EXHIBIT 2.3
Agreement No. 3
entered into this day of 7 May 1999 between:
Xxxxxx RCI "Xxxxxx", its parent River Holding Corp. "River" and/or its
affiliates, (collectively the "Purchaser", as the context may require); and
Forsakrings AB Skandia and Livforsakrings AB Skandia, (the "Seller")
jointly hereinafter referred to as the Parties;
WHEREAS: the Purchaser intends to initiate a public cash offer in
accordance with the NBK Take-over-Recommendation (the "Offer", and "to Offer",
as the context may require) to acquire all outstanding shares in Xxxxx Xxxxxx AB
(the "Company") at an offer price of SEK 115 per share for the B-shares and the
A-shares in the Company (the "Offer Price"); such intention to Offer to be
publicly announced soonest hereafter and no later than on May 17, 1999 before
Stockholm Stock Exchange open.
WHEREAS: the Seller is the owner of 15.000 A-shares and 507.300 B-shares
in the Company (the "A-shares", and the "B-shares", respectively, and jointly
the "Shares");
WHEREAS: the Seller is positive to the contemplated Offer and is willing
to commit to tender its shares in the Offer if and when made in accordance with
the Parties' understanding herein.
Now therefore the Parties have agreed as follows.
1. The Seller hereby irrevocably undertakes to tender and sell its A-
shares and B-shares in the Offer, subject to and in accordance with the below
terms and conditions:
(i) The Seller's undertaking to so tender its A-shares and B-shares
shall be subject to the intention to Offer being publicly announced, no later
than on May 17, 1999.
(ii) The Parties recognise that the Purchaser's intention to announce
and make the Offer is subject to an undertaking to tender being obtained prior
to such contemplated announcement from Xxxx Xxxxxx and Euroventures Nordica I
B.V., as well as an undertaking from Xxxx Xxxxxx to exchange his A-shares into
shares in Riven or under certain circumstances sell (Xxxx Xxxxxx, Xxxx Xxxxxx
and Euroventures Nordica I B.V. jointly referred to as the "Other Main
Sellers").
(iii) The intention to Offer shall be publicly announced by way of a
press release. Accordingly, the Seller recognises that the Purchaser's
obligation to make the Offer shall be subject to the following conditions,
namely:
(a) that the Offer will be accepted by shareholders -- including
the Seller and the Other Main Sellers -- to an extent whereby the Purchaser will
obtain shares representing more than 90% of the votes and 90% of the capital in
the Company; such condition however being waivable by the Purchaser (the
"Minimum Condition");
(b) that the obligation the Offer is subject to the Purchaser
arranging satisfactory financing for the aggregate amount of cash pursuant to
the Offer, such Offer condition to be waivable by the Purchaser (the "Financing
Condition"); such Financing Condition, however, vis-a-vis the Seller must be
satisfied on or before 21 June 1999, to the effect that the Seller shall no
longer be obliged to sell his A-shares and his B-shares hereunder, should such
Financing Condition not have been waived prior to such date;
(c) that antitrust and other regulatory consents (if any) be
obtained (the "Regulatory Condition");
(d) that the acquisition, prior to the public announcement that
the Offer is being completed, is not rendered partly or wholly impossible or
significantly impeded as a result of legislation, a court ruling, any decision
of a public authority or by comparable circumstances in Europe, the US or
Malaysia, as is reasonably likely at the time of such determination to become
effective, or by any other circumstance beyond the Purchaser's control (the
"Material Adverse Change Condition");
(e) that the Purchaser will be allowed to conduct confirmatory
due diligence in respect of the Company and its business and will be satisfied
that the result of such due diligence shall be consistent in all material
respects, in relation to the Company taken as a whole, with information related
to the Company previously provided to the Purchaser as to the condition,
financial and otherwise, of the Company's business, operating results, assets,
liabilities and prospects (The "Due Diligence Condition"). The Due Diligence
Condition must be exercised reasonably and disregard any impact resulting
primarily from the Offer itself.
2. The Purchaser, subject to the conditions referred to under 1(iv)(a)-
(e) above, undertakes to prepare, register and make publicly available an Offer
Document Prospectus (the "Prospectus") -- thereby implementing the Offer and
opening up its acceptance period in accordance with relevant Swedish regulation
-- no later than on 21 June 1999. The Purchaser agrees that the Offer so made
by virtue of the Prospectus will not remain subject to the Financing Condition
or the Due Diligence Condition.
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3. The Seller is aware of the Agreement between the Purchaser and Xxxx
Xxxxxx for the exchange of his shares of the Company into shares in River, and
has no objection as to the different consideration offered to him.
4. The Parties agree to cooperate in good faith and agree to make any
required filing and any public announcements concerning this Agreement and the
transactions referred to herein. The Seller specifically agrees that his
undertaking to accept the Offer in respect of its Shares may be made public in
the press release to be issued by the Purchaser.
5. The Seller will not encourage any third party to proceed with any
public offer for shares in the Company or with a private purchase of any such
shares, to the effect inter alia that the Seller will not assist in the
provision of any non-public information related to the Company to any such third
party. Should the Seller be approached by a third party for such purpose, the
Seller will promptly inform the Purchaser.
6. This Agreement is governed by Swedish law and any disputes shall be
settled by arbitration in Stockholm in accordance with the Swedish Arbitration
Act.
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Dated this 7 day May 1999
/s/ /s/
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Forsakrings AB Skandia Xxxxxx RCI
/s/ /s/
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Livforsakrings AB Skandia River Holding, Inc.
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