Exhibit 10.38
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REITERATIVE SHARE PURCHASE AGREEMENT
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BETWEEN:
- XXXXXX XX PRIVATE (formerly Startskottet 21918 AB), a company governed under
the Laws of Sweden, having its registered office, c/o Hellstrom & Partners
Advokatbyra XX - Xxx 0000 - 000 00 XXXXXXXXX -XXXXXX, registered under number
556622 - 7574, represented for the purposes of this Reiterative Share Purchase
Agreement by Xxxx Xxxxxxxx duly empowered pursuant to a Power of Attorney
attached on EXHIBIT 10 hereto.
Hereinafter referred to as the "SELLER",
OF THE FIRST PART
AND
- HAMPTON TRUST HOLDING (EUROPE) SA, a joint stock company governed by the Laws
of Luxembourg, with a share capital of EUR 100,000 having its registered office
at 00, xxx Xxxx-Xxxxxxxx Xxxxxxxxx, Xxxxxxx, 0000 Xxxxxxxxxx, registered with
the Trade and Company registry of Luxembourg under number B86120, represented
for the purposes of this Agreement by Xx Xxxx X. Xxxxx, acting in his capacity
as Administrateur Delegue, and represented by Xx. Xxxxxx Xxxxxxx acting in his
capacity as "Administrateur"
- XX XXXX X. XXXXX, having his domicile at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxxx,
Xxxx, XX0 0XX, Xxxxxx Xxxxxxx
- HERALD CENTURY CONSOLIDATED SA, a joint stock company governed by the Laws of
Luxembourg, with a share capital of EUR 100,000 having its registered office at
00, xxxxx x'Xxxx, 0000 Xxxxxxxxxx, registered with the Trade and Company
registry of Luxembourg under number B 62-171, represented for the purposes of
this Reiterative share Purchase Agreement by Xx Xxxx X. Xxxxx, acting in his
capacity as "Administateur Delegue"
Hereinafter jointly and severally referred to as the "BUYER",
OF THE SECOND PART
The SELLER and the BUYER shall be individually referred to as a "Party", and
collectively as the "Parties"
RECITALS
Whereas LUK FIDEI LLC was merged on April 24, 2002 into Xxxxxxx Inc having its
registered office 0000, Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxxxx Xxxxxxxx (XXX). Whereas
the "shareholders unconditional contribution" of FIDEI SCA to XXXXXX XX by
Xxxxxxx Inc has been implemented on May 2, 2002;
Whereas SELLER holds 99.99 % of COMPAGNIE FONCIERE FIDEI (hereafter "FIDEI
SCA"), a French partnership with limited shares ("societe en commandite par
actions") with a share capital of EUR 550,329, having its registered office
located at 00 xxx xx Xxxxxxxxxx - 00000 Xxxxx, registered with the Trade and
Company Registry of Paris under number 000 000 000 ;
Whereas FIDEI is owned by three (3) other minor shareholders which are Lortay
LLC, Rishly LLC and Homry LLC, three (3) companies organized under the Laws of
Delaware (USA) and which respectively own one (1) share of FIDEI SCA;
Whereas SELLER shall act in its own name and on behalf of the three (3) above
mentioned minor shareholders ;
Whereas FIDEI owns today directly 100 % of the issued and outstanding shares of
each of the Subsidiaries; an updated list of Subsidiaries is attached on EXHIBIT
1 hereto;
Whereas FIDEI, formerly a "societe anonyme", has been converted into a "societe
en commandite par actions" by its extraordinary shareholders meeting dated April
29, 2002. A copy of the updated "Extrait K bis" is attached on EXHIBIT 2 hereto;
Whereas by virtue of this reiterative share purchase agreement (Hereinafter
"Reiterative Share Purchase Agreement" or "Reiterative SPA"), the Parties
reiterate today the share purchase agreement (Hereafter "SPA") executed on April
17th, 2002, article 3 of which, on Aggregate Purchase price and Right as general
partner, was modified in accordance with the articles 3.3, 7.5 and 10.5 al. 3 of
the SPA by an amendment (Hereafter "Amendment") executed by both Parties on May
6, 2002 ;
Whereas the extraordinary shareholders meeting held on May 6, 2002 decided a
share buy back operation which minutes have been filed with the Paris Trade and
Companies Register on May 7, 2002 and whereas the managing director of FIDEI SCA
noted on minutes dated June 3, 2002, that the creditors opposition time period
was elapsed and, consequently, (i) the share buy back was completed, (ii) the
redeemed shares were cancelled and (iii) the share capital reduced. A copy of
the non-opposition certificate issued by the Clerk of the Commercial Court of
Paris is attached on EXHIBIT 3. The legal formalities regarding this operation
are currently being processed by FIDEI SCA ;
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Whereas the two following conditions, contained in Article 6 of the SPA, are
today realised, namely :
o the Conversion of FIDEI SCA has been implemented on April 29th, 2002 ;
o The wire transfer by FIDEI SCA to XXXXXX XX of an amount of EUR
51,982,803 following to the share buy back operation has been
implemented on June 3, 2002.
Whereas SELLER agrees to sell to BUYER and BUYER agrees to purchase from SELLER,
according to the terms and conditions set forth below all of the issued and
outstanding shares of FIDEI SCA.
Whereas the Right as General Partner shall be purchased today in a separate
agreement.
NOW, THEREFORE, THE PARTIES HERETO HAVE AGREED AS FOLLOWS:
ARTICLE 1. DEFINITIONS
1.1. The terms set out hereunder shall have the following meaning for the
purpose of the Reiterative SPA:
- "Amendment": shall mean the amendment of the SPA executed on May 6, 2002.
-"Final Pro forma Balance Sheet": is the pro forma balance sheet attached on
EXHIBIT 4 hereto;
- "Reiterative SPA": shall mean this agreement, including its Exhibits executed
by SELLER and BUYER.
- "Minor shareholders of FIDEI SCA": shall mean Lortay LLC, Homry LLC and Rishly
LLC, companies organized and existing under the Laws of Delaware (USA), each of
them owning one (1) share of FIDEI ;
-"SPA": shall mean the share purchase agreement executed on April 17, 2002.
-"Shares": shall mean the 721.983 shares of FIDEI SCA after the share buy back
operation.
-"Transfer Order": shall mean the legal form ("Ordre de mouvement") according to
which SELLER shall transfer the Shares of FIDEI SCA to BUYER, a copy of which
are attached hereto on EXHIBIT 5 hereto.
1.2. The other terms with a first capital letter are defined in the SPA.
1.3. Plural forms shall include singular forms and vice versa.
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ARTICLE 2. SALE AND PURCHASE OF THE SHARES OF FIDEI SCA
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SELLER shall sell today in its own name and on behalf of the Minor Shareholders
of FIDEI SCA to BUYER and BUYER shall purchase today from SELLER, all of the
issued and outstanding shares of FIDEI SCA.
The Parties undertake to have the transfers of the Shares registered in the
books and records of FIDEI SCA today.
The Shares shall be transferred with full rights ("jouissance") as of today.
ARTICLE 3. PURCHASE PRICE OF THE SHARES OF FIDEI SCA
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BUYER shall pay to SELLER and the Minority Shareholders of FIDEI SCA on the
basis of the Final Pro Forma Balance Sheet attached on EXHIBIT 4 - the amount of
TWENTY FIVE EUROS and FORTY EIGHT CENTIMES (EUR 25.48) per share for each share
of FIDEI SCA issued and outstanding.
The number of shares of FIDEI SCA to be purchased by BUYER today shall be SEVEN
HUNDRED TWENTY ONE THOUSAND NINE HUNDRED and EIGHTY THREE (721 983) and the
purchase price for the shares of FIDEI SCA paid to SELLER and the Minor
Shareholders shall be EIGHTEEN MILLION THREE HUNDRED NINETY SEVEN THOUSAND AND
EIGHT HUNDRED AND EIGHTY THREE EUROS SIXTY SEVEN CENTIMES (18,397,883.67)
(hereafter the "Purchase Price").
o Xxxxxx XX : 721.980 shares: 18,397,807.23 Euros: to be sold to Hampton
Trust Holdings (Europe) SA
o Lortay LLC: 1 share: 25.48 Euros: to be sold to Hampton Trust Holdings
(Europe SA)
o Rishly LLC: 1 share: 25.48 Euros: to be sold to Herald Century
Consolidated SA
o Homry LLC:1 share: 25.28 Euros: to be sold to Xx Xxxx X. XXXXX
Registration duties due to any person incurred by the transfer of Shares shall
be the sold responsibility of, and shall be borne by, BUYER.
ARTICLE 4. PAYMENT OF THE PURCHASE PRICE
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BUYER shall pay the Purchase Price as set forth in Article 3 today by
certificate check to the SELLER and the three (3) Minority Shareholders. Copies
of the checks are attached on Exhibit 6 hereto.
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ARTICLE 5. CONDITIONS TO CLOSING
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SELLER shall deliver to BUYER today :
o the written resignation of the Managing Director ("gerant"), the
President and the Secretary of the Supervisory Board of FIDEI SCA at
the effective date of today; a copy of these letters is attached on
EXHIBIT 7 hereto ;
o the written resignation of all the Presidents of each of the
Subsidiaries listed on EXHIBIT 1 hereto ; a copy of these letters of
resignation shall be attached on EXHIBIT 7 hereto ;
o all the corporate documents listed on EXHIBIT 9 hereto.
The Parties mutually agree that the replacement of the Managing Director of
FIDEI SCA and the dismissal of the members of the Supervisory Board shall take
place at the extraordinary shareholders' meeting of FIDEI SCA to be held today.
ARTICLE 6. REAL ESTATE PROPERTIES
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EXHIBIT 8 hereto is an updated list of all real property owned by FIDEI SCA
which are still under a commitment to sell ("promesse de vente" or "compromis de
vente") as of today, by FIDEI or the Subsidiaries, on the one hand, and third
parties on the other hand.
It is agreed by the Parties that the provisions 7.2, 7.3 and 7.4 of the SPA
shall continue to apply and produce their effects.
ARTICLE 7. REPRESENTATIONS OF SELLER AND BUYER
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The Parties agree to refer to the articles 8 and 9 of the SPA as regards the
representations and warranties made by them.
ARTICLE 8. MISCELLANEOUS
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This Reiterative Agreement is drawn up in English and shall be governed by and
construed in accordance with the laws of France. Should a French version be
prepared, the prevailing version shall be the English version.
This Reiterative Agreement is confidential under the same conditions as defined
in article 10.3 of the SPA.
Each of the Parties shall bear its own costs and expenses (including legal fees
and expenses) incurred by either Party in connection with the preparation and
negotiation of the Reiterative Agreement and the consummation of the
transactions contemplated hereby.
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This Reiterative Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns in the same
condition than in the article 10.6 of the SPA.
The failure of any Party hereto to exercise any right, power or remedy provided
under this Agreement or otherwise available in respect hereof at law or in
equity, or to insist upon compliance by any other Party hereto with its
obligations hereunder, and any custom or practice of the Parties at variance
with the terms hereof, shall not constitute a waiver by such Party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
All notices and other communications required or permitted hereunder shall be in
writing and, unless otherwise provided in this Agreement, will be deemed to have
been duly given when delivered in person or when dispatched by electronic
facsimile transfer (confirmed in writing by mail simultaneously dispatched) or
two Business Days after having been dispatched by a nationally recognized
overnight courier service to the appropriate party at the address specified
below
|X| To BUYER at:
HAMPTON TRUST HOLDINGS (EUROPE) SA
00, xxx Xxxx-Xxxxxxxx Xxxxxxxxx
Xxxxxxx
0000 Xxxxxxxxxx
Attn.: Xx. Xxxx X. Xxxxx, Administrateur Delegue
Facsimile:
With a copy to:
TESTU PACLOT MOITRY
Me Xxxx-Xxxxxx Moitry
0, xxx xx Xxxxxxxx
00 000 Xxxxx
Facsimile:
|X| To SELLER at :
XXXXXX XX PRIVATE
Xxx 0000
00000 XXXXXXXXX - XXXXXX
Attn : Xxxxxx Xxxxxxxx
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With a copy to:
XX Xxxxxxxxxx
Colisee Mur
00, xxx xx Xxxxxxxxxx
X - 00000 Xxxxx
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
All other provisions contained in the article 10 of the SPA shall be applicable
to this Reiterative Agreement.
10.9 LIST OF EXHIBITS
Exhibit 1 : Updated list of Subsidiaries and their Presidents
Exhibit 2 : "Extrait K bis" upon Conversion of FIDEI SCA
Exhibit 3 : Creditors non opposition certificate from the Clerk of the
commercial court.
Exhibit 4 : Final Pro forma Balance Sheet
Exhibit 5 : FIDEI SCA Share transfer orders
Exhibit 6 : Copies of the checks
Exhibit 7 : Copy of the resignation letters concerning FIDEI SCA and
its Subsidiaries
Exhibit 8 : Updated list of real estate properties under commitment to
sell
Exhibit 9 : List of corporate documents to be delivered by FIDEI to
HAMPTON
Exhibit 10 : Power of Attorney
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On June the 4th 2002,
In Paris,
Made in two (4) original copies XXXXXX XXXXXXX
/s/ Xxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxx
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SELLER BUYER
SAVITS XX XXXXXXX TRUST
HOLDING (EUROPE) SA
By : Xxxx Xxxxxxxx by : Xxxx X. Xxxxx
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Title: Administrateur Delegue
Represented by: Xxxxxx Xxxxxxx
Title: Administrateur
/s/ Xxxx X. Xxxxx
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BUYER
HERALD CENTURY
CONSOLIDATED SA
Represented by: Xxxx X. Xxxxx
Title: Administrateur Delegue
/s/ Xxxx X. Xxxxx
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BUYER
XXXX X. XXXXX
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