of the Seller's,
the Company's or the Subsidiary's personnel and in such a manner as
to maintain the confidentiality of the terms of this Agreement and of
the Transaction and not to interfere with the normal operation of the
business of the Seller, the Company or the Subsidiary.
4.2.2 The Seller shall make its best efforts to procure that between the
date hereof and the Completion Date, the Company shall timely provide
the Acquirer with the reports listed in Schedule 4.2.2.
4.3 Actions with a view to Completion
Each Party shall (at its own expense) do or procure to be done all
acts and things and/or execute or procure the execution of all
documents, as is or may be reasonably required to complete all
transactions contemplated by this Agreement. In particular (and
without limiting the generality of the foregoing):
(a) the Seller shall cause special meetings of the relevant
corporate bodies of the Company to be validly convened for a
date not later than the Completion Date, the agenda of which
shall include the passing of all decisions required for
Completion;
(b) the Seller shall procure that all Intercompany Agreements
shall be terminated on the Completion Date.
4.4 The Seller's Trademarks and Logos
4.4.1 The Acquirer expressly agrees that (a) it is not purchasing,
acquiring or otherwise obtaining, and the Acquirer, the Company and
the Subsidiary will not, following the Completion Date, obtain or be
entitled to retain any right, title or interest in the COMDISCO
Trademark; use or otherwise employ the Seller's "COMDISCO" name or
any part or variation of such name or anything confusingly similar
thereto or suggesting that there is a relationship or affiliation
between the Seller and the Acquirer, and between the Seller and the
Company and the Subsidiary from and after the Completion, (b) none of
the Company, the Subsidiary or the Acquirer or its affiliates shall
make any use of such COMDISCO Trademark from and after the Completion
and (c) each of the Acquirer and its affiliates shall not, directly
or indirectly, attack the Seller's or its affiliates' rights or
ownership in and to any of the Trademarks, including, without
limitation, any registrations, or the validity of the Trademarks. All
rights in the Trademarks other than those as may be specifically
granted in the Ancillary Agreements are reserved to the Seller for
its own use, benefit and disposition. For purposes of this Clause
4.4, "Trademarks" means any Seller registered and unregistered
trademarks, service marks, tradenames and business names (including
rights in any trade dress) and applications for registration thereof,
together with the goodwill symbolized thereby and associated
therewith, including, without limitation, "IT CAP", "IT Trak" and
"TRO".
4.4.2 The Seller shall grant the Company and the Subsidiary the right to
use in the Territory the IT CAP, IT Trak and TRO Trademarks, as well
as the CLASS software, after Completion pursuant to the terms of a
Trademark and Software License Agreement substantially in the Agreed
Form attached hereto as Schedule B which shall be entered into on the
Completion Date.
The Seller shall cause the Subsidiary to enter into a license
agreement with Comdisco Deutschland regarding the use after
Completion of certain softwares substantially in the Agreed Form
attached hereto as Schedule D (the "German License Agreement").
4.5 Company Name Change.
Between the date hereof and the Completion Date, the Seller and the
Acquirer shall cooperate and use their commercially best efforts to
cause the Company to change its corporate name from "COMDISCO FRANCE
S.A." to a name not using the COMDISCO name as designated by the
Acquirer in writing, to become effective on the Completion Date (the
"Name Change"). The Acquirer shall communicate to the Seller the new
name of the Company no more than five (5) Business Days prior to
Completion so as to enable the Seller to effect the Name Change
promptly after Completion. The Name Change shall be deemed effected
upon filing for registration, with the Companies Register,
corresponding to the Company's corporate domicile, of minutes of the
extraordinary general shareholders' meeting of the Company.
4.6 Guarantee
Comdisco Holding Company, Inc. jointly and severally guarantees the
performance of this Agreement by the Seller, in compliance with its
terms.
4.7 Insurance Policies
The Seller shall have no obligation to continue the insurance
coverage for the Company and the Subsidiary after the Completion Date
and will no longer be responsible for any risks of the Company and
the Subsidiary after the Completion Date. The Acquirer shall be
responsible for arranging new insurance coverage effective from the
Completion Date at its own risk and expense.
The Seller and its affiliates shall retain the right to any credit or
return premiums due, paid or payable in connection with the
termination thereof.
Consequently, in the event that the Company and/or the Subsidiary
would receive after the Completion Date any payment in connection
with the termination of the insurance coverage by the Seller, the
Acquirer undertakes to cause the Company and/or the Subsidiary to pay
promptly to the Seller the sum received from the insurers.
4.8 GE receivable
The Seller represents and warrants that General Electric (GE) owes to
the Company an amount of 3.2 million (three million and two hundred
thousand) Euros pursuant to the sale of assets described in Schedule
4.8. If on Completion Date GE has not paid that entire sum, a sum
equal to 3.2 million Euros less what has already being paid to the
Company by GE pursuant to the sale of assets described in Schedule
4.8, (hereafter the "Balance"), shall be paid, Euro by Euro, by
Seller to the Company on the same date.
In the event that the Company would receive, prior to the Completion
Date, from GE in total an amount exceeding 3.2 million Euros in
relation to the sale of assets described in Schedule 4.8, the Company
shall pay to the Seller the difference between the amount paid by GE
and 3.2 million Euros.
If the Seller pays to the Company any amount pursuant to the first
paragraph above, it shall cause the Company to execute the
corresponding transfer of receivable.
In the event that the Company would receive, after the Completion
Date, from GE, a payment in relation to the sale of assets described
in Schedule 4.8, the Acquirer undertakes to cause the Company to pay
promptly to the Seller the sum received by GE after the Completion
Date.
4.9 Transitional Services Agreement
On the Completion Date, the Seller and the Acquirer shall execute a
Transitional Services Agreement substantially in the Agreed Form
attached hereto as Schedule C, in relation with certain services
which shall be provided by the Subsidiary and the Company to the
Seller or its affiliates after the Completion Date.
4.10 European Michelin assets
On the Completion Date or as soon as practicable after the Completion
Date, the Parties shall execute (or will cause their respective
relevant group companies to execute) a master agreement and local
transfer agreements in connection with the acquisition by the
Acquirer (or any of its group companies) of the other European
Michelin assets and contracts, which shall be listed in a Schedule
4.10 to be provided by the Seller as soon as possible after the date
hereof and prior to the Completion Date, at the applicable NPV ("net
present value") in each country (as at 31 August 2002) x 90%, minus
corresponding rentals received up to their transfer. The Parties
agree that the Acquirer shall not be obligated to purchase or cause
its relevant group companies to purchase any Michelin assets or
contracts in countries where the applicable NPV would not be
calculated on the basis of a satisfactory discount rate as determined
in the Acquirer's sole discretion. Taxes and costs directly
associated with that transfer are for the account of the Acquirer.
Assets funded after 31 August 2002 will be purchased at acquisition
cost plus funding costs, minus corresponding rentals received up to
their transfer.
4.11 Modification of the Schedules
The Seller will be authorized to modify (in connection with minor
changes) the Schedules to this Agreement on the Completion Date with
the prior consent of the Acquirer which shall not be unreasonably
withheld and provided that such changes are notified to the Acquirer
at least five Business Days prior to Completion Date.
4.12 Governmental Approvals
Immediately after the execution of this Agreement, the Acquirer shall
apply its best efforts to obtain as soon as possible all the European
Governmental Approvals required prior to Completion and shall handle
all necessary filings and formalities related thereto.
5. CONDITIONS PRECEDENT
5.1 Conditions Precedent to Obligations of the Acquirer and the Seller
The obligations of the Acquirer and the Seller to complete the
Transaction is subject to the satisfaction, at or prior to
Completion, of the condition that all necessary Governmental
Approvals which are required to be obtained prior to the Completion
Date (including any approval required from local or European
antitrust authorities) shall have been duly obtained and shall be in
full force and effect on the Completion Date.
5.2 Conditions Precedent to Obligations of the Acquirer
The obligations of the Acquirer to complete the Transaction is
subject to the satisfaction, at or prior to Completion, of each of
the following conditions (unless satisfaction of any such condition
is waived by the Acquirer):
(a) the representations and warranties of the Seller contained
in this Agreement shall be accurate in all material respects
as of the date hereof and as of the Completion Date, as if
such representations and warranties were restated on and as
of the Completion Date; and
(b) the Seller shall have performed and complied with, in all
material respects, all agreements and undertakings required
by this Agreement and any Ancillary Agreement to be
performed or complied with by the Seller prior to or at
Completion.
5.3 Conditions Precedent to Obligations of the Seller
The obligations of the Seller to complete the Transaction is subject
to the satisfaction, at or prior to the Completion, of each of the
following conditions (unless satisfaction of any such condition is
waived by the Seller):
(a) the representations and warranties of the Acquirer contained
in this Agreement shall be accurate in all material respects
as of the date hereof and as of the Completion Date, as if
such representations and warranties were restated on and as
of the Completion Date;
(b) the Acquirer shall have performed and complied with, in all
material respects, all agreements and undertakings required
by this Agreement to be performed or complied with by it
prior to or at the Completion.
5.4 Best Endeavours to Fulfil Conditions Precedent
The Parties shall use their best endeavours to ensure fulfilment of
each of the conditions precedent set out in Clauses 5.1, 5.2 and 5.3
on or before Completion Date.
If any of the Parties becomes aware of any event, circumstance or
fact that prevents or might prevent a condition contained in Clause
5.1, 5.2 or 5.3 from being fulfilled, it shall immediately notify all
other Parties.
5.5 Conditions Precedent Not Fulfilled at Completion
If any condition set out in Clause 5.1, 5.2 or 5.3 has neither been
waived by the appropriate Party nor satisfied on 31 March 2003, such
appropriate Party may in its absolute discretion and without
prejudice to any other right or remedy available to it:
(a) waive the condition (to the extent such waiver is permitted
by law), in which event the provisions of Clause 5.6 shall
apply; or
(b) terminate this Agreement, in which event the provisions of
Clause 5.7 shall apply.
5.6 Waiver of Conditions Precedent
Waiver in whole or in part of compliance with any condition set out
in Clause 5.2 or 5.3 shall not prejudice to any other right or remedy
available to the relevant Party (or group of Parties). In particular,
unless otherwise expressly agreed in writing between the Parties
concerned, any waiver in whole or in part of compliance with the
conditions set out in Clause 5.2 or 5.3, shall not prejudice to any
indemnification rights granted under this Agreement to any Party in
case of breach of the representations and warranties in question.
5.7 Termination of the Agreement
If any Party terminates this Agreement pursuant to the provisions of
Clause 5.5 (b) then:
(a) the further rights and obligations of the Parties shall
cease immediately upon such termination, save for the
provisions of this Clause 5.7, and Clauses 9, 11, 13 and 14
which shall remain in full force and effect;
(b) all actions already taken shall be deemed not to have been
taken and shall remain without effect or, as may be
appropriate, shall be reversed, unless the Parties agree
otherwise. The Parties shall provide their full co-operation
to the reversal of any actions hereunder should such
reversal be required.
In the event that all the Conditions Precedent set out in Clause 5.1,
5.2 and 5.3 are satisfied or waived (when permitted by law) by the
relevant Party (or group of Parties), the sale of the Shares and of
the Intercompany Amount shall be effective pursuant to Article 1583
of the French Civil Code, it being agreed that the advance to be made
by the Acquirer to the Company under Clause 6.4.3 of this Agreement
is considered an essential term of the sale of the Shares to the
Acquirer. Should either Party nevertheless refuse or fail to comply
with its obligations under this Agreement, the other Party shall
request the defaulting Party to perform its obligations under this
Agreement by registered letter with acknowledgment of receipt, while
undertaking to simultaneously perform its own obligations under the
Agreement. If the defaulting Party does not comply with its
obligations under this Agreement within 30 days from receipt of the
other Party's notification, the other Party shall be entitled to (i)
request full performance (execution forcee) of the obligations of the
defaulting Party in accordance with Clause 14 of this Agreement, and
(ii) receive a lump sum of Euro 5,000,000 without prejudice of its
right to obtain additional compensation for the damage suffered by it
as a result of such breach of contract. Should the defaulting Party
perform its obligations under this Agreement after the one month
period referred to above, the other Party shall simultaneously
perform its own obligations under this Agreement and shall be
entitled to receive the lump sum of Euro 5,000,000.
6. Completion
6.1 Completion Date
Completion shall take place within thirty (30) Business Days from the
date on which all the conditions precedent set forth in Clause 5 will
have been satisfied and no later than 31 March 2003, unless the
Parties agree otherwise.
6.2 Deliveries to the Acquirer
The Seller shall deliver, or procure the delivery to the Acquirer, of
the following documents:
(a) copies of the minutes of the meetings of the Workers
Committee of the Subsidiary (if applicable) regarding the
Transaction;
(b) duly executed transfer forms ("ordres de mouvement")
relating to the Shares;
(c) if applicable, an authenticated version of the minutes of
the meeting of the Board of Directors of the Company
approving the transfer to the Acquirer of the Shares;
(d) the accounts (bilans, comptes de resultat et annexes) of the
Company and of the Subsidiary as at August 31, 2002, as well
as their consolidated accounts at the same date, certified
by the statutory auditors are attached as Schedule 6.2 (e),
it being specified that the delivery of these accounts by
the Seller will not induce any specific representations and
warranties in relation thereof other than the applicable
statutory warranty ("garantie legale"); and
(e) the minutes of the board of directors of the Seller
authorizing the Transaction.
6.3 Execution of Ancillary Agreements
(a) The Acquirer and the Seller shall execute the Trademark and
Software License Agreement, the CEG Asset Sale Agreement and
the Transitional Services Agreement; and
(b) The Seller and the Acquirer shall execute the Assignment of
Receivables Agreement pertaining to the final Intercompany
Amount referred to in Clause 3.2.2;
(c) If applicable, the Seller and the Acquirer shall execute the
assignment of receivable agreement pertaining to the Balance
referred to in Clause 4.8;
(d) The Subsidiary and Comdisco Deutschland shall execute the
German License Agreement.
6.4 Actions or Deliveries by Acquirer
6.4.1 The Acquirer shall deliver or procure the delivery to the Seller of
the following documents:
Documentary evidence that the Acquirer has obtained all necessary
European Governmental Approvals.
6.4.2 The Acquirer shall pay the final Purchase Price as provided in Clause
3.2.2.
6.4.3 The Acquirer shall advance, or cause to be advanced, sufficient cash
to the Company in order to enable the latter to repay in full (i.e.
in principal and interest at the rate specified in the Loan
documentation ) the Loan on the Completion Date, such Loan amounting
to Euro 69,403,475 as of 31 August 2002.
7. Representations and warranties of the parties
7.1 Representations and warranties of the Seller
7.1.1 As an inducement to the Acquirer to enter into this Agreement and the
Ancillary Agreements, the Seller hereby represents and warrants to
the Acquirer that each of the following representations and
warranties is on the date hereof (and will be on the Completion Date)
true and accurate unless the statement refers to only one such date,
in which case it is made solely at such specified date.
7.1.2 The Seller (a) is duly organised and validly existing and in good
standing under the laws of Delaware and has all necessary power and
authority to enter into this Agreement and each Ancillary Agreement
to which it is a party, to carry out its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and
thereby, and (b) the execution and delivery by the Seller of this
Agreement and each Ancillary Agreement to which it is a party, the
performance by the Seller of its obligations hereunder and thereunder
and the consummation by the Seller of the transactions contemplated
hereby and thereby have been duly authorized in accordance with all
applicable laws. This Agreement constitutes, and upon its execution
each of the Ancillary Agreements will constitute, a legal, valid and
binding obligation of the Seller enforceable against the Seller in
accordance with their terms.
7.1.3 The execution, delivery and performance of this Agreement and the
Ancillary Agreements by the Seller do not and will not (a) violate,
conflict with or result in the breach of any provision of the charter
or by-laws (or similar organisational documents) of the Seller, (b)
conflict with or violate (or cause an event which could have a
material adverse effect as a result of) any law, regulation, decree,
judgement or governmental order applicable to the Seller, or (c)
result in the creation of any encumbrance on any shares or securities
pursuant to, any note, bond, mortgage or indenture, contract,
agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which the Seller is a party.
7.1.4 The Seller will own immediately prior to their transfer to the
Acquirer pursuant to clause 2.1 of this Agreement, free and clear of
any Encumbrance, the Shares. The Seller will on the Completion Date
have the right and the authority to transfer to the Acquirer on the
terms and conditions set out in this Agreement, the full legal title
to and the full beneficial interest in the Shares. no person has any
right (including, without limitation, a pre-emptive right, a tag
along right or a call or put option right on any shares or
securities) that would preclude, or conflict with, the transfer to
the Acquirer of the Shares.
7.1.5 The authorized share capital of the Company consists of 117,644
shares with a nominal value of Euro 15.24 per share, of which 117,644
shares are issued and outstanding, all of which are validly issued
and fully paid (including any share premium). None of the Shares was
issued in violation of any pre-emptive rights or other third party's
rights. All Shares are ordinary shares, all of the same class bearing
the same rights and obligations, and there are no preference shares
in existence on the date hereof. Schedule 7.1.5 sets forth the name
of the Persons holding Shares on the date hereof and the number of
Shares held by each such Person, together with the percentage of the
issued share capital which such Shares represent.
There are no Securities, or other rights, agreements, arrangements or
commitments of any character relating to the capital stock of the
Company or obligating any Person holding Shares or Securities or the
Company to grant, issue or sell any shares or any other interest in
the share capital or voting rights of the Company.
The Shares represent 100% of the fully diluted share capital of the
Company. At Completion, full legal title to the Shares will be
validly conveyed to the Acquirer, free and clear of any Encumbrance,
in accordance with the terms of this Agreement, and recorded in the
name of the Acquirer in the Company's share register.
There is no Encumbrance on, over or affecting any of the Shares nor
is there any commitment to give or create such Encumbrance and no
Person has claimed to be entitled to such Encumbrance.
7.1.6 The authorized share capital of the Subsidiary consists of 220,250
shares with a nominal value of 15.24 euro per share, of which 220,250
shares are issued and outstanding, all of which are validly issued
and fully paid (including any share premium). None of the Subsidiary
shares was issued in violation of any pre-emptive rights or other
third party's rights. All Subsidiary shares are of the same class
bearing the same rights and obligations, and there are no preference
shares in existence on the date hereof. Schedule 7.1.6 sets forth the
name of the Persons holding Subsidiary shares on the date hereof and
the number of Subsidiary shares held by each such Person, together
with the percentage of the issued share capital which such Subsidiary
shares represent).
There are no Securities, or other rights, agreements, arrangements or
commitments of any character relating to the capital stock of the
Subsidiary or obligating any Person holding Subsidiary shares or
Securities or the Subsidiary to grant, issue or sell any shares or
any other interest in the share capital or voting rights of the
Subsidiary.
The Subsidiary shares represent 100% of the fully diluted share
capital of the Subsidiary. At Completion, full legal title to the
Subsidiary shares will be validly held by the Company, free and clear
of any Encumbrance and recorded in the name of the Company in the
Subsidiary's share register.
There is no Encumbrance on, over or affecting any of the Subsidiary
shares nor is there any commitment to give or create such Encumbrance
and no Person has claimed to be entitled to such Encumbrance.
7.2 Representations and warranties of the Acquirer
The Acquirer is duly organized and validly existing and in good
standing under the laws of Belgium and has all necessary power and
authority to enter into this Agreement and each Ancillary Agreement
to which it is a party, to carry out its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and
thereby, and (b) the execution and delivery of this Agreement and
each Ancillary Agreement to which the Acquirer is a party by the
Acquirer, the performance by the Acquirer of its obligations
hereunder and thereunder and the consummation by the Acquirer of the
transactions contemplated hereby and thereby have been duly
authorised in accordance with Belgium law and all requisite action on
the part of the Acquirer have been taken. This Agreement has been,
and upon execution, each of the Ancillary Agreements to which
Acquirer is a party shall have been, duly executed and delivered by
the Acquirer, and (assuming due authorisation, execution and delivery
by the other Parties) this Agreement constitutes, and upon its
execution, each of such Ancillary Agreements will constitute, a
legal, valid and binding obligation of the Acquirer, enforceable
against it in accordance with their terms.
8. indemnification obligations
8.1 Indemnification Obligations of the Seller
From and after Completion, and without prejudice to any other rights
and remedies available to the Acquirer, the Seller shall indemnify
and hold harmless the Acquirer from and against any Damages suffered
by the Acquirer as a result of any breach of any representation or
warranty or covenant contained in this Agreement.
8.2 Indemnification Obligation of the Acquirer
From and after Completion, and without prejudice to any other rights
and remedies available to the other Parties, the Acquirer shall
indemnify and hold harmless the Seller from and against any Damages
suffered by the Seller as a result of any breach of any
representation or warranty or covenant of Acquirer contained in this
Agreement.
9. CONFIDENTIALITY
9.1 Subject to Clause 9.5 and Clause 11, the Parties shall treat as
strictly confidential all information (the "Confidential
Information") received or obtained for the purpose of entering into
or performing this Agreement which relates to:
(a) the negotiations relating to this Agreement or any document
referred to in this Agreement; or
(b) the provisions or subject matter of this Agreement or any
information delivered hereto or any document referred to in
this Agreement.
9.2 The provisions of the Confidentiality Agreement shall remain binding
and in full force and effect until the Completion.
9.3 Subject to Clause 9.5 and Clause 11 of this Agreement, prior to
Completion or if Completion does not take place, the Acquirer will
maintain in confidence, and will cause its directors, officers,
employees, agents and advisors to maintain in confidence all
Confidential Information. If Completion does not take place, the
Acquirer shall not make use of or disclose any Confidential
Information or Know How to any third party and will return or destroy
as much of such Confidential Information as the Seller may reasonably
request.
9.4 Subject to Clause 9.5 and Clause 11 of this Agreement, after
Completion, the Seller will maintain in confidence, and will cause
its directors, officers, employees, agents and advisors to maintain
in confidence all confidential information relating to the Company
and the Subsidiary. In addition, after Completion, the Seller shall
not, without the prior written consent of the Acquirer, make use of
or disclose any confidential information relating to the Company and
the Subsidiary to any third party, provided, however, that nothing in
this Clause 9.4 shall be construed to limit the right of the Seller
and its affiliates to use any confidential information which is not
the exclusive property of the Company or the Subsidiary.
9.5 The Parties may disclose information to a third party which would
otherwise be confidential if and to the extent:
(a) required by the law of any relevant jurisdiction or for the
purposes of any legal proceedings; or
(b) required by any recognized securities exchange or by any
regulatory or governmental body; or
(c) such information is disclosed on a strictly confidential
basis to that third party's professional advisers, auditors
or bankers for the purpose of advising that third party in
connection with this Agreement provided that such disclosure
shall be made subject to the terms set out in Clause 9.3 and
9.4; or
(d) the information has come into the public domain otherwise
than through a breach of a Party; or
(e) prior written consent to the disclosure has been given by
all Parties; or
(f) required to enable a Party to enforce its rights or remedies
under this Agreement;
provided that any such information disclosed pursuant to Clause 9.5
(a) and Clause 9.5 (b) shall be disclosed only after consultation
(where practicable) with the other Party (-ies).
10. Non-competition
The Seller covenants and agrees, in favour of the Acquirer, for a
period of three (3) years from the Completion Date (the "Restricted
Period") that neither the Seller nor any of its Affiliates, which now
exists or comes into existence during the Restricted Period shall
directly or indirectly, either individually, through any person, in
partnership (except as a passive partner) or in association or
jointly or in conjunction with any person or persons, firm,
association, partnership, syndicate, trust, company, corporation,
legal person or other juridical entity, as owner, principal,
mandatory, agent, vendor within the territory of France:
(i) compete with the Business on the territory of France;
(ii) communicate with, solicit, interfere with or endeavour to
direct or entice away from the Acquirer any Employee.
(iii) it being understood that any lease agreement with French
clients presently administered by a member of the Comdisco
Group other than the Company or the Subsidiary shall not
constitute competition for the purposes of this Clause 10.
the Seller warrants the performance by each of its Affiliates of
their obligations under the present Clause 10.
11. announcements
11.1 Subject to Clause 11.2, no Party shall make or issue at any time
(whether before or after Completion) any announcement, circular or
other publicity relating to any matter referred to in this Agreement
without the other Parties' prior written approval of the form and
content of such announcement.
11.2 Clause 11.1 does not apply to any announcement, circular or other
publicity:
(a) required by the law of any relevant jurisdiction or by the
rules or regulations of any recognized securities exchange
or of any regulatory or governmental body. In such an event,
the Party making or sending the announcement, circular or
other publicity shall, as far as practicable, consult with
the other Parties as to the form and content of such
announcement; or
(b) which is in the Agreed Form made or sent by or on behalf of
the Acquirer after Completion advising the press, employees,
customers, suppliers or agents of each of the Companies of
the change in control of the Companies.
12. Other Post Completion Covenants and other covenants
12.1 After Completion, the Seller shall at its own cost and expense
execute and do (or procure to be executed and done by any other
relevant person) all such deeds, documents, acts and things as the
Acquirer may from time to time require in order to vest any of the
Shares in the Acquirer or its assignee or as otherwise may be
necessary to give full effect to this Agreement. The Acquirer shall
be responsible for the registration formalities and duties in
connection with the transfer of the Shares.
12.2 On and if necessary after Completion, the Seller shall at its own
cost and expense provide or procure to be provided to the Acquirer
all such information relating to the Business and the affairs of the
Company and the Subsidiary as the Seller may have in its possession
or under its control.
13. Miscellaneous
13.1 All communications, notices and disclosures required or permitted by
this Agreement shall be in writing and shall be given by hand
delivery, by prepaid registered or certified mail (with return
receipt requested), by an established overnight courier providing
proof of delivery or by facsimile, addressed as follows, unless and
until any Party notifies each other Party in accordance with this
Clause 13.1 of a change of address:
- If to the Seller:
Comdisco Global Holding Company, Inc.
0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, XXX
Attention: General Counsel
Fax: x0 000 000 00 00
With a copy (which shall not constitute notice under this Clause
13.1) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (Illinois)
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 XXX
Attention: Xxxx Xx. Xxxxxx
- If to Comdisco Holding Company, Inc.:
Comdisco Holding Company, Inc.
0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, XXX
Attention: General Counsel
Fax: x0 000 000 00 00
With a copy (which shall not constitute notice under this Clause
13.1) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP (Illinois)
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 XXX
Attention: Xxxx Xx. Xxxxxx
- If to the Acquirer:
Econocom Group XX
Xxxxxxxx de Louvain 510
Parc Horizon 2000
1930 Zaventem
Belgique
Attention: Xxxx-Xxxxxxxx Xxxxxx
With a copy (which shall not constitute notice under this Clause
13.1) to:
Gide Loyrette Nouel
00, xxxxx Xxxxxx 0xx - 00000 Xxxxx
Attention: Xxxxxxxxxx Xxx
13.2 The Acquirer may assign or transfer all or any part of its rights and
obligations arising under this Agreement solely to an entity which is
for the time being a member of the same group of companies as the
Acquirer; provided, however that the Acquirer shall not be relieved
of its obligations so assigned. None of the other Parties shall
assign or transfer, or purport to assign or transfer, any of their
rights or obligations arising under this Agreement without the prior
written consent of the Acquirer, provided, however, that without such
consent, such other Parties shall have the right to assign all or any
part of their rights and obligations arising under this Agreement to
an entity of their group but shall nevertheless not be relieved of
their obligations hereunder.
13.3 Without prejudice to Clause 13.2, this Agreement and all the
provisions hereof shall be binding and inure to the benefit of the
Parties and their respective successors and permitted assigns.
13.4 The Parties shall each pay their own costs, charges and expenses in
relation to the negotiation, preparation, execution and
implementation of this Agreement and the Seller covenants and agrees
that it will shall pay all fees and expenses incurred by the Company
or the Subsidiary in connection with the transactions contemplated
hereunder, including, without limitation, filing fees and fees and
expenses of attorneys, accountants, financial advisors, lenders or
brokers, unless such fees have been provided for in the net equity of
the Company. It is understood that the Acquirer's counsel shall be
responsible for preparing and submitting any filing with the DGCCRF
and that the Acquirer shall be responsible for such fees.
13.5 This Agreement (together with all documents executed at Completion)
constitutes the entire agreement and understanding between the
parties with respect to its subject matter and replaces and
supersedes all prior agreements, arrangements, undertakings or
statements regarding such subject matter.
13.6 This Agreement may be amended, modified and supplemented in any and
all respects, but only by a written instrument signed by all of the
parties hereto expressly stating that such instrument is intended to
amend, modify or supplement this Agreement.
13.7 If part of this Agreement is or becomes invalid or non-binding, the
Parties shall remain bound to the remaining part. The relevant
Parties shall in that event replace the invalid on non-binding part
by provisions which are valid and binding and the effect of which,
given the contents and purpose of this agreement, is to the greatest
extent possible similar to the invalid or non-binding part.
13.8 No failure to exercise, and no delay in exercising, any right or
remedy in connection with this Agreement by the Acquirer shall
operate as a waiver or a forfeiture of that right or remedy. No
single or partial exercise of any right or remedy under this
agreement by the Acquirer shall preclude any other or further
exercise of that right or remedy or the exercise of any other right
or remedy. A waiver of any breach of this Agreement by the Acquirer
shall not be deemed to be a waiver of any subsequent breach.
Notwithstanding any rule of law to the contrary, a release, waiver or
compromise or other arrangement or indulgence which the Acquirer
agrees to or effects in relation to one of the Parties other than the
Acquirer under or in connection with this Agreement shall not affect
the Acquirer's rights or remedies as regards any of the other
Parties.
13.9 This Agreement may be entered into any number of counterparts and by
each of the Parties on separate counterparts, but shall not be
effective until each Party has executed at least one counterpart.
Each counterpart, when executed, shall constitute an original, but
all the counterparts shall together constitute one and the same
instrument.
14. Governing Law and Jurisdiction
14.1 Governing Law
This Agreement shall be governed by, and construed in all respects in
accordance with French law.
14.2 Arbitration
The Parties expressly agree that all disputes and claims arising from
or in connection with this Agreement, including failure to comply,
its termination or nullification, shall be finally settled under the
Rules of Arbitration of the International Chamber of Commerce then in
effect including its Article 10 governing multi-party arbitration, by
three arbitrators appointed in accordance with the said Rules, which
shall have exclusive jurisdiction to decide any such disputes and
claims.
The award of the arbitrators shall be final and binding upon the
parties.
The expenses of the arbitral proceeding and the fees of the
arbitrators shall be advanced equally by the parties. The arbitral
award shall state which party shall ultimately bear the expenses and
fees, or in what proportion such expenses and fees shall be borne by
each of the parties.
If a party fails to comply with the arbitral award, such party shall
be liable for the payment of any resulting costs, including
attorneys' fees, incurred by the other party in a proceeding to
enforce the award.
The arbitration proceedings shall be held in the city of Paris. The
arbitration proceedings shall be conducted in English.
ECONOCOM GROUP SA / NV COMDISCO GLOBAL HOLDING
COMPANY, INC.
By: /s/ Xxxx-Xxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxx
------------------------ ---------------------
Name: Xxxx-Xxxxx Xxxxxxxx Name: Xxxxxx X. Xxx
Title: President Title: President
COMDISCO HOLDING COMPANY, INC.
By: /s/ Xxxxxx X. Xxx
--------------------------
Name: Xxxxxx X. Xxx
Title: President
