EXHIBIT 2.1
Dated 16 January 2004
SCI INTERNATIONAL LIMITED
AND
SERVICE CORPORATION INTERNATIONAL
AND
OGF HOLDING SAS
SHARE PURCHASE AGREEMENT
relating to the sale and purchase
of part of the issued share capital of
SERVICE CORPORATION INTERNATIONAL - EUROPE CONTINENTALE
AGREEMENT FOR PURCHASE OF SHARES
This Agreement is made on 16 January 2004
BETWEEN:
(1) SCI International Limited, (the "VENDOR"), a company with a
share capital of US$10,000 organised under the laws of
Delaware, whose registered office is at PO Box 130548, 1929
Xxxxx Parkway, Houston, Texas, USA, registered under number
2269430, represented by its President, Xxxxxx X. Xxxx, duly
empowered for the purpose thereof;
(2) Service Corporation International, (the "GUARANTOR"), a
publicly listed company with a share capital of US$302,101,585
organised under the laws of Texas, whose registered office is
at PO Box 130548, 1929 Xxxxx Parkway, Houston, Texas, USA,
registered under number 2269430, represented by its President
and Chief Operating Officer, Xxxxxx X. Xxxx, duly empowered
for the purpose thereof; and
(3) Vestar Europe Resources I, a societe par actions simplifiee
with a share capital of EUR 38,500 organised under French law,
whose registered office is at 0, Xxxx-xxxxx xxx Xxxxxx
Xxxxxxx, 00000 Xxxxx, registered under number 440 327 633 RCS
Paris, represented by its President, Xxxxxx Xxxxxx, acting on
behalf of OGF Holding SAS, (the "PURCHASER"), a societe par
actions simplifiee with a share capital of EUR 37,000
organised under French law, whose registered office is at 0,
Xxxx-xxxxx xxx Xxxxxx Xxxxxxx, 00000 Xxxxx, currently being
incorporated under provisional number 451 599 419 RCS Paris.
WHEREAS:
(A) The Vendor is as of the date hereof the owner of 33,722,069
shares in Service Corporation International -- Europe
Continentale, a societe anonyme with a share capital of EUR
381,400,459 whose registered office is at 00, xxx xx Xxxxxxx,
00000 Xxxxx, registered under number RCS 308 150 754 Paris.
(B) The Purchaser wishes to acquire all the shares of Service
Corporation International -- Europe Continentale owned by the
Vendor together with the one share of this company held by
each of Xxx Xxxx, Xxxxxxxx Xxxxxxx and Xxxxxx Xxxxxxxxxx and
the Vendor wishes to sell such shares in each case under the
terms and conditions of this Agreement.
(C) The Vendor has agreed to make certain representations to the
Purchaser in relation to Service Corporation International --
Europe Continentale and its subsidiaries.
(D) The Guarantor has agreed to guarantee the performance of the
Vendor's obligations hereunder.
IT IS AGREED AS FOLLOWS:
1 INTERPRETATION
In this Agreement, unless the context otherwise requires, the
provisions in this Clause 1 apply:
1.1 DEFINITIONS
"ACCOUNTING PRINCIPLES" means French generally accepted
accounting principles and methods, together with those
accounting rules implementing those principles and methods as
consistently applied by the Company for the preparation of the
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December 31, 2002 Accounts as those accounting rules are so
applied set forth in Note 1 in the Annex to such accounts;
"AFFILIATE AGREEMENT" means the agreement in the agreed terms
between the Vendor and the Purchaser;
"ASSOCIATED COMPANY" means, in respect of any company, a
company which is controlled by that first entity or which
controls that first company or which is controlled by the
person controlling the first company;
"AUDITORS" means the Company's auditors being
PricewaterhouseCoopers Audit, Paris;
"BUSINESS DAY" means a day on which banks are open for
business in Paris and Luxembourg (excluding Saturdays, Sundays
and public holidays);
"CASH ASSET" shall bear the meaning ascribed thereto in
Schedule 5;
"CATEGORY" means any category of claims identified in Schedule
7;
"COMMITMENT LETTER" means the commitment letter of even date
made between the Vendor and the Company;
"COMPANY" means Service Corporation International -- Europe
Continentale details of which are contained in Part 2 of
Schedule 1;
"COMPLETION" means the completion of the sale and purchase of
the Sale Shares pursuant to Clause 7;
"COMPLETION DATE" means the date on which Completion occurs;
"CONFIDENTIALITY AGREEMENT" means the agreement dated 8
September 2003 between the Vendor and Vestar Capital Partners;
"CONSIDERATION SECURITIES" means Class A Ordinary Shares,
Series 1 PECs and Series 1 CPECs in the capital of AKH Luxco
SCA;
"DECEMBER 31, 2002 ACCOUNTS" means the consolidated audited
accounts of the Company (established under the Accounting
Principles) for the financial period ended on December 31,
2002;
"DISCLOSURE LETTER" means the letter of even date with this
Agreement from the Vendor to the Purchaser disclosing
information, risks or liabilities to the extent adequately and
fairly disclosed (whether in the French or English language)
constituting exceptions to the Warranties. The information
contained in the Vendor Due Diligence Report relating to risks
or liabilities which are (i) specifically identified (as
opposed to (x) the mere disclosure of facts that might
generate risks or liabilities or (y) general or generic risks
or liabilities that may result from the nature of the
activities operated by the Group Companies, from their
competitive position or from their economic environment) and
(ii) adequately and fairly disclosed in plain language in the
Vendor Due Diligence Report in such a manner that a reasonable
person would realize that such risks or liabilities were
material is deemed to be incorporated in the Disclosure
Letter;
"ENCUMBRANCE" means any nantissement gage, hypotheque, option
or other real or personal right ("droit reel ou personnel")
restricting the ownership of the relevant asset or the
exercise or transferability of the relevant right;
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"ENVIRONMENT" shall bear the meaning ascribed thereto in
Clause 4.4 of Part I of Schedule 3;
"ENVIRONMENTAL AUTHORITY" means any legal person having
regulatory authority under Environmental Law and/or any court
of law or tribunal;
"ENVIRONMENTAL LAW": shall bear the meaning ascribed thereto
in Clause 4.4 of Part 1 of Schedule 3;
"ENVIRONMENTAL PROCEEDINGS" means any civil or criminal
proceedings or suit or any enforcement notice or other
regulatory proceedings requiring Remedial Action to be
undertaken;
"ENVIRONMENTAL TRIGGER EVENT" means (i) the service on or the
receipt by any Group Company of written notification of either
the commencement of or the threat of commencement of
Environmental Proceedings against any Group Company or (ii) a
Significant Danger situation;
"ESTIMATED NET CASH" means the Vendor's good faith estimate of
the Net Cash, as at 31 December, 2003;
"ESTIMATED NET INDEBTEDNESS" means the Vendor's good faith
estimate of the Net Indebtedness as at 31 December, 2003;
"EXISTING LOAN" means the existing loan of EUR 115,035,294
from the Company to the Vendor together with interest accrued
thereon which has been granted by the Company to the Vendor
pursuant to a loan agreement dated 19 and 23 September 2002 as
amended on 17 and 20 October 2003 and 15 January 2004.
"EXPERT ACCOUNTANT" means KPMG International or, if that firm
is unable or unwilling to act in any matter referred to them
under this Agreement, a firm of "commissaires aux comptes" of
international standing to be agreed by the Vendor and the
Purchaser within seven days of written notice by one to the
other requiring such agreement or failing such agreement to be
nominated on the application of either of them by the
President of the Tribunal de Commerce de Paris acting in
summary proceedings (en la forme des referes);
"EURIBOR" means the interbank rate, broadcast on the Telerate
Screen (presently page 248) at approximately 11.00 a.m. (Paris
time);
"FINANCE DOCUMENTS" shall bear the meaning ascribed thereto in
the Credit Agreement dated 16 January, 2004 and made between,
inter alia, AKH Luxco SCA, BA Finance SARL, the Purchaser,
Xxxxxx Brothers Bankhaus A.G., London Branch and the financial
institutions named herein, as such documents may be amended or
modified prior to the Completion Date, provided that such
amendments and modifications shall not materially alter the
material terms of such documents except to the extent of any
customary "market flex" arrangements;
"FINANCIAL LIABILITY" shall bear the meaning ascribed thereto
in Schedule 5;
"GROUP" or "GROUP COMPANIES" means, the Company and the
Subsidiaries and "GROUP COMPANY" means any one of them;
"INFORMATION TECHNOLOGY PROPERTY" means any computer system or
communications system (in both instances inclusive of all the
assets used in connection with the operation of said system)
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and any software and hardware owned, used or licensed by or to
any Group Company;
"INTELLECTUAL PROPERTY" means trade marks, service marks,
trade names, logos, get-up, patents, inventions, registered
design rights, copyrights, database rights and all other
similar proprietary rights which may subsist in any part of
the world (including Know-how) including, where such rights
are obtained or enhanced by registration, any registration of
such rights and applications and rights to apply for such
registrations;
"KNOW-HOW" means confidential industrial and commercial
information and techniques in any form (including paper,
electronically stored data, magnetic media, film and
microfilm) including without limitation drawings, instruction
and training manuals, tables of operating conditions, market
forecasts, lists and particulars of customers and suppliers;
"LOAN AGREEMENT" means the EUR 10,000,000 8 per cent. loan
agreement issued on Completion by the Vendor to KA Finance
SARL in the form set out in Schedule 17;
"LYON LOSS" means any Loss arising out of the investigations
by the DGCCRF into alleged anti competitive practices in the
Lyon area which have occured prior to the date hereof as more
particularly described in Schedule 19;
"LOAN RECEIVABLE PLEDGE AGREEMENT" shall bear the meaning
ascribed to it in paragraph 9 of Schedule 4;
"LOSS" or "LOSSES" means all damages, losses, liabilities,
costs (including, without limitation, legal costs), charges,
expenses, actions, proceedings, claims and demands;
"MANAGEMENT" means Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxx
Xxxxxxxxxx, Xxxx-Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxxxx, Xxxxx
Coleu, Xxxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxx Xxxxx and Xxxxxxxxx
Xxxxx;
"MATERIAL ADVERSE CHANGE" shall have the meaning ascribed to
it in Clause 5.1.2;
"MATERIAL CONTRACT" has the meaning ascribed to it in Clause
6.2.2 of Part 1 of Schedule 3;
"NET CASH" shall bear the meaning ascribed thereto in Schedule
5;
"NET CASH STATEMENT" shall bear the meaning ascribed thereto
in Schedule 5;
"NET INDEBTEDNESS" shall bear the meaning ascribed thereto in
Schedule 5;
"PAYMENT ACCOUNT DETAILS" means, in relation to any payment to
be made under or pursuant to this Agreement, the name, account
number, sort code, account location and other details
specified by the payee and necessary to effect payment
(whether by banker's draft, telegraphic or other electronic
means of transfer) to the payee;
"PROPERTIES" means the real estate properties owned or leased
by the Group Companies and "PROPERTY" means any one of them;
"PURCHASER'S GROUP" means the Purchaser and any of its
Associated Companies from time to time (including for the
avoidance of doubt the Group Companies after Completion);
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"PURCHASER'S LAWYERS" means Cleary, Gottlieb, Xxxxx & Xxxxxxxx
of 00 Xxxxxx xx Xxxxxxxxx, 00000 Xxxxx;
"REMEDIAL ACTION" means any measures to remove, prevent,
remedy, xxxxx, contain, treat or ameliorate (in the case of
Category 4.2 claims) air emissions in order to ensure
compliance with Article D2223-15 of the Code General des
Collectivites Territoriales and other applicable regulations
in force at Completion or (in the case of other environmental
claims) damage or harm to human health or to the Environment
to ensure compliance with Environmental Law;
"SAINT GERMAIN LOSS" means any Loss arising out of the
investigations by the DGCCRF into alleged anti competitive
practices in the Saint Germain area which have occurred prior
to the date hereof as more particularly described in Schedule
19;
"SALE SHARES" means all of the 33,722,069 Shares held by the
Vendor on the date hereof plus the three Shares to be acquired
prior to the Completion by the Vendor pursuant to Clause 6.1.2
(iii) less any Shares that may be sold by the Vendor to the
Company on or prior to the Completion;
"SECURITYHOLDERS' AGREEMENT" means the Securityholders'
Agreement to be entered on Completion between the Vestar
Investor, Vestar AIV Holdings L.P., the Vendor, AKH Luxco SCA
and the Security Holders, regarding their investment in AKH
Luxco SCA, in the form attached as Schedule 11 substantially
in the form attached hereto, as such form may be modified
pursuant to negotiations with Management, provided that no
subsequent amendment to the form shall be made (i) that amends
any material terms thereof or (ii) that adversely affects the
rights of SCI or the rights of Vestar and SCI relative to each
other;
"SECURITY HOLDERS" means the Vendor, Vestar Investor, members
of the Management and Vestar AlV Holdings L.P. Associated
Companies;
"SENIOR EMPLOYEE" means any employee of a Group Company whose
annual gross basic salary is in excess of EUR 90,000;
"SEPTEMBER 30, 2003 ACCOUNTS" means the unaudited consolidated
accounts of the Company (established under the Accounting
Principles) for the financial period ended on September 30,
2003, which have been subject to a limited review ("examen
limite") by PricewaterhouseCoopers Audit;
"SHARE PLEDGE AGREEMENTS" shall bear the meaning ascribed to
it in paragraph 9 of Schedule 4;
"SHARES" means 34,672,769 ordinary shares of EUR 11 each being
the whole of the share capital of the Company;
"SIGNIFICANT DANGER" means the significant danger or threat of
a significant danger to human health or to the Environment
giving rise or reasonably likely to give rise to the liability
of the Group Companies, which is capable of prevention or
substantial limitation by immediate Remedial Action;
"SUBSCRIPTION AGREEMENT" means the agreement in the form
attached as Schedule 12 between, inter alia, Luxco 1, the
Vestar Investor and the Vendor;
"SUBSIDIARIES" means all subsidiaries of the Company, details
of which are contained in Part 3 of Schedule 1;
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"TAXATION" or "TAX" means all forms of taxation whether direct
or indirect and whether levied by reference to income,
profits, gains, net wealth, asset values, turnover, added
value or other reference and statutory, governmental, state,
provincial, local governmental or municipal impositions,
duties, contributions, rates and levies (including without
limitation social security contributions and any payroll
taxes), any tax due by a person other than a Group Company and
for which any Group Company would be liable, whenever and
wherever imposed (whether imposed by way of a withholding or
deduction for or on account of tax or otherwise) and in
respect of any person and all penalties, charges, costs and
interest relating thereto;
"TAX LOSS" means any Tax due and payable to the French
Treasury by a Group Company, further to a tax reassessment
together with all costs (including without limitation legal
costs) and expenses and any additional amounts payable in
respect of the statutory profit sharing plan ("participation
au result at de I'entreprise") as a consequence of any
resultant increase in the Group Companies taxable profits. For
the avoidance of doubt and without prejudice to the Vendor's
obligations under paragraph 1.6 of Part 1 of Schedule 8, there
would be no Tax Loss in the event the Vendor grants or causes
the grant of any guarantees, funds or other security necessary
for the Group Companies to obtain from the Tax authorities the
suspension of payment (sursis de paiement) for so long as such
suspension of payment is effective;
"TRADEMARK LICENCE" means the trademark licence dated 5 and 10
February 2003 between SCI UK and OGF relating to the licensing
of certain trademarks and trade names of SCI UK Investments
Limited to OGF, a copy of which is attached in Schedule 18;
"VENDOR DUE DILIGENCE REPORT" means the due diligence report
on the Group dated October 14, 2003 issued by
PricewaterhouseCoopers Transaction Services together with the
Supplemental Report thereto dated 23 December 2003 (including
the report on the management of the Group Companies); a copy
of the Vendor Due Diligence Report is attached to the
Disclosure Letter; it being provided however that in the event
the differences between these reports and their drafts of even
date therewith previously delivered to Vestar Capital Europe
are not limited to those points described in the attachment to
the letter from PricewaterhouseCoopers Transaction Services to
Vestar Capital Europe dated January 15, 2004, "Vendor Due
Diligence Report" shall mean those draft reports.
"VENDOR'S GROUP" means the Vendor and any of its Associated
Companies (other than the Group Companies);
"VENDOR'S LAWYERS" means Linklaters of 00 xxx xx Xxxxxxxx,
00000 Xxxxx;
"VESTAR INVESTOR" means Vestar OGF LLP;
"WARRANTIES" means the warranties set out in Schedule 3 and
"WARRANTY" means any one of them.
1.2 SUBORDINATE LEGISLATION
References to a statutory provision include any subordinate
legislation made from time to time under that provision which
is in force at the date of this Agreement.
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1.3 MODIFICATION ETC. OF STATUTES
References to a statute or statutory provision include that
statute or provision as from time to time modified,
re-enacted or consolidated whether before or after the date
of this Agreement so far as such modification, re-enactment or
consolidation applies or is capable of applying to any
transactions entered into in accordance with this Agreement
prior to Completion.
1.4 ACCOUNTS
Any reference to "accounts" shall include the board of
directors' and auditors' reports, relevant balance sheets and
profit and loss accounts and related notes.
1.5 SCHEDULES
The Schedules form part of this Agreement and any reference to
this Agreement shall include the Schedules.
1.6 SINGULAR AND PLURAL
The meanings of the defined terms are applicable to both the
singular and plural forms thereof.
1.7 HEADINGS
The headings used in this Agreement have been adopted by the
parties for ease of reference only and the parties declare
that these headings and shall be ignored in construing the
meaning or interpretation of this Agreement.
1.8 "COMPANY", "SUBSIDIARY" AND "CONTROL"
Reference to a "company" shall include any company,
corporation or other body corporate wherever and however
incorporated (including a Groupement d'Interets Economiques).
A company is a "subsidiary" of another company (its "holding
company") if that other company controls it.
The word "control" shall have the meaning ascribed to it in
article 233-3 of the Code de Commerce;
2 AGREEMENT TO SELL THE SALE SHARES
Subject to the terms and conditions of this Agreement, the Vendor
agrees to sell to the Purchaser and the Purchaser agrees to purchase
from the Vendor, the Sale Shares free from all Encumbrances and
together with all rights and advantages now and hereafter attaching
thereto.
3 PURCHASE PRICE
3.1 AMOUNT
The total consideration for the purchase of the Sale Shares
(the "PURCHASE PRICE") shall be the aggregate of:
3.1.1 the cash sum of EUR 300,000,000 (three hundred
million euros);
3.1.2 plus the Net Cash or minus the Net Indebtedness;
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The Purchase Price shall bear interest in accordance with
Clause 3.4 if applicable.
The Purchase Price shall be paid in accordance with Clauses
3.2, 4 and 7 and shall be adjusted in accordance with Clause
4.
3.2 PROVISIONAL PAYMENT ON COMPLETION
3.2.1 No later than 15 February 2004, the Vendor shall
notify the Purchaser of the amount of the Estimated
Net Cash or Estimated Net Indebtedness, as the case
may be. Such notice shall be prepared in accordance
with the provisions of Schedule 5 and shall provide
an amount for each item comprising the Estimated Net
Cash or Estimated Net Indebtedness. The Purchaser
shall be entitled to comment on such notice and on
the underlying assumptions and the Vendor shall take
the reasonable comments of the Purchaser into
account.
3.2.2 On Completion the Purchaser shall pay to the Vendor
an amount which is equal to:
(a) EUR 300,000,000 (three hundred million
euros);
(b) plus the amount of the Estimated Net Cash or
less the amount of the Estimated Net
Indebtedness;
(c) plus the amount of interest (if any) payable
in accordance with Clause 3.4.
which shall be effected by crediting for same day
value the account specified in the Payment Account
Details of the Vendor with such sum.
3.2.3 The balance of the Purchase Price shall be paid by
the Purchaser to the Vendor or, as the case may be,
by the Vendor to the Purchaser, in accordance with
the provisions of Clause 4.
3.3 LOAN TO LUXFINCO ON COMPLETION
On Completion, an amount of ten million Euro (EUR 10,000,000)
shall be lent by the Vendor to Luxfinco in accordance with the
terms and conditions of the Loan Agreement to be entered into
between the Vendor and Luxfinco on Completion;
3.4 INTEREST PAYABLE IF COMPLETION OCCURS AFTER 31 MARCH 2004
If Completion does not occur on or before 31 March 2004, the
Purchase Price payable by the Purchaser shall be increased to
include interest thereon from 1 April 2004 (included) until
the Completion Date at a rate of 8 per cent. per annum. Such
interest shall accrue from day to day.
4 ADJUSTMENTS TO COMPLETION PAYMENT
4.1 NET CASH STATEMENT
The Purchaser shall procure that a draft Net Cash Statement be
prepared in accordance with the provisions of Clause 3.1 of
Schedule 5.
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4.2 ADJUSTMENTS
4.2.1 In the event an amount of Estimated Net Cash (as
opposed to an amount of Estimated Net Indebtedness)
has been notified by the Vendor pursuant to Clause
3.2.1:
(i) if the amount of the Net Cash as shown in
the Net Cash Statement is less than the
amount of the Estimated Net Cash, the Vendor
shall owe to the Purchaser an amount equal
to the difference between these two amounts
as increased, as the case may be, by the
amount of interest paid on such difference
pursuant to Clause 3.4;
(ii) if the amount shown by the Net Cash
Statement is an amount of Net Indebtedness,
the Vendor shall owe to the Purchaser an
amount equal to the sum of the Estimated Net
Cash and such Net Indebtedness amount as
increased, as the case may be, by the amount
of interest paid on such sum pursuant to
Clause 3.4;
(iii) if the amount of the Net Cash as shown in
the Net Cash Statement exceeds the Estimated
Net Cash, the Purchaser shall owe to the
Vendor an additional amount equal to such
excess, as increased by interest paid on
such excess computed in accordance with
Clause 3.4, if applicable.
4.2.2 In the event an amount of Estimated Net Indebtedness
(as opposed to an amount of Estimated Net Cash) has
been notified by the Vendor pursuant to Clause 3.2.1:
(i) if the amount of the Net Indebtedness as
shown in the Net Cash Statement is less than
the amount of the Estimated Net
Indebtedness, the Purchaser shall owe to the
Vendor an amount equal to the difference
between these two amounts as increased by
interest paid on such difference computed in
accordance with Clause 3.4, if applicable;
(ii) if the amount shown by the Net Cash
Statement is an amount of Net Cash, the
Purchaser shall owe to the Vendor an amount
equal to the sum of the Estimated Net
Indebtedness and such Net Cash amount as
increased by interest paid on such sum
computed in accordance with Clause 3.4, if
applicable;
(iii) if the amount of the Net Indebtedness as
shown in the Net Cash Statement exceeds the
Estimated Net Indebtedness, the Vendor
shall owe to the Purchaser an additional
amount equal to such excess, as increased,
as the case may be, by the amount of
interest paid on such excess pursuant to
Clause 3.4.
4.2.3 The amount due by the Vendor to the Purchaser or by
the Purchaser to the Vendor, as the case may be,
pursuant to Clauses 4.2.1 or 4.2.2 shall be increased
by interest thereon calculated from Completion to the
date of payment at the rate per annum (as computed on
the basis of a year of 360 days) of 225 basis points
above the EURIBOR rate for one month deposits on
Completion.
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4.2.4 The amount due by the Vendor to the Purchaser or by
the Purchaser to the Vendor, as increased by interest
pursuant to Clause 4.2.3, shall be paid by the Vendor
to the Purchaser or by the Purchaser to the Vendor,
as applicable, on the day falling ten (10) Business
Days after (i) the agreement between the parties on
the Net Cash Statement is reached or deemed to be
reached pursuant to Schedule 5 or the Net Cash
Statement is finally determined by the Expert
Accountant.
5 CONDITIONS
5.1 CONDITIONS PRECEDENT
5.1.1 CONDITIONS TO EACH PARTIES' OBLIGATIONS
The respective obligations of the Vendor and the
Purchaser to consummate the sale and purchase of the
Sale Shares pursuant to this Agreement is in all
respects conditional upon satisfaction of the
following conditions:
5.1.1.1 After notification of the proposed
acquisition of the Company (the
"TRANSACTION") to the European Commission
pursuant to Council Regulation (EC) 4064/89
(the "REGULATION"):
(i) the European Commission taking a
decision that the Transaction does
not give rise to a concentration
falling within the scope of the
Regulation; or
(ii) the European Commission taking a
decision under Article 6(1)(b) or
Article 6(2) without conditions or,
if the Commission has initiated
proceedings pursuant to Article
6(1)(c), under Article 8(2) of the
Regulation declaring the
Transaction compatible with the
common market without conditions,
or being deemed to have done so
under Article 10(6); or
(iii) the European Commission having
referred the whole or part of the
Transaction to the competent
authorities of one or more Member
States under Article 9(3) of the
Regulation,
(a) each such authority
granting a clearance
without conditions in
respect of those parts of
the Transaction which were
referred to it, or being
deemed to have granted
such a clearance; and
(b) the requirements of
sub-clause (i) or (ii)
above being satisfied with
respect to any part not
referred to the competent
authority of any Member
State;
5.1.1.2 no injunction, order, ruling or decision,
from a court of competent jurisdiction or
any other government or other regulatory
authority shall have been issued to enjoin,
or otherwise prohibit or prevent, the
completion of the transactions contemplated
by this Agreement.
5.1.2 CONDITIONS TO OBLIGATIONS OF THE PURCHASER
The obligation of Purchaser to purchase the Sale
Shares at Completion is subject to the fulfilment to
its satisfaction on or prior to the Completion Date
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of each of the following conditions, it being
understood that these conditions are included for the
exclusive benefit of the Purchaser and may be waived,
in whole or in part, at any time prior to Completion,
by the Purchaser in writing:
(i) The Warranties of the Vendor contained in
this Agreement shall be true and correct, as
of the Completion Date as though made on the
Completion Date, except for those Warranties
the inaccuracy of which would not, either
individually or in aggregate, result in a
Material Adverse Change (as hereinafter
defined).
(ii) The covenants of the Vendor provided under
Clauses 3.3; 6.1.2 (iii), (iv) and (v);
6.1.1 as it relates to items (b), (c)
(insofar as it relates to a material
Encumbrance), (d), (e) (insofar as it
relates to the Management), (f) (insofar as
it relates to the Management), (h), (i),
(j), (k), (l), (m) (insofar as it relates
to any agreement with the Vendor's Group,
(p) and (q) as such last item pertains to
the aforementioned items and Schedule 2
shall be performed or complied with on the
Completion Date; the other covenants,
agreements and conditions contained in this
Agreement to be performed or complied with
by any Group Company and/or the Vendor on or
prior to the Completion Date shall have been
performed or complied with by said Group
Company and/or the Vendor on the Completion
Date in all material respects.
(iii) No Material Adverse Change (as hereinafter
defined) shall have occurred between 30
September 2003 and the Completion Date. A
"MATERIAL ADVERSE CHANGE" shall mean any
event (but excluding general economic
events) affecting or likely to negatively
affect the condition (financial or
otherwise), properties, business or results
of operations of the Group Companies taken
as a whole save, for the avoidance of doubt,
any event which has been fairly and
adequately disclosed to the Purchaser in the
Disclosure Letter.
(iv) Such amount being advanced on the Completion
Date by the lenders in accordance with the
provisions of the Financial Documents as is
necessary to enable the Purchaser (together
with the funds to be provided pursuant to
the Subscription Agreement) to pay the
amount specified in Clause 3.2.2.
5.1.3 CONDITIONS TO THE OBLIGATIONS OF THE VENDOR
The Vendor's obligation to sell the Sale Shares at
the Completion is subject to the fulfilment to its
satisfaction on or prior to the Completion Date of
the following condition, it being understood that
this condition is included for the exclusive benefit
of the Vendor and may be waived, in whole or in part,
at any time prior to the Completion, in writing by
the Vendor.
All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by
the Purchaser on or prior to the Completion Date
shall have been performed or complied with by the
Purchaser in all material respects.
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5.2 RESPONSIBILITY FOR SATISFACTION - COOPERATION
5.2.1 Each party hereby undertakes at its own expense to
use all reasonable endeavours to ensure the
satisfaction of the conditions that are under their
respective control as set out in Clause 5.1. The
Vendor hereby undertakes to use its reasonable
endeavours to cause the Group Companies to promptly
provide the Purchaser with all information relating
to their activities which the Purchaser may
reasonably require for the purpose of preparing the
application to be filed pursuant to Clause 5.1.1.1 or
answering any subsequent requests and enquiries from
the competent authorities.
5.2.2 Without prejudice to the foregoing, it is agreed that
all requests and enquiries from any government,
governmental, supranational or trade agency, court or
regulatory body shall be dealt with by the Purchaser
in consultation with the Vendor and the Vendor and
the Purchaser shall promptly co-operate with and
provide all necessary information and assistance
reasonably required by such government, agency, court
or body upon being requested to do so by the other.
5.3 NON-SATISFACTION
The Purchaser shall promptly give notice to the Vendor of the
satisfaction of the condition mentioned in Clause 5.1.1.1
within two (2) Business Days of becoming aware of the same. If
the conditions in Clause 5.1 are not satisfied on or before 31
July 2004 save as expressly provided herein, this Agreement,
shall lapse and no party shall have any claim against any
other under it, save for any claim arising from breach of the
undertakings contained in Clause 5.2, and save for the
provisions of Clauses 12.2 ("Announcements"), 12.3
("Confidentiality") and 12.16 ("Governing Law and Dispute
Resolution") which shall survive the termination of this
Agreement.
6 ACTION PENDING COMPLETION
6.1 VENDOR'S OBLIGATIONS PRIOR TO COMPLETION
6.1.1 ORDINARY COURSE OF BUSINESS
The Vendor undertakes to procure that between the
date hereof and the date of Completion Date and save
in so far:
(i) as required pursuant to the contracts
disclosed in the Disclosure Letter against
Warranty 6.2 (Contracts);
(ii) as required by applicable laws or
regulations; or
(iii) as agreed in writing by the Purchaser (such
agreement not to be unreasonably withheld or
delayed),
each Group Company will, carry on its business in the
ordinary course in a manner consistent with current
management practice and more particularly, will not:
(a) enter into any agreement or
commitment involving any capital
expenditure inconsistent with the
amounts and purposes of the capital
expenditures which have, as of the
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date hereof, been budgeted by the
Group Companies and approved by the
Vendor;
(b) acquire or dispose of, or agree to
acquire or dispose of, outside the
ordinary course of business, any
asset, involving consideration,
expenditure or liabilities in
excess of EUR 100,000;
(c) create any Encumbrance over any of
the property, rights or assets
otherwise than in the ordinary
course of business;
(d) incur any additional borrowings or
incur any other financial
indebtedness (other than ordinary
course vehicles leasing) in each
case in excess of EUR 100,000 in
the aggregate, other than within
the Group Companies in the ordinary
course of business;
(e) dismiss or engage any Senior
Employee;
(f) make any amendment to the terms and
conditions of employment of any
Senior Employee (other than minor
increases in the ordinary course of
business);
(g) make any material amendment to any
element of the collective status
(statut collectif) of its
employees, including, but not
limited to, to the terms and
conditions of any employee benefit
scheme or enter into any collective
bargaining agreement;
(h) make any collective salary increase
other than required under the
applicable collective bargaining
agreements;
(i) amend its articles of association
("Statuts");
(j) increase or reduce its share
capital, issue any securities
giving right to its share capital,
declare, make or pay any dividend
or other distribution to
shareholders;
(k) be a party to any, sale of
business, merger, contribution or
spin-off;
(l) make any change to its accounting
policies except as required by law
or by French GAAP;
(m) enter into any new contract that if
it were in effect on the date of
this Agreement, would be a Material
Contract, or any agreement with the
Vendor's Group or amend or, save as
contemplated by this Agreement,
terminate or waive any significant
rights under any existing Material
Contract or any agreement with the
Vendors Group;
(n) initiate or settle any litigation
involving a claim higher than
EUR 125,000; it being provided that
the Vendor shall cause the Group
Companies not to settle any
litigation which may give rise to
indemnification from the Vendor
under this Agreement;
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(o) make any change in Tax elections;
(p) enter into any new line of
business; or
(q) commit to do any of the foregoing.
6.1.2 OTHER OBLIGATIONS OF THE VENDOR PRIOR TO COMPLETION
(i) As from the date of signature of this
Agreement up to the Completion Date, the
Vendor shall, subject to the terms of the
Confidentiality Agreement, cause the Group
Companies to provide reasonable access
during normal business hours to the
Purchaser and its representatives and
advisers to all of the Group Companies'
books, corporate records, offices,
facilities, assets, staff, counsel and
accountants to the extent reasonably
required for the performance of its
obligations or to permit satisfaction of the
conditions to borrowing under the Finance
Documents and to finalise the equity package
with the Management, provided that such
access shall not interfere with the normal
business and operations of the Group
Companies;
(ii) As from the date of signature of this
Agreement up to the Completion Date, the
Vendor shall notify the Purchaser promptly
of any act or circumstances (x) which is a
Material Adverse Change or (y) which
constitutes a breach of the Vendor's
representations, Warranties and/or
undertakings hereunder or (z) which is
likely to result in the Vendor's or the
Guarantor's inability to comply with the
terms of this Agreement.
(iii) On or prior to the Completion, the Vendor
shall acquire one Share from each of Messrs.
Xxx Xxxx, Xxxxxxxx Xxxxxxx, and Xxxxxx
Xxxxxxxxx.
(iv) The Vendor shall cause meetings of the board
of directors and of the shareholders of the
Company to be convened on the Completion
Date in order to resolve upon the matters
referred to in Clause 7.3.4 and Clause 1.2
of Schedule 2.
(v) Prior to Completion the Vendor shall have
caused the Existing Loan to have been repaid
or otherwise extinguished.
(vi) The Vendor shall use its best efforts to
cause the Group Companies to take the
necessary steps so that meetings of the
shareholders of each of them be validly
organized on or before March 30, 2004 with a
view to resolve upon the following matters:
(i) termination of the current fiscal year
as at 31 March, 2004 and (ii) change in the
fiscal year dates from 1 January to 31
December, to 1 April to 31 March; it being
provided that if the Vendor reasonably
believes Completion will not occur on or
before 31 March, 2004, then this obligation
shall apply to the last day of the month in
which the Vendor reasonably expects
Completion to occur.
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6.2 PURCHASER'S OBLIGATIONS PRIOR TO COMPLETION
6.2.1 The Purchaser shall notify the Vendor no later than
fifteen Business Days prior to Completion of:
(i) the list of the persons to be appointed as
directors or legal representatives of the
Company; and
(ii) the name of the Company as from Completion.
6.2.2 The Purchaser shall file as promptly as practicable
and no later than five Business Days from the date
hereof the full notice required under the Regulation
for the purpose of obtaining satisfaction of the
condition precedent referred to in Clause 5.1.1.1 of
this Agreement.
7 COMPLETION
7.1 DATE AND PLACE
Completion shall take place at the offices of the Vendor's
Lawyers at 9:00 a.m. (Paris time) either (i) on 26 February
2004 (subject to satisfaction of the condition set out in
Clause 5.1.1.1 on or before 21 February 2004 and satisfaction
or waiver of the other conditions set out in Clause 5.1 on or
before 26 February 2004) or, (ii), if those conditions are not
met on these dates, respectively, on the fifth Business Day
following the date on which the condition set out in Clause
5.1.1.1 shall have been satisfied, provided further that the
other conditions set forth in Clause 5.1 are then satisfied or
waived on that date. Ownership of the Sale Shares shall be
transferred to the Purchaser on Completion. In the event on
the date scheduled for Completion pursuant to the preceding
paragraph all of the conditions precedent set out in Clause
5.1.1 are satisfied but any condition set out in Clause 5.1.2
or 5.1.3 is not satisfied, the Completion shall be deferred to
take place at the offices of the Vendor's Lawyers at 9:00 a.m.
(Paris time) on the second Business Day following such
scheduled date; if on such second date the unfilled condition
precedent is still not met or waived, (i) the party for the
benefit of whom such unfilled condition is provided shall be
entitled either (i) to waive such condition, (ii) to defer
completion to a later date which shall not be later than ten
Business Days following such second date or (iii) to terminate
by written notice this Agreement, in which case this Agreement
shall be automatically (de plein droit) terminated upon
reception of such notice (except for the provisions of Clauses
12.2 ("Announcements"), 12.3 ("Confidentiality") and 12.16
("Governing Law and Dispute Resolution")), in each instance
without prejudice to any remedies available to it against the
other party.
7.2 COMPLETION OBLIGATIONS
On Completion, each party shall comply with its respective
obligations as set out in Schedule 2.
7.3 OBLIGATIONS OF THE PURCHASER ON COMPLETION
The Purchaser shall, once the Vendor has complied with its
obligations under Clause 7.2;
7.3.1 cause the sum referred to in Clause 3.2.2 to be paid
in cleared funds by electronic funds transfer to the
Vendor's bank account at:
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Intermediary Bank:
XX XXXXXX CHASE BANK A.G.
FRANKFURT, GERMANY
Swift address: XXXX DE FX
Beneficiary Bank:
XX XXXXXX CHASE BANK
HOUSTON, TEXAS, USA
Attention: XXXX XXXXXXX
Swift address: TCBKUSS44
Iban Number: DEl8501108006001600029
Beneficiary: SCI Funeral & Cemetery Purchasing
Cooperative, Inc.
Account: # 0000-000-0000
7.3.2 cause AKH Luxco SCA to issue the Consideration
Securities to the Vendor fully paid;
7.3.3 deliver a copy of the minutes of the resolution of
the sole shareholder of the Purchaser (certified by a
duly appointed officer as true and correct) of the
Purchaser, authorising the execution of and
performance by the Purchaser of its obligations under
this Agreement and each of the other documents to be
executed by the Purchaser pursuant hereto;
7.3.4 procure on the date which is the second Business Day
following the Completion the filing of the
resolutions in respect of the change of name of the
Company for the registration at the Registry of
Commerce of Paris and the sending of the text of the
appropriate notices for publication of the change of
name in the appropriate legal publications;
7.3.5 deliver to the Vendor the required financial data and
schedules relating to the Company to enable the
Vendor to file its US tax reporting forms in respect
of the year ended 31 December, 2003; and
7.3.6 as soon as practicable after Completion deliver to
the Vendor's Lawyers of a copy of the new Extrait
K-bis reflecting the new name of the Company.
8 WARRANTIES
8.1 INCORPORATION OF SCHEDULE 3
8.1.1 The Vendor warrants to the Purchaser, in the terms
set out in Part 1 of Schedule 3 in each case only
subject to:
(i) any matter which is fairly and adequately
disclosed in the Disclosure Letter and any
matter specifically provided for, (up to the
amount of the corresponding provision),
specifically noted or specifically referred
to in the September 30, 2003 Accounts in
both instances other than the Tax related
and other matters in each case referred to
in Schedule 6;
(ii) the limitations and qualifications set out
in Schedule 4.
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8.1.2 Any statement qualified by the expression "so far as
the Vendor is aware", "to the Vendor's knowledge,
information and belief", "known to the Vendor" or any
similar expression shall, unless otherwise stated, be
deemed to refer to the actual knowledge of Xxx Xxxx,
Xxxx Xxxxxxxxxx, Xxxxx Xxxxxx, and Xxxxxxxxxxx Xxxxxx
after reasonable inquiry of the Management to verify
that such statement is true and accurate. The Vendor
has caused the aforementioned persons to proceed with
such inquiry.
8.1.3 The Guarantor warrants to the Purchaser in the terms
set out in Part 2 of Schedule 3.
8.1.4 The Purchaser warrants to the Vendor in the terms set
out in Part 3 of Schedule 3.
8.2 LIMITATION OF LIABILITY
The provisions of Schedule 4 shall apply.
8.3 REDUCTION OF CONSIDERATION
If any payment is made by the Vendor to the Purchaser in
respect of any claim against the Vendor for any breach of this
Agreement (or any agreement entered into pursuant to this
Agreement) or pursuant to any indemnity hereunder, the payment
shall be made by way of adjustment of the consideration paid
by the Purchaser and the consideration shall be deemed to have
been reduced by the amount of such payment.
8.4 EFFECT OF COMPLETION
The Warranties and all other provisions of this Agreement
insofar as the same shall not have been performed at
Completion shall not be extinguished or affected by
Completion, or by any other event or matter whatsoever, except
by a specific and duly authorised written waiver or release by
the Purchaser.
9 GUARANTEES AND OTHER RELATIONSHIPS WITH THE VENDOR'S GROUP
9.1 Except as may be otherwise agreed by the parties, on or prior
to Completion, the Purchaser shall use reasonable efforts to
procure the release of all guarantees, indemnities or comfort
letters given by or binding upon any of the members of the
Vendor's Group in relation to any debt or obligation of the
Group Companies, a list of which is set forth in the
Disclosure Letter. To the extent, despite the Purchaser's
reasonable efforts, such release could not have been obtained
on Completion at the latest, pending such release the
Purchaser shall indemnify and keep indemnified such members of
the Vendor's Group from and against all costs, payments or
claims arising out of such guarantees, indemnities and comfort
letters.
9.2 Except as may be otherwise agreed by the parties on or prior
to Completion, the Vendor shall
(i) use reasonable efforts to procure the release of all
guarantees, indemnities or comfort letters given by
or binding on the Group Companies in relation to any
debt or obligation of any of the members of the
Vendor's Group or other persons as aforesaid, a list
of which is set forth in the Disclosure Letter. To
the extent, despite the Vendor's reasonable efforts,
such release
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could not have been obtained on Completion at the
latest, pending such release the Vendor shall
indemnify and keep indemnified the Purchaser from and
against all costs, payments arising out of such
guarantees, indemnities and comfort letters;
(ii) have terminated or caused the termination following
the payment of all outstanding amounts due thereunder
but without any indemnity due by, or remaining
obligation whatsoever for, any Group Company, of all
of the contracts entered into between any member of
the Vendor's Group and any Group Company.
9.3 The Guarantor guarantees to the Purchaser the full performance
of all of the Vendor's obligations under this Agreement. The
obligations of the Guarantor under this the preceding sentence
will be the obligations of a caution solidaire under Articles
2011 et seq. of the Code Civil, the Guarantor hereby waiving
any rights to the benefice de division and the benefice de
discussion. In addition, the Guarantor shall be directly bound
by the provisions of Clauses 12.2 ("Announcements"), 12.3
("Confidentiality"), 12.5 ("Successors and Assigns"), 12.12
("Withholding and Deductions") and 12.16 ("Governing Law and
Dispute Resolution").
9.4 The Guarantor hereby undertakes to pay OGF or its successor
company in immediately available funds within five Business
Days of receipt of a copy of a valid claim for payment by
Mederic Assurances or Auxia against OGF or CAF (or their
respective successor companies) pursuant to the Protocole
d'Accord dated 6 December, 2002 such amount as Mederic
Assurances or Auxia requires to be paid by OGF or CAF (or
their respective successor companies) as such amount shall be
grossed-up by any related tax charge, if any, to be borne by
OGF or CAF in connection thereof; it being provided that the
Guarantor shall be entitled to discharge the obligation
provided in the preceding sentence by paying directly such
amount, within the aforementioned time period, to Mederic
Assurances or Auxia. For the avoidance of doubt the Guarantor
shall not be required to make such payment, if and to the
extent that it has already made payment to OGF pursuant to the
guarantee dated 11 December 2002.
10 INTELLECTUAL PROPERTY
10.1 PROHIBITION ON USE OF VENDOR'S NAMES AND TRADEMARKS
The Purchaser shall procure that no member of the Purchaser's
Group shall, save as permitted by the Trademark Licence, after
Completion, use in any way whatsoever any name, trademark,
trade name, logo, or domain name which may generate a
confusion for the public with the Vendor's distinctive signs.
10.2 USE OF "DIGNITE" NAME
The Purchaser acknowledges that the "Dignite" name is and will
remain the property of the Vendor's Group and that nothing in
this Agreement shall transfer nor shall operate as an
agreement to transfer any right, title or interest in any of
the "Dignite" name to the Purchaser or any member of the
Purchaser's Group.
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11 WHOLE AGREEMENT AND REMEDIES
11.1 WHOLE AGREEMENT
This Agreement contains the whole agreement between the
parties relating to the subject matter of this Agreement at
the date hereof to the exclusion of any terms implied by law
which may be excluded by contract and supersedes any previous
written or oral agreement between the parties in relation to
the matters dealt with in this Agreement.
11.2 PURCHASER'S ACKNOWLEDGEMENTS AND UNDERTAKING FOLLOWING
COMPLETION
11.2.1 The Purchaser acknowledges that it has not been
induced to enter into this Agreement by any
representation, warranty or undertaking not expressly
incorporated into it.
11.2.2 The Purchaser acknowledges that neither the Vendor
nor any of the Vendor's representatives makes any
representation or warranty with respect to the future
relations of the Group Companies with any customer,
nor with regard to the future financial or business
prospects of the Group Companies.
11.2.3 The Purchaser agrees that for a period ending on the
last date on which a Claim may be brought under the
Tax Warranties it shall not, and shall not permit any
Group Company to destroy or otherwise dispose of any
books and records of the Group Companies existing at
Completion except with the prior written consent of
the Vendor.
11.3 REMEDIES
So far as permitted by law and except in the case of fraud,
each party agrees and acknowledges that its only right and
remedy in relation to any representation, warranty or
undertaking made or given in connection with this Agreement
shall be as provided in this Agreement to the exclusion of all
other rights and remedies (including those arising under
statute).
11.4 INTERPRETATION
In Clauses 11.1 to 11.4 "this Agreement" includes the
Disclosure Letter, the Confidentiality Agreement and all
documents entered into pursuant to this Agreement.
12 OTHER PROVISIONS
12.1 UNDERTAKING NOT TO COMPETE - NON SOLICITATION
The Vendor and the Guarantor hereby undertake not to: and
shall procure that the other members of the Vendor's Group
shall not, for a period extending from the Completion Date to
the third anniversary of such date,:
(i) Undertake in the territory of the French Republic,
either directly or indirectly, personally or through
other individuals or entities, any activity which
competes with that of any Group Company and not to
cooperate in any manner whatsoever with any company
which competes with any Group Company in the
territory of the French Republic;
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(ii) Solicit, appoint or hire, either directly or
indirectly any member of Management or their
successors, or incite those employees to leave any
position they occupy now or in the future with any
Group Company.
12.2 ANNOUNCEMENTS
No announcement in connection with the existence or the
subject matter of this Agreement shall be made or issued by or
on behalf of the Vendor, the Guarantor or the Purchaser or by
or on behalf of any member of the Vendor's Group or any member
of the Purchaser's Group without the prior written approval of
the Vendor and the Purchaser.
By way of exception to the foregoing paragraph:
(i) Each party shall be authorized to make any
announcement when required by law or any regulatory
body; in case such an announcement is made, the other
party shall also be authorized to make its own
announcement;
(ii) Each party shall be authorized to make an
announcement in connection with the completion of the
transaction completed hereunder;
provided in both cases (i) and (ii) that the party wishing to
make any such announcement shall, with reasonable prior
notice, provide a copy thereof to the other party, which
reasonable comments shall be taken into account by the party
wishing to make the announcement.
12.3 CONFIDENTIALITY
12.3.1 The Confidentiality Agreement shall terminate upon
Completion.
12.3.2 Subject to Clause 12.3.4, the Vendor and the
Guarantor shall treat as confidential and not
disclose or use any information received or obtained
as a result of entering into this Agreement (or any
agreement entered into pursuant to this Agreement)
which relates to:
(i) the provisions of this Agreement and any
agreement entered into pursuant to this
Agreement; or
(ii) the negotiations relating to this Agreement
(and such other agreements);
(iii) the business, financial or other affairs of
the Group Companies and including, in each
case, future plans and targets.
12.3.3 Subject to Clause 12.3.4, the Purchaser shall treat
as confidential and not disclose or use any
information received or obtained as a result of
entering into this Agreement (or any agreement
entered into pursuant to this Agreement) which
relates to:
(i) the provisions of this Agreement and any
agreement entered into pursuant to this
Agreement; or
(ii) the negotiations relating to this Agreement
(and such other agreements);
(iii) the business, financial or other affairs
(including future plans and targets) of the
Vendor's Group.
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12.3.4 Neither Clause 12.3.2 nor 12.3.3 shall prohibit
disclosure of any information if and to the extent:
(i) the disclosure or use is required by law,
any regulatory body or the rules and
regulations of any recognised stock
exchange;
(ii) the disclosure or use is required to vest
the full benefit of this Agreement in the
Vendor or the Purchaser, as the case may be
or the disclosure or use is provided under
this Agreement or necessary for its
implementation;
(iii) the disclosure or use is required for the
purpose of any judicial proceedings arising
out of this Agreement or any other agreement
entered into under or pursuant to this
Agreement or the disclosure is reasonably
required to be made to a Taxation authority
in connection with the Taxation affairs of
the disclosing party;
(iv) the disclosure is made to professional
advisers or Associated Companies of the
Purchaser or the Vendor, or providers of
financing to the Purchaser (including
bank(s) and/or financial institution(s)
lending money or making other banking
facilities available, directly or through
other entities, to the Purchaser) provided
on terms that such persons are made aware of
the provisions of Clause 12.3.2 or 12.3.3 as
if they were a party to this Agreement;
(v) the information becomes publicly available
(other than by breach of the Confidentiality
Agreement or of this Agreement);
(vi) the other party has given prior written
approval to the disclosure or use;
(vii) the information is independently developed
after Completion,
provided that, to the extent legally permissible and
except in the case where the information is disclosed
by the bank(s) and/or financial institution(s)
lending money or making other banking facilities
available, directly or through other entities, to the
Purchaser, to other banks and/or financial
institutions with which such financing is syndicated,
prior to disclosure or use of any information
pursuant to Clause 12.3.4(i) or (iv), the party
concerned shall promptly notify the other party of
such requirement with a view to providing the other
party with the opportunity to contest such disclosure
or use or otherwise to agree the timing and content
of such disclosure or use.
12.3.5 On Completion, the Vendor shall assign to the
Purchaser, to the extent permitted by the terms of
the relevant agreement, the benefit of any
confidentiality agreements entered into by the Vendor
in connection with any proposed sale of the Sale
Shares.
12.4 RETURN OF DOCUMENTS ETC.
12.4.1 If Completion does not take place, the Purchaser
shall as soon as reasonably practicable:
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(i) return or, at its election, destroy all
written information of or relating to the
Vendor's Group and each Group Company
provided to the Purchaser or its advisers
(the "CONFIDENTIAL INFORMATION") which is in
the Purchaser's possession or under the
Purchaser's custody and control without
keeping any copies thereof;
(ii) destroy all information, analyses,
compilations, notes, studies, memoranda or
other documents derived from, containing or
reflecting Confidential Information;
(iii) so far as it is practicable to do so (but,
in any event, without prejudice to the
obligations of confidentiality contained in
this Agreement) expunge any Confidential
Information from any computer, word
processor or other device in the Purchaser's
possession or under the Purchaser's custody
and control.
12.4.2 Clause 12.4.1 shall not apply to any information
available from public records or information acquired
by the Purchaser otherwise than from any member of
the Vendor's Group, any of the Group Companies and
their respective employees, officers or agents.
12.5 SUCCESSORS AND ASSIGNS
12.5.1 This Agreement is personal to the parties to it.
Accordingly and subject to Clause 12.5.2 and 12.5.3,
neither the Purchaser nor the Vendor may, without the
prior written consent of the other, assign or
otherwise transfer all or any benefits or obligations
under this Agreement, nor shall the Purchaser be
entitled to make any claim against the Vendor in
respect of any Loss suffered by the Group Companies
at a time where the Purchaser has ceased to be the
owner of the Sale Shares (or shares received in
exchange therefor as a result of the merger of the
Company into another Group Company). Notwithstanding
the foregoing, in the event the bank(s) and/or
financial institution(s) lending money or making
other banking facilities available, directly or
through other entities, to the Purchaser for the
acquisition of the Sale Shares (including banks
and/or financial institutions with which such
financing has been syndicated) have foreclosed on the
Sale Shares, the third party having acquired the Sale
Shares as a result of the foreclosure proceedings, or
the third party having directly acquired the Sale
Shares from the foreclosing banks, shall be
substituted for the Purchaser in its indemnification
rights under this Agreement.
12.5.2 Notwithstanding the provisions of Clause 12.5.1, the
Purchaser may upon giving written notice to the
Vendor, assign and/or charge (by way of assignment,
delegation or otherwise) all, but not part of, the
benefits (but not the burden) of this Agreement by
way of security only to any bank(s) and/or financial
institution(s) lending money or making other banking
facilities available to the Purchaser for the
acquisition of the Sale Shares and the terms of such
assignment shall provide that the liabilities of the
Vendor from time to time under this Agreement shall
be no greater than such liabilities would have been
had no assignment or charge taken place. The Vendor
undertakes to execute any document for the purpose of
ensuring the transfer of all or part of the benefits
of this Agreement as contemplated under the preceding
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sentence. The Purchaser acknowledges and agrees that
the rights of the bank(s) and/or financial
institution(s), and any persons claiming through
them, pursuant to any such assignment and/or charge
shall be subject to all matters (including without
limitation rights of set-off) to which the rights of
the Purchaser under this Agreement would have been
subject had no such assignment and/or charge taken
place.
12.5.3 Notwithstanding the provisions of Clause 12.5.1, the
Purchaser shall be entitled to assign all or part of
its rights and obligations hereunder to any of its
Associated Companies, but the Purchaser shall remain
liable if the assignee breaches any obligation
hereunder.
12.6 VARIATION
No variation of this Agreement shall be effective unless in
writing and signed by or on behalf of each of the parties to
this Agreement.
12.7 TIME
When calculating the period of time within which or following
which any act is to be done or step taken, the rules described
in article 640 to 642 of the Nouveau Code de Procedure Civile
shall be applied.
12.8 FURTHER ASSURANCE
At any time after the date of this Agreement, each party shall
and shall use their reasonable endeavours to procure that any
necessary third party shall execute such documents and do such
acts and things as the other may reasonably require for the
purpose of giving to the other the full benefit of all the
provisions of this Agreement.
12.9 COSTS AND COMMITMENT FEE
The Vendor shall bear all investment banking advisory (being
Xxxxxx Brothers), legal (being Linklaters and Landwell and
Moquet Borde's advice to the Vendor), accountancy (being
PricewaterhouseCoopers Transaction Services) and other costs
and expenses incurred by it in connection with this Agreement
and the transactions contemplated hereunder. The Purchaser
shall bear all such costs and expenses incurred by it. All
stamp, transfer or registration taxes payable in any
jurisdiction in respect of this Agreement or the performance
thereof or any other document entered into pursuant to this
Agreement shall be borne by the Purchaser.
The Purchaser shall bear all costs in connection with the
making of filings and obtaining clearances contemplated in
Clause 5.1.1.1.
The Purchaser shall also on Completion pay to the Vendor the
sum of EUR 500,000 pursuant to the Commitment Letter.
12.10 METHOD OF PAYMENT
Wherever in this Agreement provision is made for the payment
by one party to another (other than payment of the Completion
Amount), such payment shall be effected by crediting for same
day value the account specified by the payee by way of
telegraphic transfer in immediately available funds on or
before the due date for payment unless the payee by notice to
the payer, not later than three Business Days prior to the due
date for payment, elects to be paid by banker's draft drawn on
any
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international bank reasonably acceptable to the payer and
having an office in Paris. Payment of such sum shall be a good
discharge to the payer of its obligation to make such payment.
12.11 INTEREST
If the Vendor or the Purchaser defaults in the payment when
due of any sum payable under this Agreement (howsoever
determined) the liability of the Vendor or the Purchaser (as
the case may be) shall be increased to include interest on
such sum from the date when such payment is due until the date
of actual payment (as well after as before judgment) at a rate
per annum (as computed on the basis of a year of 360 days) of
8 per cent. Such interest shall be added to the principal at
the end of each one year period during which it has renewed
and thereafter produce interest.
12.12 WITHHOLDING AND DEDUCTIONS
All sums payable by the Vendor or by the Purchaser to another
party under this Agreement shall be paid free and clear of all
deductions or withholdings whatsoever save only as may be
required by law.
12.13 NOTICES
12.13.1 Any notice or other communication in connection with
this Agreement shall be in writing (a "NOTICE") and
shall be sufficiently given or served if delivered or
sent:
in the case of any of the Vendor to:
Service Corporation International Limited
XX Xxx 000000,
0000 Xxxxx Xxxxxxx,
Xxxxxxx,
Xxxxx,
XXX 00000
Fax: 0 000 000 0000
Attention: Xx Xxxxxx X. Xxxx
in the case of any of the Guarantor to:
Service Corporation International
XX Xxx 000000,
0000 Xxxxx Xxxxxxx,
Xxxxxxx,
Xxxxx,
XXX 00000
Fax: 0 000 000 0000
Attention: Xx Xxxxxx X. Xxxx
in the case of the Purchaser to:
OGF Holding SAS
Fax: 00 0 00 00 00 00
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Attention: Xx. Xxxxxx Xxxxxx
c/o Vestar Capital Partners Europe
0, Xxxx Xxxxx xxx Xxxxxx Xxxxxxx
00000 Xxxxx
Fax: 00 0 00 00 00 00
Xxxx Xxxxx, Esq.
Vestar Capital Partners
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 0 000 000 0000
or (in either case) to such other address or fax
number as the relevant party may have notified to the
other in accordance with this Clause.
12.13.2 Any Notice may be delivered by hand or, sent by fax
or prepaid post (first class in the case of service
in France and airmail in the case of international
service). Without prejudice to the foregoing, any
Notice shall conclusively be deemed to have been
received on the next working day in the place to
which it is sent, if sent by fax, or 60 hours from
the time of posting, if sent by post, or at the time
of delivery, if delivered by hand.
12.14 INVALIDITY
If any term in this Agreement shall be held to be illegal,
invalid or unenforceable, in whole or in part, under any
enactment or rule of law, such term or part shall to that
extent be deemed not to form part of this Agreement but the
legality, validity or enforceability of the remainder of this
Agreement shall not be affected. Furthermore, in lieu of such
invalid, illegal or unenforceable provision, the parties shall
add as part of this Agreement a provision as similar in terms
to such invalid, illegal or unenforceable provision as may be
possible and be valid, legal and enforceable.
12.15 NO COUNTERPARTS
In accordance with article 1325 of the French Civil Code only
three originals of this Agreement shall be drawn up and
executed (one for the Purchaser, one for the Vendor and one
for the Guarantor).
12.16 GOVERNING LAW AND DISPUTE RESOLUTION
12.16.1 Agreement and the documents to be entered into
pursuant to it, shall be governed by, and construed
in accordance with, the laws of France.
12.16.2 Any dispute, controversy or claim arising out of or
relating to this Agreement or the breach or
threatened breach hereof shall be finally settled by
arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration
Association ("AAA") except as set forth below, and
judgments on the award recorded by the arbitrators
may be entered and enforced in any court having
jurisdiction, whether by an action on a judgment, a
motion for summary judgment in lieu of complaint, in
a pending action, by counterclaim, cross-claim or
affirmative defense, or by any other means permitted
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by applicable law or the rules or procedures of any
such court, in each case without re-trial or
examination of the merits of the dispute, controversy
or claim.
12.16.3 The party commencing the arbitration (the "CLAIMANT")
shall appoint one arbitrator in its written notice of
its intention to commence arbitration (the "DEMAND").
Within 10 days of its receipt of the Demand, the
other party (the "RESPONDENT") shall appoint one
arbitrator and send written notice of the identity
that arbitrator to the Claimant. Within 20 days of
receipt of such notice by the Claimant, the two-party
appointed arbitrators shall select a third
arbitrator, who together with the two-party appointed
arbitrators shall constitute the arbitration panel
(the "PANEL") and who shall be the chair of the Panel
(the "CHAIR"). The parties agree that the Panel shall
resolve all subsequent disputes arising under this
Agreement so long as the arbitrators are able and
willing to serve, except that each party shall have
one opportunity to replace its party-appointed
arbitrator upon the initiation of a new arbitration.
If the Chair is unable to continue on the Panel, the
two-party arbitrators shall have 20 days from the
date of resignation of the Chair to agree upon a
replacement.
12.16.4 Once the Panel has been constituted, it shall have 90
days to render its award. For subsequent arbitrations
commenced after the Panel is constituted, the Panel
shall render its award within 90 days of the date of
the Demand is provided to the Chair.
12.16.5 Any arbitrators appointed pursuant to Clause 12.16.3
must be fluent in both French and English.
12.16.6 Any and all arbitration proceedings shall take place
in New York City, New York, USA, and shall be
conducted in the English language. Documents
submitted to the arbitration shall be submitted in
English it being acknowledged however that supporting
documentary evidence may be submitted in the French
language.
Signed in Paris, on 15 January, 2004 in three original copies
THE GUARANTOR
SIGNED by XXX XXXX
on behalf of
SERVICE CORPORATION INTERNATIONAL /s/ XXX XXXX
------------------------
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THE VENDOR
SIGNED by XXX XXXX
on behalf of
SCI INTERNATIONAL LIMITED /s/ XXX XXXX
--------------------------
THE PURCHASER
SIGNED by XXX XXXXXX
acting on behalf of
VESTAR EUROPE RESOURCES I
on behalf of OGF HOLDING SAS /s/ XXX XXXXXX
--------------------------
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