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EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made this day of July 22, 1999
BETWEEN:
1. Xx. XXXXXXX XXXXXXX, a French national, born in Paris, France, on
December 1956 residing at Le Fouillage, 24460 chateau l'Eveque, ,
acting in his capacity of:
shareholder of Fargeot et Compagnie, and
legal owner of 2500 shares in Escapade, a corporation with share capital
of FF 250,000, having its registered office at Le Petit Gue, 24800
Nantheuil de Thiviers, registered with the Trade and Company Registry of
Perigueux under number 000 000 000, (hereinafter referred to as
"Escapade").
2. Xx. XXXXXX XXXXXXX, a French national, born in Perigueux, France, on
March 25, 1957, residing at Xxxxxx xxx Xxxxxxxxx, 00000 Thiviers,
acting in his capacity of:
legal owner of 76 shares in Fargeot et Compagnie, a French Societe
Anonyme with share capital of FF 2,000,000, having its registered office
at Le Petit Gue - Nantheuil de Thiviers, 24800 Thiviers, registered with
the Trade and Company Registry of Perigueux under number 681 980 165,
(hereinafter referred to as "Fargeot et Compagnie").
3. FCPR COUNTY NATWEST VENTURE FRANCE, a French venture capital fund (fonds
commun de placement a risque; Law of December 23, 1988) located at 0, xxx
Xxxxxxxxxx, 00000 Xxxxx, whose management company is Natwest Equity
Partners, a French Societe Anonyme with share capital of FF 3,000,000,
having its registered office at 0, xxx xx Xxxxxxxxxx, 00000 Xxxxx,
registered with the Trade and Company Registry of Paris under number 380
223 313, itself represented by Xx. Xxxxxx Xxxxxxx Barennes, duly
authorized for the purpose of this Agreement pursuant to the Power of
Attorney attached hereto as Schedule (1).
acting in its capacity of:
legal owner of 451 shares in Fargeot et Compagnie.
4. SCA CAPITAL PRIVE-INVESTISSEMENTS, a French Societe en commandite par
actions with share capital of FF 28,500,000, having its registered office
at 0, xxx xx Xxxxxxxxxx, 00000 Xxxxx, registered with the Trade and
Companies Registry of Paris under number 353 005 580, represented by its
management Company, Capital Prive, a French Societe Anonyme with share
capital of FF 1,000,000, having its registered office at 0, xxx xx
Xxxxxxxxxx, 00000 Xxxxx, registered with the Trade and Companies Registry
of Paris under number 353 985 683, itself represented by Xx. Xxxxxx
Xxxxxxx Barennes, duly authorized for the purpose of this Agreement
pursuant to the Power of Attorney attached hereto as Schedule (1).
acting in its capacity of:
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owner of 451 shares of Fargeot et Compagnie.
5. HOCHE INVESTISSEMENTS, a French Societe Anonyme with share capital of FF
250,000, having its registered office at 0, xxx xx Xxxxxxxxxx, 00000
Xxxxx, registered with the Trade and Company Registry of Paris under
number 381 078 195, represented by Xx. Xxxxxx Xxxxxxx Barennes, duly
authorized for the purpose of this Agreement pursuant to the Power of
Attorney dated July 19, 1999 attached hereto as Schedule (1).
acting in its capacity of:
legal owner of 1 share in Fargeot et Compagnie.
6. SA CAPITAL PRIVE, a French Societe Anonyme with share capital of FF
1,000,000, having its registered office at 0, xxx xx Xxxxxxxxxx, 00000
Xxxxx, registered with the Trade and Company Registry of Paris under
number 352 985 683, represented by Xx. Xxxxxx Xxxxxxx Barennes, duly
authorized for the purpose of this Agreement pursuant to the Power of
Attorney dated July 19, 1999 attached hereto as Schedule (1).
acting in its capacity of:
legal owner of 1 share in Fargeot et Compagnie.
Hereinafter collectively referred to as "the Sellers"
PARTIES OF THE FIRST PART,
AND
1. XX XXXXX CORPORATION, a United-States corporation incorporated under the
laws of the State of OHIO, having its registered office at 00000 Xxxxxxxx
Xx. XX, Xxxxxxxxxxxx, Xxxx, 00000, XXX (hereinafter referred to as "XX
Xxxxx"), represented by Xx. Xxxx Xxxxx, duly authorized for the purpose
of this Agreement pursuant to the corporate resolution and power of
attorney attached hereto as Schedules (5) and (6).
2. ESCAPADE, a French Societe Anonyme with share capital of FF 250,000,
having its registered office at Le Petit Gue, 24800 Nantheuil de
Thiviers, registered with the Trade and Company Registry of Perigueux
under number 000 000 000, represented by M. Xxxxxxx Xxxxxxx, duly
authorized for the purpose of this Agreement pursuant to the decision of
the Board of Directors attached hereto as Schedule (3).
Hereinafter collectively referred to as the "Purchasers".
PARTIES OF THE SECOND PART
The Sellers and the Buyers being collectively referred to hereinafter as the
"Parties".
WHEREAS
Xx. Xxxxxxx Xxxxxxx holds 100% of the shares of Escapade (hereinafter "Escapade
Shares").
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The Natwest Group and Xx. Xxxxxx Xxxxxxx hold collectively 49% of the share
capital of Fargeot et Compagnie, which in turn holds 100% of the share capital
of Xxxxxx Xxxxxxx SA, the major operating company of the Fargeot group, located
in Thiviers.
The Purchasers have decided to acquire the shares in Fargeot et Compagnie under
the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION OF THE REPRESENTATIONS, WARRANTIES, COVENANTS
AND AGREEMENTS SET FORTH HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS :
ARTICLE 1 - DEFINITIONS AND INTERPRETATION
In this Agreement, the following words and expressions bear the following
meanings:
"Bank guarantee" means the bank guarantee attached hereto as Schedule
4 as well as the commitments provided for in this
guarantee within the scope of this Agreement and
referred to in articles 8 and 10 hereafter.
"Closing" means the completion of the sale of the Fargeot et
Compagnie Shares(as defined in article 2 hereto), the
sale of Escapade Shares (as defined in article 3
hereto), and the signature and/or the provision of
all and any such necessary and/or related documents
as referred to in articles 12 and 13 of this
Agreement.
"Balance Sheet Date" means April 30, 1999 for Fargeot et Compagnie, and
February 28, 1999 for Escapade.
"Closing Date" means the date hereof.
"Financial Statements" means (i) the balance sheet, income statement and
notes of Escapade, Fargeot et Compagnie and Xxxxxx
Xxxxxxx SA as of the Balance Sheet Date, as audited
by the statutory auditors and approved by the
shareholders in a meeting held on June 30, 1999 by
each of said companies.
"Guarantees" means the representations, warranties, guarantees,
statements, commitments and obligations made or taken
by Xx. Xxxxxxx Xxxxxxx and provided for in articles 5
to 9 of this Agreement.
"Natwest Group" means the group of companies formed by FCPR county
Natwest Venture France, SCA Capital
Prive-Investissements Hoche Investissements and
Capital Prive.
"Shareholders' Agreement" means the agreement entered into between Xx. Xxxxxxx
Xxxxxxx, XX Xxxxx and XX Xxxxx France on the date
hereof.
"Purchase price" shall have the meaning defined in article 4 of this
Agreement.
"XX Xxxxx France" means XX Xxxxx France Holdings, Inc., a company of
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the XX Xxxxx group, grantor of a loan of FF
11,536,780 to Escapade referred to in article 4.1,
pursuant to a loan agreement with Escapade referred
to in articles 12 and 13.4 and attached hereto as
Schedule (6).
"The Companies"
or "Fargeot Group" means the group of companies formed by Escapade,
Fargeot et Compagnie SA and Xxxxxx Xxxxxxx SA.
ARTICLE 2 - SALE AND PURCHASE OF SHARES OF FARGEOT ET COMPAGNIE SA
2.1 Upon the terms and conditions set forth in this Agreement, the Natwest
Group and Xx. Xxxxxx Xxxxxxx agree to sell to Escapade, and Escapade
agrees to acquire from the Natwest Group and Xx. Xxxxxx Xxxxxxx, nine
hundred eighty (980) shares representing 49% of the capital stock of
Fargeot et Compagnie, together with the rights, title or interests
attached thereto (hereinafter the "Fargeot et Compagnie Shares").
2.2 Except only as provided for in article 5(2.8) hereof, the beneficial
right to the Fargeot et Compagnie Shares, including without limitation,
dividends, profits, stock split, stock options, or the like, shall be
vested in Escapade on the Closing Date.
2.3 The transfer of the Fargeot et Compagnie Shares shall be completed on the
Closing Date, in accordance with the conditions set forth in articles 3
and 4.1 hereof, and in the offices of Xxxxxxx & Xxxxxxx, 00 xxx xx
Xxxxxxxx Xxxxx Xxxxxx, xx at such other time and location as may be
mutually agreed in writing by the Parties.
ARTICLE 3 - SALE AND PURCHASE OF ESCAPADE SHARES
3.1 Prior to the transfer of the Fargeot et Compagnie Shares, Xx. Xxxxxxx
Xxxxxxx agrees to sell to XX Xxxxx, and XX Xxxxx agrees to acquire from
Xx. Xxxxxxx Xxxxxxx, under the terms and conditions provided for herein,
one-thousand nine-hundred and ninety-five (1995) Escapade Shares.
3.2 The beneficial right attached to the Fargeot et Compagnie Shares,
including without limitation, dividends, profits, stock splits, stock
options, or the like, shall be the vested in Escapade on the Closing
Date.
3.3 The transfer of Escapade shares shall be completed on the Closing Date,
only subject to the limit set forth in article 5(2.8) hereof, in the
offices of Xxxxxxx & Xxxxxxx, 00 xxx xx Xxxxxxxx Xxxxx Xxxxxx, xx at such
other time and location as mutually agreed in writing by the Parties.
ARTICLE 4 - PURCHASE PRICE AND MEANS OF PAYMENT
4.1 The sale of Fargeot et Compagnie Shares set out to in article 2 hereof is
agreed for the total price of FF 14,770,780 to be paid to the Natwest
Group and to Xx. Xxxxxx Xxxxxxx by Escapade on the Closing Date as
follows:
- FF 1,145,489.06 to Xx. Xxxxxx Xxxxxxx for 76 Fargeot et Compagnie Shares;
- FF 6,797,573.25 to FCPR County Natwest Venture for 451 Fargeot et
Compagnie Shares;
- FF 6,797,573.25 to SCA Capital Prive-Investissements for 451 Fargeot et
Companies Shares.
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- FF 15,072.22 to Hoche Investissements for 1 Fargeot et Compagnie Share;
- FF 15,072.22 to SA Capital Prive for 1 Fargeot et Compagnie Share;
Escapade shall pay the Sellers the purchase price of the Fargeot et
Compagnie Shares by bank checks.
The initial financing of the Purchase Price for the Fargeot et Compagnie
Shares by Escapade is made through a current account advance made by Xx.
Xxxxxxx Xxxxxxx, under the terms and conditions of the shareholder's
current account agreement (hereinafter "SCA") attached hereto as Schedule
(5), as well as through a loan granted by XX Xxxxx France to Escapade
attached hereto as Schedule (6), broken down as follows:
- loan from XX Xxxxx France of FF 11,536,780
- SCA advance Xx. Xxxxxxx Xxxxxxx of FF 3,234,000
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Total FF 14,770,780
The ultimate financing of the Purchase Price of the Fargeot et Compagnie
shares will be made through a bank loan to be negotiated and obtained by
Escapade in accordance with the terms and conditions of the Shareholders'
Agreement entered into between Xx. Xxxxxxx Xxxxxxx, XX Xxxxx and XX Xxxxx
France.
4.2 The sale of Escapade Shares referred to in article 3 hereof, is agreed
for the total price of FF 14,863,220 to be paid in cash to Xx. Xxxxxxx
Xxxxxxx by XX Xxxxx on the Closing Date. Pursuant to Xx. Xxxxxxx
Xxxxxxx'x instructions, FF 11,629,220 of this total price shall be
credited to account number 20112400001 opened by Xx. Xxxxxxx Xxxxxxx'x at
Credit Suisse Hottinguer's agency (Bank Code: 18169; branch code 0001)
located at 00 xxx xx Xxxxxxxx, 00000 Xxxxx, Xxxxxx, and FF 3,234,000
shall be credited to account number 20112500001 opened by Escapade with
said branch; the latter amount represents the current account advance
referred to in Article 4.1. Moreover, the loan of FF 11,536,780 from XX
Xxxxx France shall be made available on the Closing Date through a
deposit by XX Xxxxx to Escapade's above-mentioned account.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF XX. XXXXXXX XXXXXXX
In entering into this Agreement and all the commitments resulting herefrom, XX
Xxxxx and XX Xxxxx France have relied upon Xx. Xxxxxxx Xxxxxxx'x representations
and warranties, the accuracy of which is determinative, and has induced them to
enter into this Agreement.
Xx. Xxxxxxx Xxxxxxx warrants that he has not delegated any powers to anyone
within the Companies which would void or render ineffective the representations
and warranties.
Xx. Xxxxxxx Xxxxxxx certifies that the following representations and warranties
are exhaustive, sincere and accurate.
5.1 With respect to himself and the Escapade Shares, Xx. Xxxxxxx Xxxxxxx
represents on the Closing Date and warrants as follows:
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5.1.1 Absence of violation
The entering into of this Agreement and the other agreements
and instruments to be executed by Xx. Xxxxxxx pursuant to this
Agreement, and the performance of the transactions
contemplated hereby or thereby will not constitute (i) any
violation whatsoever, or cause a default under or breach of
any judgment, order or decree applicable to him, or (ii)
non-compliance with or breach of any undertaking, covenant,
agreement or other instrument to which he is a party or by
which he or his property is bound.
5.1.2 Compliance with legal and regulatory provisions
Approval, authorization of, declaration to, or filing with,
any governmental authority or other regulatory body or third
party is not required to be obtained by Xx. Xxxxxxx Xxxxxxx in
connection with the execution and validity of this Agreement
and of the other agreements and instruments to be executed by
him pursuant hereto, and the performance of the transactions
contemplated hereby and thereby.
5.1.3 Litigation
There is no action, suit or proceeding pending nor, to his
knowledge, threatened against or affecting him in any court or
before any governmental agency or authority which would
materially and adversely affect the performance of his
obligations under this Agreement and the other agreements and
instruments to be executed by him pursuant hereto.
5.1.4 Share capital and allocation of Escapade Shares
Xx. Xxxxxxx Xxxxxxx has full ownership of the Escapade Shares
and full power and capacity to dispose thereof. The Escapade
Shares are validly issued and fully paid-up and represent 100
% of the share capital of Escapade; they are not subject to
any pledge, encumbrance or security interest whatsoever or any
promise or right of first refusal or similar right granted to
any third party.
Moreover, Xx. Xxxxxxx Xxxxxxx has not entered into any
contract or agreement relating to the Escapade Shares, other
than this Agreement, the purpose or effect of which, directly
or indirectly, would affect in any way the unrestricted
ownership, transferability or value of all or part of the
Escapade Shares.
5.1.5 Law applicable to the sale of Escapade Shares
The sale of the Shares in accordance with the provisions of
this Agreement is valid under French law.
5.1.6 Accuracy of agreements and documents transmitted
The agreements and other documents attached hereto as
Schedules 7 to 19 hereof are copies of originals held by the
Company and are therefore true and accurate in all respects.
5.2 With respect to the Companies, Xx. Xxxxxxx Xxxxxxx represents and
warrants as follows:
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5.2.1 Capacity of the Companies
Each Company is duly organized as a Societe Anonyme and
validly existing under French law.
The Companies have full power and authority to engage in their
business, as it is presently conducted, and to manage and
dispose of their property and assets. They have obtained any
and all rights, authorizations, licenses, or permits required
to engage in such businesses and have complied with all
statutory and regulatory obligations relating thereto.
5.2.2 Corporate authorization
The execution and provision of the agreements and instruments
to be executed by the Companies pursuant to this Agreement,
and the performance of the transactions contemplated thereby
have been duly authorized and no further corporate
authorization is necessary on their part. The agreements and
instruments to be executed by the Companies pursuant to this
Agreement will be legally binding on and enforceable against
them in accordance with their respective terms.
5.2.3 Absence of violation
The entering into the agreements and instruments to be
executed by the Companies pursuant to this Agreement, and the
performance of the transactions contemplated thereby will not
violate, or cause a default under or a breach of (i) each
Company's by-laws, (ii) any judgment, order or decree
applicable to it, or (iii) any undertaking, covenant,
agreement or other instrument to which the Companies are
parties or by which themselves or their property are bound.
5.2.4 Compliance
No consent, approval, authorization of, or declaration to or
filing with, any governmental authority or other regulatory
body or any third party is required to be obtained by the
Companies in connection with the agreements and instruments to
be executed by them pursuant to this Agreement, and the
performance of the transactions contemplated thereby.
5.2.5 Trade and Company Registry and Corporate Registers
The Certificate of Incorporation and by-laws of the Companies,
as of the date hereof, are attached hereto as Schedule (7) and
are complete as of the date hereof.
The corporate records of the Companies including, but not
limited to, minutes of the Board of Directors' Meetings,
minutes of the Shareholders' Meetings, the registry of
transfers of shares and shareholders' accounts are complete,
accurate and kept in accordance with applicable laws.
5.2.6 Share capital
The share capital of the Companies has been fully paid up, and
no other securities, bonds, options, warrants or other rights
giving access to the share capital have been issued by any of
the Companies since April 30, 1999, it being specified that
Escapade's share capital was increased from FF 50,000 to
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FF 250,000 upon its transformation into a Societe Anonyme.
5.2.7 Dividends
With the exception of the distribution of dividends of FF
4,000,000 referred to below, of Xx. Xxxxxxx Xxxxxxx'x
exceptional bonus of FF 396,000 attributed by Escapade's
general shareholders' meeting pursuant to a decision dated
June 28, 1999, and of the exceptional bonus of FF 1,000,000
attributed to Xx. Xxxxxxx Xxxxxxx by the directors of Fargeot
et Compagnie pursuant to a decision dated April 28, 1999, no
distribution or payment of any kind whatsoever to the
shareholders has been declared or made by the Companies since
April 30, 1999. A certified copy of the minutes of the
shareholders' meeting of each the Companies held on April 30,
1999 for the purpose of approving the 1998/1999 accounts is
attached hereto as Schedule (8).
Notwithstanding the above stipulations, the Parties agree that
the distribution of dividends of FF 2,040,000 received by
Escapade further to the dividend distribution of FF 4,000,000
(FF 1,960,000 of which was distributed to the Natwest Group)
decided upon by the general shareholders' meeting of Fargeot
et Compagnie held on June 30, 1999 shall be dedicated to the
repayment of Escapade's outstanding bank debt.
5.2.8 Shareholding
The Companies have no shareholding interest or other interest
in any legal entity, partnership or other entity of any form
whatsoever and are not members of any group or association
whatsoever.
The Companies are no longer liable towards any third party or
governmental or local authorities and agencies, with respect
to the acquisition, holding or transfer of (i) any
shareholding interest previously held by the Companies in any
legal entities, partnerships or other entities or (ii) any of
their assets.
5.2.9 Financial Statements
The Financial Statements attached hereto as Exhibit (9) are
complete, sincere, duly filed and published every year on due
date, and fairly reflect the assets and liabilities of the
Companies as of the Balance Sheet Date. The Financial
Statements have been prepared in accordance with generally
accepted accounting principles in France. Since the Balance
Sheet Date until the Closing Date, no event has occurred
which, if then known, would have led to any substantial change
in the financial position, the operating results or the
activities of the Companies or the amount attributed to any
item in the Financial Statements at that date or which would
have resulted in the making of additional reserves or
provisions.
Customer receivables, accounts receivables and credits
recorded in the Financial Statements and existing as of the
Balance Sheet Date have arisen out of valid transactions
conducted and performed in good faith, are not affected by any
dispute, objection, claim, challenge or set-off and are duly
receivable.
They shall be paid punctually when due, except those for which
a suitable provision for bad debt has been made in the
Financial Statements.
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There are, as of the Balance Sheet Date, no liabilities, fixed
or contingent, likely to generate in the future any liability
or claim, except those recorded or adequately provided for in
the Financial Statements.
5.2.10 Assets
The Companies have good and marketable title to and rightful
possession of all of the assets reflected in the Financial
Statements delivered to XX Xxxxx, free and clear of any and
all mortgages, liens, pledges, privileges, claims, rights,
charges, encumbrances and security interests of whatsoever
kind or nature except only those liens or liabilities
disclosed in Schedule (10) hereto.
It is hereby specified that Xx. Xxxxxxx Xxxxxxx does make any
guarantees regarding the operational condition of the
Companies' material and equipment.
5.2.11 Contracts
Xx. Xxxxxxx Xxxxxxx represents that all the copies of the
contracts provided and attached hereto as Schedule (11) to
which the Companies are parties are true, complete and include
the following:
(i) profit sharing agreements or plans maintained or
sponsored by or on behalf of the Companies or to which
the Companies contribute;
(ii) employment contracts to which the Companies are parties
or by which they are bound;
(iii) agency, sales, wholesaling, distributorship or similar
agreements or contracts;
(iv) loan agreements or letters of credit;
(v) real property leases (commercial lease and short term
lease);
(vi) mortgages;
(vii) sales commitments to, or contracts or agreements with,
any customer;
(viii) license, authority or permit granted by the Companies
to any person or entity;
(ix) contracts or agreements to which the Companies are
parties or by which the Companies are bound, which
reasonably may be expected to involve future financial
obligations or benefits in excess of FF 50,000 within
any one calendar year;
For each of the Companies when concerned, each of the
Contracts is in accordance with the applicable law in force.
There is no existing default, or event or condition which,
with or without the giving of notice or the passage of time,
or both, would constitute an event of default by the Companies
or any other party thereto under any of the Contracts.
No party to any of the Contracts has given the Companies any
notice of default or termination, and there exists no basis
for termination under the terms of any of said contracts as of
the date hereof or as a result of the transactions provided
for in this Agreement. Furthermore, the Companies have not
waived any material right under or with respect to any of the
Contracts. The Companies are not bound by any agreement or
arrangement to sell or provide goods or services at prices
below the prevailing market prices therefore. As chairman of
the board of directors or manager of the Companies, Xx.
Xxxxxxx Xxxxxxx has not received from customers any notice
indicating that any of the
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customers of or suppliers to the Company will terminate or
materially change their business relationship with the
Companies for any reason whatsoever.
5.2.12 Intellectual property
Attached hereto as Schedule (12), is a true and complete list
of all models and designs, trademarks, trade names and all
registrations or applications with respect thereto, and all
licenses or rights the same which are presently or which have
been, owned or used by the Companies (collectively the
"Intellectual Property Rights").
The Companies own or hold all of the rights necessary to use
the Intellectual Property Rights.
None of the products manufactured or processes used by the
Companies, nor any of the Companies' trademarks, patents or
name, constitute a counterfeit or unfair competition.
To Xx. Xxxxxxx Xxxxxxx'x knowledge, the Companies have not
committed any act of unfair competition or of counterfeit
infringing on a trade secret or copyright belonging to any
person or entity.
Xx. Xxxxxxx Xxxxxxx does not provide any guarantee as to the
use by the Companies of the names "Pied Sensibles", "Grand
Confort", and "Confort Plus".
The Companies are not bound to pay any royalty or to make any
other payment with respect to any Intellectual Property Right.
To Xx. Xxxxxxx Xxxxxxx'x knowledge, no person or entity is
producing, providing, selling or using products which infringe
on any of the Intellectual Property Rights, with the exception
of a dispute before the Tribunal de Grande Instance of Xx
Xxxxx sur Xxx as disclosed in a judgment attached hereto as
Schedule (12).
5.2.14 Taxes - Social welfare contributions
The Companies have duly filed all required declarations,
returns and reports with the tax, customs and social security
authorities, in the manner provided for under applicable laws.
All taxes and duties due and payable by the Companies have
been fully paid on their due date or adequately been reserved
for in accordance with the accounting principles accepted in
France.
With the exceptions of a claim relating to VAT and amounting,
according to Xx. Xxxxxxx Xxxxxxx, to FF 115,000 and a claim
relating to custom nomenclature, there is no pending or
threatened claim, reassessment or dispute with respect to said
taxes and duties with the relevant authorities.
For the purposes of this clause 5.2.13, the terms "tax" and
"duty" shall refer, without limitation, to any direct or
indirect levies collected on behalf of the State or any local
authority, such as corporate income tax, value-added tax,
registration tax, customs duty and business tax and all social
welfare charges (including but not limited to charges on wages
or other benefits as well as social security, unemployment or
retirement charges) and to any penalties or late payment
interest relating thereto.
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5.2.14 Bank accounts - Bank guarantees
All the bank accounts opened in the Companies' name are listed
in Schedule (13) attached hereto. Schedule (13) specifies the
authorized signatories, conditions for overdraft facilities
granted by each bank and conditions of remuneration of each
bank for the issuance of guarantees in favor of third parties
to secure the Companies' undertakings or liabilities.
None of the Companies is a party to any loan agreements,
whether as lender or borrower, or other financing arrangements
except for those listed in Schedule (13).
There are no guarantees or other security devices granted by
the Companies to the benefit of any bank or any other third
party except for those listed in Schedule (13).
5.2.15 Agreements with Xx. Xxxxxxx Xxxxxxx
The Companies have not entered into any agreements, whether
oral or written, with Xx. Xxxxxxx Xxxxxxx which have not been
terminated on the date hereof.
5.2.16 Real Estate - Environment - Health and Safety
(a) The land and buildings owned by the Companies are
listed in Schedule (15) hereto.
The land and buildings owned by the Companies are free
and clear of any options, mortgages, liens, charges,
leases, conditions, claims, restrictions and other
encumbrances of any kind, and there exists no
restriction on the use, lease or transfer of such land
and buildings except as listed in Schedule (15).
(b) With the exception of the storage premises leased in
Thiviers, the Companies do not rent or share land,
buildings, premises or other real property. With
respect to leased premises, the related lease
agreements are valid and enforceable, the rents or the
fees have been paid when due in accordance with the
terms of said agreements, and there exists no basis for
termination under the terms of any of said agreements
as of the date hereof. The rights to the leases are not
subject to any option or security interest.
(c) With the exception of fibro-cement plates located in
the roofs of the buildings rented to, or owned by, the
Companies, the owners or tenants of the premises
occupied by the Companies have not indicated to them or
to Xx. Xxxxxxx whether said premises or the equipment
used as tenants by them contain asbestos. A report
drawn up by APAVE dated July 12, 1999 is attached
hereto in Schedule (15).
(d) The Companies have complied with applicable laws,
regulations and orders issued by any authority or
agency relating to health and safety.
To Xx. Xxxxxxx Xxxxxxx'x knowledge, there exists no
liability or claim, pending or threatened, in respect
thereof, whether such legislation or order is already
in force or is to be implemented in the foreseeable
future.
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(e) To Xx. Xxxxxxx Xxxxxxx'x knowledge in his capacity as
President and chairman of the Board of Directors
(President General) of the Companies, the Companies are
in full compliance with all environmental laws and
regulations and orders issued by any local or national
authorities, including, but not limited to, those
concerning land use and emissions to the air,
discharges to surface and subsurface waters and the
generation, handling, storage, transportation,
treatment and disposal of waste.
There exists no actual or potential environmental
responsibility or liability of the Companies.
5.2.17 Human Resources
(a) The list of employees attached hereto in Schedule (X)
gives complete and accurate details on the age,
seniority, position and gross remuneration of each of
the Companies' employees.
The employees have received in full all amounts payable
to them and benefit from all required social coverage
and insurance under their contracts as well as under
applicable legislation.
(b) Copies of the employment contracts with employees
having a gross monthly remuneration exceeding FF 10,000
are attached in Schedule (16) hereto. All other
employment agreements, except where there is a
particular contractual stipulation otherwise, follow
the current employment agreement standard forms for the
various categories of personnel employed by the
Companies. These employment contracts and particular
stipulations are also attached in said Schedule (16).
(c) Schedule (16) gives a full and accurate description of
all the direct or indirect benefits, profit-sharing
agreements, health insurance plans, bonus plans or
other agreements providing for any benefits in favor of
the employees, other than those provided for by laws
and regulations or the applicable collective bargaining
agreement.
To Xx. Xxxxxxx Xxxxxxx'x knowledge, there exists no
claim nor potential conflict, whether individual or
collective, with respect to those matters.
(d) All labor laws and regulations applicable to dismissal
procedures, payment of salaries, social security
charges and indemnities, use of temporary workers,
employees' disciplinary rules and procedures and
keeping of books, registers and records have been and
are complied with.
To Xx. Xxxxxxx Xxxxxxx'x knowledge, there exists no
potential or actual collective or individual claims or
disputes with respect to those matters.
(e) The Companies do not use the services of any
consultant, accountant or agent other than those listed
in Schedule (16) hereto and, accordingly, are not
required to pay any indemnification upon termination of
the agreements to provide services listed in said
Schedule other than the usual expenses and fees. Nor
are the Companies required to pay the social security
contributions attached to the services provided by the
consultants, accountants and other agents listed in
Schedule (16).
13
(f) There exists no agreement to provide services,
including agreements to use the services of any
consultant or other agent, whether written or oral,
which might be considered as labor contracts and
involve all consequences attached thereto such as those
relating to wages and social security contributions.
5.2.18 Insurance
Listed in Schedule (17) hereto are the insurance policies
subscribed by the Companies such as the ones relating to
political risks which are covered by the Agences de Credit
Export (such as Coface).
Such policies provide insurance for the Companies' assets,
property, operations and staff in an adequate manner, and the
related premiums have been paid when due. The Companies are
not in breach of any of the terms and conditions of such
insurance policies, and have carried out all necessary
formalities for any loss or damage incurred, as of the date
hereof.
5.2.19 Liabilities
Except as fully reflected in the Financial Statements, the
Companies do not have any : (i) debts, liabilities or
obligations of a nature required to be reflected or disclosed
in Financial Statements prepared in accordance with generally
accepted accounting principles; or (ii) other debts,
liabilities or obligations, whether accrued, absolute,
contingent or otherwise, whether due or become due, relating
to or arising out of any act, transaction, circumstance or
state of facts which occurred or existed on or before the
Balance Sheet Date.
Except as set forth in the Schedules and hereunder in Article
5.2.7, the Companies have not incurred any debts, liabilities
or obligations, whether accrued, absolute, contingent or
otherwise, whether due or become due, other than debts,
liabilities and obligations incurred in the ordinary course of
business, none of which were incurred in violation of this
Agreement.
5.2.20 Litigation
(a) To Xx. Xxxxxxx Xxxxxxx'x knowledge and with the
exception set forth in Schedule (18) hereto, no
actions, disputes, claims or proceedings are pending or
threatened against the Companies in any court or before
any governmental agency or authority which would
materially and adversely affect the performance of the
Companies' obligations under the agreements and
instruments to be executed by it pursuant to this
Agreement.
(b) No event has occurred, nor any omission noticed, which
is likely to give rise to any such action before any
court or governmental authority. Within the last three
years prior to the date hereof, the Companies have not
incurred any adverse judgment or governmental decision
which could affect the conduct of their business.
No actions, disputes, claims or proceedings are pending
or threatened against the Companies with respect to
products delivered.
14
5.2.21 Compliance with contracts, laws and regulations
The Companies have validly entered into the contracts to which
they are parties and have complied with their obligations
under all such contracts, except as otherwise disclosed in
this Agreement. The Companies have carried on their business
in all material respects in accordance with all applicable
laws and regulations. Xx. Xxxxxxx Xxxxxxx is not aware of any
act or omission whatsoever as a result of which the Companies
could incur any liability thereunder.
5.2.22 Conduct of business
Since April 30, 1999, the Companies have conducted their
business in the ordinary course of business, consistent with
past practices, without change of policy or procedure,
including without limitation their practices in connection
with the treatment of expenses, selling and purchasing
policies and recovery of any amounts due to them by their
customers and there has been no material adverse change in the
business, activities or prospects of the Companies, except as
disclosed in Schedule (14) hereto.
5.2.23 It is stipulated that, at the Closing Date, Xx. Xxxxxxx
Xxxxxxx provides a guarantee only on the existence of the
inventories, but provides no guarantee of their condition or
amount.
ARTICLE 6 - INDEMNIFICATION BY XX. XXXXXXX XXXXXXX
6.1 Xx. Xxxxxxx Xxxxxxx shall totally indemnify XX Xxxxx, subject to the
provisions of Article 7 hereof, from and against any increase in
liabilities or decrease in assets resulting from losses, damages,
liabilities, claims, judgments, transactions, costs and expenses of any
kind (including reasonable and duly substantiated lawyers' fees and
expenses) related to facts which, having occurred before the Closing
Date, are caused by:
(a) any additional liability or shortfall of assets which has not been
recorded in the Financial Statements or has not been accounted for
as a reserve or for which a sufficient reserve or depreciation has
not been reflected in the Financial Statements provided to XX
Xxxxx;
(b) any inaccuracy, insufficiency, violation or omission in any of the
representations and/or warranties and/or commitments made by Xx.
Xxxxxxx Xxxxxxx contained in Articles 5 and 6 above and in
particular:
- any written claim made by the employees or third parties
against the Companies, regardless of the nature thereof;
- any environment-related claim resulting from facts or
situations having occurred or taken place before the Closing
Date and in particular, any refurbishing or clean-up
obligation provided for by the regulations in force as of the
date hereof, with the exception of those refurbishing
obligations concerning the Companies' materials and equipment;
- any past due payment relating to tax, social security
contributions and fines attached thereto which might be
claimed by any tax or social security authority or any other
administrative authority to any of the Companies.
6.2 It is expressly agreed that the disclosure of documents
transmitted by the Companies to XX Xxxxx'x counsels before the
Closing Date and which are attached hereto in Schedule (14), does
not restrict in any way whatsoever Xx. Xxxxxxx Xxxxxxx'x
obligations pursuant to his representations made in Article 5
hereof and the related warranties set forth in Article 6 hereof.
15
ARTICLE 7 - EXEMPTION, THRESHOLD, LIMITATIONS AND DURATION OF THE WARRANTEES
7.1 Xx. Xxxxxxx Xxxxxxx shall guarantee XX Xxxxx and the Companies against
claims only if an indemnification claim, whether separate from or added
to other indemnification claims, amounts to at least FF 200,000. When the
amount claimed is in excess of FF 200,000, Xx. Xxxxxxx Xxxxxxx'x
obligation to indemnify XX Xxxxx and the Companies shall be limited to
the amount exceeding FF 200,000 and subject to the provisions set forth
in Article 7.2 hereof.
7.2 With respect to any commitment covered by this Agreement, including
without limitation, the representations and warranties, Xx. Xxxxxxx
Xxxxxxx'x guarantee shall be limited to a maximum amount of twenty-five
million French Francs (FF 25,000,000).
7.3 The only indemnities which may be granted to XX Xxxxx pursuant to
performance hereof are provided for in Articles 6 and 7 hereof. No
obligation, representation or warranty other than those provided for
herein shall be the basis for any claim relating to the performance of
this Agreement.
Xx. Xxxxxxx Xxxxxxx shall not be liable with respect to any claim based
on the warranties when a specific reserve has been recorded in the
Financial Statements before April 30, 1999 for the facts which are the
basis for said claims. The specific reserves and their amount are listed
in Schedule (19) hereto.
When excessive and accounted for as an income of the Company, such excess
of reserves as recorded in the Financial Statements and listed in
Schedule (6-bis) hereto shall be deducted from the amount which Xx.
Xxxxxxx Xxxxxxx may be obligated to pay pursuant to any claim based
hereon.
Similarly, in the event that the claims for subsidies, referred to in the
letters (copies of which are attached hereto in Schedule (19)) from the
Prefecture of the Aquitaine Region dated September 30, 1999 and June 8,
1999, for amounts of FF 440,970 and FF 225,000, respectively, are
partially or fully paid, these amounts shall be deducted from any sums
that Xx. Xxxxxxx Xxxxxxx may be led to pay in respect of any claim
relating hereto.
Xx. Xxxxxxx Xxxxxxx shall not be liable pursuant to any claim relating
hereto if said claim is based on any modification in the laws,
regulations or administrative doctrines of any government or governmental
authority which might come into force subsequent to the date hereof and
have a retroactive effect.
Xx. Xxxxxxx Xxxxxxx shall not be liable for any claim relating hereto and
based on any modification in the accounting principles or methods used to
complete the Financial Statements if said modification occurs after the
Closing Date and has such retroactive effect as to modify the Financial
Statements approved before the Closing Date.
Xx. Xxxxxxx Xxxxxxx shall not be liable for any claim relating hereto if
through said claim, covered damage is sought to be indemnified. By
"covered damage", the Parties mean: all damages covered by an insurance
policy subscribed in the Companies' interest, if such insurance policy be
effective as of the date hereof or if such an insurance, now effective,
were maintained after the Closing Date; in the latter case, Xx. Xxxxxxx
Xxxxxxx shall remain guarantor of the payment of the claim if not covered
and/or paid by the insurance company.
16
If Xx. Xxxxxxx Xxxxxxx pays XX Xxxxx a sum of money claimed on the basis
hereof and if XX Xxxxx is paid a sum of money by a third party on the
same basis as the one used for the claim against Xx. Xxxxxxx, XX Xxxxx
shall pay Xx. Xxxxxxx Xxxxxxx a sum equal to the payment received.
For the purpose of determining the amount of money due by Xx. Xxxxxxx
Xxxxxxx pursuant to a claim based hereon, any reduction in taxes due by
XX Xxxxx or the Companies, resulting from facts or events upon which the
claim against Xx. Xxxxxxx Xxxxxxx is based, shall be taken into account.
If and insofar as a claim based hereon is about a tax reassessment based
on charges and proceeds being recorded by the Companies in the Financial
Statements of a given year instead of another, Xx. Xxxxxxx Xxxxxxx shall
be liable only for the corresponding fines and late payment interest.
7.4 The duration of the warrantees shall be: (i) three years, for the
representations and warranties relating to any tax, social security and
customs liability, i.e., from the Closing Date until December 31, 2002
and (ii) two years from the Closing Date for any other claim or liability
under any other representation or warranty, subject to the cases and
conditions for extension provided for in Article 8 hereof.
ARTICLE 8 - INDEMNIFICATION CLAIMS
8.1 In his capacity of president and chairman of the Board of Directors of
the Companies and pursuant to his obligations as warrantor hereunder, Xx.
Xxxxxxx Xxxxxxx shall immediately notify XX Xxxxx as soon as he becomes
aware of any event, situation or action whose occurrence or consequences
are covered by the representations and warranties.
Such notification shall set out in a reasonable and adequate manner the
event triggering the claim, the nature thereof and, if it can be
determined at the time of notification, the amount involved.
In the event a request, claim or action is made for an undetermined
amount prior to expiration of the time period set forth in Article 7.4,
the parties shall consult each other in good faith, within 30 days from
the notification, for the purpose of fixing the amount of the claim.
Failing an amicable determination of the amount of the claim, Xx. Xxxxxxx
Xxxxxxx and XX Xxxxx shall, within 30 days, in order to determine the
amount of the claim. In the event of disagreement, the parties shall
appoint an expert for the purpose of fixing irrevocably the amount of
claim(s) to be covered by the representations and/or the warranties.
Failing an agreement on the appointment of an expert, the most diligent
of Xx. Xxxxxxx Xxxxxxx and XX Xxxxx may petition before the relevant
courts for the appointment of an expert. If the amount is not determined
prior to expiration of the representations and warranties, XX Xxxxx shall
claim indemnification under the representation/warranty on a provisional
basis prior to expiration of one of the two warranty periods, increased
by the notice periods provided for in the following two paragraphs, i.e.
until March 15, 2003 at the latest. Xx. Xxxxxxx Xxxxxxx'x obligations
pursuant to the representations and warranties hereunder shall then be
maintained until the disputed claim(s) is definitely settled but only to
the extent of the amount of the claim as definitely fixed by the expert
and taking into account the aggregate amounts of these claims increased
by any late-payment interest, fines or penalties incurred until the date
of enforcement of the final decision of the authorities or courts or of a
settlement pursuant to the provisions of Article 2052 of the Civil Code..
17
If notice is not provided within 45 days of the claim, i.e. no later than
February 15, 2003, and in any case within the legal time periods for
response and recourse, Xx. Xxxxxxx Xxxxxxx shall personally reimburse the
amount required and/or the fines and/or the penalties and/or the late
payment interest, payable since the expiration date of the legal time
period for response and recourse, until the date of actual payment.
8.2 XX Xxxxx shall notify Xx. Xxxxxxx Xxxxxxx of its indemnification claim by
registered letter with return receipt within 30 days from the date of the
notice sent by Xx. Xxxxxxx Xxxxxxx, i.e. no later than January 31, 2003.
IF XX Xxxxx fails to provide notice within this period, XX Xxxxx may no
longer seek an indemnification based on these claims, and Xx. Xxxxxxx
Xxxxxxx may not be sought to be held liable in this respect.
If, within the 30 days following receipt of this notice sent by XX Xxxxx,
Xx. Xxxxxxx Xxxxxxx does not notify XX Xxxxx of its rejection, together
with the reasons therefor, of the indemnification claim, he shall be
expressly deemed to have accepted the indemnification claim and shall be
required to pay the amount claimed without delay.
If Xx. Xxxxxxx Xxxxxxx challenges the claim, he and XX Xxxxx shall
attempt to resolve their dispute amicably, and if no agreement has been
reached within fifteen (15) days after the challenge of the claim, i.e.
April 30, 2003, they shall regain their freedom of action.
8.3 In the event of Xx. Xxxxxxx Xxxxxxx no longer running the Companies, he
shall be released from the notice obligation provided by Article 8.1, and
XX Xxxxx shall be personally responsible for notifying Xx. Xxxxxxx
Xxxxxxx within 30 days of its discovery of an act or event upon which an
indemnification claim may be based pursuant hereto. This claim shall
include the information provided for in Article 8.2. If it does not
provide notice within the time periods set for above, XX Xxxxx may not
claim an indemnification under the warranty based on such acts and
events.
ARTICLE 9 - BANK GUARANTEE (CAUTION BANCAIRE SOLIDAIRE)
As a guarantee of its representations and warranties, commitments and
obligations set forth in Articles 5 and 6 hereof, Xx. Xxxxxxx Xxxxxxx shall, as
of the date hereof, provide XX Xxxxx with a guarantee from a first rate French
bank, Banque Credit Suisse Hottinguer, an original of said guarantee being
attached hereto as Schedule (16).
Such bank guarantee shall guarantee all the financial consequences of the
non-compliance by Xx. Xxxxxxx Xxxxxxx of his warrantor's obligations under
article 5 and 6 hereof, shall provide for a guarantee of payment of the maximum
sum of FF 4,000,000 (four million French Francs) and shall be effective from the
date hereof to December 31, 2002.
In any case, such bank guarantee shall remain in force for all claims initiated
prior to March 15, 2003 and until complete and final payment, whether amicable
or upon final judgment, of all claims, obligations, losses (including without
limitation, losses of profits), fees and expenses (including without limitation,
lawyers' fees) tax liabilities, damages and interest, fines and penalties
incurred by the Companies which have been notified to the guarantor prior to
December 31, 2002.
Any notifications and claims relating to this guarantee shall be made in writing
and, unless otherwise agreed, shall be sent by registered letter with
acknowledgment of receipt to the Bank, with a copy sent to Xx. Xxxxxxx Xxxxxxx.
18
ARTICLE 10 - HANDLING OF CLAIMS AND DISPUTES
In the event the Companies are confronted with a claim or involved in a dispute
which might lead to an indemnification claim by XX Xxxxx against Xx. Xxxxxxx
Xxxxxxx and/or the Bank, the Companies' interests shall be handled as follows:
10.1 If Xx. Xxxxxxx Xxxxxxx has specified, in writing and within the delays
provided for in this Agreement, that he accepts that the sums which might
be due by the Companies, or damages that might be suffered thereby as a
result of this dispute, are guaranteed by him as warrant pursuant to his
representations and warranties, the defense of the Companies' interests
will be managed by himself and he will accordingly choose and instruct
his counsels. Xx. Xxxxxxx Xxxxxxx may nonetheless waive this right and
leave it to XX Xxxxx to defend the Companies' interests;
10.2 Otherwise (i.e., upon refusal by Xx. Xxxxxxx Xxxxxxx to perform his
obligations as warrantor), the Companies shall defend their interest in
consultation with XX Xxxxx which shall decide ultimately upon the means
of defense and accordingly choose and instruct its counsels, subject to a
court decision, in the event of litigation between the Parties, regarding
Xx. Xxxxxxx Xxxxxxx'x obligation to bear the consequences of this
dispute.
10.3 In any case, the party in charge of defending the Companies' interests
shall do so in a manner that is fair to the other party, taking care not
to harm the interests of the Companies.
The party in charge of the defense of the Companies shall keep the other
party informed of the dispute in the most complete manner. It shall
provide the other party with all documents relating to the dispute and
all procedural documents issued or received. It shall commit itself to
providing the information in due course so that the other party may give
its stance on the most appropriate way of defense within no more than 15
days following the transmittal of such document.
Under all circumstances, Xx. Xxxxxxx Xxxxxxx shall assist XX Xxxxx in the
defense of XX Xxxxx'x or the Companies' interests when such interests
involve Xx. Xxxxxxx Xxxxxxx'x representations and warranties hereunder,
and vice versa.
In case of emergency, Xx. Xxxxxxx Xxxxxxx shall defend the Companies'
interest and XX Xxxxx'x interest. XX Xxxxx and Xx. Xxxxxxx Xxxxxxx shall
agree to have the dispute handled by the former or the latter in
accordance with the terms and conditions provided for in Article 10.1 and
10.2.
ARTICLE 00 - XXXXXXXXXXXXXXX XX XX XXXXX XXX XX XXXXX XXXXXX
XX Xxxxx represents vis-a-vis Xx. Xxxxxxx Xxxxxxx and the Natwest Group the
following:
11.1 XX Xxxxx has the powers and authorizations which are necessary to enter
into this Agreement and the Shareholder Agreement.
11.2 This Agreement and the Shareholder Agreement are performed by XX Xxxxx in
accordance with their respective terms.
11.3 XX Xxxxx has obtained from its board of directors all authorizations
necessary to enter into this Agreement and the Shareholders' Agreement.
11.4 The performance by XX Xxxxx of its obligations under this Agreement and
the Shareholders' Agreement:
19
11.4.1 does not constitute a violation of its by-laws;
11.4.2 does infringe any court or administrative decision;
11.4.3 does not require any specific authorization from the United States
or French authorities but only the filing of a direct foreign
investment declaration form (Declaration d'Investissment Direct
Etranger) with the French Ministere de l'Economie et des Finances.
11.5 XX Xxxxx holds on the date hereof the sums necessary to perform its
financial obligations hereunder.
ARTICLE 12 - CONDITIONS TO THE CLOSING
Xx. Xxxxxxx Xxxxxxx shall have:
(i) full ownership of all the shares representing the capital stock of
Escapade;
(ii) prepared and forwarded to XX Xxxxx the following documents to be signed
on the Closing Date:
- the Bank Guarantee referred to in Article 9 hereof;
- the Shareholders' Agreement entered into between himself and XX Xxxxx;
- the shareholder's current account agreement between himself and
Escapade.
- the loan agreement between XX Xxxxx France and Escapade.
ARTICLE 13 - PROVISION AND EXCHANGE OF DOCUMENTS AT CLOSING
Xx. Xxxxxxx Xxxxxxx shall remit to XX Xxxxx the following documents:
13.1 Concerning Fargeot et Compagnie:
(i) Minutes of the Board of Directors Meeting of Fargeot et Compagnie dated
April 28, 1999, deciding to attribute an exceptional bonus of FF
1,000,000 to Xx. Xxxxxxx Xxxxxxx;
(ii) Minutes of the Ordinary Shareholders' Meeting of Fargeot et Compagnie
dated June 30, 1999 approving the accounts and deciding upon the
distribution of dividends amounting to FF 400,000,000;
(iii) Minutes of the Ordinary Shareholders' Meeting of Fargeot et Compagnie
dated July 22, 1999, taking formal notice of the resignation of members
of the Board of Directors and deciding on the appointment of new members
of the Board of Directors, and the corresponding share transfer orders.
13.2 Concerning Xxxxxx Xxxxxxx SA:
(i) Minutes of the Ordinary Shareholders' Meeting of Xxxxxx Xxxxxxx SA dated
June 30, 1999, approving the accounts;
(ii) Minutes of the Ordinary Shareholders' Meeting of Xxxxxx Xxxxxxx SA dated
July 22, 1999, taking formal notice of the resignation of members of the
Board of Directors and deciding on the appointment of new members of the
Board of Directors, and the corresponding share transfer orders.
20
13.3 Concerning Escapade:
(i) Minutes of the Extraordinary Shareholders' Meeting of April 29, 1999,
approving new shareholders of Escapade SARL, a copy of the corresponding
share transfer deed dated May 3, 1999;
(ii) Minutes of the Extraordinary Shareholders' Meeting of June 4, 1999,
carrying out the increase in capital of Escapade SARL from FF 50,000 to
FF 250,000, and appointing a transformation supervisor;
(iii) Minutes of the Ordinary Shareholders' Meeting of June 4, 1999, approving
Escapade SARL's accounts;
(iv) Minutes of the Extraordinary Shareholders' Meeting of Escapade SARL dated
July 22, 1999, deciding to transform the company into a Societe Anonyme,
to adopt an approval clause, to create two classes of shares, to close
the financial year on April 30, to approve new shareholders and to
appoint new members of the Board of Directors and statutory auditors;
(v) Minutes of the Ordinary Shareholders' Meeting of Escapade SARL dated June
28, 1999, attributing an exceptional bonus of FF 396,000 to Xx. Xxxxxxx
Xxxxxxx;
(vi) Share transfer orders representing 80% of the shares making up the share
capital of Escapade SA, of which Xx. Xxxxxxx Xxxxxxx holds 100%, and
those enabling Xx. Xxxxxxx Xxxxxxx to become sole shareholder;
(vii) Minutes of Escapade's first Board of Directors' Meeting appointing the
chairman of the Board of Directors, and authorizing him (i) to enter into
the loan agreement with XX Xxxxx France and the shareholder's current
account agreement on behalf of Escapade, (ii) immediately to take out a
loan of FF 14,770,780 aimed at fully repaying the principal and interest
of the sums respectively advanced by Escapade, under the form of a loan
granted by XX Xxxxx France and a shareholder's current account by Xx.
Xxxxxxx Xxxxxxx and (iii) to acquire the Fargeot et Compagnie Shares held
by the Natwest Group and Xx. Xxxxxx Xxxxxxx;
(viii) The by-laws of Escapade under the form of a Societe Anonyme.
13.4 Other documents:
(i) bank guarantee of an amount of FF 4,000,000 issued by the bank Credit
Suisse Hottinguer for the purpose of guaranteeing, from the Closing Date
until December 31, 2002 and in accordance with the terms and conditions
set forth in Article 9 hereof, any financial consequences resulting from
non-performance by Xx. Xxxxxxx Xxxxxxx of his obligations hereunder;
(ii) the shareholders' current account advance agreement entered into between
Escapade and Xx. Xxxxxxx Xxxxxxx, for an amount of FF 3,234,000, and the
loan agreement between Escapade and XX Xxxxx France, for an amount of FF
11,536,780, with a duration of 1 month, automatically extendible by 1
month periods and within the limit of two (2) months, repayable in
principal and interest, the rate of which is calculated in accordance
with Article 39-1,3(degree) of the Xxxxxx Xxxxxxx Tax Code (Code General
des Impots). In the event of extension and until the date on which
Escapade obtains a bank loan, the interest is repayable on a monthly
basis.
(iii) the shareholders' agreement between Xx. Xxxxxxx Xxxxxxx and XX Xxxxx;
21
(iv) receipt and discharge from Xx. Xxxxxxx Xxxxxxx to XX Xxxxx for payment of
the sum of FF 14,863,220, representing the sale price of 80% of the
Escapade shares.
RG shall remit to Xx. Xxxxxxx Xxxxxxx:
(i) Minutes of the Board of Directors meeting of XX Xxxxx authorizing Xx.
Xxxxxx Zacks and/or Xx. Xxxxxxx Xxxxxxx and/or any other person
personally appointed as an attorney in fact to sign this Agreement and
any other documents necessary to its performance;
(ii) power of attorney designating the person duly entitled to act in the name
and on behalf of XX Xxxxx;
(iii) power of attorney designating the person entitled to sign and act in the
name and on behalf of XX Xxxxx France for purposes of the signing and
performance of the loan agreement with Escapade referred to in Articles
4, 12 and 13;
(iv) the three irrevocable transfer orders in favor of Xx. Xxxxxxx Xxxxxxx and
Escapade for a total amount of FF 14,863,220, representing payment of the
sale price of 80% of the Escapade shares, in accordance with the terms
and conditions provided by Article 4 hereof.
The companies of the Natwest group and Xx. Xxxxxx Xxxxxxx shall, respectively,
remit to Escapade the share transfer orders representing the transfer of 980
Fargeot et Compagnie Shares as set forth in Article 2 hereof;
Escapade shall remit to the Natwest Group the bank checks amounting to FF
14.770.780, i.e.:
(i) FF 1,145,489.66 to Xx. Xxxxxx Xxxxxxx for 76 Fargeot et Compagnie
Shares;
(ii) FF 6,797,573.25 to FCPR County Natwest Venture France for 451
Fargeot et Compagnie Shares;
(iii) FF 6,797,573.25 to SCA Capital Prive-Investissments for 451
Fargeot et Compagnie Shares;
(iv) FF 15,072.22 to Hoche Investissements for 1 Fargeot et Compagnie
Share;
(v) FF 15,072.22 to SA Capital Prive for 1 Fargeot et Compagnie Share;
ARTICLE 14 - EXPENSES
Each Party shall pay its own fees and expenses in relation with the negotiation
and execution of this Agreement and the other agreements and instruments to be
executed pursuant to this Agreement.
ARTICLE 15 - MISCELLANEOUS
11.1 Default
Except as otherwise provided for in this Agreement, neither of the
Parties hereto shall be deemed to be in default under any of the terms of
this Agreement and neither Party shall seek or be entitled to enforce any
remedy for any claimed default, unless said claimed default is not cured
or corrected within fifteen (15) days following receipt by the Party
against whom such default is claimed of a written notice of said claimed
default from the other Party.
22
11.2 Waiver
The failure of any of the Parties to enforce any of the provisions of
this Agreement at any time shall not be construed to be a waiver of such
provision unless specifically so notified by a duly authorized
representative of such Party to the other Party in writing which writing
shall expressly set forth the exact nature of such waiver. No waiver of
any breach of this Agreement shall be held to be a waiver of any other
breach.
11.3 Entire Agreement and Amendments
This Agreement, including those agreements and documents to the extent
incorporated herein by reference, constitutes the entire agreement
between the Parties and supersedes all prior agreements or understandings
relating to the subject matter hereof.
No Party shall claim any amendment to this Agreement unless it is in
writing, sets forth the exact nature of such amendment and is signed by a
duly authorized representative of each Party hereto.
11.4 Headings
All headings herein are for convenience only.
11.5 Severability
In the event any term or provision of this Agreement shall for any reason
be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
term or provision of the Agreement, and this Agreement shall be
interpreted and construed as if such term or provision, to the extent to
which it is invalid, illegal or unenforceable, had never been contained
in this Agreement provided, however, that such invalidity, illegality or
unenforceability shall not result in a material change of this Agreement.
11.6 Notices
It shall be a sufficient receipt of any notice or other communication in
writing hereunder if one Party desiring to give such notice or other
communication sends the notice or communication by registered or
certified mail letter, delivery in person or express courier to the other
Party. Such notice or other communication shall be deemed to have been
duly given upon receipt by the other Party, to the address set forth
below or to such other address as such other Party shall have designated
in writing :
(i) To Xx. Xxxxxxx Xxxxxxx: Xx. Xxxxxxx Xxxxxxx
Le Fouillage,
24460 Chateau L'Eveque
with copy to: Xxxxxxx & Xxxxxxx
00 xxx xx Xxxxxxxx Xxxxx-Xxxxxx
00000 Xxxxx
Attention: Xxxxxx Xxxxxxx de Taisne
(ii) To Xx. Xxxxxx Xxxxxxx: Xx. Xxxxxx Xxxxxxx
Xx Xxxxx-Xxx, Nantheuil de Thiviers,
24800 Thiviers
23
with copy to: Xxxxxxx & Xxxxxxx
00 xxx xx Xxxxxxxx Xxxxx-Xxxxxx
00000 Xxxxx
Attention: Xxxxxx Xxxxxxx de Taisne
(iii) To the companies of the Natwest Group:
Natwest Equity Partners
0, xxx xx Xxxxxxxxxx,
00000 Xxxxx
Attention: Xx. Xxxx Xxxxxx
with copy to: Xxxxxxx & Xxxxxxx
00 xxx xx Xxxxxxxx Xxxxx-Xxxxxx
00000 Xxxxx
Attention: Xxxxxx Xxxxxxx de Taisne
(iv) To XX Xxxxx: XX XXXXX CORPORATION
00000 Xxxxxxxx Xx. XX
Xxxxxxxxxxxx, XXXX 00000 XXX
Attention: Xxxxxx Xxxxx and/or Xxxxxxx Xxxxxxx
with copy to: FIDAL Direction Paris et International
5, cours Valmy, F92923
Paris La Defense
Attention: Maitres Xxxxxxxx Xxxxxx and/or
Pierre-Maudez Caille
(v) To XX Xxxxx France: XX XXXXX FRANCE HOLDINGS INC.
00000 Xxxxxxxx Xx. XX
Xxxxxxxxxxxx, XXXX 00000 XXX
Attention: Xxxxxx Xxxxx and/or Xxxxxxx Xxxxxxx
with copy to: FIDAL Direction Paris et International
5, cours Valmy, F92923
Paris La Defense
Attention: Maitres Xxxxxxxx Xxxxxx and/or
Pierre-Maudez Caille
(vi) To Escapade: Escapade XX
Xx Xxxxx Xxx
24800 Nantheuil de Thiviers
Attention: Xx. Xxxxxx Zacks and/or Xxxxxxx Xxxxxxx
with copy to: FIDAL Direction Paris et International
5, cours Valmy, F92923
Paris La Defense
Attention: Maitres Xxxxxxxx Xxxxxx and/or
Pierre-Maudez Caille
ARTICLE 16 - APPLICABLE LAW
This Agreement is governed by and construed under and in accordance with the
laws of France.
24
ARTICLE 17 - DISPUTES
Any dispute between the Parties arising from or in connection with the present
Agreement shall be resolved amicably between the Parties, failing which such
dispute shall fall within the jurisdiction of the courts of Paris.
ARTICLE 18 - LANGUAGE
This Agreement is entered into in French.
Executed in nine (8) originals
on July 22, 1999
in Paris
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
Xx. XXXXXXX XXXXXXX Xx. XXXXXX XXXXXXX
represented by Xx. Xxxxxxx Xxxxxxx
/s/ Pierre-Xxxxxx Xxxxxxxx
FCPR COUNTY NATWEST VENTURE FRANCE
represented by Natwest Equity Partners, itself represented by
Xx. Xxxxxx-Xxxxxxx Barennes
/s/ Pierre-Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxx-Xxxxxxxx
SCA CAPITAL PRIVE-INVESTSSEMENTS HOCHE INVESTISSEMENTS
represented by represented by
Xx. Xxxxxx-Xxxxxxx Barennes Xx. Xxxxxx-Xxxxxxx Barennes
/s/ Pierre-Xxxxxx Xxxxxxxx /s/ Xxxx Xxxxx
SA CAPITAL PRIVE XX XXXXX CORPORATION
represented by Xx. Xxxxxx- represented by Xx. Xxxx Xxxxx
Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxx
ESCAPADE
represented by Xx. Xxxxxxx Xxxxxxx
