REIMBURSEMENT AGREEMENT
Exhibit 10.12
This REIMBURSEMENT AGREEMENT (this “Agreement”) is made and entered into on October 13, 2006
(the “Effective Date”), between The Xxxx Group Inc., a Louisiana corporation (“Xxxx”), and Toshiba
Corporation, a Japanese corporation (“Toshiba”). Xxxx and Toshiba are also referred to herein
together as the “Parties” and individually as a “Party”.
RECITALS
A. On the terms and subject to the conditions set forth in the Investment Agreement, dated as
of October 4, 2006, among Toshiba, Nuclear Energy Holdings, L.L.C., a Delaware limited liability
company (“NEH”), Toshiba Nuclear Energy Holdings (US) Inc., a Delaware corporation (“US Holdco”),
and Xxxx, NEH has directly agreed to acquire 800 shares of Class A Stock of US Holdco for a
consideration of $800,000,000 and representing, as of the Closing Date (as defined in such
Investment Agreement), twenty percent (20.0%) of the outstanding capital stock thereof
(collectively, the “US Shares”). On the terms and subject to the conditions set forth in the
Investment Agreement, dated as of October 4, 2006, among Toshiba, NEH, Toshiba Nuclear Energy
Holdings (UK) Limited, a company incorporated in England (“UK Holdco” and, together with US Holdco,
the “Holdcos”), and Xxxx, NEH has directly agreed to acquire 280 Class A Shares in the capital of
UK Holdco for a consideration of $280,000,000 and representing, as of the Closing Date (as defined
in such Investment Agreement), twenty percent (20.0%) of the outstanding capital stock thereof
(collectively, the “UK Shares”; and, together with the US Shares, the “Shares”).
B. On even date herewith, Toshiba and NEH have entered into two Put Option Agreements (the
“Put Option Agreements”) pursuant to which Toshiba provides to NEH put options with respect to the
Shares, on the terms and conditions set forth therein.
C. As a condition to Toshiba entering into the Put Option Agreements, Toshiba has requested
that Xxxx, and Xxxx has agreed to, reimburse Toshiba for certain amounts paid by Toshiba in
connection with stamp or transfer taxes, tax withholdings or deduction in connection with any
exercise by NEH of the put rights under the Put Option Agreements on the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, the Parties, in consideration of the premises and the terms, covenants and
conditions set forth below, hereby agree as follows:
AGREEMENT
1. DEFINITIONS; INTERPRETATION.
1.1 Terms Not Defined in this Agreement. Term used but not otherwise defined herein
shall have the meanings given to such terms in the Put Option Agreement.
1.2 Interpretation.
(a) Certain Terms. The words “hereof,” “herein,” “hereunder” and similar words refer
to this Agreement as a whole and not to any particular provision of this Agreement. The term
“including” is not limited and means “including without limitation.”
(b) Section References; Titles and Subtitles. Unless otherwise noted, all references
to Sections herein are to Sections of this Agreement. The titles, captions and headings of this
Agreement are inserted for convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
2. REIMBURSEMENT OBLIGATION.
2.1 Reimbursement by Xxxx. (a) If and to the extent that, (i) in connection with the
transfer of Shares pursuant to the Put Option Agreements, Toshiba or its subsidiaries are required
to pay any stamp duty, stamp duty reserve tax, transfer tax or other similar tax or duty (“Transfer
Taxes”) or (ii) in accordance with Section 3.2 either of the Put Option Agreement, Toshiba (or its
permitted designee under a Put Option Agreement) (A) is required under applicable law to withhold
or deduct from the Put Price any taxes, duties, assessments or governmental charges of whatever
nature imposed, levied, collected, withheld or assessed by or within Japan or any authority therein
or thereof having power to tax (“Taxes”) and (B) pays to NEH any additional amounts as will result
in the receipt by NEH of such amounts as would have been received by NEH had no withholding or
deduction been required (“Tax Gross-Up Amounts”), Xxxx shall reimburse Toshiba for (x) all such Tax
Gross-Up Amounts, (y) all such Transfer Taxes and (z) additional Taxes paid or payable by Toshiba
in respect of the amounts reimbursed under the preceding clauses (x) and (y) (collectively, the
“Put Loss Amounts”) within two Business Days after receipt from Toshiba of a written request for
payment thereof (together with substantiating documentation).
(b) In addition, Xxxx agrees to pay on demand any and all costs, including reasonable legal
fees and expenses, and other expenses incurred by Toshiba in enforcing Xxxx’x payment obligations
under this Section 2.1; provided that Xxxx shall not be liable for any such costs and
expenses if no payment under this Section 2.1 is due (such amounts, together with the Put Loss
Amounts, the “Reimbursable Amounts”).
2.2 Nature of Obligations. The obligations of Xxxx hereunder are primary and
unconditional, and Toshiba shall not be required to bring an action against NEH to enforce its
rights against Xxxx with respect to any Reimbursable Amounts. Until payment in full of
Reimbursable Amounts, Xxxx expressly waives, on behalf of itself and NEH, any and all rights of
subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which Xxxx or
NEH may now or hereafter have against Toshiba arising from the existence or performance of this
Agreement or any other agreement.
2.3 Dividend. Upon receipt by Xxxx of a written request for payment as contemplated
by Section 2.1, Xxxx shall cause NEH (subject to any restrictions in NEH’s financing documentation)
to assign and pay over to Toshiba all Dividends that NEH receives after exercise of the Put Right
up to an amount, when combined with any payments made by or on behalf of Xxxx in respect of its
obligations under Section 2.1, equal to the full amount of all Reimbursable Amounts (“Assigned
Dividends”), and all such rights shall thereupon become
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vested in Toshiba, which shall have the sole and exclusive right and authority to receive and
retain any such Assigned Dividends. In such event, Xxxx shall cause NEH to promptly notify (or if
NEH does not do so promptly, shall allow Toshiba to notify) the applicable HoldCo and instruct such
HoldCo to pay any and all such Assigned Dividends directly to Toshiba free and clear of, and
without withholding or deduction for, any taxes, duties, assessments or governmental charges of
whatever nature imposed, levied, collected, withheld or assessed by any Government Authority having
power to tax, unless such withholding or deduction is required by law. All Assigned Dividends
received by Xxxx or its Subsidiaries contrary to the provisions of this Section 2.3 shall be held
in trust for the benefit of Toshiba, shall be segregated from other property or funds of Xxxx and
such Subsidiaries and upon receipt shall be forthwith delivered to Toshiba in the same form as so
received (with any necessary endorsement), free and clear of, and without withholding or deduction
for, any taxes, duties, assessments or governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by any Government Authority having power to tax, unless such
withholding or deduction is required by law. For the purposes of this Section 2.3, the term
“Dividends” shall mean any dividends, interest, cash, instruments and other property distributed
from time to time by the applicable HoldCo in respect of the Shares or any shares, interests or
other securities issued or distributed by the applicable HoldCo with respect thereto.
3. RANKING, PAYMENTS AND SET-OFF.
3.1 Ranking. The payment obligations of Xxxx under this Agreement shall, save for such
exceptions as may be provided in applicable bankruptcy Law, at all times rank pari passu with all
of Xxxx’x other present and future unsecured and unsubordinated obligations.
3.2 Withholding. All payments made by or on behalf of Xxxx under this Agreement shall
be made free and clear of, and without withholding or deduction for, any taxes, duties, assessments
or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by any
Government Authority having power to tax, unless such withholding or deduction is required by law,
in which event Xxxx shall pay such additional amounts as will result in receipt by Toshiba of the
full amount of Reimbursable Amounts it would have received had no such withholding or deduction
been required.
3.3 Set-off. Toshiba shall be absolutely entitled to receive all amounts payable in
respect of this Agreement, and Xxxx hereby waives, on behalf of itself and NEH, as against Toshiba,
all rights of set-off or counterclaim that would or might otherwise be available to Xxxx or NEH.
4. REPRESENTATIONS AND WARRANTIES.
4.1 Toshiba. Toshiba represents and warrants to Xxxx, as of the Effective Date, that:
(a) Due Authorization. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder to be carried out by it have been duly
authorized by all necessary corporate action on the part of Toshiba. This Agreement, and all
agreements and documents executed and delivered pursuant to this Agreement, constitute valid and
binding obligations of Toshiba, enforceable against Toshiba in accordance with its terms,
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subject to applicable bankruptcy Laws and other laws or equitable principles of general
application affecting the rights of creditors generally.
(b) No Conflicts. Neither the execution or delivery of this Agreement by Toshiba nor
the fulfillment or compliance by Toshiba with any of the terms hereof shall, with or without the
giving of notice and/or the passage of time, (i) conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, (A) the organizational or charter
documents of Toshiba or (B) any contract or any judgment, decree or order to which Toshiba is
subject or by which it is bound, or (ii) require any consent, license, permit, authorization,
approval or other action by any Person or Government Authority which has not yet been obtained or
received. The execution, delivery and performance of this Agreement by Toshiba and compliance with
the provisions hereof by Toshiba shall not violate any provision of any Law to which Toshiba is
subject or by which it is bound.
(c) No Actions. There are no lawsuits, actions (or to the best knowledge of Toshiba,
investigations), claims or demands or other proceedings pending or, to the best of the knowledge of
Toshiba, threatened against Toshiba or any of its Subsidiaries which, if resolved in a manner
adverse to Toshiba or such Subsidiaries, would adversely affect the right or ability of Toshiba to
carry out its obligations set forth in this Agreement.
4.2 Xxxx. Xxxx represents and warrants to Toshiba, as of the Effective Date, that:
(a) Due Authorization. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereunder to be carried out by it have been duly
authorized by all necessary corporate action on the part of Xxxx. This Agreement, and all
agreements and documents executed and delivered pursuant to this Agreement, constitute valid and
binding obligations of Xxxx, enforceable against Xxxx in accordance with its terms, subject to
applicable bankruptcy Laws and other laws or equitable principles of general application affecting
the rights of creditors generally.
(b) No Conflicts. Neither the execution or delivery of this Agreement by Xxxx nor the
fulfillment or compliance by Xxxx with any of the terms hereof shall, with or without the giving of
notice and/or the passage of time, (i) conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, (A) the organizational or charter
documents of Xxxx or (B) any contract or any judgment, decree or order to which Xxxx is subject or
by which it is bound, or (ii) require any consent, license, permit, authorization, approval or
other action by any Person or Government Authority which has not yet been obtained or received.
The execution, delivery and performance of this Agreement by Xxxx and compliance with the
provisions hereof by Xxxx shall not violate any provision of any Law to which Xxxx is subject or by
which it is bound.
(c) No Actions. There are no lawsuits, actions (or to the best knowledge of Xxxx,
investigations), claims or demands or other proceedings pending or, to the best of the knowledge of
Xxxx, threatened against Xxxx or any of its Subsidiaries which, if resolved in a manner adverse to
Xxxx or such Subsidiaries, would adversely affect the right or ability of Xxxx to carry out its
obligations set forth in this Agreement.
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5. MISCELLANEOUS.
5.1 Governing Law. This Agreement, as to which time is of the essence, shall be
construed according to, and the rights of the Parties shall be governed by, the laws of the State
of New York. In the event of any dispute between the Parties arising out of or in connection with
this Agreement, the Parties shall use good faith efforts to resolve such dispute amicably. If the
Parties cannot resolve such dispute amicably after a period of 60 days, such dispute shall be
finally settled by arbitration in London, England, conducted in English and in accordance with the
Rules of Arbitration of the International Chamber of Commerce by three arbitrators. One arbitrator
shall be appointed by Toshiba, one arbitrator shall be appointed by Xxxx and the third arbitrator,
who shall serve as the Chair of the tribunal, shall be selected by the first two. If the third
arbitrator is not chosen and nominated to the ICC for appointment within 30 days of the date of
confirmation by the ICC of the later of the two party-appointed arbitrators to be confirmed, he
shall be chosen by the ICC. Any award rendered thereby shall be final and binding on the Parties,
and fully enforceable in a court of law. The award may include an award of costs, including
reasonable attorneys fees and disbursements.
5.2 Successors and Assigns. The rights and obligations of neither Party hereunder may
be assigned or delegated without the prior written consent of the other Party. Any purported
assignment or delegation in violation of this Section 5.2 shall be void ab initio and have no force
or effect. The provisions hereof shall inure to the benefit of, and be binding upon, the successors
and permitted assigns of the Parties.
5.3 Entire Agreement; Amendment. This Agreement constitutes the full and entire
understanding and agreement between the Parties with regard to the subject matter hereof. Any term
of this Agreement may be amended only with the written consent of each Party.
5.4 Notices and Other Communications. Any and all notices, requests, demands and
other communications required or otherwise contemplated to be made under this Agreement shall be in
writing and in English and shall be provided by one or more of the following means and shall be
deemed to have been duly given (a) if delivered personally, when received, (b) if transmitted by
facsimile, on the date of transmission with receipt of a transmittal confirmation, or (c) if by a
nationally or internationally recognized courier service, on the third (3rd) day following the date
of deposit with such courier service, or such earlier delivery date as may be confirmed in writing
to the sender by such courier service. All such notices, requests, demands and other
communications shall be addressed as follows:
To Xxxx at:
The Xxxx Group Inc.
0000 Xxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Secretary and General Counsel
Facsimile No.: + 0-000-000-0000
Email: xxxx.xxxxxxx@xxxxxxx.xxx
0000 Xxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Secretary and General Counsel
Facsimile No.: + 0-000-000-0000
Email: xxxx.xxxxxxx@xxxxxxx.xxx
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with a copy, which shall not constitute notice, to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Partner
Facsimile No.: + 0-000-000-0000
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Partner
Facsimile No.: + 0-000-000-0000
To Toshiba at:
Toshiba Corporation
Toshiba Building 31B
0-0-0, Xxxxxxxx, Xxxxxx-xx, Xxxxx 000-0000, Xxxxx
Attention: General Manager Legal Affairs Department, Power Systems
and Services Company
Facsimile No.: + 00-0-0000-0000
Toshiba Building 31B
0-0-0, Xxxxxxxx, Xxxxxx-xx, Xxxxx 000-0000, Xxxxx
Attention: General Manager Legal Affairs Department, Power Systems
and Services Company
Facsimile No.: + 00-0-0000-0000
with a copy, which shall not constitute notice, to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Izumi Garden Tower 21st Floor
0-0-0 Xxxxxxxx Xxxxxx-xx, Xxxxx, 000-0000, Xxxxx
Attention: Xxxxxxxxx Xxxxxx, Partner
Facsimile No.: + 00-0-0000-0000
Izumi Garden Tower 21st Floor
0-0-0 Xxxxxxxx Xxxxxx-xx, Xxxxx, 000-0000, Xxxxx
Attention: Xxxxxxxxx Xxxxxx, Partner
Facsimile No.: + 00-0-0000-0000
or to such other address or facsimile number as a Party may have specified to the other Party in
writing delivered in accordance with this Section 5.4.
5.5 Delays or Omissions. No delay or omission to exercise any right, power or remedy
accruing to any Person hereunder, upon any breach or default under this Agreement, shall impair any
such right, power or remedy nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any Person hereunder of any breach or default under this Agreement, or any
waiver on the part of any Person of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such writing and signed
by the waiving or consenting Person.
5.6 Severability. If any provision of this Agreement is found to be invalid or
unenforceable, then such provision shall be construed, to the extent feasible, so as to render the
provision enforceable and to provide for the consummation of the transactions contemplated hereby
on substantially the same terms as originally set forth herein, and if no feasible interpretation
would save such provision, it shall be severed from the remainder of this Agreement, which shall
remain in full force and effect unless the severed provision is essential to the rights or benefits
intended by the Parties. In such event, the Parties shall use best efforts to
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negotiate, in good faith, a substitute, valid and enforceable provision or agreement which
most nearly effects the Parties’ intent in entering into this Agreement.
5.7 Further Assurances. The Parties shall perform such acts, execute and deliver such
instruments and documents and do all other such things as may be reasonably necessary to effect the
transactions contemplated hereby.
5.8 Costs and Expenses. The Parties shall each bear their own legal and other costs
and out-of-pocket expenses arising out of the negotiation, preparation and execution of this
Agreement.
5.9 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall constitute one instrument.
Execution and delivery of this Agreement by exchange of facsimile copies bearing the facsimile
signature of a Party shall constitute a valid and binding execution and delivery of this Agreement
by such Party.
[Remainder of page intentionally blank.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
| THE XXXX GROUP INC. | TOSHIBA CORPORATION | |||||||
By:
|
By: | |||||||
| Title: Chairman of the Board and | Director, Corporate Senior Executive | |||||||
| Chief Executive Officer | Vice President | |||||||
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