Exhibit 4.7
SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT, dated as of December 29, 2000 by and between
X.X. Xxxxxxx & Co. Ltd., a Bermuda company ("WPS Ltd."), and TPR & Partners,
N.V., a corporation organized under the laws of The Netherlands ("TPR
Netherlands").
WHEREAS, TPR Netherlands owns 8,700 shares of the capital stock, par
value $US1.00 per share ("TPRS Capital Stock") of TPRS Services N.V., a
corporation organized under the laws of Curacao, Netherlands Antilles ("TPRS")
and either has acquired, or prior to the Closing Date (as defined below) will
acquire, an additional 6,300 shares of TPRS Capital Stock from TPR Curacao N.V.
("TPR Curacao"), a corporation organized under the laws of Curacao, Netherlands
Antilles and a wholly-owned subsidiary of TPR Netherlands (such 8,700 shares and
6,300 shares of TPRS Capital Stock, collectively, the "TPRS Exchange Shares");
WHEREAS, WPS Ltd. is the owner of the remaining 15,000 shares of TPRS
Capital Stock;
WHEREAS, the parties contemplate that X.X. Xxxxxxx Asset Management
(Europe), Ltd., a Bermuda company and a wholly owned subsidiary of WPS Ltd.,
will acquire all of the capital stock of TPR Netherlands (the "TPR
Acquisition");
WHEREAS, TPR Netherlands and WPS Ltd. desire to effect the exchange of
814,000 WPS Ltd. Common Shares (as defined below) for the 15,000 TPRS Exchange
Shares, upon the terms and subject to the conditions set forth in this Agreement
(the "Share Exchange"); and
WHEREAS, the Shares Exchange is a condition to the TPR Acquisition;
NOW, THEREFORE, in consideration of the premises and other covenants
and conditions contained herein, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms below shall
have the following meanings:
"Adverse Effect" with respect to any Person shall mean a materially
adverse effect on any of the Share Exchange, the TPR Acquisition or the
business, capital stock, assets, liabilities, working capital, earnings,
condition (financial or otherwise), operating results, prospects or employee,
client, customer or supplier relations of such Person, or the ability of
such Person to perform its obligations under the Transaction Documents or to
conduct its business as presently conducted or as proposed to be conducted.
"Affiliate" as applied to any Person, means any other Person directly
or indirectly controlling, controlled by or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as applied to any Person, shall mean (a) the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by contract or otherwise, or (b) ownership, directly or indirectly,
of 10% or more of the Equity Interests of such Person.
"Agreement" shall mean this Share Exchange Agreement, dated as of
December 29, 2000, by and between WPS Ltd. and TPR Netherlands, as such
agreement may be amended from time to time.
"Closing Date" shall mean the close of business on December 29, 2000,
or such other date as may be mutually agreed upon in writing by the parties
hereto.
"Consenting Party" shall mean any Person whose consent or waiver is or
may be required under any Contract in connection with the Transaction Documents
or the consummation by either party of any of the transactions contemplated
thereby.
"Contracts" shall mean any and all of the agreements, contracts or
commitments of TPRS described in the TPRS Disclosure Schedules.
"Effective Date" shall mean 12:01 a.m. on July 1, 2000.
"Employee Plan" means any pension, profit sharing, stock option, stock
appreciation, employee stock purchase, bonus, benefit or other plan or
arrangement providing for deferred or other compensation to employees or any
other employee benefit, welfare or stock plan or arrangement including, without
limitation, any arrangement, policy, plan or program relating to retirement,
disability, insurance, (including any self-insured arrangement), severance pay,
supplemental unemployment benefit, vacation, leave of absence, equity
participation, stock purchase, stock option, stock appreciation right or any
other incentive arrangement.
"Encumbrance" shall mean any claim, mortgage, deed of trust,
restrictive covenant, reservation, lien, pledge, option, charge, easement,
security interest, right-of-way or other encumbrance of any kind or other rights
of third parties (including, without limitation, preemptive rights), whether or
not filed, recorded or otherwise perfected under applicable law, as well as the
interest of any vendor, vendee or lessor or lessee under any conditional sales
agreement, capital lease or other title retention agreement.
"Equity Interests" shall mean the capital stock or other equity
interests (including the TPRS Capital Stock) or options, warrants, rights to
subscribe to, scrip calls, contracts, undertakings, arrangements, commitments to
issue or other rights of any kind to acquire capital stock or other equity
interests of any Person.
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"Indebtedness" shall mean, with respect to any Person, (a) indebtedness
for borrowed money or for the deferred purchase price of property or services in
respect of which such Person is liable, contingently or otherwise, as obligor or
otherwise and any commitment by which such Person insures a creditor against
loss, including contingent reimbursement obligations with respect to letters of
credit, (b) indebtedness guaranteed in any manner by such Person, including a
guarantee in the form of an agreement to repurchase or reimburse, (c)
obligations under capitalized leases in respect of which such Person is liable,
contingently or otherwise, as obligor, guarantor or otherwise, or in respect of
which obligations such Person insures a creditor against loss, and (d) any
unsatisfied obligation of such Person to any Employee Plan.
"Investment" shall mean, with respect to any Person, (a) any direct or
indirect purchase or other acquisition by such Person of any notes, obligations,
instruments, stock, securities or other ownership or beneficial interest
(including partnership interests and joint venture interests) of any other
Person, and (b) any capital contribution by such Person to any other Person.
"Legal Requirement" shall mean any action, law, statute, treaty, rule,
regulation, order, ordinance, judgment, injunction, decree, award, determination
or direction of an arbitrator, court or government entity, including without
limitation, any zoning, environmental or safety requirement, motor vehicle
safety requirements or standards or any requirements arising thereunder.
"Permits" shall mean any and all of the licenses, permits and other
regulatory or governmental authorizations, accreditations, approvals, waivers,
consents, declarations or filings necessary or required to conduct the business
of TPRS as presently conducted or as proposed to be conducted or to enter into
the Transaction Documents and to consummate the transactions contemplated
thereby.
"Permitted TPR Assignee" shall mean (i) any Affiliate of TPR
Netherlands as of the date hereof, (ii) the children and/or spouse of any such
Affiliate, or (iii) Hermanus Theodorus Xxxx, Xxxxx Jan Xxxx Xxxxxxx, Fokke Xxx
Xxxxxx or Antonius Adrianus Xxxxx Xxxxxxx.
"Permitted WPS Ltd. Assignee" shall mean any Affiliate of WPS Ltd.
"Person" shall mean an individual, partnership, sole proprietorship,
corporation, association, joint stock company, limited liability company, trust,
joint venture, unincorporated organization, governmental or regulatory authority
or any other entity or organization of any kind whatsoever.
"Prospectus" shall mean that certain Prospectus, dated December 7, 2000
and filed by WPS Ltd. with the U.S. Securities and Exchange Commission in
connection with the offering of 11,204,015 WPS Ltd. Common Shares.
"Representative" shall mean, with respect to any Person, any officer,
director, partner, shareholder, principal, attorney, accountant, consultant,
financial advisor, agent, employee or other representative of such Person.
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"Stock Restriction Agreement" shall mean an agreement among WPS Ltd.
and TPR Netherlands (and each Permitted TPR Assignee who will receive WPS Ltd.
Exchange Shares on the Closing Date), substantially in the form of Exhibit A
hereto, providing for certain restrictions on the transfer of such shares and
certain circumstances in which such shares will be subject to reacquisition by
WPS Ltd.
"Tax" shall mean any domestic or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupational, premium,
windfall profits, environmental, customs duties, capital stock, franchise,
profits, withholding, unemployment, disability, real property, personal
property, sales, use, Transfer Tax, registration, value added, alternative or
add-on minimum, estimated, or other tax of any kind whatsoever, including
without limitation any interest, penalty or addition thereto, whether disputed
or not.
"Tax Return" shall mean any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof, whether
arising out of the actions contemplated by the Transaction Documents or
otherwise.
"TPR Expenses" shall mean all costs and expenses incurred by TPR
Netherlands, TPRS or any of the Representatives or Affiliates of either in
connection with the negotiation, preparation, execution and delivery of the
Transaction Documents and the consummation of the transactions contemplated
hereby and thereby.
"TPRS Disclosure Schedules" shall mean the schedules to this Agreement
delivered to WPS Ltd. on or prior to the date hereof, which set forth exceptions
to the representations and warranties contained in Article 4 hereof and certain
other information called for by Article 4 hereof and other provisions of this
Agreement and which are hereby made a part of this Agreement and incorporated
herein by reference.
"TPRS Financial Statements" shall mean the unaudited balance sheet of
TPRS as of June 30, 2000, together with the notes thereon as prepared by TPRS
(the "TPRS Balance Sheet") as previously delivered to WPS Ltd. and attached
hereto as Schedule 1.1.
"Transaction Documents" shall mean this Agreement, the Stock
Restriction Agreement and all exhibits, statements, schedules, instruments,
certificates and other documents and agreements to be entered into or delivered
by any Person in connection with the transactions contemplated to be consummated
pursuant to any of the foregoing.
"Transfer Taxes" shall mean any and all sales, use, transfer, real
property transfer, recording, gains, stock transfer and other similar Taxes and
fees, including without limitation any interest, penalty or addition thereto,
whether disputed or not.
"U.S. GAAP" shall mean generally accepted accounting principles in the
United States of America.
"WPS Ltd. Common Shares" shall mean the issued and outstanding common
shares of WPS Ltd., par value $US.001 per share.
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"WPS Ltd. Exchange Shares" shall mean the 814,000 WPS Ltd. Common
Shares to be issued by WPS Ltd. to TPR Netherlands in accordance with Section 2.
2 hereof.
"WPS Ltd. Expenses" shall mean all costs and expenses incurred by WPS
Ltd. or any of its Representatives and Affiliates in connection with the
negotiation, preparation, execution and delivery of the Transaction Documents
and the consummation of the transactions contemplated hereby and thereby.
"WPS Ltd. Financial Statements" shall mean, collectively, the balance
sheet of WPS Ltd. as of September 30, 2000, together with the notes thereon (the
"WPS Balance Sheet"), and the related statement of income and statement of
stockholders' equity, retained earnings and changes in financial position or
cash flows for WPS Ltd. for the nine-month period ended September 30, 2000,
together with the notes thereon, as set forth in the Prospectus.
1.2 Other Defined Terms. The following terms shall have the meanings
assigned to such terms in the corresponding Sections of this Agreement set forth
below:
Term Section
---- -------
Actions 4.11
Basket Amount 8.2
Closing 3.1
Damages 8.2
Indemnification Claim Notice 8.3
Indemnified Party 8.3
Indemnifying Party 8.3
Proceeding 8.3
Share Exchange Preamble
TPR Acquisition Preamble
TPR Curacao Preamble
TPR Indemnitees 8.2
TPR Indemnitors 8.2
TPR Netherlands Preamble
TPRS Preamble
TPRS Capital Stock Preamble
TPRS Exchange Shares Preamble
WPS Ltd. Indemnitees 8.2
ARTICLE 2
EXCHANGE SHARES
2.1 TPR Netherlands Exchange of Shares. Upon the terms and subject to
the conditions contained herein, and in reliance upon the representations,
warranties, covenants and indemnifications contained herein, TPR Netherlands
hereby agrees to convey, transfer, assign and deliver to WPS Ltd., and WPS Ltd.
hereby agrees to acquire from TPR Netherlands, on the
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Closing Date, and as of the Effective Date, all of the rights, title and
interest of TPR Netherlands in and to the TPRS Exchange Shares.
2.2 WPS Ltd. Exchange of Shares. Upon the terms and subject to the
conditions contained herein, and in reliance upon the representations,
warranties, covenants and indemnifications contained herein, WPS Ltd. hereby
agrees to issue to TPR Netherlands, on the Closing Date and as of the Effective
Date, and TPR Netherlands hereby agrees to acquire from WPS Ltd., the 814,000
WPS Ltd. Exchange Shares.
ARTICLE 3
CLOSING
3.1 Closing. The closing of the transactions contemplated herein (the
"Closing") shall be held at such time on the Closing Date and at such offices as
the parties agree.
3.2 Deliveries. To effect the transfers referred to in Sections 2.1 and
2.2 hereof, the following deliveries shall be made on the Closing Date:
(a) TPR Netherlands shall deliver to WPS Ltd. (or a Permitted WPS Ltd.
Assignee) such documents as shall be acceptable to WPS Ltd. and its counsel
evidencing the transfer of the TPRS Exchange Shares, free and clear of any
and all Encumbrances, and the registration of such transfer in the
shareholder register of TPRS.
(b) TPR Netherlands shall deliver to WPS Ltd. all documents, agreements
and certificates required to be delivered by it pursuant to this Agreement.
(c) As soon as practicable after the Closing, WPS Ltd. shall issue to
TPR Netherlands (or Permitted TPR Assignees) certificate(s) evidencing the
WPS Ltd. Exchange Shares, evidencing the record ownership of such shares by
TPR Netherlands (or Permitted TPR Assignees).
(d) WPS Ltd. shall deliver to TPR Netherlands all documents, agreements
and certificates required to be delivered by WPS Ltd. pursuant to this
Agreement.
(e) All instruments and documents to be executed by or on behalf of TPR
Netherlands (or any Permitted TPR Assignee) and delivered to WPS Ltd.
pursuant hereto shall be in form and substance, and shall be executed in a
manner, reasonably satisfactory to WPS Ltd. All instruments and documents
to be executed by or on behalf of WPS Ltd. and delivered to TPR Netherlands
(or any Permitted TPR Assignee) pursuant hereto shall be in form and
substance, and shall be executed in a manner, reasonably satisfactory to
TPR Netherlands.
3.3 Post-Closing. As soon as practicable following the Closing, TPR
Netherlands shall account to WPS Ltd. for the operations and financial results
of TPRS for the period from the Effective Date through the Closing Date and
shall make any payments that may
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be necessary to accord WPS Ltd. the benefits of ownership of the TPRS Exchange
Shares from and after the Effective Date.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF TPR NETHERLANDS
Each of the TPR Indemnitors hereby jointly and severally represents and
warrants to WPS Ltd. as follows:
4.1 Authority; Ownership of Stock; No Conflict or Violation. TPR
Netherlands has all necessary power and authority to own the TPRS Exchange
Shares and to enter into, deliver and carry out its obligations under the
Transaction Documents. The TPR Indemnitors have taken all action necessary to
consummate the transactions contemplated thereby and to perform their
obligations thereunder. Each of the Transaction Documents to which a TPR
Indemnitor is a party has been duly executed and delivered by or on behalf of
such TPR Indemnitor. Each Transaction Document to which a TPR Indemnitor is a
party is the legal, valid and binding obligation of such TPR Indemnitor,
enforceable against it in accordance with its terms except as such enforcement
may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the enforceability of contractual
obligations and creditor's rights generally and by the application of equitable
principles by courts of competent jurisdiction sitting at law or in equity. TPR
Netherlands owns, or will immediately prior to the Closing own, of record and
beneficially all of the TPRS Exchange Shares, free and clear of all
Encumbrances. The TPRS Exchange Shares represent fifty percent (50%) of the
total shares of TPRS Capital Stock issued and outstanding. The TPR Indemnitors
own, of record or beneficially, no Equity Interests of TPRS other than the TPRS
Exchange Shares. Upon the transfer on the Closing Date by TPR Netherlands to WPS
Ltd. of the TPRS Exchange Shares in accordance with Section 2.1 of this
Agreement, WPS Ltd. will receive good title to such shares, free and clear of
all Encumbrances. Neither the execution and delivery of the Transaction
Documents nor the consummation of the transactions contemplated thereby will
result in the violation by any TPR Indemnitor of any Legal Requirement.
4.2 No Brokers; No Agreements to Sell. Neither TPR Netherlands nor
TPRS, nor any Representative or Affiliate of either, has any written or oral
agreement, arrangement or understanding with any Person which could result in
the obligation of WPS Ltd. or TPRS to pay any finder's fee, brokerage commission
or similar payment in connection with any of the transactions contemplated by
the Transaction Documents. Except in connection with this Agreement and the
other Transaction Documents, neither TPR Netherlands nor TPRS has any
obligation, absolute or contingent, to any other Person to sell any shares of
TPRS Capital Stock or to enter into any agreement with respect thereto.
4.3 Organization of TPR Netherlands; No Conflict or Violation. TPR
Netherlands is duly formed and validly existing under the laws of The
Netherlands. All actions necessary to authorize TPR Netherlands to enter into,
deliver and carry out its obligations under the Transaction Documents have been
taken. Neither the execution and delivery of the Transaction Documents nor the
consummation of the transactions contemplated thereby will
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result in a violation of or a conflict with the articles of association, by-laws
or other organizational documents of TPR Netherlands.
4.4 Organization of TPRS. TPRS is duly organized, validly existing and
in good standing under the laws of Curacao, Netherlands Antilles and has full
corporate power and authority to own its assets and properties. TPRS has
obtained all Permits necessary or required under any applicable Legal
Requirement as a result of the conduct of its business or the ownership of its
assets or properties. The corporate minute books, registers and other corporate
books and records of TPRS are each correct, current, and complete in all
material respects, nothing has been removed from such books and records, and the
signatures appearing on all documents contained therein are the true signatures
of the Persons purporting to have signed the same. All actions reflected in such
books and records were duly and validly taken in compliance with all applicable
Legal Requirements. Except as disclosed on Schedule 4.4 hereto, TPRS does not
own any Equity Interests of, nor is it in any manner affiliated (whether through
an Investment or other participation of any kind) with any Person.
4.5 Capitalization of TPRS. The authorized capital of TPRS consists
solely of 30,000 shares of TPRS Capital Stock, 30,000 of which are issued and
outstanding. All of the issued and outstanding shares of TPRS Capital Stock have
been duly authorized and are validly issued, fully paid and non-assessable.
There are no subscriptions, options, warrants, calls, commitments or other
rights of any kind outstanding for the purchase of, nor any securities
convertible or exchangeable for shares of TPRS Capital Stock or other Equity
interests of TPRS.
4.6 Authorization: Binding Effect. TPRS has all necessary corporate
power and authority to own, lease and operate the assets owned by it.
4.7 Absence of Certain Changes or Events. Since December 31, 1999,
except as otherwise expressly permitted pursuant to this Agreement, there has
not been any:
(a) material adverse change in the condition (financial or otherwise),
assets, liabilities, working capital, reserves, earnings, business,
prospects or operating results of TPRS;
(b) declaration, setting aside or payment by TPRS of dividends or
distributions in respect of any TPRS Capital Stock or other Equity
Interests of TPRS or any redemption, purchase or other acquisition of any
such TPRS Capital Stock or other Equity Interests;
(c) loan or advance of any funds or any of the assets or other property
of TPRS to, or guarantee by TPRS for the benefit of, or any Investment by
TPRS of any funds or other property in, any other Person;
(d) other event or condition of any character which, in any one case or
in the aggregate, has resulted in an Adverse Effect with respect to TPRS or
any event or condition which could, in any one case or in the aggregate,
result in an Adverse Effect for TPRS; or
(e) agreement by TPRS to do any of the foregoing, as applicable,
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4.8 No Tangible Assets. Except as set forth on Schedule 4.8, TPRS does
not own any real estate, fixtures, furniture, equipment or other tangible
assets.
4.9 Contracts and Commitments. Except as set forth on Schedule 4.9,
TPRS is not a party to any written or oral agreement or commitment of any kind.
4.10 TPRS Financial Statements. The TPRS Financial Statements have
heretofore been delivered to WPS Ltd. The TPRS Financial Statements are complete
in all material respects, have been prepared in accordance with U.S. GAAP
consistently applied and in accordance with the books and records of TPRS,
accurately reflect the assets, liabilities and financial condition and results
of operations of TPRS and contain and reflect all necessary adjustments for a
fair representation of the TPRS Financial Statements as of the dates and for the
periods covered thereby.
4.11 Litigation. Except as set forth on Schedule 4.11, there is no
action, order, writ, injunction, judgment or decree outstanding or claim, suit,
litigation, proceeding, labor dispute, arbitral action, investigation or inquiry
(collectively, "Actions") pending or, to the best knowledge of the TPR
Indemnitors, threatened or anticipated against (i) TPRS or (ii) any of the
transactions contemplated by the Transaction Documents. TPRS is not in default
with respect to any judgment, order, writ, injunction or decree of any court or
governmental agency, and there are no unsatisfied judgments against TPRS.
4.12 Liabilities. TPRS has no liabilities or obligations (absolute,
accrued, contingent or otherwise), except liabilities which are reflected and
adequately reserved against on the TPRS Balance Sheet.
4.13 Compliance with Law. TPRS has complied in all respects with all
applicable Legal Requirements, TPRS has not received any notice to the effect
that, or otherwise been advised that, it is not in compliance with any of such
applicable Legal Requirements, and has no reason to anticipate that any
presently existing circumstances are likely to result in violations of any
applicable Legal Requirements. The items described on Schedule 4.13 constitute
all of the consents, filings, notices, Permits, and the like with any
governmental or regulatory entity which are required to be given, obtained or
made by TPRS or TPR Netherlands to permit the consummation of the transaction
contemplated by the Transaction Documents.
4.14 Tax Matters. Except as set forth on Schedule 4.14, TPRS has not
been required to file Tax Returns with respect to any period ending at or prior
to the Closing Date. The unpaid Taxes of TPRS do not exceed as of June 30, 2000,
the reserve for Tax liabilities set forth on the TPRS Balance Sheet.
4.15 Misstatements or Omissions. No representations or warranties by
TPR Netherlands in any of the Transaction Documents contain or will contain, any
untrue statement of material fact, or omit or will omit to state any material
fact necessary to make the statements or facts contained therein not misleading.
TPR Netherlands has disclosed to WPS Ltd. all material events, conditions and
facts affecting the TPRS Capital Stock, the assets, the earnings and the
condition (financial or otherwise) of TPRS.
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4.16 Prospectus. TPR Netherlands and its Affiliates have received and
reviewed the Prospectus.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF WPS LTD.
WPS Ltd. hereby represents and warrants to TPR Netherlands as follows:
5.1 Organization; Capitalization. WS Ltd. is a corporation duly
organized and validly existing under the laws of Bermuda and has full corporate
power and authority to conduct its business as is presently being conducted and
to own and lease its properties and assets and to enter into, deliver and carry
out its obligations under the Transaction Documents. The authorized capital of
WPS Ltd. consists of 125,000,000 shares of WPS Ltd. Capital Stock, 47,098,112 of
which, as of the date of this Agreement, are issued and outstanding.
5.2 Authorization. WPS Ltd. had taken all necessary corporate action to
consummate the transactions contemplated by the Transaction Documents and to
perform its obligations thereunder. Each of the Transaction Documents to which
WPS Ltd. is a party has been duly executed and delivered by WPS Ltd. and is a
valid and binding obligation of WPS Ltd. enforceable against WPS Ltd. in
accordance with its terms except as enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting the enforceability of contractual obligations and creditor's rights
generally and by the application of equitable principles by courts of competent
jurisdiction sitting at law or in equity.
5.3 Issuance and Ownership of WPS Ltd. Exchange Shares. Upon the
issuance by WPS Ltd. on the Closing Date to TPR Netherlands (or Permitted TPR
Assignees) of the WPS Ltd. Exchange Shares in accordance with Section 2.2 of
this Agreement, TPR Netherlands (or such Permitted TPR Assignees) will receive
good title to such WPS Ltd. Exchange Shares free and clear of all Encumbrances.
Such WPS Ltd. Exchange Shares have been duly authorized and are validly issued,
fully paid and non-assessable.
5.4 Certain Consents and Approvals. No consents, filings, notices, or
Permits are required to be given, made or obtained by WPS Ltd. in connection
with the execution, delivery and performance of the Transaction Documents or the
consummation of the transactions contemplated thereby.
5.5 No Brokers. Neither WPS Ltd. nor any of its Representatives or
Affiliates has any written or oral agreement, arrangement or understanding with
any Person which will result in the obligation of TPRS or TPR Netherlands to pay
any finder's fee, brokerage commission or similar payment in connection with the
transactions contemplated by the Transaction Documents.
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5.6 No Conflict or Violation. Neither the execution and delivery of the
Transaction Documents nor the consummation of the transactions contemplated
thereby will result in (a) a violation of or a conflict with any provision of
the memorandum of association or bye-laws of WPS Ltd., (b) a breach of, or a
default under, any term or provision of any contract, agreement, Indebtedness,
lease, commitment, franchise, Permit, authorization or concession to which WPS
Ltd. is a party, (c) a violation by WPS Ltd. of any applicable Legal
Requirement, or (d) an imposition of any Encumbrance on any of the WPS Ltd.
Exchange Shares.
5.7 WPS Ltd. Financial Statements. The WPS Ltd. Financial Statements
have heretofore been delivered to TPR Netherlands. The WPS Ltd. Financial
Statements are complete in all material respects, have been prepared in
accordance with U.S. GAAP consistently applied and in accordance with the books
and record of WPS Ltd., accurately reflect the assets, liabilities and financial
condition and results of operations indicated thereby and contain and reflect
all necessary adjustments for a fair representation of the WPS Ltd. Financial
Statements as of the dates and for the periods covered thereby.
5.8 Absence of Certain Changes or Events. Since September 30, 2000,
except as otherwise expressly permitted pursuant to this Agreement, there has
not been any:
(a) material adverse change in the condition (financial or otherwise),
assets, liabilities, working capital, reserves, earnings, business,
prospects or operating results of WPS Ltd.;
(b) failure to operate its business in the ordinary course and
consistent with past practices and to preserve its business intact;
(c) except as reflected in the Financial Statements, change in
accounting methods or practices by WPS Ltd. affecting its assets, earnings,
reserves, working capital, prospects, liabilities or business;
(d) except as reflected in the Financial Statements, revaluation by WPS
Ltd. of any of its assets or properties, including without limitation,
writing off of notes or accounts receivable, other than in the ordinary
course of business and consistent with past practices;
(e) material damage, destruction or loss of or to any of the assets,
properties, condition (financial or otherwise) or prospects of WPS Ltd.;
(f) liabilities incurred by WPS Ltd. not in the ordinary course of
business and consistent with past practices or any increase or change by
WPS Ltd. in any assumptions underlying or methods of calculating any bad
debt, contingency or other reserves; or
(g) other event or condition of any character which, in any one case,
or in the aggregate, has resulted in an Adverse Effect with respect to WPS
Ltd. or any event or condition which could, in any one case or in the
aggregate, result in an Adverse Effect for WPS Ltd.
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5.9 Litigation. There is no material Action pending or, to the best
knowledge of WPS Ltd., threatened or anticipated against (i) WPS Ltd. or (ii)
the transactions contemplated by the Transaction Documents.
5.10 Liabilities. WPS Ltd. has no material liabilities or obligations
(absolute, accrued, contingent or otherwise), except (i) liabilities which are
reflected and adequately reserved against on the WPS Ltd. Balance Sheet, and
(ii) liabilities incurred in the ordinary course of business and consistent with
past practices since September 30, 2000.
5.11 Compliance With Law. WPS Ltd. is conducting and has conducted its
business in compliance in all material respects with all applicable Legal
Requirements.
5.12 Misstatements or Omissions. No representations or warranties by
WPS Ltd. in any of the Transaction Documents contain or will contain any untrue
statement of material fact, or omit or will omit to state any material fact
necessary to make the statements or facts contained therein not misleading.
ARTICLE 6
CONDITIONS TO THE OBLIGATIONS OF TPR NETHERLANDS
The obligations of TPR Netherlands to transfer to WPS Ltd. on the
Closing Date the TPRS Exchange Shares are subject in the sole and absolute
discretion of TPR Netherlands to the satisfaction or waiver, on or prior to the
Closing Date, of each of the following conditions:
6.1 Representations, Warranties and Covenants. All representations and
warranties of WPS Ltd. contained in this Agreement shall be true and correct in
all material respects at and as of the Closing Date, and WPS Ltd. shall have
performed in all material respects all agreements and covenants required hereby
to be performed by it prior to or at the Closing Date. There shall be delivered
to TPR Netherlands a certificate, signed by the Chairman, the Financial Director
or a Director or Managing Director of WPS Ltd., to the foregoing effect.
6.2 Permits and Consents. All Permits consents of Consenting Parties
and all notices or filings necessary or required to permit the transactions
contemplated by the Transaction Documents shall have been made or obtained.
6.3 No Governmental Proceeding or Litigation. No Action shall have been
instituted or threatened by any governmental or regulatory authority or other
Person which questions the validity or legality of the transactions contemplated
by the Transaction Documents.
6.4 Certificates. WPS Ltd. shall have delivered to TPR Netherlands (a)
a certificate of the Chairman, Financial Director or a Director or Managing
Director of WPS Ltd. certifying that the conditions set forth in this Article 6
have been fully satisfied, (b) a Certificate of Compliance of WPS Ltd. from the
Register of Companies of Bermuda and (c) a certificate of incumbency with
respect to each director or officer of WPS Ltd. who has executed any of the
Transaction Documents on behalf of WPS Ltd.
12
6.5 Corporate Documents. TPR Netherlands shall have received from WPS
Ltd. (a) resolutions adopted by the board of directors of WPS Ltd. approving the
issuance of the WPS Ltd. Exchange Shares to TPR Netherlands in connection with
the transactions contemplated by the Transaction Documents and (b) copies of the
memorandum of association and bye-laws of WPS Ltd. as in effect on the Closing
Date, in each case certified to be true and complete by the corporate secretary
or assistant secretary of WPS Ltd.
6.6 Compliance with Legal Requirements. The consummation of the
transactions contemplated by the Transaction Documents will not be prohibited by
any applicable Legal Requirement or subject TPR Netherlands to any penalty,
liability or other onerous condition arising out of any Legal Requirement.
ARTICLE 7
CONDITIONS TO THE OBLIGATIONS OF WPS LTD.
The obligations of WPS Ltd. to issue the WPS Ltd. Exchange Shares to
TPR Netherlands on the Closing Date are subject, in the sole and absolute
discretion of WPS Ltd., to the satisfaction or waiver, on or prior to the
Closing Date, of each of the following conditions:
7.1 Representations, Warranties and Covenants. All representations and
warranties of TPR Netherlands contained in this Agreement shall be true and
correct in all material respects at and as of the Closing Date, and TPR
Netherlands shall have performed in all material respects all agreements and
covenants required hereby to be performed by it prior to or at the Closing Date.
There shall be delivered to WPS Ltd. a certificate, signed by the Managing
Director of TPR Netherlands, to the foregoing effect.
7.2 Permits and Consents. All Permits, consents of Consenting Parties
and all notices or filings necessary or required to permit the transactions
contemplated by the Transaction Documents shall have been made or obtained.
7.3 No Governmental Proceeding or Litigation. No Action shall have been
instituted or threatened by any governmental or regulatory authority or other
Person which questions the validity or legality of the transactions contemplated
by the Transaction Documents.
7.4 Compliance with Legal Requirements. The consummation of the
transactions contemplated by the Transaction Documents will not be prohibited by
any applicable Legal Requirement or subject WPS Ltd. or TPRS to any penalty,
liability or other onerous condition arising out of any such Legal Requirement.
7.5 Stock Restriction Agreement. WPS Ltd. shall have entered into the
Stock Restriction Agreement, with TPR Netherlands (and each Permitted TPR
Assignee who will receive WPS Ltd. Exchange Shares on the Closing Date).
7.6 Certificates and Corporate Documents. TPR Netherlands shall have
delivered to WPS Ltd. such documents and certificates of TPR Netherlands, TPR
Curacao, TPRS
13
and their officers to evidence compliance with the conditions set forth in this
Article 7 as may be reasonably requested by WPS Ltd., including without
limitation:
(a) a certificate of the Managing Director of TPR Netherlands dated the
Closing Date, certifying that the conditions specified in this Article 7
have been fully satisfied;
(b) copies of resolutions, certified by the appropriate officers, duly
adopted by TPRS, TPR Curacao and TPR Netherlands, authorizing their
respective execution, delivery and performance of the Transaction Documents
to which they are a party and the consummation of all transactions
contemplated by the Transaction Documents;
(c) certificates as to the good standing (or other certificates
relating to the right to do business) of TPRS, from each jurisdiction in
which TPRS is required to be qualified to do business;
(d) such instruments of conveyance of the TPRS Exchange Shares
reasonably requested by WPS Ltd. in order to effect the transfer to WPS
Ltd. of the TPRS Exchange Shares;
(e) articles of association and by-laws (or other organizational
documents) of TPRS, TPR Curacao and TPR Netherlands, certified to be true
and complete as of the Closing Date by their corporate secretaries;
(f) a certificate of incumbency with respect to each officer of TPRS,
TPR Curacao and TPR Netherlands who has executed any of the Transaction
Documents on behalf of such Person; and
(g) such other documents relating to the transactions contemplated by
the Transaction Documents as WPS Ltd. reasonably requests.
7.7 Due Diligence. WPS Ltd. shall have obtained from TPRS, TPR Curacao
and TPR Netherlands copies of any and all corporate documents, audit reports,
financial statements, Permits, applications for Permits, contracts and all other
information or documents requested by WPS Ltd., and WPS Ltd. shall, upon the
review thereof, deem that such items and information fully meet WPS Ltd.'s
satisfaction in its sole and absolute discretion.
ARTICLE 8
INDEMNIFICATION
8.1 Survival of Representations, etc. All statements contained in the
TPRS Disclosure Schedules or in any certificate or instrument or conveyance
delivered by or on behalf of the respective parties pursuant to this Agreement
or in connection with the transactions contemplated hereby shall be deemed to be
representations and warranties by the applicable parties hereunder. The
representations and warranties of WPS Ltd. and the TPR Indemnitors contained
herein or in any instrument delivered pursuant to this Agreement shall, without
regard
14
to any investigation made by any of the parties hereto, survive the Closing Date
for a period of eighteen months, other than those representations and warranties
set forth in Sections 4.1, 4.3, 4.4, 4.5, 4.6, 5.1, 5.2 and 5.3 which shall
survive the Closing Date for the period of any applicable statute of limitations
(after giving effect to any extensions or waivers thereof). Anything to the
contrary contained in this Agreement notwithstanding, the termination or
expiration of any representation or warranty or indemnification obligation under
this Article 8 shall not affect any claims made in writing by any Indemnified
Party hereunder prior to such expiration or termination. All covenants and
agreements of the parties contained in this Agreement shall survive the Closing
Date.
8.2 Indemnification.
(a) In addition to any other right or remedy available to WPS Ltd. at
law or in equity and subject to Section 8.2(c) or (d) hereof, (i) TPR
Netherlands and the Permitted TPR Assignees who shall have received WPS
Ltd. Exchange Shares on or after the Closing Date (collectively the "TPR
Indemnitors") shall jointly and severally indemnify WPS Ltd. and its
Affiliates, Representatives and successors and permitted assigns
(collectively, the "WPS Ltd. Indemnitees') against, and hold each WPS Ltd.
Indemnitee harmless from, any diminution in value, demand, damage, claim,
action, cause of action, deficiency, fine, liability, Tax or other loss or
expense including, without limitation, interest, penalties and attorneys'
fees and expenses (collectively, "Damages") arising out of or resulting
from any inaccuracy, misrepresentation or breach of any representations or
warranties made by the TPR Indemnitors contained in any of the Transaction
Documents or the nonfulfillment of any covenant or agreement of the TPR
Indemnitors contained in any of the Transaction Documents, including any
Damages arising out of transactions entered into or events occurring prior
to the Closing.
(b) In addition to any other right or remedy available to TPR
Netherlands at law or in equity, WPS Ltd. shall indemnify TPR Netherlands
and its Affiliates Representatives and successors and permitted assigns
(collectively, the "TPR Indemnitees") against, and hold each TPR Indemnitee
harmless from any Damages arising out of or resulting from any inaccuracy,
misrepresentation or breach of any representations or warranties of WPS
Ltd. contained in any of the Transaction Documents or the nonfulfillment of
any covenant or agreement of WPS Ltd. contained in any of the Transaction
Documents, including any Damages arising out of transactions entered into
or events occurring prior to the Closing.
(c) None of the WPS Ltd. Indemnitees shall be entitled to
indemnification for Damages incurred unless the cumulative aggregate amount
of Damages incurred by the WPS Ltd. Indemnitees under this Agreement
exceeds $100,000 (the "Basket Amount"); provided, however, that in the
event that the cumulative aggregate amount of all Damages incurred by the
WPS Ltd. Indemnitees exceeds the Basket Amount, the TPR Indemnitors shall
be required to indemnify the WPS Ltd. Indemnitees for all Damages for which
the TPR Indemnitors have an indemnity obligation as provided in Section
8.2(a) hereof, including all amounts up to the Basket Amount (without
giving effect for purposes of measuring the amount of any Damage to any
materiality limitations included in any representation, warranty or
covenant). The cumulative aggregate indemnity obligation of the TPR
Indemnitors under this Section 8.2 shall not exceed $12,500,000.
15
(d) From and after the closing of the TPR Acquisition, (i) WPS Ltd.
shall at its option be entitled to enforce the entire indemnity obligation,
if any, of the TPR Indemnitors solely against the TPR Indemnitors other
than TPR Netherlands, and (ii) such other TPR Indemnitors shall have no
right of contribution from, or subrogation against, TPR Netherlands.
The term "Damages" as used in this Section 8.2 is not limited to
matters asserted by any Persons against WPS Ltd. or TPR Netherlands, but
includes Damages incurred or sustained thereby in the absence of claims by other
Persons.
8.3 Indemnification Procedures.
(a) Notice of Claim. Any Person making a claim for indemnification
pursuant to Section 8.2 (an "Indemnified Party") must give any party hereto
from whom indemnification is sought (an "Indemnifying Party") written
notice of such claim (an "Indemnification Claim Notice") promptly after the
Indemnified Party receives any written notice of any action, lawsuit,
proceeding, investigation or other claim or potential claim (a
"Proceeding") against or involving the Indemnified Party by any government
entity or other Person or otherwise discovers or becomes aware of the
liability, obligation or facts giving rise to such claim for
indemnification; provided that the failure to notify or delay in notifying
an Indemnifying Party will not relieve any Indemnifying Party of its
obligations pursuant to Section 8.2.
(b) Control of Defense. With respect to the defense of any Proceeding
against or involving an Indemnified Party in which a governmental entity or
other Person in question seeks only the recovery of a sum of money for
which indemnification is provided, at its option an Indemnifying Party may
appoint as lead counsel of such defense any legal counsel selected by the
Indemnifying Party; provided that before the Indemnifying Party assumes
control of such defense it must first:
(i) enter into an agreement with the Indemnified Party (in form
and substance satisfactory to the Indemnified Party) pursuant to which
the Indemnifying Party agrees to be fully responsible (with no
reservation of any rights other than the right to be subrogated to the
rights of the Indemnified Party) for all Damages relating to such
Proceeding and unconditionally guarantees the payment and performance
of any liability or obligation which may arise with respect to such
Proceeding or the facts giving rise to such claim for indemnification;
and
(ii) furnish the Indemnified Party with reasonable assurance that
the Indemnifying Party has the financial capacity to defend such
Proceeding and to satisfy any such liability.
(c) Control of Defense: Exceptions, etc. The Indemnified Party will be
entitled to participate in the defense of such claim and to employ counsel
of its choice for such purpose at its own expense (provided that the
Indemnifying Party will bear the reasonable fees and expenses of such
separate counsel incurred prior to the date upon which the Indemnifying
Party effectively assumes control of such defense pursuant to
16
Section 8.3(b)). The Indemnifying Party will not be entitled to assume
control of the defense such claim, and will pay the fees and expenses of
legal counsel retained by the Indemnified Party, if:
(i) the Indemnified Party reasonably believes that an adverse
determination of such Proceeding could be detrimental to or injure the
Indemnified Party's reputation or future business prospects,
(ii) the Indemnified Party reasonably believes that there exists
or could arise a conflict of interest which, under applicable
principles of legal ethics, could prohibit a single legal counsel from
representing both the Indemnified Party and the Indemnifying Party in
such Proceeding, or
(iii) the Indemnifying Party has failed or is failing to prosecute
or defend vigorously such claim.
The Indemnifying Party must obtain the prior written consent of the Indemnified
Party (which the Indemnified Party will not unreasonably withhold) prior to
entering into any settlement of such Proceeding or ceasing to defend such
Proceeding.
8.4 No Right of Contribution. After the Closing, TPRS shall not have
any liability to indemnify the TPR Indemnitees on account of a misrepresentation
or the breach of any representation or warranty or the nonfulfillment of any
covenant or agreement of TPR Netherlands; and the TPR Indemnitors shall have no
right to seek contribution against TPRS.
ARTICLE 9
MISCELLANEOUS
9.1 Termination. This Agreement may be terminated at any time prior to
the Closing:
(a) by written agreement of WPS Ltd. and TPR Netherlands;
(b) by WPS Ltd., if TPR Netherlands is in breach of any of its
obligations pursuant to the Transaction Documents or if any representation
or warranty of the TPR Indemnitors contained therein is false or misleading
in any material respect (provided that such condition is not the result of
any breach of any covenant, representation or warranty of WPS Ltd. set
forth in any Transaction Document); or
(c) by TPR Netherlands, if WPS Ltd. is in breach of its obligations
pursuant to the Transaction Documents or if any representation or warranty
of WPS Ltd. contained therein is false or misleading in any material
respect (provided that such condition is not the result of any breach of
any covenant, representation or warranty of the TPR Indemnitors set forth
in this Agreement or in any of the other Transaction Documents).
17
Any termination of this Agreement pursuant to clause (b) or (c) will be
effected by written notice from the terminating party or parties to the other
parties. Any termination of this Agreement pursuant to clause (b) or (c) will
not terminate the liability of any party hereto for any willful failure to have
performed any of its obligations hereunder or for any knowing misrepresentation
made thereby as to any matter set forth in this Agreement or any other
Transaction Document which exists at the time of such termination.
9.2 Assignment. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by either party without the prior written
consent of the other party; provided, however, that TPR Netherlands may assign
its right to receive WPS Ltd. Exchange Shares hereunder to any Permitted TPR
Assignee if such Permitted TPR Assignee has executed and delivered to WPS Ltd. a
written undertaking by which it agrees to be bound by the terms of this
Agreement and the Stock Restriction Agreement and provided further that WPS Ltd.
may assign its right to receive TPRS Exchange Shares hereunder to any Permitted
WPS Ltd. Assignee. Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, and no other Person shall have any right, benefit or
obligation hereunder.
9.3 Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to the other
shall be in writing and delivered in person or by courier or by facsimile
transmission or mailed by certified mail, postage prepaid, return receipt
requested, as follows:
If to TPR Netherlands:
TPR & Partners N.V.
WTC Amsterdam Airport
Schiphol Xxxxxxxxx 000
0000 XX XXXXXXXX XXXXXXX
Xxx Xxxxxxxxxxx
Telephone: (31) (00) 000-0000
Facsimile: (31) (00) 000-0000
With a copy to: Houthoff Buruma
Xxxxx 000
X.X. Xxx 0000
0000 XX Xxxxxxxxx
Attention: Xxxxxxx X.X. Xxxxxxxx
Telephone: 000-00-00-000-0000
Facsimile: 011-31-10-217-2701
If to WPS Ltd.: X.X. Xxxxxxx & Co., Ltd.
Xxxxxxx Xxxx, 00 Xxxxx Xxxxxx
P.O. Box HM 2905
Xxxxxxxx XX LX
Bermuda
Attention: Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18
With a copy to: Xxxxxx & Whitney LLP
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxx X. Xxxx, III, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
All such notices, requests, instructions, documents and other
communications will (i) if delivered personally to the address as provided in
this Section 9.3, be deemed given upon delivery, (ii) if delivered by facsimile
transmission to the facsimile number as provided in this Section 9.3, be deemed
given upon receipt, and (iii) if delivered by mail in the manner described above
to the address as provided in this Section 9.3, be deemed given upon receipt (in
each case regardless of whether such notice is received by any other Person to
whom a copy of such communication is to be delivered pursuant to this Section
9.3).
9.4 Choice of Law: Choice of Forum. This Agreement shall be construed
and interpreted and the rights of the parties hereto shall be determined in
accordance with the laws of Bermuda, without giving effect to any choice of law
or conflict provision or rule (whether of Bermuda or any other jurisdiction)
that would cause the laws of any jurisdiction other than Bermuda to be applied.
In furtherance of the foregoing, the internal law of Bermuda will control the
interpretation and construction of this Agreement, even if under such
jurisdiction's choice of law or conflict of law analysis, the substantive law of
some other jurisdiction would ordinarily apply. Each of the parties hereto
consents that any legal action or proceeding related to this Agreement may be
brought in any appropriate court in Bermuda or The Netherlands and waives any
objection that it may now or hereafter have to the venue of any such action.
9.5 Entire Agreement, Amendments and Waivers. This Agreement, together
with all exhibits and schedules hereto (which form a part of this Agreement and
are incorporated into this Agreement for all purposes), constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. No supplement, modification or waiver
of this Agreement shall be binding unless executed in writing by the party to be
bound thereby. No waiver of any of the provisions of the Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar), nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
9.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.7 Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein shall,
for any reason, be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or any other such instrument.
19
9.8 Headings. The headings of the Articles and Sections herein 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.
9.9 Singulars and Plurals. All references to the plural herein shall
also mean the singular and to the singular shall also mean the plural, in each
case, as applicable.
9.10 Expenses. Except as otherwise provided herein, the TPR Indemnitors
shall be responsible for the TPR Expenses, and WPS Ltd. shall be responsible for
the WPS Ltd. Expenses.
9.11 Publicity. Unless required to do so by applicable law or legal
process, prior to the Closing Date no party hereto shall issue any press release
or make any public statement regarding the Transaction Documents or the
transactions contemplated thereby without the prior written approval of the
other party (which approval may not be unreasonably withheld or delayed). If
prior to the Closing Date any party hereto is required by law or legal process
to make any public statement regarding the Transaction Documents or the
transactions contemplated thereby, such party must first provide to the other
parties the content of the proposed public statement, the reasons that such
disclosure is required by law or legal process, and the time and place that the
public statement will be made, in each case to the extent permitted by law or
legal process and to the extent reasonably practicable.
9.12 Remedies. No failure to exercise, and no delay in exercising, any
right, remedy, power or privilege under this Agreement by any party hereto will
operate as a waiver of such right, remedy, power or privilege, nor will any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise of such right, remedy, power or
privilege or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges provided pursuant to this Agreement are
cumulative and not exhaustive of any other rights, remedies, powers and
privileges which may be provided by law.
9.13 Confidential Information. The parties hereto acknowledge that the
transactions contemplated by the Transaction Documents are of a confidential
nature. Each party hereto further acknowledges that, in connection with the
negotiation of the Transaction Documents and the preparation for the
consummation of the transactions contemplated thereby, it will have access to
confidential information relating to the other parties. The Parties hereto agree
that they will treat as confidential, will not duplicate (except to their
respective Representatives in connection with the transactions contemplated by
the Transaction Documents) or use, and will maintain the confidentiality of (and
will use their respective best efforts to cause and be responsible for the
Representatives of such party to maintain the confidentiality of), any written,
oral, or other information obtained from the other parties in connection with
the Transaction Documents or the transactions contemplated thereby, unless (a)
such information is already known to such party or to others not bound by a duty
of confidentiality or such information becomes publicly available through no
fault of such party, (b) the use of such information is necessary or appropriate
in making any filing or obtaining any consent or approval required for the
consummation of the transactions contemplated by the Transaction Documents, or
(c) the furnishing or use of such information is required by applicable law or
legal process. In the event of the termination of this Agreement for any reason
whatsoever, each party hereto shall
20
destroy or return to the other such other party's documents, work papers and
other material (including all copies thereof) obtained in connection with the
transactions contemplated by the Transaction Documents and will keep
confidential (and will so instruct and be responsible for its Representatives
and others who have had access to confidential information) and will not use any
such information, unless such information is now, or is hereafter, disclosed
through no act or omission of such party, in any manner making it available to
the general public.
9.14 Effective Time. The parties agree that notwithstanding the actual
Closing Date, the transactions contemplated by the Transaction Documents shall
be deemed to have been consummated at the close of business on the Effective
Date.
9.15 Further Assurances. On and after the Closing Date, each party will
take all appropriate action and execute all documents, instruments or
conveyances of any kind which may be reasonably necessary or advisable to carry
out any of the provisions hereof.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY
LEFT BLANK. SIGNATURE PAGES FOLLOW.
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this Agreement to be duly executed on their behalf by their
respective officers thereunto duly authorized, as of the day and year first
above written.
X.X. XXXXXXX & CO. LTD.
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Finance Director
TPR & PARTNERS, N.V.
By: /s/ Xxxxx Xxx X. Xxxxxxx
-------------------------------
Name: Xxxxx Xxx X. Xxxxxxx
Title: Managing Director
EXHIBIT A
STOCK RESTRICTION AGREEMENT
STOCK RESTRICTION AGREEMENT, dated as of December __, 2000 (the
"Agreement") between X.X. Xxxxxxx & Co. Ltd., a Bermuda company ("WPS Ltd") and
_________________________________________________(the "Shareholder").
RECITALS
In accordance with the terms of the Share Exchange Agreement, dated as
of December 29, 2000, between WPS Ltd and TPR & Partners, N.V., a corporation
organized under the laws of the Netherlands ("TPR Netherlands") (the "Share
Exchange Agreement"), WPS Ltd has issued, or there have been assigned, to the
TPR Owners (as defined below) the WPS Ltd. Exchange Shares (as defined in the
Share Exchange Agreement); and
In order to induce WPS Ltd to issue the WPS Ltd Exchange Shares and to
satisfy a condition to the consummation of the transactions contemplated by the
Share Exchange Agreement, the TPR Owners are willing to agree to certain
restrictions on the transfer of the WPS Ltd. Exchange Shares and to provide for
certain circumstances under which the WPS Ltd. Exchange Shares will be subject
to automatic repurchase, on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the covenants and conditions
contained herein and in the Share Exchange Agreement, the parties hereto agree
as follows:
ARTICLE 1
DEFINITIONS
1.1. Share Exchange Agreement Defined Terms. Terms defined in the Share
Exchange Agreement shall when used herein, have the meanings ascribed to them in
the Share Exchange Agreement.
1.2. Other Defined Terms. When used in this Agreement, the following
terms shall have the following meanings:
"2001 Vesting Date" shall mean July 1, 2001.
"2002 Vesting Date" shall mean July 1, 2002.
"2003 Vesting Date" shall mean July 1, 2003.
"2004 Vesting Date" shall mean July 1, 2004.
"Anniversary Shortfall" shall mean as of any Vesting Date the amount,
if any, by which (i) the sum of (x) the Market Adjusted Value of the TPRS
Retained Accounts as of such Vesting Date (including the Market Adjusted Value
of any Eligible Additional Contributions to
1
all Original TPRS Accounts and Eligible New TPRS Accounts included in the TPRS
Retained Accounts as of such date) plus (Y) the Market Adjusted Value of the
Fund Assets Under Management as of such Vesting Date is less than (ii) the sum
of (x) the value of the Original TPRS Accounts as of the Closing Date (as set
forth on Schedule A attached hereto) plus (y) the value of the Fund Assets Under
Management as of the Closing Date (as set forth on Schedule A attached hereto).
"Annual Vesting Installment" shall mean a number of WPS Exchange Shares
equal to twenty (20%) percent of the total number of WPS Ltd Exchange Shares.
"Eligible Additional Contribution" shall mean an additional
contribution made after the Closing Date to either an Original TPRS Account or
an Eligible New TPRS Account, subject in each case to the following conditions:
(i) each such contribution shall be eligible to be included in the accounts with
respect to which fees are payable to TPRS under the TPRS Fee Agreements and (ii)
each TPR Owner shall have confirmed that neither it nor any of its affiliates is
entitled to any split of investment advisory, management or performance fees
with respect to such additional contribution under any other fee sharing
agreement to which either is a party.
"Eligible New TPRS Account" shall mean each new client account that at
any time subsequent to the Closing Date becomes an account that (i) is eligible
to be included in the accounts with respect to which fees are payable to TPRS
under the TPRS Fee Agreements, (ii) is established by and for an individual that
is a lawful permanent resident of the Netherlands or an entity organized under
the laws of the Netherlands and (iii) each TPR Owner shall have confirmed that
neither it nor any of its affiliates is entitled to any split of investment
advisory, management or performance fees with respect to such account under any
other fee sharing agreement to which either is a party.
"Fund Assets Under Management" shall mean the assets under management
of X.X. Xxxxxxx Holdings NV (or any affiliate of X.X. Xxxxxxx NV to whom such
assets are assigned) or any successor of X.X. Xxxxxxx Holdings NV (or any
affiliate of such successor to whom such assets have been assigned).
"Market Adjusted Value" when used with respect to the Fund Assets Under
Management or an Original TPRS Account or an Eligible New TPRS Account (and
including any Eligible Additional Contribution to an Eligible New TPRS Account
or Original TPRS Account) shall mean, as of any date of determination, the value
thereof adjusted to eliminate any change in such value due to increases or
decreases in the market value thereof since the Closing Date (in the case of the
Fund Assets Under Management and an Original TPRS Account), the date of the
establishment of such account (in the case of an Eligible New TPRS Account) or
the date of such additional contribution (in the case of any Eligible Additional
Contribution to an Original TPRS Account or an Eligible New TPRS Account made
after the Closing Date or the date of establishment of the account).
"Original TPRS Account" shall mean each client account that was as of
the Closing Date subject to the TPRS Fee Agreements (as set forth on Schedule B
attached hereto).
"TPR Owners" shall mean each of TPR Netherlands and the Permitted TPR
Assignees, including without limitation the Shareholder, that shall from time to
time be the registered owners of WPS Ltd Exchange Shares.
2
"TPRS Fee Agreements" shall mean the Agreements listed on Schedule C
attached hereto.
"TPRS Retained Account" shall mean any Original TPRS Account or
Eligible New TPRS Account which, as of any Vesting Date, continues to be an
account subject to the TPRS Fee Agreements.
"Vesting Date" shall refer, collectively or individually to each of the
2001 Vesting Date, the 2002 Vesting Date, the 2003 Vesting Date and the 2004
Vesting Date.
"Vested Share" shall mean any TPRS Ltd Exchange Share for which the
applicable Vesting Date has occurred and on such date the automatic repurchase
condition applicable to such Share was not triggered.
ARTICLE 2
VESTING AND AUTOMATIC REPURCHASE PROVISIONS
2.1. Vesting of WPS Ltd Exchange Shares. Twenty (20%) percent of the
WPS Ltd Exchange Shares shall vest on the Effective Date. The remaining WPS Ltd
Exchange Shares shall vest in the following amounts on the following dates:
(i) twenty (20%) percent of the WPS Ltd Exchange Shares shall vest
on the 2001 Vesting Date;
(ii) twenty (20%) percent of the WPS Ltd Exchange Shares shall
vest on the 2002 Vesting Date;
(iii) twenty (20%) percent of the WPS Ltd Exchange Shares shall
vest on the 2003 Vesting Date; and
(iv) twenty (20%) percent of the WPS Ltd Exchange Shares shall
vest on the 2004 Vesting Date.
2.2. Effects of Vesting. Any WPS Ltd Exchange Share that "vested" on a
Vesting Date in accordance with Section 2.1 above and was not repurchased as of
such date in accordance with Section 2.3 below shall, as of the close of
business on the Vesting Date applicable to such Share, cease to be subject to
the repurchase provisions set forth in Section 2.3 below and the transfer
restrictions set forth in Article 3 below.
2.3. Automatic Repurchase Provision.
(a) Automatic Repurchase Condition. On each Vesting Date, the Annual
Vesting Installment eligible for vesting on such date shall be subject to
automatic repurchase by WPS Ltd to the extent provided in subsection (b) of this
Section 2.3, if as of such Vesting Date there exists an Anniversary Shortfall.
(b) Calculation of Repurchased Shares. On any Vesting Date on which the
repurchase condition set forth in subsection (a) of this Section 2.3 was
triggered, WPS Ltd
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Exchange Shares included in the Annual Vesting Installment eligible for vesting
on such date shall be automatically repurchased by WPS Ltd for consideration of
US$.001 per share (payable in accordance with Section 2.3(c) below) in an amount
determined by multiplying (i) the total number of WPS Ltd Exchange Shares
included in such Annual Vesting Installment by (ii) a fraction the numerator of
which shall be the Anniversary Shortfall applicable to such Vesting Date and the
denominator of which shall be the sum of (x) the value of the Original TPRS
Accounts as of the Closing Date plus (y) the value of the Fund Assets Under
Management as of the Closing Date. Any shares automatically repurchased by WPS
Ltd. on any Vesting Date in accordance with this Agreement shall be deemed
repurchased as of such Vesting Date without the requirement, as between the
parties, of any action by WPS Ltd, the TPR Owners or any other Person.
(c) Prepayment of Repurchase Consideration. WPS Ltd has paid to the TPR
Owners on the date hereof, and by executing this Agreement the TPR Owners
acknowledge receipt of, an amount equal to US$814 as prepayment by WPS Ltd in
full of the consideration for the repurchase of all WPS Ltd Exchange Shares in
accordance with this Agreement. The TPR Owners agree that they will, upon the
written request of WPS Ltd delivered after the 2004 Vesting Date, remit to WPS
Ltd any portion of such amount that has not been applied to the repurchase of
WPS Ltd Exchange Shares hereunder.
(d) Pro Ration. The WPS Ltd Exchange Shares of each TPR Owner shall be
subject to the vesting and repurchase provisions of this Article 2 on a
proportional basis.
ARTICLE 3
TRANSFER RESTRICTIONS AND LEGENDS
3.1. Transfer Restrictions. Except as permitted by Section 3.3 below,
no WPS Ltd Exchange Share may be sold, assigned, transferred or hypothecated
until such Share has become a Vested Share.
3.2. Legends. Each WPS Ltd Exchange Share shall bear the following
legend at all times prior to the date on which such Share becomes a Vested
Share:
"The shares represented by this certificate are subject
to a Stock Restriction Agreement dated as of December
__, 2000, which provides for certain restrictions on
transfer and sets forth certain circumstances in which
these shares will be subject to repurchase by the
Company. A copy of such Stock Restriction Agreement may
be obtained by the Holder hereof at the Company's
principal place of business without charge. The Vesting
Date (as defined in such Agreement) applicable to the
shares represented by this certificate is _____________.
3.3. Permitted Transfers. Notwithstanding any provision to the contrary
herein, each TPR Owner shall be permitted to transfer WPS Ltd Exchange Shares to
any Permitted TPR Assignee, and any Permitted TPR Assignee may in turn transfer
WPS Ltd Exchange Shares owned by it to another Permitted TPR Assignee, if, but
only if, each of the following conditions precedent have been satisfied with
respect to each such transfer:
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(i) the transferee in the proposed transfer shall have executed a
written undertaking acknowledging notice of, and agreeing to be bound by,
the terms of (x) this Agreement applicable to the TPR Owners and (y) the
transfer restrictions set forth in Section 5(b) of that certain
Underwriting Agreement, dated December 7, 2000, among WPS Ltd., TPR
Netherlands and other Selling Shareholders named therein and Xxxxxxx, Sachs
& Co. and certain other Underwriters named therein;
(ii) the transferee in the proposed transfer (unless such
tranferee is an Affiliate of TPR Netherlands as of the date of the Share
Exchange Agreement) shall have executed a written guaranty pursuant to
which such transferee will agree to guaranty (on a basis in which recourse
is strictly limited to the WPS Ltd Exchange Shares received by such
transferee) any liability that the TPRS Owner involved in such transfer may
have to WPS Ltd under the indemnification provisions set forth in Article 8
of the Share Exchange Agreement;
(iii) the transferee in the proposed transfer (provided that such
transferee is an Affiliate of TPR Netherlands as of the date of the Share
Exchange Agreement) shall have executed a written undertaking to be bound
by the Share Purchase Agreement as a TPR Indemnitor; and
(iv) the transferee in the proposed transfer will authorize the
Agent (as defined below) to retain physical possession of the certificates
representing the WPS Ltd Exchange Shares owned by such transferee in
accordance with the provisions of this Agreement.
ARTICLE 4
APPOINTMENT OF AGENT WITH RESPECT TO
UNVESTED SHARES OWNED BY PERMITTED TPR ASSIGNEE TRANSFEREES
4.1. Appointment of Agent. The TPR Owners hereby appoint TPR
Netherlands as the agent (the "Agent") to retain physical possession of all
certificates representing WPS Ltd Exchange Shares that have been transferred to
a Permitted TPR Assignee until such shares become Vested Shares in accordance
with the terms of this Agreement.
4.2. Rights. Notwithstanding the physical possession by the Agent of
any WPS Ltd Exchange Shares owned by a Permitted TPR Assignee, (i) such
Permitted TPR Assignee shall be the registered, record owner of all WPS Ltd
Exchange Shares owned by it, (ii) all voting or consensual rights relating to
such WPS Ltd Exchange Shares may be exercised by such Permitted TPR Assignee and
(iii) such Permitted TPR Assignee shall have the right to receive all dividends
or other distributions made in respect of the WPS Ltd Exchange Shares owned by
it.
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ARTICLE 5
MISCELLANEOUS
5.1. Notices. Any notice hereunder to a party shall be deemed to be
properly served if in writing and delivered or mailed to, in the case of WPS Ltd
(with a contemporaneous copy by facsimile transmission):
in the case of.
X.X. Xxxxxxx & Co., Ltd.
Xxxxxxx Xxxx
00 Xxxxx Xxxxxx
P.O. Box 2905
Xxxxxxxx XX LX
Bermuda
Attention: Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
in the case of the TPR Owners:
TPR & Partners N.V.
WTC Amsterdam Airport
Schipholboulevard 189
1118 BG Schiphol Airport
The Netherlands
Attention: Xx. Xxxxx X. Xxxxxxx
Telephone No.: 000-00-00-000-00-00
Telecopy No.: 011-31-20-316-41-14
or to such other address as may have been furnished in writing by such party to
the other parties to this Agreement, and shall be deemed to have been given as
of the time delivered or mailed registered or certified mail, postage paid.
5.2. Prior Agreements; Modifications; Waivers. This Agreement shall
supersede all other prior agreements, documents or other instruments with
respect to the matters covered hereby. This Agreement may be amended or modified
at any time by written agreement of the parties hereto, at any time before or
after approval thereof by the stockholders of either or both constituent
corporations.
5.3. Captions. The captions in this Agreement are for convenience only
and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
5.4. Governing Law; Jurisdiction; Choice of Forum. This Agreement shall
be governed by and construed under and in accordance with the laws of Bermuda
without reference to choice of law provisions thereof. Each of the parties
hereto consents that any legal action or proceeding related to this Agreement
may be brought in any appropriate court in Bermuda or
6
The Netherlands and waives any objection that it may now or hereafter have to
the venue of any such action.
5.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall constitute an original copy
hereof.
THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY
LEFT BLANK. SIGNATURE PAGES FOLLOW.
7
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed by its duly authorized officers as of the date first
above written.
X.X. XXXXXXX & CO., LTD.
By:
-----------------------------
Name: Xxxxx Xxxxx
Title: Finance Director
TPR & PARTNERS N.V.
By:
-----------------------------
Name: Xxxxx Xxx X. Xxxxxxx
Title: Managing Director
SCHEDULE A TO STOCK
RESTRICTION AGREEMENT
---------------------
Value of Original
TPRS Accounts
as of Closing Date $ 539,141,689
Value of Fund Assets
Under Management as
of Closing Date $ 474,302,000
SCHEDULE B TO STOCK
RESTRICTION AGREEMENT
---------------------
[SEE ATTACHED LIST OF ORIGINAL TPRS ACCOUNTS]
SCHEDULE C TO STOCK
RESTRICTION AGREEMENT
---------------------
1. Agreement dated July 1, 1998 by and between TPR Netherlands and WPS as
amended by a first amendment thereto dated December 31, 1998.
2. Agreement dated July 1, 1998 by and between TPR Netherlands and X.X. Xxxxxxx
Asset Management Ltd., as amended by a first amendment thereto dated
December 31, 1998.
