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TENDER AGREEMENT
TENDER AGREEMENT, dated as of June 21, 1998, (this "AGREEMENT"),
between THE SEAGRAM COMPANY LTD., a corporation organized under the laws of
Canada ("PURCHASER"), and KONINKLIJKE PHILIPS ELECTRONICS N.V., a corporation
incorporated under the laws of The Netherlands, with corporate seat at
Eindhoven, The Netherlands ("STOCKHOLDER").
WHEREAS, concurrently herewith, Purchaser, PolyGram N.V., a
corporation incorporated under the laws of The Netherlands, with corporate seat
at Baarn, The Netherlands (the "COMPANY"), and Stockholder are entering into an
Offer Agreement of even date herewith (the "OFFER AGREEMENT"; capitalized terms
used but not defined herein shall have the meanings set forth in the Offer
Agreement), pursuant to which Purchaser agrees to commence an offer (the
"OFFER") to purchase all of the issued shares, par value NLG 0.50 per share (the
"COMPANY SHARES"), of the Company for consideration per Company Share of, at the
election of the holder of such Company Share but subject to the limitations set
forth in the Offer Agreement, (i) 1.3772 validly issued, fully paid and
nonassessable common shares without nominal or par value of Purchaser
("PURCHASER SHARES") (subject to any adjustments in accordance with Section
1.5(e) of the Offer Agreement) (the "SHARE CONSIDERATION") or (ii) NLG 115, net
to the seller in cash (the "CASH CONSIDERATION" and, together with the Share
Consideration, the "OFFER CONSIDERATION");
WHEREAS, Stockholder is the beneficial and record owner of
135,000,000 Company Shares (the "EXISTING SHARES" and, together with any other
shares of the Company acquired by Stockholder after the date hereof and during
the term of this Agreement, the "STOCKHOLDER SHARES"), constituting 75% of the
issued Company Shares;
WHEREAS, as a condition to its willingness to enter into the Offer
Agreement and consummate the transactions contemplated thereby, Purchaser has
required that Stockholder agree, and Stockholder has agreed, among other things,
(i) to tender the Stockholder Shares in the Offer and to elect to receive Share
Consideration in respect of all the Stockholder Shares on the terms and
conditions provided for herein and (ii) to enter into a voting agreement, dated
as of the date hereof, with Purchaser relating to the voting of the Stockholder
Shares (the "VOTING AGREEMENT"); and
WHEREAS, as a condition to its willingness to enter into the Offer
Agreement and consummate the transactions contemplated thereby, Purchaser has
required that Stockholder enter into a stockholders agreement, dated as of the
date hereof (the "STOCKHOLDERS AGREEMENT").
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, the parties hereto agree as follows:
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1. AGREEMENT TO TENDER AND VOTE.
1.1 TENDER. Except as otherwise contemplated by the last sentence of
Section 2.1 hereof, Stockholder hereby agrees to validly tender, pursuant to and
in accordance with the terms of the Offer, and not withdraw, all of the
Stockholder Shares. Stockholder hereby acknowledges and agrees that Purchaser's
obligation to accept for payment and pay for the Company Shares in the Offer,
including the Stockholder Shares, is subject to the terms and conditions of the
Offer.
1.2 SHARE ELECTION. Stockholder hereby agrees to elect to receive
Share Consideration in the Offer in respect of all the Stockholder Shares.
Stockholder acknowledges and agrees that all shareholders of the Company
(including Stockholder) which make Share Elections will have an equal
opportunity to receive Share Consideration in the Offer (based on the number of
Tendered Shares in respect of which each such holder (including Stockholder)
shall have made a Share Election), subject to the limitation that Share
Consideration shall be paid in respect of an aggregate of 34,783,758 Tendered
Shares. To the extent Share Elections are made in respect of more than
34,783,758 Tendered Shares, each tendering shareholder (including Stockholder)
shall receive (x) Cash Consideration in the Offer in respect of such number of
Tendered Shares in respect of which such shareholder has made a Share Election
equal to (i) the number of Tendered Shares in respect of which such shareholder
has made a Share Election minus (ii) the number of Tendered Shares in respect of
which such shareholder has made a Share Election multiplied by a fraction, the
numerator of which equals 34,783,758 and the denominator of which equals the
aggregate number of Tendered Shares for which a Share Election has been made by
all tendering shareholders (including Stockholder) and (y) Share Consideration
in respect of the remaining portion of the Tendered Shares in respect of which
such shareholder has made a Share Election.
2. TERMS OF AGREEMENT.
2.1 EXPIRATION. This Agreement and Stockholder's obligation to
tender, and not withdraw, pursuant hereto shall terminate on the Expiration
Date. As used herein, the term "EXPIRATION DATE" means the date on which the
Offer Agreement is terminated in accordance with its terms. In the event of
termination of this Agreement, this Agreement shall forthwith become void and
there shall be no liability or obligation on the part of Purchaser or
Stockholder or their respective officers or directors; provided, however, the
foregoing shall not relieve either party for any breach of any representation,
warranty, covenant or agreement in this Agreement. Purchaser acknowledges that,
in the event of termination of this Agreement, Stockholder shall no longer have
the obligation to tender, and may withdraw, the Stockholder Shares.
2.2 COMPLIANCE WITH LAW. Notwithstanding anything herein to the
contrary, nothing in this Agreement shall require Stockholder to tender Company
Shares or exchange, or accept Share Consideration in exchange for, the
Stockholder Shares, in violation of any applicable material Law.
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3. REPRESENTATIONS AND WARRANTIES.
3.1 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to Stockholder as follows:
(a) Organization. Each of Purchaser and its material Subsidiaries is
a corporation or other entity duly organized or incorporated, validly
existing and in good standing (references to good standing refer only to
the fact that Purchaser has a current certificate of compliance) (as
applicable) under the Laws of its jurisdiction of organization or
incorporation. Each of Purchaser and its material Subsidiaries has all
requisite corporate or other power and authority to own, lease and operate
its properties and to carry on its business in all material respects as
now being conducted. Furthermore, neither Purchaser nor any of Purchaser's
material Subsidiaries (i) has been dissolved, and there is no action or
request pending to accomplish such dissolution or (ii) has been declared
bankrupt and no action or request is pending to declare Purchaser or any
of Purchaser's material Subsidiaries bankrupt and neither Purchaser nor
any of Purchaser's material Subsidiaries has filed or been granted an
official moratorium of payments under or pursuant to Canadian or U.S. Law.
Each of Purchaser and each of its material Subsidiaries is duly licensed
or qualified and in good standing to do business in each jurisdiction in
which the nature of its business or the ownership or leasing of its
properties makes such qualification necessary other than in such
jurisdictions where the failure to be so licensed, in good standing or to
so qualify would not be reasonably expected to result in a Purchaser
Material Adverse Effect.
(b) Purchaser Shares. Upon completion of the Offer, the Purchaser
Shares issued to Stockholder as part of the Offer Consideration for the
Stockholder Shares shall be validly issued, fully paid and nonassessable
shares of the capital stock of Purchaser.
(c) Authority. Purchaser has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement, the
performance by Purchaser of its obligations hereunder and the consummation
of the transactions contemplated hereby by Purchaser have been duly
authorized by all necessary corporate action on the part of Purchaser.
This Agreement has been duly executed and delivered by Purchaser and
constitutes a legal, valid and binding agreement of Purchaser, enforceable
against Purchaser in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar Laws relating to or affecting creditors generally,
by general equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and by an implied covenant
of good faith and fair dealing.
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(d) No Conflicts. The execution, delivery and performance of this
Agreement by Purchaser and the consummation by Purchaser of the
transactions contemplated hereby do not and will not (i) violate any
provision of the Articles of Amalgamation, by-laws or other organizational
document of Purchaser or of any material Subsidiary of Purchaser
(including such entity's partnership agreement, if such entity is a
partnership), except, with respect to any Subsidiary of Purchaser as would
not be reasonably expected to result in any liability of Purchaser or any
of its Subsidiaries, or (ii) result in the breach, violation, suspension
or termination of, give rise to any right of termination, purchase or
amendment under, require consent or notification under, result in the loss
of any benefit, right or license under, increase or accelerate the
liability of any party under, result in the creation of an Encumbrance on
any assets of Purchaser or its Subsidiaries or constitute a default under
(in each case, with or without the giving of notice or the lapse of time
or both) any provision of any loan or credit agreement, note, mortgage,
bond, indenture, lease, benefit plan or other agreement, contract,
obligation, instrument, commitment, license, franchise or permit to which
Purchaser or any Subsidiary of Purchaser is a party or is subject or by
which any assets of any of them is bound, except, in the case of clause
(ii), (a) as would not be reasonably expected to result in a Purchaser
Material Adverse Effect and (b) as would not be reasonably expected to
prevent or materially delay the consummation of the transactions
contemplated hereby and by the Offer Agreement.
(e) Governmental Approvals. The execution, delivery and performance
of this Agreement by Purchaser and the consummation by Purchaser of the
transactions contemplated hereby do not and will not violate, in any
material respects, any Law applicable to Purchaser or any of its
Subsidiaries or any of their respective assets or require any consent,
approval, license, permit, order or authorization of, or registration,
declaration or filing with, any Governmental Entity by or with respect to
Purchaser or any of its Subsidiaries, except in relation to Purchaser
Required Consents, and except for any such violation or failure to make or
obtain any such consent, approval, order, authorization, registration,
declaration or filing which (i) would not be reasonably expected to result
in a Purchaser Material Adverse Effect and (ii) would not be reasonably
expected to prevent or materially delay the consummation of the
transactions contemplated hereby and by the Offer Agreement.
3.2 REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder
hereby represents and warrants to Purchaser as follows:
(a) Shares. Stockholder owns of record and beneficially and has good
title to, all of the Existing Shares, free and clear of all Encumbrances,
including, without limitation, any agreement (other than this Agreement
and the Voting Agreement), understanding or restriction affecting the
voting or disposition or other incidents of record or beneficial ownership
pertaining to the Existing Shares. Stockholder does not own, of record or
beneficially, any other Company Shares other than the Existing Shares.
Stockholder has the sole right to vote, and the sole power of disposition
with respect to, the Existing Shares. Except as provided in the Company's
Articles of
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Association, the Voting Agreement and this Agreement, there are no
restrictions upon the voting or disposition of any of the Existing Shares.
Upon the acceptance for payment of the Stockholder Shares pursuant to the
Offer, Purchaser will acquire good title to the Stockholder Shares, free
and clear of all Encumbrances (except Encumbrances arising as a result of
any action taken by Purchaser or any of its affiliates) and Purchaser
shall be entitled to exercise all rights attaching to the Stockholder
Shares. Stockholder has not granted any proxy that remains outstanding
with respect to the Existing Shares and will not grant any proxies with
respect to any or all of the Stockholder Shares other than the proxy
pursuant to the Voting Agreement.
(b) Organization. Stockholder is a corporation duly incorporated and
validly existing under the Laws of The Netherlands. Stockholder has all
requisite corporate or other power and authority to own, lease and operate
its properties and to carry on its business in all material respects as
now being conducted. Furthermore, Stockholder (i) has not been dissolved,
and there is no action or request pending to accomplish such dissolution,
(ii) is not involved in preparations for a merger as described in 2:309 of
Book 2 of the DCC, and (iii) has not been declared bankrupt and no action
or request is pending to declare Stockholder bankrupt and Stockholder has
not filed or been granted an official moratorium of payments under or
pursuant to Dutch Law. Stockholder is duly licensed or qualified and in
good standing to do business in each jurisdiction in which the nature of
its business or the ownership or leasing of its properties makes such
qualification necessary other than in such jurisdictions where the failure
to be licensed, in good standing or to so qualify would not be reasonably
expected to result in a Material Adverse Effect.
(c) Authority. Stockholder has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement, the
performance by Stockholder of its obligations hereunder and the
consummation of the transactions contemplated hereby by Stockholder have
been duly authorized by all necessary action on the part of Stockholder.
This Agreement has been duly executed and delivered by Stockholder and
constitutes a legal, valid and binding agreement of Stockholder,
enforceable against Stockholder in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar Laws relating to or affecting
creditors generally, by general equity principles (regardless of whether
such enforceability is considered in a proceeding in equity or at law) and
by an implied covenant of good faith and fair dealing.
(d) No Conflicts. The execution, delivery and performance of this
Agreement by Stockholder and the consummation by Stockholder of the
transactions contemplated hereby do not and will not (i) violate any
provision of the Articles of Association, by-laws or other organizational
document of Stockholder or of any material Subsidiary of Stockholder
(including such entity's partnership agreement, if such entity is a
partnership), except with respect to any Subsidiary of Stockholder, as
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would not be reasonably expected to result in any liability of Stockholder
or any of its Subsidiaries, or (ii) result in the breach, violation,
suspension or termination of, give rise to any right of termination,
purchase or amendment under, require consent or notification under, result
in the loss of any benefit, right or license under, increase or accelerate
the liability of any party under, result in the creation of an Encumbrance
on the Stockholder Shares or constitute a default under (in each case,
with or without the giving or notice or the lapse of time or both) any
provision of any loan or credit agreement, note, mortgage, bond,
indenture, lease, benefit plan or other agreement, contract, obligation,
instrument, commitment, license, franchise or permit to which Stockholder
or any material Subsidiary of Stockholder is a party or is subject or by
which any assets of any of them is bound, except, in the case of clause
(ii), (a) as would not be reasonably expected to result in a Material
Adverse Effect and (b) as would not be reasonably expected to prevent or
materially delay the consummation of the transactions contemplated hereby.
(e) Governmental Approvals. The execution, delivery and performance
of this Agreement by Stockholder and the consummation by Stockholder of
the transactions contemplated hereby do not and will not violate, in any
material respect, any Law applicable to Stockholder or any of its assets
or require any consent, approval, license, permit, order or authorization
of, or registration, declaration or filing with, any Governmental Entity
by or with respect to Stockholder in connection with the execution and
delivery of this Agreement by Stockholder or the consummation of the
transactions contemplated hereby by Stockholder, except in relation to
Stockholder Required Consents, and except for any such violation or
failure to make or obtain any such consent, approval, order,
authorization, registration, declaration or filing which (i) would not be
reasonably expected to result in a Purchaser Material Adverse Effect and
(ii) would not be reasonably expected to prevent or materially delay the
consummation of the transactions contemplated hereby and by the Offer
Agreement..
(f) Reliance. Stockholder understands and acknowledges that
Purchaser is entering into the Offer Agreement in reliance upon
Stockholder's execution and delivery of this Agreement with Purchaser.
4. CERTAIN COVENANTS OF STOCKHOLDER. Except in accordance with the
terms of this Agreement, Stockholder hereby covenants and agrees as follows:
4.1 RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE.
Stockholder hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to, directly or indirectly, (i) offer to sell, sell,
tender, transfer, pledge, encumber, assign or otherwise dispose of
(collectively, "TRANSFER") or enter into any contract, option or other
arrangement or understanding with respect to or consent to the Transfer of, any
of the Stockholder Shares, or any interest therein, to any Person other than
pursuant to the Offer, (ii) except as contemplated by the Voting Agreement,
grant any proxies or powers of attorney with respect to the Stockholder Shares,
deposit any Stockholder Shares into a voting trust or enter into a voting
agreement with respect to any Stockholder Shares, or any interest in the
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foregoing, (iii) take any action that would make any representation or warranty
of Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling Stockholder from performing its obligations under this
Agreement or (iv) commit or agree to take any of the foregoing.
4.2 ADDITIONAL SHARES. Stockholder hereby agrees, while this
Agreement is in effect, to promptly notify Purchaser of the number of any
Company Shares acquired by Stockholder, if any, after the date hereof. In the
event that, between the date of this Agreement and the Closing Date, Company
Shares shall have been affected or changed into a different number of shares or
a different class of shares as a result of a share split, reverse share split,
share distribution, spin-off, recapitalization, reclassification (other than a
change in par value), or other similar transaction the term "Stockholder Shares"
shall be deemed to refer to and include the Stockholder Shares as well as any
shares into which or for which any or all of the Stockholder Shares may be
changed or exchanged and all such share distributions or, if applicable, to such
smaller number of Company Shares replacing the Stockholder Shares. Stockholder
shall be entitled to receive any cash dividend paid by the Company during the
term of this Agreement until the Stockholder Shares are purchased in the Offer
or hereunder.
5. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver, or cause to be executed and delivered, such additional consents,
documents and other instruments and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
6. MISCELLANEOUS.
6.1 AMENDMENTS. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
6.2 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed duly given (a) on the date of delivery if
delivered personally, or by facsimile, upon confirmation of receipt, (b) on the
first Business Day following the date of dispatch if delivered by a recognized
next-day courier service, or (c) on the tenth Business Day following the date of
mailing if delivered by registered or certified mail, return receipt requested,
postage prepaid. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated in writing by the party
to receive such notice:
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(a) if to Purchaser, to
The Seagram Company Ltd.
c/o Xxxxxx X. Xxxxxxx & Sons, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
with a copy to
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxx
(b) if to Stockholder, to
Koninklijke Philips Electronics N.V.
Building HRT, 24th Floor
Amstelplain 1
1096 H.A. Amsterdam
The Netherlands
Fax: 000-00-00-000-0000
Attention: General Secretary
with a copy to
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: X. Xxxxxx Landau
6.3 INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
6.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and
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delivered to the other party, it being understood that both parties need not
sign the same counterpart.
6.5 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES.
(a) This Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof, other than the Offer
Agreement, the Voting Agreement, the Stockholders Agreement and the
Confidentiality Agreement (except as provided in the next sentence), each of
which shall survive the execution and delivery of this Agreement. The second
paragraph (other than the last two sentences thereof) of the letter dated May 5,
1998 constituting part of the Confidentiality Agreement shall terminate upon
execution and delivery of the Offer Agreement and the seventh paragraph of such
letter shall terminate upon the effectiveness of the Stockholders Agreement.
(b) This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
6.6 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the Laws of the State of New York.
6.7 SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any Law or public policy,
all other terms and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible. If any of the provisions of this
Agreement are incapable of being performed as a result of applicable Dutch Law,
the rules of the ASE or Dutch commercial practice, the parties shall in good
faith negotiate alternative provisions that reflect the intent of the parties in
entering into this Agreement, provided, that the parties agree to amend this
Agreement to the extent necessary to comply with applicable Dutch Law or the
rules of the ASE.
6.8 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise), without
the prior written consent of the other party, and any attempt to make any such
assignment without such consent shall be null and void; provided, however, that
Purchaser may assign any of its rights, interests or obligations hereunder, in
whole or in part, to one or more Subsidiaries of Purchaser (organized or
incorporated under the Laws of Canada, the United States, The Netherlands or any
other
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jurisdiction, provided that such other jurisdiction would not impose a
withholding tax on the payment of the Offer Consideration) but any such
assignment shall not relieve Purchaser of its obligations hereunder. Subject to
the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns.
6.9 SUBMISSION TO JURISDICTION; WAIVERS. Each of Purchaser and
Stockholder irrevocably consents to jurisdiction and venue in the United States
District Court for the Southern District of New York and in the courts hearing
appeals therefrom unless no federal subject matter jurisdiction exists, in which
event, each of Purchaser and Stockholder irrevocably consents to jurisdiction
and venue in the Supreme Court of the State of New York, New York County, and in
the courts hearing appeals therefrom, for the resolution of any dispute action,
suit or proceeding arising out of or relating to this Agreement. Each of
Purchaser and Stockholder hereby irrevocably waives, and agrees not to assert,
by way of motion, as a defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, the defense of sovereign immunity,
any claim that it is not personally subject to the jurisdiction of the
above-named courts for any reason other than the failure to serve process in
accordance with this Section 6.9, that it or its property is exempt or immune
from jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and to the fullest extent permitted by applicable Law, that the suit, action or
proceeding in any such court is brought in an inconvenient forum, that the venue
of such suit, action or proceeding is improper, or that this Agreement, or the
subject matter hereof or thereof, may not be enforced in or by such courts and
further irrevocably waives, to the fullest extent permitted by applicable Law,
the benefit of any defense that would hinder, xxxxxx or delay the levy,
execution or collection of any amount to which the party is entitled pursuant to
the final judgment of any court having jurisdiction. Purchaser hereby
irrevocably designates Xxxxxx X. Xxxxxxx & Sons, Inc., with an office as of the
date hereof at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and Stockholder hereby
irrevocably designates Philips Electronics North America, with an office as of
the date hereof at 1251 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000-0000
(each such person, a "PROCESS AGENT"), as the designees, appointees and agents
of Purchaser and Stockholder, respectively, to receive, for and on such parties'
behalves, service of process in such jurisdiction in any legal action or
proceeding with respect to this Agreement and such service shall be deemed
complete upon delivery thereof to the other party's Process Agent; provided,
that in the case of any such service upon such Process Agent, the party
effecting such service shall also deliver a copy thereof to the other party in
the manner provided in Section 6.2. Each party shall take all such action as
may be necessary to continue said appointment in full force and effect or to
appoint another agent so that will at all times have an agent for service of
process for the above purposes in New York, New York. Each of Purchaser and
Stockholder further irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered airmail, postage prepaid, to such party at its
address set forth in this Agreement, such service of process to be effective
upon acknowledgement of receipt of such registered mail. Nothing herein shall
affect the right of any party to serve process in any other manner
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permitted by Law or to commence legal proceedings or otherwise proceed against
the other party in any other jurisdiction in which the other party may be
subject to suit. Each of Purchaser and Stockholder expressly acknowledges that
the foregoing waiver is intended to be irrevocable under the Laws of the State
of New York and of the United States of America; provided, that each such
party's consent to jurisdiction and service contained in this Section 6.9 is
solely for the purpose referred to in this Section 6.9 and shall not be deemed
to be a general submission to said courts or in the State of New York other
than for such purpose.
In the event of the transfer of all or substantially all of the
assets and business of a Process Agent to any other corporation by
consolidation, merger, sale of assets or otherwise, such other corporation shall
be substituted hereunder for the Process Agent with the same effect as if named
herein in place of Xxxxxx X. Xxxxxxx & Sons, Inc. and Philips Electronics North
America, respectively.
6.10 ENFORCEMENT.
(a) Each of the parties acknowledges that the other party, would not
have an adequate remedy at law for money damages in the event that any of the
covenants or agreements of the other party in this Agreement were not performed
in accordance with its terms, and it is therefore agreed that each of Purchaser
and Stockholder, in addition to and without limiting any other remedy or right
it may have, will have the right to an injunction or other equitable relief in
any court of competent jurisdiction, subject to Section 6.9, enjoining any such
breach and enforcing specifically the terms and provisions hereof, and each of
Purchaser and Stockholder hereby waives any and all defenses they may have on
the ground of lack of jurisdiction or competence of the court to grant such an
injunction or other equitable relief.
(b) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise or beginning of the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
6.11 SURVIVAL. Except for the representations and warranties of
Purchaser set forth in Section 3.1(b) and Stockholder set forth in Section
3.2(a), which shall survive the Closing without limitation as to time, all of
the representations and warranties contained herein shall expire on the Closing
Date. All of the covenants and agreements of the parties contained in this
Agreement shall survive the Closing without limitation as to time.
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IN WITNESS WHEREOF, Purchaser and Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
THE SEAGRAM COMPANY LTD.
By: /s/ Xxxxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice Chairman and Chief Financial
Officer
KONINKLIJKE PHILIPS ELECTRONICS N.V.
By: /s/ Cor Xxxxxxxx
----------------------------------
Name: Cor Xxxxxxxx
Title: Chairman of the Board of
Management and Chief Executive
Officer
By: /s/ Xxx Xxxxxx
----------------------------------
Name: Xxx Xxxxxx
Title: Chief Financial Officer
