WARRANT PURCHASE AGREEMENT
This Warrant Purchase Agreement is entered into as of July 31,
1997 (the "Warrant Purchase Agreement"), by and among:
1. XxXxxxxxx Technologies, Inc., a United States
corporation with its principal place of business at 000 Xxxx Xxxxxxx Xxxxx,
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000 (the "Buyer").
and
2. Cable Beach Holdings Ltd., a Cayman Islands
corporation with its principal place of business at GKF Building, North
Church Street, P.O. Box 1967, Georgetown, Grand Cayman (the "Warrant
Seller").
The Buyer and the Warrant Seller are referred to collectively herein
as the "Parties" and individually as a "Party."
WHEREAS
A. The Warrant Seller owns, as its only asset, the warrants in
the form attached hereto as Exhibit A (the "Warrants"), representing all of
the warrants to purchase shares of capital stock of any kind currently issued
by Synthetic Resin Technologies S.A., a Luxembourg corporation with its
registered office in Luxembourg, 00 Xxxxxx xx Xx Xxxxxxx, capital Italian
Lire 8,000,000,000 (in addition to reserves in the amount of Italian Lire
22,000,000,000), represented by 800,000 shares, par value Italian Lire
10,000 each ("SRT").
B. The Warrants are convertible, as from January 1, 2001, into
shares of common stock of SRT pursuant to SRT's Board of Directors
resolution dated July 24, 1997, which contains the terms and conditions of
the warrant issue and conversion. A copy of such resolution is attached
hereto as Exhibit B.
C. The Warrant Seller intends to sell to the Buyer, and the
Buyer intends to purchase from the Warrant Seller, the Warrants pursuant
to and in accordance with the provisions of this Agreement.
Now, therefore, in consideration of the premises (which are an
integral and essential part of this Agreement together with the Exhibit
hereto) and the actual promises herein made, and in consideration of the
representations, warranties, and covenants herein contained, the Parties
agree as follows:
SECTION 1. PURCHASE AND SALE
(a) Purchase and Sale of the Warrants. The Buyer hereby
purchases from the Warrant Seller, and the Warrant Seller sells, as legal
and beneficial owner, to the Buyer, the Warrants free
and clear of any security interests or third party rights, for the
consideration specified below in this Section 1(b). The Warrant Seller hereby
transfers to the Buyer the certificate representing the Warrants and delivers
all documents and deeds that are necessary to transfer ownership of the
Warrants.
(b) Warrant Purchase Price. The Buyer hereby pays to the
Warrant Seller an aggregate amount (the "Warrant Purchase Price") equal
to Italian Lire 52,000,000,000, by delivery of cash payable by wire transfer
or delivery of other immediately available funds.
SECTION 2. REPRESENTATIONS AND WARRANTIES
The Warrant Seller represents and warrants to the Buyer the following:
(a) Organization; Capitalization. The Warrant Seller is a
corporation duly organized, validly existing, and in good standing under the
laws of its jurisdiction of incorporation. The Warrant Seller is duly
authorized to conduct business and is in good standing under the laws of
each jurisdiction where such qualification is required. The Warrant Seller
has full corporate power and authority and all licenses, permits, and
authorizations necessary to carry on the businesses in which it is engaged
and to own the properties owned by it. The Warrant Seller is the legal and
beneficial owner of and owns, as its only assets, the Warrants.
(b) Authorization of Transaction. The Warrant Seller has
full power and authority to execute and deliver this Warrant Purchase
Agreement and to perform its obligations hereunder. This Warrant
Purchase Agreement constitutes the valid and legally binding obligation of
the Warrant Seller, enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery
of this Warrant Purchase Agreement, nor the consummation of the
transactions contemplated hereby will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency or court to which the
Warrant Seller is subject or any provision of its memorandum or articles
of association or any other organizational document, or (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Warrant Seller is a party or
by which it is bound or to which any of its assets is subject (or result in the
imposition of any security interest upon any of its assets). The Warrant
Seller is not required to give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions
contemplated by this Warrant Purchase Agreement.
(d) Brokers' Fees. The Warrant Seller does not have any
liability or obligation to pay any fees or commissions to any broker, finder,
or agent with respect to the transactions contemplated by this Warrant
Purchase Agreement for which the Buyer could become liable or obligated.
(e) Title to Assets. The Warrant Seller has full and
unrestricted title over the Warrants which are not subject to any lien,
pledge, encumbrance, security interest or other third party right.
(f) Disclosure. The representations and warranties contained
in this Section 2 are true and correct and do not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements and information contained in this Section 2 not misleading.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Warrant Seller the following:
(a) Organization of the Buyer. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Authorization of Transaction. The Buyer has full power
and authority (including full corporate power and authority) to execute and
deliver this Warrant Purchase Agreement to perform its obligations
hereunder. This Warrant Purchase Agreement constitutes the valid and
legally binding obligation of the Buyer, enforceable in accordance with its
terms and conditions.
(c) Noncontravention. Neither the execution and the delivery
of this Warrant Purchase Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which the
Buyer is subject or any provision of its charter or bylaws or (ii) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which the Buyer is a
party or by which it is bound or to which any of its assets is subject. The
Buyer does not need to give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions
contemplated by this Warrant Purchase Agreement.
(d) Brokers' Fee. The Buyer has no liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to
the transactions contemplated by this Warrant Purchase Agreement for
which the Warrant Seller could become liable or obligated.
SECTION 4. MISCELLANEOUS
(a) Press Releases and Public Announcements. No Party shall issue
any press release or make any public announcement relating to the subject
matter of this Warrant Purchase Agreement without the prior written
approval of the other Party; provided, however, that the Buyer or its parent
may disclose the subject matter of this Warrant Purchase Agreement to its
lenders and may make any public disclosure it believes in good faith is
required by applicable law concerning its securities registered under the
Securities Exchange Act of 1934, as amended (in which cases the Buyer
will advise the Warrant Seller prior to making the disclosure).
(b) No-Third Party Beneficiaries. This Warrant Purchase
Agreement shall not confer any rights or remedies upon any person other
than the Parties and their respective successors and permitted assigns.
(c) Entire Agreement. This Warrant Purchase Agreement
(including the documents referred to herein) constitutes the entire
agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral,
to the extent they related in any way to the subject matter hereof.
(d) Succession and Assignment. This Warrant Purchase
Agreement shall be binding upon and inure to the benefit of the Parties
named herein and their respective successors and permitted assigns. No
Party may assign either this Warrant Purchase Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party; provided, however, that the Buyer may (i) assign any or
all of its rights and interests hereunder to one or more of its subsidiaries or
affiliates and (ii) designate one or more of its subsidiaries or affiliates to
perform its obligations hereunder in each case, for so long as that company
remains the Bueyer's direct or indirect subsidiary or affiliate (in which case
the Buyer nonetheless shall remain responsible for the performance of all
of its obligations hereunder).
(e) Counterparts. This Warrant Purchase Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original but all of which together will constitute one and the same
instrument.
(f) Headings. The section headings contained in this Warrant
Purchase Agreement are inserted for convenience only and shall not affect
in any way the meaning or interpretation of this Warrant Purchase
Agreement.
(g) Notices. All communications hereunder will be in writing.
Any notice, request, demand, claim, or other communication hereunder
shall be deemed duly given upon receipt if it is sent by facsimile and
confirmed by reputable express courier, and addressed or otherwise sent to
the intended recipient as set forth below:
If to the Warrant Seller:
Cable Beach Holdings Ltd.
GKF Building
North Church Street
P.O. Box 1967
Georgetown, Grand Cayman
If to the Buyer:
Xxxx X. Xxxxxxxxx
XxXxxxxxx Technologies, Inc.
000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Copy to:
Xxxxxxx X.X. Xxxxxx
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Any communication hereunder shall be made in writing by any Party to the
intended recipient at the address or facsimile number set forth above using
facsimile transmission (confirmed by reputable express courier) or
reputable express courier, but no such communication shall be deemed to
have been duly given unless and until it actually is received by the intended
recipient. Any party may change the address or facsimile number to which
notices, requests, demands, claims and other communications hereunder are
to be delivered by giving the other Party notice in the manner herein set
forth.
(h) Amendments and Waivers. No amendment of any provision of this
Warrant Purchase Agreement shall be valid unless the same shall be in writing
and signed by each of the Parties hereto. No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent to such occurrence.
(i) Severability. Any term or provision of this Warrant
Purchase 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 hereof.
(j) Expenses. Each of the Parties will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with
this Warrant Purchase Agreement and the transactions contemplated hereby.
(k) Construction. Any reference to any statute or law shall
be deemed also to refer to all rules and regulations promulgated thereunder,
unless the context requires otherwise. The word "including" shall mean
including without limitation.
(l) Governing Law. This Warrant Purchase Agreement shall
be governed by and construed in accordance with the laws of the Cayman Islands.
(m) Arbitration. Any disputes arising with respect to, or in
connection with this Warrant Purchase Agreement, shall be referred to
binding arbitration, and finally settled by a panel of three arbitrators
appointed in accordance with the Rules of Reconciliation and Arbitration
of the International Chamber of Commerce, except as modified herein or
by mutual written agreement by the Parties. The three arbitrators shall be
appointed as follows: (1) the Warrant Seller shall promptly appoint one
arbitrator; (2) the Buyer shall promptly appoint one arbitrator; and (3) such
two arbitrators shall promptly appoint a third arbitrator, provided that if
such two arbitrators shall not agree on such third arbitrator within 15 days
of their respective appointments, then the Court of Arbitration of the
International Chamber of Commerce shall promptly appoint such arbitrator.
Such Court shall also appoint any arbitrator the
Buyer or the Warrant Seller fails to appoint. The arbitration proceedings
shall be conducted in the English language and shall be held in Geneva,
Switzerland.
IN WITNESS WHEREOF, the Parties hereby have executed this
Warrant Purchase Agreement as of the date first above written.
CABLE BEACH HOLDINGS LTD.
By:/s/ Xxxxx Xxxxxx
Its: for and on behalf of
Cable Beach Holdings Ltd.
XxXXXXXXX TECHNOLOGIES, INC.
By:/s/ Xxxx Xxxxxxxxx
Its: Chairman of the Board and
Chief Executive Officer
List of Exhibits
A. Form of Warrants.
B. Resolution of the Board of Directors meeting of SRT dated July
24, 1997 providing for the issuance of the Warrants.
