EXHIBIT 10.5
SHARE PURCHASE AGREEMENT
This Share Purchase Agreement (this "AGREEMENT") is made and entered
into as of November 14, 2003 by and between Resolution Holdings B.V., a Dutch
corporation (the "SELLER") and Mitsubishi Chemical Corporation, a Japanese
corporation (the "PURCHASER," Seller and Purchaser hereinafter referred to each
as the "PARTY," and together as the "PARTIES").
AGREEMENT
The Parties hereby agree as follows:
1. TRANSFER AND SALE
Subject to the terms and conditions of this Agreement, Seller agrees
to transfer and sell nine hundred sixty thousand (960,000) shares of common
stock (the "SHARES") of Japan Epoxy Resins Co., Ltd. (the "COMPANY") to
Purchaser, and Purchaser agrees to purchase the Shares from Seller, as of the
Closing Date (as defined below), and pay a purchase price of Two Billion Five
Hundred Million Japanese Yen ((Y)2,500,000,000) (the "PURCHASE PRICE") in
immediately available funds at the Closing (as defined below). The Purchase
Price shall be paid in Japanese Yen by wire transfer of immediately available
funds to the account specified in Exhibit A attached hereto on the Closing
Date.
2. CLOSING
(a) CONDITIONS TO CLOSING
Unless waived by the Party requiring satisfaction of the condition,
the following shall be completed on or prior to the transfer and sale of the
Shares pursuant to this Agreement (the "CLOSING"):
(i) Purchaser and Seller shall have executed the new joint
venture agreement, in the form attached hereto as Exhibit B (the "2003 JVA");
(ii) Company and Resolution Research Nederland B.V., a
wholly owned subsidiary of Seller, ("RRN") shall have executed the new
technology license agreement, in the form attached hereto as Exhibit C (the
"2003 TECHNOLOGY LICENSE AGREEMENT") and the new trademark license agreement,
in the form attached hereto as Exhibit D (the "2003 TRADEMARK LICENSE
AGREEMENT");
(iii) Company and Resolution Japan K.K., a wholly owned
subsidiary of Seller, ("RJKK") shall have executed the new human resources
management service agreement, in the form attached hereto as Exhibit E (the
"2003 HR MANAGEMENT SERVICE AGREEMENT");
(iv) Purchaser, Seller and the Company shall have executed
an acknowledgement regarding (x) the Lease Agreements between Purchaser and the
Company dated June 30, 1979, August 1, 1979, July 1, 1982 and August 1, 1986,
and (y) the Services and Utilities Agreement between Purchaser and the Company
dated June 22, 1979, in the form attached hereto as Exhibit F (the
"ACKNOWLEDGEMENT");
(v) Purchaser, RJKK and the Company shall have executed
Amendment No. 4 to the Secondment Agreement among Purchaser, RJKK and the
Company dated May 24, 1979 as amended from time to time (the "SECONDMENT
Agreement") in the form attached hereto as Exhibit G ("AMENDMENT NO. 4 TO THE
SECONDMENT AGREEMENT");
(vi) Seller shall have caused all directors of the Company
nominated by Seller (Daisaku Higo, Xxxxx Xxxx, Xxxxxxxx Xxxxxxxx and Xxxxxxx
Xxxxxx, collectively, the "RPP DIRECTORS") to sign (x) resignation letters in
the form attached hereto as Exhibit H (the "RESIGNATION LETTER") and (y)
secrecy declarations in the form attached hereto as Exhibit I (the "SECRECY
DECLARATIONS");
(vii) Each of the representations and warranties of the
other Party contained in this Agreement shall be true in all material respects
when made and as of the Closing Date, with the same effect as though such
representations and warranties had been made on and as of the Closing Date
(except representations and warranties that are made as of a specific date need
be true in all material respects only as of such date); and
(viii) There shall not have been issued or be in effect (x)
any judgment, decree or order issued by any court of competent jurisdiction or
(y) any statute, rule or regulation enacted or promulgated by any legislative,
administrative or regulatory body of competent jurisdiction that prohibits the
consummation of the transactions contemplated hereby or makes such consummation
illegal.
(b) CLOSING DATE; DELIVERY
Subject to Section 2(a) above, the Closing shall occur at the office
of the Purchaser at 00-0, Xxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx, Xxxxx on November
14, 2003 or such other location or date as may be agreed by the Parties (the
"CLOSING DATE"). At the Closing:
(i) Seller shall deliver to Purchaser a certificate or
certificates representing the Shares;
(ii) Seller shall deliver to Purchaser the Resignation
Letters and the Secrecy Declarations; and
(iii) Purchaser shall deliver to Seller a copy of a payment
order issued by the bank to which Purchaser has instructed the remittance of
the Purchase Price pursuant to Section 1 above.
(c) COVENANTS OF SELLER AND/OR PURCHASER
On or before the Closing Date, Seller shall and shall cause RRN or RJKK
to, and Purchaser shall and shall cause the Company to execute the following
agreements necessary for the sale by Seller and purchase by Purchaser of the
Shares and the transfer of the Shares to Purchaser, as the case may be, and to
take any and all other actions required by applicable law:
(i) The 2003 JVA between Seller and Purchaser;
(ii) The 2003 Technology License Agreement and the 2003
Trademark License Agreement between the Company and RRN;
(iii) The 2003 HR Management Service Agreement between the
Company and RJKK;
(iv) The Acknowledgement among Seller, Purchaser and the
Company; and
(v) Amendment No. 4 to the Secondment Agreement among RJKK,
Purchaser and the Company.
On or before the Closing Date, Seller shall cause the RPP Directors to
sign the Resignation Letters and Secrecy Declarations. Promptly after the
Closing, Purchaser shall cause the Company to file an amended Commercial
Registry of the Company reflecting the removal of the RPP Directors with the
appropriate Legal Affairs Bureau having jurisdiction over the Company.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
In connection with the transfer of the Shares to Purchaser, Seller
represents and warrants on the date hereof and on the Closing Date that:
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(a) ORGANIZATION AND GOOD STANDING
Each of Seller, RRN and RJKK (collectively, the "SELLER COMPANIES") is
a company duly organized and validly existing under the laws of its
jurisdiction of incorporation.
(b) AUTHORIZATION
Each of the Seller Companies has all requisite corporate power and
authority to execute, deliver and perform this Agreement, the 2003 JVA and any
other documents to be executed by any of the Seller Companies in connection
with the transactions contemplated hereby. The execution, delivery and
performance of this Agreement, the 2003 JVA and any other documents to be
executed by any of the Seller Companies in connection with the transactions
contemplated hereby have been duly and validly authorized by the board of
directors of each of the Seller Companies and by all other necessary corporate
action on the part of each of the Seller Companies. Each of this Agreement, the
2003 JVA and any other documents to be executed by any of the Seller Companies
in connection with the transactions contemplated hereby constitutes the legally
valid and binding obligation of each of the Seller Companies, enforceable
against each of the Seller Companies in accordance with its terms except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws and equitable principles relating to or
limiting creditors' rights generally.
(c) NO CONFLICTS
The execution, delivery and performance by each of the Seller
Companies of its obligations under this Agreement, the 2003 JVA and any other
documents to be executed by any of the Seller Companies in connection with the
transactions contemplated hereby will not (i) violate, or constitute a breach
or default under, any provision of its memorandum or articles of incorporation
or equivalent constitutional document; (ii) result in a breach of, or give any
third party a right to terminate or modify or result in the creation of any
encumbrance under, any agreement, license or other instrument or of any order,
judgment or decree of any court, governmental agency or regulatory body to
which it is a party or by which it is bound; or (iii) violate any law, statute
or regulation or any injunction, order or decree of any government entity or
court to which any of the Seller Companies is subject except to the extent, in
each case, that such violation would not prohibit or materially impair the
ability of any of the Seller Companies to perform its obligations under such
agreements.
(d) CONSENTS AND APPROVALS
Except as set forth in Schedule 3(d), the execution, delivery and
performance by any of the Seller Companies of this Agreement, the 2003 JVA and
any other documents to be executed by any of the Seller Companies in connection
with the transactions contemplated hereby will not require any consent, waiver,
authorization or approval of, or the making of any filing with or giving of
notice to, any person or entity, except for such consent, waivers,
authorizations or approvals which the failure to obtain could not reasonably be
expected to prohibit or have a material adverse effect on the ability of any of
the Seller Companies to perform its obligations under such agreements.
(e) OWNERSHIP OF SHARES
Seller is the sole record and beneficial owner of the Shares and the
Shares are free and clear of any liens or encumbrances (other than restrictions
on transfer under applicable Japanese laws, the Company's Articles of
Association and the Joint Venture Agreement dated as of September 10, 1999 by
and between the Seller and Purchaser).
(f) NO OTHER REPRESENTATIONS OR WARRANTIES
The sale of the Shares shall be without representation or warranty by
Seller, express or implied, except for the limited representations and
warranties expressly set forth herein. Except for the representations and
warranties contained in this Xxxxxxx 0, xxxx of Seller, any affiliate of
Seller, or any other person or entity (the "SELLER Entities") makes or has been
authorized to make any express or implied representation or warranty, and
Seller Entities hereby disclaim any express or implied representation or
warranty, whether by any Seller Entity or any of their respective
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officers, directors, employees, agents, stockholders, subsidiaries (direct or
indirect), partners, advisors, or representatives or any other person or
entity, in connection with the delivery or disclosure to Purchaser or any of
its officers, directors, employees, agents, advisors or representatives or any
other person or entity of any documentation or other information regarding
Seller Entities or Company. Except for the representations and warranties
contained in Section 4 herein, Seller hereby acknowledges and agrees that
Purchaser makes no representations and warranties whatsoever, express or
implied, with respect to any matter relating to Company or Purchaser.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
In connection with the transfer of the Shares to Purchaser, Purchaser
represents and warrants on the date hereof and on the Closing Date that:
(a) ORGANIZATION AND GOOD STANDING
Purchaser is a company duly organized and validly existing under the
laws of its jurisdiction of incorporation.
(b) AUTHORIZATION
Purchaser has all requisite corporate power and authority to execute,
deliver and perform this Agreement, the 2003 JVA and any other documents to be
executed by Purchaser in connection with the transactions contemplated hereby.
The execution, delivery and performance of this Agreement, the 2003 JVA and any
other documents to be executed by Purchaser in connection with the transactions
contemplated hereby have been duly and validly authorized by the board of
directors of Purchaser and by all other necessary corporate action on the part
of Purchaser. Each of this Agreement, the 2003 JVA and any other documents to
be executed by Purchaser in connection with the transactions contemplated
hereby constitutes the legally valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws and equitable principles relating to or
limiting creditors' rights generally.
(c) NO CONFLICTS
The execution, delivery and performance by Purchaser of its
obligations under this Agreement, the 2003 JVA and any other documents to be
executed by Purchaser in connection with the transactions contemplated hereby
will not (i) violate, or constitute a breach or default under any provision of
its memorandum or articles of incorporation or equivalent constitutional
document; (ii) result in a breach of, or give any third party a right to
terminate or modify or result in the creation of any encumbrance under, any
agreement, license or other instrument or of any order, judgment or decree of
any court, governmental agency or regulatory body to which it is a party or by
which it is bound; or (iii) violate any law, statute or regulation or any
injunction, order or decree of any government entity or court to which
Purchaser is subject except to the extent, in each case, that such violation
would not prohibit or materially impair Purchaser's ability to perform its
obligations under such agreements.
(d) CONSENTS AND APPROVALS
Except as set forth in Schedule 4(d), the execution, delivery and
performance by Purchaser or Company of this Agreement, the 2003 JVA and any
other documents to be executed by Purchaser or Company in connection with the
transactions contemplated hereby will not require any consent, waiver,
authorization or approval of, or the making of any filing with or giving of
notice to, any person or entity, except for such consent, waivers,
authorizations or approvals which the failure to obtain could not reasonably be
expected to prohibit or have a material adverse effect on Purchaser or
Company's ability to perform its respective obligations under such agreements.
(e) NO OTHER REPRESENTATIONS OR WARRANTIES
Except for the representations and warranties contained in this
Xxxxxxx 0, xxxx of Purchaser, any affiliate of Purchaser, or any other person
or entities (the "PURCHASER ENTITIES") makes or has been authorized to make any
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express or implied representation or warranty, and Purchaser Entities hereby
disclaim any express or implied representation or warranty, whether by any
Seller Entity or any of their respective officers, directors, employees,
agents, stockholders, subsidiaries (direct or indirect), partners, advisors, or
representatives or any other person or entity, in connection with the delivery
or disclosure to Seller or any of its officers, directors, employees, agents,
advisors or representatives or any other person or entity of any documentation
or other information regarding Purchaser Entities or Company. Except for the
representations and warranties contained in Section 3 herein, Purchaser hereby
acknowledges and agrees that Seller makes no representations and warranties
whatsoever, express or implied, with respect to any matter relating to Company
or Seller.
5. TERMINATION
(a) Anything herein to the contrary notwithstanding, this
Agreement and the transactions contemplated by this Agreement shall be
terminated at any time prior to the Closing: (i) by either Party, exercisable
by service of written notice of termination, if the Closing does not occur on
or before November 14, 2003 for any reason other than those stipulated in
Sections 5(a)(ii) and (iii) below; (ii) by Seller, exercisable by service of
written notice of termination, if Purchaser materially breaches any of its
representations, warranties, or obligations hereunder and such breach shall not
have been cured or waived and Purchaser has not provided assurance satisfactory
to Seller that such breach will be cured at or before the Closing; (iii) by
Purchaser, exercisable by service of written notice of termination, if Seller
materially breaches any of its representations, warranties, or obligations
hereunder and such breach shall not have been cured or waived and Seller has
not provided assurance satisfactory to Purchaser that such breach will be cured
at or before the Closing; and otherwise may be terminated or extended at any
time on or before the Closing by mutual consent in writing of Seller and
Purchaser.
(b) A termination under Section 5(a) shall not relieve any
Party of any liability for a breach of, or for any misrepresentation under this
Agreement, or be deemed to constitute a waiver of any available remedy
(including specific performance if available) for any such breach or
misrepresentation.
6. INDEMNIFICATION
Each Party agrees to indemnify and hold harmless the other Party and
each of its affiliates, and their respective directors, officers, employees,
affiliates, agents and assigns from and against any and all losses, actions,
costs, damages, disbursements, expenses or liabilities of such other Party or
any of its affiliates, directly or indirectly, as a result of, or based upon or
arising from any breach of any of the representations, warranties or covenants
made by the Party in this Agreement.
7. MISCELLANEOUS
(a) GOVERNING LAW AND GOVERNING LANGUAGE
This Agreement and all acts and transactions pursuant hereto and the
rights and obligations of the Parties hereto shall be governed, construed and
interpreted in accordance with the laws of Japan, without giving effect to
principles of conflicts of law. This Agreement has been drafted and executed
only in English.
(b) ENTIRE AGREEMENT; AMENDMENT
Except as expressly set forth herein, this Agreement sets forth the
entire agreement and understanding of the Parties relating to the subject
matter herein and merges all prior discussions between them (including, but not
limited to, the Letter of Intent dated October 20, 2003 between the Parties).
No modification of or amendment to this Agreement, nor any waiver of any rights
under this Agreement, shall be effective unless in writing signed by the
Parties to this Agreement.
(c) NOTICES
Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient when delivered personally or sent by fax (as
evidenced by sender's confirmation receipt), international courier or certified
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or registered mail, with postage prepaid, and addressed to the Party to be
notified at such Party's address as set forth below or as subsequently modified
by written notice:
If to Seller, to:
Attention: Legal Counsel
Resolution Holdings B.V.
XX Xxx 000
0000 XX Xxxxxxxxx Xx
Xxx Xxxxxxxxxxx
Facsimile: x00-00-000-0000
With a copy to:
Attention: General Counsel
Resolution Performance Products Inc.
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
X.X.X.
Facsimile: x0(000) 000-0000
If to Purchaser, to:
Attention: General Manager, Amenity Life Division
Mitsubishi Chemical Corporation
Dai-ichi Tamachi Building
00-0, Xxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000-0000
Xxxxx
Facsimile: x00(0)0000-0000
(d) COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute
one instrument.
(e) FURTHER ASSURANCES
In addition to the actions, documents, and instruments specially
required to be taken or delivered by this Agreement, whether on or from time to
time after the date hereof, and without further consideration, each Party shall
use commercially reasonable efforts to, and shall use their commercially
reasonable efforts to cause their respective affiliates to, take such other
actions, and execute and/or deliver such other documents, information and
instruments, as the other Party or its counsel may reasonably request in order
to effectuate and perfect the transactions contemplated by this Agreement and
the other documents required hereunder.
(f) ARBITRATION
All disputes arising in connection with this Agreement shall be
finally settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by three (3) arbitrators appointed in
accordance with such Rules. The country of arbitration shall be Japan and the
place of arbitration shall be Tokyo. The language to be used in the arbitration
proceedings shall be English.
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(g) EXPENSES
Each Party shall bear its own taxes and expenses, including legal
fees, incurred by it in connection with this Agreement.
(h) AMENDMENTS; WAIVERS
This Agreement and any schedule or exhibit attached hereto may be
amended only by agreement in writing of both Parties. No waiver of any
provision nor consent to any exception to the terms of this Agreement shall be
effective unless in writing and signed by the Party to be bound and then only
to the specific purpose, extent and instance so provided.
(i) SCHEDULES; EXHIBITS; INTEGRATION
Each schedule and exhibit delivered pursuant to the terms of this
Agreement shall be in writing and shall constitute a part of this Agreement.
(j) NO ASSIGNMENT
Neither this Agreement nor any rights or obligations under it may be
assigned by either Party, by operation of law or otherwise.
(k) CONFIDENTIALITY
All information disclosed in writing and designated in
writing as confidential by any Party or its affiliate, agent, advisor or
consultant or their respective directors, officers, partners and employees
whether before or after the date hereof, in connection with the transactions
contemplated by, or the discussions and negotiations preceding, this Agreement
to any other Party or its affiliate, agent, advisor or consultant or their
respective directors, officers, partners and employees shall be kept
confidential by such other Party and its affiliate, agent, advisor or
consultant or their respective directors, officers, partners and employees and
shall not be used by any such persons other than as contemplated by this
Agreement, except to the extent that such information (i) was known by the
recipient when received, (ii) it is or hereafter becomes lawfully obtainable
from other sources, (iii) is necessary or appropriate to disclose to a
governmental entity having jurisdiction over the Parties, (iv) as may otherwise
be required by law or (v) to the extent such duty as to confidentiality is
waived in writing by the other Party. If this Agreement is terminated in
accordance with its terms, each Party shall use all reasonable efforts to
return upon written request from the other Party all documents (and
reproductions thereof) received by it or its representatives from such other
Party (and, in the case of reproductions, all such reproductions made by the
receiving Party) that include information not within the exceptions contained
in the first sentence of this Section 6(k), unless the recipients provide
assurances reasonably satisfactory to the requesting Party that such documents
have been destroyed.
(l) PUBLIC DISCLOSURE
Each of the Parties to this Agreement hereby agrees with the other
Party hereto that, except as may be required to comply with the requirements of
applicable law, no press release or similar public announcement or
communication will be made or caused to be made concerning the execution or
performance of this Agreement unless specifically approved in advance by both
Parties hereto.
(m) SEVERABILITY
In case any provision contained in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby.
[Signature Page Follows]
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The Parties have executed this Share Purchase Agreement as of the date
first set forth above.
RESOLUTION HOLDINGS B.V.
By: /s/Xxxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Representative,
President and Chief Operating Officer
of Resolution Performance Products Inc.
MITSUBISHI CHEMICAL CORPORATION
By: /s/Xxxxxxx Xxxx
---------------
Name: Xxxxxxx Xxxx
Title: Managing Director and Chief Operating
Officer of Performance Products Segment
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