SHARE PURCHASE AGREEMENT
BETWEEN:
Mr. Xxxx-Xxxx Guisset, born June 24, 1949, in Persan (95),
residing in Xxx xx xx Xxxxx, 00000 Xxxxxxxxxxxxx, Xxxxxx, and
Mrs. Xxxxx Annick Guisset, born November 14, 1947, in Cambrai
(59), residing in Xxx xx xx Xxxxx, 00000 Xxxxxxxxxxxxx, Xxxxxx,
(hereinafter collectively the "Sellers"),
on the first part,
AND:
Boise Cascade Office Products Corporation, a company organized
under the laws of the State of Delaware having its principal
office at 000 Xxxx Xxxx Xxxx Xxxxxx, Xxxxxx, XX 00000, Xxxxxx
Xxxxxx of America, represented by Mr. Xxxxxxx Xxxxx, who is duly
authorized for purposes hereof,
(hereinafter the "Buyer"),
on the second part,
WHEREAS:
A. The Sellers own, or will own, as of the Closing Date (as
defined in Article 2.1 below), 10,000 shares (hereinafter the
"Shares") representing 100% of the capital of Xxxx-Xxxx Guisset -
JPG SA, a societe anonyme with a share capital of 1,000,000
francs, with its head office located at 00, Xxxxxx Xxx, 00000
Xxxxxxxxxxx, registered with the Registry of Commerce and
Companies of Pontoise under the number B 997 506 407 (hereinafter
the "Company").
B. The Company owns, or will own as of the Closing Date, all of
the shares of the subsidiaries listed in Appendix B (hereinafter
the "Subsidiaries" and collectively with the Company, the
"Companies").
C. Within the context of the selection procedure organized by
the Sellers, the Purchaser was able to review the documents
provided by the Sellers concerning the Companies from April 15 to
April 19, 1997, and to speak with Mr. Xxxx-Xxxx Guisset.
D. By an offer dated May 15, 1997, clarifying that of April 28,
1997, the Buyer informed the Sellers of its wish to acquire all
of the Shares, subject to certain conditions.
E. By letter dated May 20, 1997, the Sellers informed the Buyer
of their acceptance of the Buyer's offer, subject to certain
conditions.
NOW, THEREFORE, THE FOLLOWING IS AGREED:
ARTICLE 1 - SALE OF THE SHARES
1.1 Sale and Purchase. Subject to the terms and conditions
of this Agreement, the Sellers hereby agree to sell to the Buyer,
which agrees to acquire from the Sellers, the Shares, free and
clear of all liens, sureties, encumbrances, or other restrictions
or limitations of any nature whatsoever.
The Purchaser is aware of the legal proceedings which
are in progress concerning the ownership of certain Shares
representing 1.95% of the Company's capital.
The Shares, and all rights attached thereto, shall
become the property of the Buyer on the Closing Date. With
respect to voting rights, the Buyer shall enter into possession
of the Shares as of this date. The Shares will qualify for
dividends for the fiscal year beginning January 1, 1997.
1.2 Price. The purchase price (hereinafter the "Price")is
eight hundred and fifty million (850,000,000) French francs
(hereinafter the "Initial Payment"), plus a price supplement
which will be calculated and paid under the terms and conditions
set forth in Article 1.3 below (hereinafter the "Price
Supplement"). The Price of the Shares was determined by the
Buyer following its examination of the documents relating to the
Companies mentioned in the preamble of this Agreement, on the
basis of the Company's accounts as of December 31, 1996,
certified by the independent auditors of the Company, listed in
Appendix 1.2 (hereinafter the "Accounts of the Company") and of
the projected results of the Company for the years 1997-2000 also
provided by the Sellers, it being stipulated, however, that the
Sellers give no guarantee with respect to such projected results.
1.3 Price Supplement. (a) Subject to the condition provided
for in paragraph (b) hereunder, the amount of the Price
Supplement shall be equal to:
4.95 x [(Average Operating Income 97-99) - FF. [52.3] million]
Average Operating Income 97-99 shall mean the Company's average
"Operating Income" (as defined below) for the 1997, 1998, and
1999 fiscal years. The amount of the Price Supplement shall not
exceed FF. 300 million.
(b) No Price Supplement shall be paid if the Company's
"Net Sales" (as defined below) for the 1999 fiscal year is
inferior to the Company's Net Sales for the fiscal year ending on
December 31, 1996, multiplied by 1.259, i.e., eight hundred and
forty-six million nine hundred and eighty-three thousand seven
hundred and thirty (846,983,730) French francs. If the Company's
Net Sales as of December 31, 1999, exceeds this amount, the Price
Supplement, calculated as provided for herein, shall
automatically become payable and shall be paid by the Purchaser
in accordance with the provisions of Section 1.3(f) below.
(c) For purposes of determining the Price Supplement,
and for each fiscal year under consideration:
- The Operating Income shall be the amount which appears
on line GG of the profit and loss statement, as
contained in the liasse fiscale of the Company (i.e.,
for the fiscal year ending on December 31, 1996: FF.
51,378,081), and
- The Net Sales shall be the amount appearing on line FL
of the profit and loss statement, as contained in the
liasse fiscale of the Company (i.e., for the fiscal
year ending December 31, 1996: FF. 672,743,233).
For purposes of determining the Operating Income and
the Net Sales for calculation of the Price Supplement, the
Company's accounts shall be the Company's (unconsolidated)
corporate accounts as certified by the auditors, which shall have
been prepared in compliance with the accounting rules, methods
and principles used by the Company in preparing its accounts for
the fiscal year ending December 31, 1996 (including, but not
limited to, the Company's policy on inventory, amortization, and
reserves).
If the Company has changed its accounting rules,
methods, or principles at the time of the preparation of the
accounts for the 1997, 1998, or 1999 fiscal years, the parties
agree that the parameters corresponding to the Operating Income
and the Net Sales for the fiscal years under consideration shall
be contractually reprocessed with application of the accounting
rules, methods, and principles which are now used by the Company.
Similarly, if the Company implements a foreign
development policy or a new policy concerning supplies (transfer
pricing, etc.) or intra-group transactions (management fees,
remuneration, or other policy) during the fiscal years under
consideration, the resulting impact on the accounts shall be
neutralized, for purposes of determining the parameters
corresponding to the Operating Income and the Net Sales, by the
application of the accounting rules, methods, or principles
referred to above.
The Purchaser shall notify to the Sellers certified
accounts for the Company (balance sheet, profit and loss
statement, and notes) to the Sellers by June 30, 1998, 1999, and
2000, at the latest, together with the amounts of the parameters
corresponding to the Operating Income and the Net Sales for each
fiscal year under consideration. If the Sellers do not indicate
within thirty (30) days that they wish to contest such parameters
by implementing, as necessary, the procedure provided for in
Article 1.3(d)(ii) below, then such parameters shall be deemed to
have been accepted by the Parties, provided, however, that any
elements which are discovered after the calculation of the
parameters for a given fiscal year but which relate to such
fiscal year should be attributed to the fiscal year during which
they were discovered.
The Purchaser shall also notify to the Sellers, by
June 30, 2000, at the latest, the amount of the Price Supplement
which it believes to be due to the latter, together with details
of the method of calculation used to determine this amount.
(d) If Mr. Xxxx-Xxxx Guisset ceases to be a corporate
officer of the Company for any reason whatsoever prior to
December 31, 2000, (i) this shall not affect the Price
Supplement, which shall remain payable in accordance with the
terms hereof, and (ii) the Sellers shall then have the option, at
their expenses, of having the parameters corresponding to the
Operating Income and the Net Sales of the Company for the 1997,
1998, and 1999 fiscal years audited by an internationally-known
firm of auditors of their choice, provided that the Sellers shall
notify the Purchaser thereof within fifteen (15) days of receipt
by them of the notification of the Price Supplement (hereinafter
the "Audit Notification").
The assignment of the auditors thus appointed by the
Sellers shall terminate not later than sixty (60) days following
the date of the Audit Notification. The Purchaser undertakes, in
this respect, to communicate to the auditors all accounting,
financial, or other documents relating to the 1997, 1998, and
1999 fiscal years which the latter may deem necessary for
purposes of their verification of the parameters for the
Operating Income and the Net Sales for the fiscal years under
consideration.
The Sellers shall have a period of fifteen (15) days
from the completion of the auditors' assignment in which to
indicate to the Purchaser whether they accept the amount of the
Price Supplement (as calculated and notified by the Purchaser),
or whether they wish to reprocess the parameters corresponding to
the Company's Operating Income or Net Sales in respect of all or
part of the fiscal years under consideration.
In the latter hypothesis, and if no agreement is
reached between the parties regarding the reprocessing operations
to be carried out (and consequently the amount of the Price
Supplement) within fifteen (15) days of such a notification, the
most diligent party shall have the right to notify the
independent expert mentioned below (hereinafter the "Expert") and
shall notify the other parties thereof
(e) The Expert's assignment shall be limited to
(i) determining the reprocessing of only those amounts of the
Company's Operating Income and/or Net Sales in respect of the
1997, 1998, and/or 1999 fiscal years concerning which the parties
are not in agreement, and (ii) calculating the Price Supplement
by application of the formula set forth in Section 1.3(a) above.
For that purpose, the Expert shall (i) examine this
Agreement and its annexes, (ii) take into consideration the
notification of his or her appointment and of any memoranda or
documents which the parties shall provide within thirty (30) days
following receipt by the Expert of the notification of his or her
appointment, and (iii) take into consideration all additional
verbal or written testimony which he or she wishes to obtain,
provided, however, that verbal testimonies shall be taken in the
presence of all of the parties.
The parties undertake to facilitate access for the
Expert at any time during such procedure to any documents and
information which the Expert shall deem necessary in order to
resolve the dispute submitted to him or her.
During this procedure, the Expert shall adhere
scrupulously to the principle of contradiction in which both
parties submit and hear each other's arguments. Thus each party
shall simultaneously communicate to the other party the documents
and items which it provides to the Expert, and the Expert shall
issue acknowledgments of receipt to both parties for all items
received.
The Expert shall act as an independent expert within
the framework established by the provisions of Article 1843-4 of
the French Civil Code. If the parties are unable to reach
agreement on the appointment of an expert within eight (8) days
of the request for appointment made by the most diligent of them,
or if the Expert does not accept the assignment, then the Expert
shall be appointed by the President of the Commercial Court of
Paris acting in summary proceedings pursuant to a request by the
most diligent party.
The Expert shall notify his or her decision to the
parties in writing not later than forty-five (45) days after his
or her appointment. All parts of such decision shall be final
and binding upon the parties and shall not be subject to any
appeals.
The Expert's fees and disbursements shall be borne
equally by the parties.
(f) The Price Supplement shall be paid by the Buyer to
Mr. Xxxx-Xxxx Guisset, who shall be responsible for its
distribution among the Sellers, by means of a Banque de France
transfer within fifteen (15) days of the determination of the
Price Supplement either by agreement between the parties or by a
decision of the Expert.
Any delay in the payment of the Price Supplement shall
give rise to the payment of interest equal to the legal interest
rate plus three (3) percentage points, calculated between the
date of determination of the Price Supplement and the date of its
effective payment in full to Mr. Xxxx-Xxxx Guisset. Any penalty
thus paid shall itself generate interest at the same rate,
calculated on an annual basis.
Insofar as it is necessary to do so, it is hereby
specified that the Purchaser shall not under any circumstances
offset the Price Supplement against any indemnification claimed
in respect of the Indemnification Agreement which has been
contested but has not yet given rise to an arbitral award.
ARTICLE 2 - CLOSING
2.1 The closing of the sale and purchase of the Shares
(hereinafter the "Closing") shall take place on July 7, 1997
(hereinafter the "Closing Date"), in Paris at the offices of X.X.
Xxxxxx & Cie. S.A., 14, place Vendome, 75001 Paris, or at such
other place, date, and time set by agreement between the parties.
If the Closing does not occur by July 8, 1997, or any other date
agreed by the parties, this Agreement and all related agreements
shall automatically become null and void at midnight on July 8,
1997, it being specified, however, that in the event the Closing
fails to occur due to a fault solely attributable to one of the
parties, the nondefaulting party shall retain the right to seek
forced execution of the sale under the conditions set forth in
this Agreement. On the Closing Date, the Sellers shall submit
the following materials to the Buyer:
(a) the transfer orders pertaining to the Shares, duly
signed and completed in the name of the Buyer together with the
share movements register and the shareholders' accounts of the
Company;
(b) all corporate documents relating to the Companies
which are not in the latter's possession;
(c) a joint and several bank guarantee (cautionnement
bancaire solidaire) in the amount of one hundred million French
francs (FF. 100,000,000) in the form of Appendix 2.1(c).
(d) the letters of resignation of the directors and
corporate officers of the Companies listed in Appendix 2.1(d),
it being specified that Mr. Xxxx-Xxxx Guisset shall remain as
Chairman of the Company;
(e) the certified minutes of the Board of Directors
meeting of the Company approving the Buyer as a shareholder of
the Company;
(f) the minutes of the meetings of the Boards of
Directors of JPG-Xxxx-Xxxx Guisset SA, JPG Contact SA and JPG
Direct SA convening ordinary meetings of the shareholders of
these Companies in order to appoint as directors those persons
listed in Appendix 2.1(f); and
(g) a certified extract from the minutes of the
meeting of the Company's workers' committee certifying that it
was consulted concerning the planned sale of the Shares.
2.2 On the Closing Date, the Buyer shall pay to Mr. Xxxx-
Xxxx Guisset, for the account of the Sellers, the entire Initial
Payment, by Banque de France transfer, or wire transfer to the
bank account designated by Xx. Xxxx Xxxx Guisset no later than
July 2, 1997, at midnight, the value date of which is the Closing
Date.
2.3 On the Closing Date, Mr. Xxxx-Xxxx Guisset and the
Buyer shall execute the Indemnification Agreement and its
exhibits, annexed hereto as Appendix 2.3, it being specified that
the Indemnification Agreement may not be modified prior to its
execution (i) without the Buyer's consent, or (ii) to reflect
events occurring between the date hereof and the Closing Date but
only to the extent the total amount of the Losses (as defined in
Article 2 of the Indemnification Agreement) which may result from
such events does not exceed ten million (FF 10,000,000) French
francs.
2.4 On the Closing Date, Mr. Xxxx-Xxxx Guisset and the
Company shall execute the agreement concerning the use by the
Company of the name "Xxxx-Xxxx Guisset" annexed hereto as
Appendix 2.4.
ARTICLE 3 - OTHER OBLIGATIONS OF SELLERS
3.1 Conduct of Business until the Closing Date. The Sellers
agree that, from the date of signature of this Agreement up to
the Closing Date, the Companies shall be managed with prudence
and diligence and only in the ordinary course of business. In
particular, the Sellers agree, though not exclusively, that prior
to the Closing Date, no assets of the Companies shall be
purchased, transferred, leased, pledged or subjected to other
third party rights, beyond the normal conduct of their business;
none of the Companies shall terminate any business relationship
which might significantly affect its financial or economic
situation; none of the Companies shall modify the collective
status of its staff or grant any additional individual
advantages; no dividends shall be distributed; no new and
significant commitments, of a financial or other nature, shall be
made, and no changes to the shareholder structure of the
Companies shall be made, except for the share transfers
contemplated herein.
3.2 Noncompetition. Other than with the Company, the
Sellers commit themselves not to develop, exercise, be associated
with, involved in, or interested in any mailorder sales activity
in Europe, of office equipment, furniture, and supplies
(hereinafter the "Activity"), whether alone or in conjunction
with others, for a period of three (3) years from the date on
which Mr. Xxxx-Xxxx Guisset ceases to be the Company's Chairman.
In addition, the Sellers hereby agree not to engage directly or
indirectly in any business relationship with any of the current
legal representatives or employees of the Companies for a period
of three (3) years from the date on which Mr. Xxxx-Xxxx Guisset
ceases to be the Company's Chairman.
Notwithstanding the foregoing provisions, it is
specified, however, that Xx. Xxxx Xxxx Guisset shall, after he
has left his post as Chairman of the Company, retain the option
of working alongside his brother, Mr. Philippe Guisset (insofar
as the latter shall then have ceased to occupy any post or to
carry out any duties within the Company, without any solicitation
in any manner on the part of Mr. Xxxx-Xxxx Guisset), in any
activity which is different from the Activity.
3.3 Visits and Inspections. During the period falling
between the date of signature of this Agreement and the Closing
Date, the Sellers shall ensure that the Buyer and/or all persons
designated by it shall have reasonable access (without
interfering with the Company's operation) in compliance with
business confidentiality to the Companies' books, registers,
offices, installations, assets, staff, counsel, and accountants.
3.4 Sale of Minority Shareholdings. At the latest by the
Closing Date, the Sellers shall ensure the sale to the Company,
of those minority shareholdings in the Subsidiaries listed in
Appendix 3.4 hereto, in accordance with the terms and conditions
set forth in such Appendix.
ARTICLE 4 - CONDITION PRECEDENT
The Closing of the sale of the Shares is subject to the
fulfillment of the following condition, which constitutes a
condition precedent to the sole benefit of the Buyer and may be
waived by the Buyer at his discretion.
No Material Adverse Change (as hereinafter defined) shall
have occurred between December 31, 1996, and the Closing Date. A
"Material Adverse Change" shall mean any event (excluding general
economic events) negatively affecting or substantially likely to
affect the financial condition, properties, business or operating
results of the Companies and which results in a Loss for the
Companies which is indemnifiable under Section 2 of the
Indemnification Agreement (provided that the provisions of
Section 3 shall not apply) in excess of twenty five million
(25,000,000) French francs.
ARTICLE-5 -CONFIDENTIALITY
Neither party may communicate any information concerning the
existence or content of this Agreement to third parties without
the prior written consent of the other party, with the exception
of (i) information communicated by the parties to their lawyers
to enable them to draw up the various documents required to
execute the sale of the Shares, and (ii) any announcements that
must be made to the employee representative bodies of the Company
or the Buyer, or (iii) compulsory communications, including in
particular communications required to be made by the Buyer (or
companies belonging to its group) in order to comply with U.S.
securities laws.
In any event, the parties agree to coordinate with each
other the disclosure to third parties of information concerning
the existence and content of the Share Purchase Agreement.
ARTICLE 6 - NOTIFICATIONS
Unless otherwise stipulated, any notification or other
communication related to this Agreement shall be made by
registered letter with return receipt, international express
courier (DHL, Fed Ex, etc.) or facsimile, sent to the parties at
the addresses indicated below, or to any other address
communicated to the other party by registered letter with return
receipt, international express courier (DHL, Fed Ex, etc.) or
facsimile:
If to Mr. Xxxx-Xxxx Guisset and Ms. Xxxxx-Xxxxxx Guisset:
Xxx xx xx Xxxxx
00000 Xxxxxxxxxxxxx
Xxxxxx
Facsimile: 011 33 3 44 54 45 85
If to Boise Cascade Office Products Corporation:
000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Facsimile: 001 000 000 0000
ARTICLE 7 - SUBSTITUTION
The Buyer may, at any time prior to the Closing Date, be
replaced in all of the rights and obligations provided for herein
by any company controlled by, which controls, or which is under
common control with the Buyer, subject only to advance
notification to the Sellers and an undertaking in such
notification to be and remain jointly and severally liable with
the substituted company for the performance by the latter of all
of the Buyer's obligations vis-a-vis the Sellers under this
Agreement or any agreements arising herefrom. The concept of
"control" referred to in this Article is that defined in
Article 355-1 of the Law of July 24, 1966, on commercial
companies. Except for the foregoing, this Agreement may not be
assigned or transferred to any third party.
ARTICLE 8 - MISCELLANEOUS PROVISIONS
8.1 If any one of the clauses of this Agreement or the
application of any clause, shall, under certain circumstances, be
considered impossible, null, or illegal by a jurisdiction or
competent administration, such clause shall be considered to be
nonexistent or nonapplicable under the said circumstances, and
the other clauses of this Agreement shall not be affected.
The parties shall then conduct negotiations in good
faith for the purpose of replacing the inapplicable clause with
valid, legal or applicable provisions that shall have an economic
effect that approximates, as closely as possible, the economic
effect of the initial clause.
8.2 No amendment or modification of this Agreement shall be
effective unless set forth in a written rider to this Agreement,
signed by both parties.
8.3 Any delay in the exercise by either of the parties of
its rights under this Agreement shall not be construed as a
waiver of the said right. Any decision by either party to waive
its right to demand compensation of any loss sustained as a
result of the nonperformance by the other party of its
obligations shall not be construed as a decision to waive such
night for any preceding or subsequent nonperformance by the said
other party.
8.4 This Agreement (including its appendices, which are an
integral part thereof) sets forth the complete agreement of the
parties with respect to the matters addressed therein, and
supersedes any previous contract, negotiations, and draft
documents on the same subject.
8.5 Each party shall separately assume its own costs and
taxes relative to this Agreement and to the transactions
stipulated therein. It is expressly agreed that stamp duties
owed by reason of the sale of the Shares shall be borne by the
Buyer.
8.6 This Agreement is to be executed in both French and
English and both versions shall control equally.
8.7 In the event of the death of one of the Sellers and
subject to acceptance of the estate, the rights and obligations
provided for in this Agreement and its appendices (including in
particular the Indemnification Agreement) may be invoked by the
successors and assigns of the Sellers.
ARTICLE 9 - APPLICABLE LAW
This Agreement is subject to French law, which also governs
its interpretation.
ARTICLE 10 - DISPUTES
The parties shall make every effort to settle all disputes
arising in connection with this Agreement amicably by
negotiations held in good faith. Failing such amicable
settlement, the dispute shall be submitted to arbitration as set
forth below.
Any party wishing to submit a dispute to arbitration
(hereinafter the "Plaintiff") shall send to the other party
(hereinafter the "Defendant") a notification by registered letter
with return receipt requested, stating the subject of the dispute
and announcing its decision to use either a sole arbitrator or a
panel of three, and stating the name of the proposed sole
arbitrator or appointing one member of the panel of three
arbitrators.
The Defendant shall reply by registered mail with return
receipt requested, either stating its acceptance of the sole
arbitrator proposed by the Plaintiff, if applicable, or
requesting that the dispute be submitted to three arbitrators,
and appointing the arbitrator of its choice.
Absent a reply from the Defendant within fifteen (15) days
of the date of the Plaintiff's notification, or in the event that
the parties are unable to agree on the name of a sole arbitrator
within fifteen (15) days of such notification, or in the event
that the two appointed arbitrators are unable to agree on the
appointment of a third arbitrator within fifteen (15) days of the
second arbitrator's appointment, either of the parties may
request the appointment of a sole arbitrator, or of a second or
third arbitrator, as the case may be, by a summary order of the
President of the Commercial Court of Paris.
The arbitral proceedings will take place in Paris, and the
tribunal's decision shall be rendered within six (6) months of
its constitution. The language of the arbitration proceedings
shall be French and English.
The arbitrators shall be released from the requirement to
adhere to the rules governing form and deadlines provided by the
New French Code of Civil Procedure, but shall allow contradictory
presentation of statements and observations by the parties.
The arbitration decision shall not be subject to any appeal
or opposition.
The party which fails to comply with the decision shall pay
all costs and fees arising or resulting from enforcement of the
decision.
Executed in Chicago, on July 1, 1997, in three original
versions, signed by the parties.
______________________________ ______________________________
Mr. Xxxx-Xxxx Guisset Mrs. Xxxxx Annick Guisset
BOISE CASCADE OFFICE PRODUCTS
CORPORATION
By____________________________
Mr. Xxxxxxx Xxxxx
