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Exhibit 2.2
----------------------------------------
PURCHASE AGREEMENT
among
▇▇▇▇ NATIONAL CORPORATION
and
HAL INVESTMENTS B.V.
Dated as of 24 September, 1996
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1 DEFINITIONS......................................... 2
Section 1.1 Specific Definitions................................ 2
Section 1.2 Other Terms......................................... 6
Section 1.3 Other Definitional Provisions....................... 6
ARTICLE 2 PURCHASE AND SALE OF THE SHARES AND CERTAIN
ASSETS.............................................. 6
Section 2.1 Purchase and Sale of the Shares and the
Other Assets........................................ 6
Section 2.2 Closing; Delivery and Payment....................... 6
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF CNC............... 7
Section 3.1 Organization and Authority of CNC................... 7
Section 3.2 Capital Stock of Pearle B.V......................... 8
Section 3.3 European Intellectual Property...................... 9
Section 3.4 Representations and Warranties under
Master Agreement.................................... 9
Section 3.5 No Other Representations or Warranties.............. 9
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYER............. 10
Section 4.1 Organization and Authority of Buyer................. 10
Section 4.2 Securities Act...................................... 11
Section 4.3 No Other Representations or Warranties.............. 11
ARTICLE 5 ENFORCEMENT, COOPERATION AND CERTAIN OTHER
COVENANTS........................................... 12
Section 5.1 Enforcement......................................... 12
Section 5.2 Enforcement of Master Agreement Non-
Compete............................................. 13
Section 5.3 Cooperation......................................... 13
ARTICLE 6 NON-COMPETE......................................... 14
Section 6.1 CNC's Covenant Not-to-Compete....................... 14
Section 6.2 Buyer's Covenant Not-to-Compete..................... 15
Section 6.3 Injunctive Relief................................... 15
Section 6.4 Hiring of Employees................................. 16
ARTICLE 7 CONDITIONS TO CLOSING............................... 16
Section 7.1 Conditions to Obligations of Buyer.................. 16
Section 7.2 Conditions to Obligations of Buyer and
CNC................................................. 17
ARTICLE 8 TERMINATION......................................... 17
ARTICLE 9 MISCELLANEOUS....................................... 18
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TABLE OF CONTENTS
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(continued)
PAGE
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Section 9.1 Amendment and Modification; Waiver.................. 18
Section 9.2 Expenses............................................ 18
Section 9.3 Public Disclosure................................... 19
Section 9.4 Assignment.......................................... 19
Section 9.5 Entire Agreement.................................... 20
Section 9.6 Fulfillment of Obligations.......................... 20
Section 9.7 Parties in Interest; No Third Party
Beneficiaries....................................... 20
Section 9.8 Counterparts........................................ 20
Section 9.9 Section Headings.................................... 21
Section 9.10 Notices............................................. 21
Section 9.11 Mediation........................................... 22
Section 9.12 Severability........................................ 23
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PURCHASE AGREEMENT
PURCHASE AGREEMENT (the "Agreement"), dated as of 24
September, 1996, among ▇▇▇▇ NATIONAL CORPORATION, a Delaware corporation
("CNC"), and HAL Investments B.V., a company organized under the laws of the
Netherlands ("HAL").
W I T N E S S E T H:
WHEREAS, CNC is purchasing all of the issued and outstanding
shares of capital stock of Pearle, Inc., a Delaware corporation, pursuant to
that certain Stock Purchase Agreement among The Pillsbury Company ("Pillsbury"),
Pearle, Inc. and CNC, dated as of September 30, 1996 (the "Master Agreement");
WHEREAS, Pearle Holdings B.V., a company organized under the
laws of the Netherlands ("Pearle B.V."), is a wholly-owned subsidiary of Pearle,
Inc;
WHEREAS, after consummation of the transactions contemplated
by the Master Agreement, CNC will own indirectly all of the issued and
outstanding shares of capital stock of Pearle B.V.;
WHEREAS, CNC desires to sell and transfer to Buyer, and Buyer
desires to purchase from CNC, all of the issued and outstanding shares of Pearle
B.V. capital stock (consisting of 500 shares of common stock, par value NLG
1,000.00 per share (the "Shares")), together with certain assets, as more
specifically provided herein; and
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NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and conditions
herein set forth, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
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Section 1.1 SPECIFIC DEFINITIONS. As used in this
Agreement, the following terms shall have the meanings set forth
or as referenced below:
"AFFILIATE", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by or under common control with
that Person.
"AGREEMENT" shall mean this Agreement and all Schedules
hereto.
"BELGIAN CONTRACTS" shall mean the GIB Contract, the Agency
Agreement by and between Pearle Vision, Inc., as successor to Pearle Health
Services Inc., Brilmij Maatschappij Tot Exploitatie Van Optiek Bedrijven B.V.
and ▇▇.▇▇▇▇.▇▇ S.A., dated November 1, 1985, as amended, and all franchising
agreements for franchises in the countries of Belgium or Luxembourg to which
Pearle Vision, Inc., as successor to Pearle Health Services Inc., and GIB are
parties, all as they exist as of the Closing Date.
"BELGIAN ROYALTY PAYMENTS" shall mean the royalty payments
paid under the Belgian Contracts.
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"BUSINESS DAY" shall mean any day other than a Saturday, a
Sunday or a day on which banks in New York City, New York or Rotterdam, the
Netherlands are authorized or obligated by law or executive order to close.
"BUYER" shall mean HAL, until HAL has assigned this Agreement
pursuant to Section 9.4 and, thereafter, shall mean Newco.
"BUYER'S TERRITORY" shall mean the now existing European Union
countries, the no existing European Free Trade Association countries, Albania,
Andorra, Belarus, Bulgaria, the Czech Republic, Cyprus, Estonia, Hungary,
Latvia, Lithuania, Malta, Poland, Romania, Russia, Slovakia, Slovenia, Turkey,
Ukraine, the former Yugoslavia and any other territories that as of the date
hereof are usually referred to as being part of Europe.
"CLOSING" shall have the meaning set forth in
Section 2.2(a).
"CLOSING DATE" shall have the meaning set forth in
Section 2.2(a).
"CNC" shall have the meaning set forth in the Preamble.
"CNC'S TERRITORY" shall mean all territories in the
world except those territories specifically in Buyer's Territory.
"ENCUMBRANCES" shall have the meaning set forth in
Section 3.3.
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"EUROPEAN INTELLECTUAL PROPERTY RIGHTS" shall mean the
Intellectual Property rights to be assigned to Buyer pursuant to the Trademark
Assignment Agreement.
"GIB" shall mean ▇▇.▇▇▇▇.▇▇ S.A. or any successor or
Affiliate thereof.
"GIB CONTRACT" shall mean the Sales, Marketing and
Distribution Agreement between Pearle Vision, Inc., as successor to Pearle
Health Services Inc., Brilmij Maatschappij Tot Exploitatie Van Optiek Bedrijven
B.V. and ▇▇.▇▇▇▇.▇▇ S.A., dated October 3, 1983, as amended.
"NEWCO" means a company yet to be incorporated under the laws
of the Netherlands, with such corporate power and authority and capitalization
as shall be determined by HAL, which shall be sufficient to support Newco's
obligations under this Agreement.
OTHER ASSETS" shall mean such assets as the parties may agree,
including, without limitation, (a) the European Intellectual Property Rights,
(b) the assignment of the Belgian Royalty Payments and the agreement by Buyer to
perform certain obligations pursuant to Section 5.4 hereof, and (c) CNC's
covenant not-to-compete contained in Section 6.1 hereof.
"PEARLE B.V." shall have the meaning set forth in the
Preamble.
"PERSON" means any individual, corporation, partnership, firm,
joint venture, association, joint-stock
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company, trust, unincorporated organization, governmental or regulatory body or
other entity.
"PILLSBURY" shall have the meaning set forth in the
Preamble.
"PILLSBURY PAYMENT" shall have the meaning set forth in
Section 2.3.
"PURCHASE PRICE" shall have the meaning set forth in
Section 2.1.
"SECURITIES ACT" shall mean the United States Securities Act
of 1933, as amended.
"SHARES" shall have the meaning set forth in the
Preamble.
"SUBSIDIARY][IES]" shall mean each subsidiary of Pearle B.V.
in which Pearle B.V. owns, beneficially or of record directly or indirectly,
securities representing 50 percent (50%) or more of the aggregate voting power
as listed on Schedule 3.4 to the Master Agreement (collectively, the
"Subsidiaries").
"TRADEMARK ASSIGNMENT AGREEMENT" shall mean an agreement on
terms mutually acceptable to Buyer and CNC pursuant to which CNC shall assign to
Buyer or, at Buyer's direction, Pearle B.V. or any of its Subsidiaries, all
Intellectual Property rights owned or used by Pearle, Inc. or its Subsidiaries
as of the Closing Date to the extent such rights relate to Buyer's Territory.
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Section 1.2 OTHER TERMS. Other terms may be defined elsewhere
in the text of this Agreement and, unless otherwise indicated, shall have such
meaning indicated throughout this Agreement. Capitalized terms used and not
defined herein shall have the meanings ascribed to such terms in the Master
Agreement.
Section 1.3 OTHER DEFINITIONAL PROVISIONS. (a) The words
"hereof", "herein", and "hereunder" and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
(b) The terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
(c) The term "NLG" shall mean Dutch guilders.
ARTICLE 2
PURCHASE AND SALE OF THE SHARES AND CERTAIN ASSETS
--------------------------------------------------
Section 2.1 PURCHASE AND SALE OF THE SHARES AND THE OTHER
ASSETS. Upon the terms and subject to the conditions set forth herein, Buyer
shall purchase from CNC and CNC shall sell to Buyer the Shares and the Other
Assets, for an aggregate purchase price of NLG 102,920,000 (the "Purchase
Price") to be allocated among the Shares and the respective Other Assets prior
to the Closing.
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Section 2.2 CLOSING; DELIVERY AND PAYMENT.
(a) The closing (the "Closing") shall take place simultaneously with the
closing of the Master Agreement. The date on which the Closing occurs is called
the "Closing Date," and the Closing shall be deemed effective at 11:59 P.M.
(local time) on the Closing Date.
(b) On the Closing Date, CNC shall cause (i) the Shares to be transferred
pursuant to a Notarial Deed of Transfer before any civil law notary of ▇▇▇▇▇
Dutilh, Rotterdam or any of their deputies and (ii) shall cause the Other Assets
to be transferred and (A) the parties shall execute any and all documents and do
such other acts as are reasonably necessary in connection therewith and (B)
Buyer shall pay to CNC the Purchase Price in immediately available funds an
account or accounts to be designated by CNC. These accounts will be designated
by CNC not less than two Business Days prior to the Closing.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF CNC
-------------------------------------
CNC represents and warrants to Buyer as of the date hereof and as of the
Closing Date (except that representations and warranties that are made as of a
specific date need be true only as of such date) as follows:
Section 3.1 ORGANIZATION AND AUTHORITY OF CNC. CNC has been duly
incorporated, is validly existing and is in good
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standing under the laws of the State of Delaware, with full power and authority
to enter into this Agreement and to perform its obligations hereunder. This
Agreement has been duly authorized, executed and delivered by CNC and
constitutes a legal, valid and binding obligation of CNC, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles, and
no other proceedings on the part of CNC, are necessary to authorize this
Agreement and the consummation of the transactions contemplated hereby. Neither
the execution and delivery of this Agreement nor compliance by CNC with its
terms and provisions will violate any provision of the certificate of
incorporation or by-laws of CNC.
Section 3.2 CAPITAL STOCK OF PEARLE B.V.. Between the date hereof and the
delivery of the Shares pursuant to the Notarial Deed of Transfer referred to in
Section 2.2, CNC shall not, and shall cause each of its Subsidiaries (including,
following the closing under the Master Agreement, Pearle and Pearle B.V.) not
to, grant or agree to grant any preemptive or other outstanding rights,
subscriptions, options, warrants, calls, contracts, demands, commitments,
convertible securities or other agreements or arrangements of any character or
nature whatsoever under which CNC or any of its Subsidiaries is or may become
obligated to vote, issue, assign or transfer any shares of
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the capital stock, or rights or warrants to acquire, or securities convertible
into shares of capital stock, of Pearle B.V. or any of its Subsidiaries. As of
the Closing, Pearle will have good and valid title to the Shares and, upon
consummation of the transactions contemplated in this Agreement, shall have
transferred such title to the Shares to Buyer pursuant to the terms of this
Agreement, free and clear of any Encumbrances, other than such Encumbrances
which were incurred by Buyer or caused to be incurred by Pearle B.V. or any
Subsidiary by Buyer as a result of the transactions contemplated by this
Agreement.
Section 3.3 EUROPEAN INTELLECTUAL PROPERTY. Between the date hereof and the
delivery of the Trademark Assignment Agreement, CNC shall not, and shall cause
each of its Subsidiaries (including, following the closing under the Master
Agreement, Pearle and Pearle B.V.) not to, grant or agree to grant any rights to
the European Intellectual Property to any third party.
Section 3.4 REPRESENTATIONS AND WARRANTIES UNDER MASTER AGREEMENT. From and
after the closing under the Master Agreement, CNC makes to Buyer the
representations and warranties made in Sections 3.2 through 3.24 of the Master
Agreement, to the extent such representations and warranties relate to Pearle
B.V. or any of its Subsidiaries.
Section 3.5 NO OTHER REPRESENTATIONS OR WARRANTIES. Except for the
representations and warranties contained in this
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Article 3, neither CNC nor any other Person makes any other express or implied
representation or warranty on behalf of CNC.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer represents and warrants to CNC as of the date hereof and as of the
Closing Date (except that representations and warranties that are made as of a
specific date need be true only as of such date) as follows:
Section 4.1 ORGANIZATION AND AUTHORITY OF BUYER. Buyer is duly incorporated
and validly existing under the laws of the Netherlands, with full power and
authority to own or lease its assets and to carry on its business substantially
as currently conducted. There has been no proposal made or resolution adopted
(by the competent corporate body(ies)) for the dissolution or liquidation of
such company, and no proposal has been made or resolution adopted (by the
competent corporate body(ies)) for the statutory merger of such company with
another entity or for a splitting of such company. This Agreement has been duly
authorized, executed and delivered by Buyer and constitutes a legal, valid and
binding obligation of Buyer, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles, and no other
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proceedings on the part of Buyer are necessary to authorize this Agreement and
the consummation of transactions contemplated hereby. Neither the execution and
delivery of this Agreement nor compliance by Buyer with its terms and provisions
will violate any provision of the Articles of Association (in Dutch "Statuten")
of Buyer.
Section 4.2 SECURITIES ACT. Buyer is acquiring the Shares solely for the
purpose of investment and not with a view to, or for sale in connection with,
any distribution thereof in violation of the Securities Act. Buyer acknowledges
that the Shares are not registered under the Securities Act or any applicable
state securities law, and that such Shares may not be transferred or sold except
pursuant to the registration provisions of such Securities Act or pursuant to an
applicable exemption therefrom and pursuant to state securities laws and
regulations as applicable.
Section 4.3 NO OTHER REPRESENTATIONS OR WARRANTIES. Except for the
representations and warranties contained in this Article IV, neither Buyer nor
any other Person makes any other express or implied representation or warranty
on behalf of Buyer.
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ARTICLE 5
ENFORCEMENT, COOPERATION AND CERTAIN OTHER COVENANTS
----------------------------------------------------
Section 5.1 ENFORCEMENT. In the event of any breach of Section 3.4 hereof,
if Buyer gives notice to CNC within the applicable time period therefor under
the Master Agreement that Pillsbury or Pearle, Inc. has breached any
representation, warranty, covenant or agreement contained in the Master
Agreement with respect to Pearle B.V. or its Subsidiaries for which CNC is
entitled to indemnification pursuant to the Master Agreement, CNC shall promptly
(a) enforce, for and on behalf of Buyer and under Buyer's direction, its rights
to indemnification with respect to any Losses related thereto pursuant to the
Master Agreement and (b) pay to Buyer any amounts received (or with respect to
which the benefit through the set-off of any claim under the Master Agreement
has been received) by CNC with respect thereto; PROVIDED, however, that, (i) the
rights hereunder shall be subject to the Damage Threshold, (ii) Buyer shall be
entitled to Losses in an amount up to the Purchase Price in the aggregate, and
(iii) for purposes of the Deductible, (A) all Losses of CNC under the Master
Agreement and of Buyer hereunder shall be accumulated, (B) to the extent the
Deductible has been exceeded, with respect to all Losses recoverable by CNC
under the Master Agreement, CNC shall first satisfy to the fullest possible
extent any claim of Buyer hereunder within two Business Days after CNC receives
payment from Pillsbury for any Losses.
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Section 5.2 ENFORCEMENT OF MASTER AGREEMENT NON-COMPETE. If Buyer gives
notice to CNC that there has been any breach by Pillsbury or any of its
Affiliates of the non-competition agreement in the Master Agreement with respect
to the Buyer's Territory, CNC shall promptly enforce, for and on behalf of Buyer
and under Buyer's direction, its rights under Section 6.9 of the Master
Agreement, including, without limitation, including the procurement of
injunctive relief. In order to effect such enforcement, CNC hereby constitutes
and appoints Buyer its attorney-in-fact, with full power of substitution and
resubstitution, for it and in its name, place and stead, to sign any and all
pleadings and other documents in connection with the enforcement of Section 6.9
of the Master Agreement with respect to Buyer's Territory, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite or necessary to have done in and about the premises, as full
to all intents and purposes as CNC might or could do.
Section 5.3 COOPERATION. CNC and Buyer shall cooperate and use their
respective reasonable best efforts to fulfill CNC's obligations under the Master
Agreement with respect to Pearle B.V. and the Subsidiaries, within the
applicable time period therefor under the Master Agreement, including but not
limited to Sections 2.4, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 6.1, 6.2, 6.4, 6.5, 6.6,
6.7 and 7.2 of the Master Agreement.
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ARTICLE 6
NON-COMPETE
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Section 6.1 CNC'S COVENANT NOT-TO-COMPETE. CNC acknowledges and agrees that
the value to Buyer of the transactions provided for herein would be
substantially diminished if CNC were to enter into certain business activities
in Buyer's Territory and CNC has agreed to the covenant in this Section 6.1 as
an inducement to Buyer to enter into this Agreement. CNC specifically
acknowledges and agrees that the covenants in this Section 6.1 are commercially
reasonable and reasonably necessary to protect the interests Buyer intends to
acquire hereunder. If any court of competent jurisdiction shall in any
proceedings refuse to enforce such covenant, in whole or in part, because the
time limit or geographical extent applicable thereto is deemed unreasonable in
the jurisdiction, it is expressly understood and agreed that such covenant shall
not be void. Instead, for the purpose of such proceedings, such temporal or
geographic limitations shall be deemed to be reduced to the extent necessary to
permit the enforcement of such covenant in the particular jurisdiction. CNC
agrees that, for five years after the Closing Date, it shall not, directly or
indirectly through franchisees or otherwise, engage in the ownership, operation
or management of retail stores offering eyecare products in Buyer's Territory
other than through its participation in Newco or any of its Affiliates.
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Section 6.2 BUYER'S COVENANT NOT-TO-COMPETE. Buyer acknowledges and agrees
that the value to CNC of the transactions provided for herein would be
substantially diminished if Buyer were to enter into certain business activities
in CNC's Territory and Buyer has agreed to the covenant in this Section 6.2 as
an inducement to CNC to enter into this Agreement. Buyer specifically
acknowledges and agrees that the covenants in this Section 6.2 are commercially
reasonable and reasonably necessary to protect the interests of CNC. If any
court of competent jurisdiction shall in any proceedings refuse to enforce such
covenant, in whole or in part, because the time limit or geographical extent
applicable thereto is deemed unreasonable in the jurisdiction, it is expressly
understood and agreed that such covenant shall not be void. Instead, for the
purpose of such proceedings, such temporal or geographic limitations shall be
deemed to be reduced to the extent necessary to permit the enforcement of such
covenant in the particular jurisdiction. Buyer agrees that, for five years after
the Closing Date, it shall not, directly or indirectly through franchisees or
otherwise, engage in the ownership, operation or management of retail stores
offering eyecare products in CNC's Territory other than through the
participation by HAL or Newco in CNC or any of its Affiliates.
Section 6.3 INJUNCTIVE RELIEF. CNC and Buyer agree that money damages would
be an inadequate remedy for a violation
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of the covenant set forth in this Article 6. Accordingly, Buyer and CNC shall
each be entitled, in addition to any other rights and remedies that it may have,
to injunctive relief to enjoin any such breach.
Section 6.4 HIRING OF EMPLOYEES. Each party agrees that, for a period of
two (2) years following the Closing Date, neither party shall solicit the
employment of any person, it knows to be an employee of the other (other than
any hourly worker or any Employee who serves in clerical function) without the
prior written consent of the other party; PROVIDED, HOWEVER, that (i) general
solicitations of employment published in a journal, newspaper or other
publication of general circulation and not specifically directed towards such
employees shall not be deemed to constitute solicitation for purposes of this
Section 6.4 and (ii) each party and their respective representatives shall not
be prohibited from employing any such person who contacts them on his or her own
initiative and without any solicitation by the other party.
ARTICLE 7
CONDITIONS TO CLOSING
---------------------
Section 7.1 CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of Buyer to
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction or waiver
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by Buyer in writing on or prior to the Closing Date of the
following condition:
(a) CNC shall have executed and delivered to Buyer a Trademark
Assignment Agreement.
Section 7.2 CONDITIONS TO OBLIGATIONS OF BUYER AND CNC. The obligations of
the parties to consummate the transactions contemplated by this Agreement shall
be subject to the satisfaction or waiver by both parties on or prior to the
Closing Date of the following conditions:
(a) The Subsequent Sale under the Master Agreement shall have
occurred.
(b) No court or governmental authority of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, or non-appealable judgment, decree, injunction or other order
which is in effect on the Closing Date and prohibits the consummation of
the Closing.
ARTICLE 8
TERMINATION
-----------
This Agreement shall terminate automatically upon the termination of the
Master Agreement and otherwise may be terminated at any time prior to the
Closing only by agreement of Buyer and CNC.
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ARTICLE 9
MISCELLANEOUS
-------------
Section 9.1 AMENDMENT AND MODIFICATION; WAIVER. This Agreement may only be
amended or modified in writing, signed by CNC and Buyer, at any time prior to
the Closing with respect to any of the terms contained herein. At any time prior
to the Closing either CNC or Buyer may (a) extend the time for the performance
of any of the obligations or other acts of the other party hereto, (b) waive any
inaccuracies in the representations and warranties of the other party contained
herein or in any document delivered pursuant hereto, and (c) waive compliance
with any of the agreements or conditions of the other party contained herein.
Any agreement on the part of a party hereto to any such extension or waiver
shall be valid if set forth in an instrument in writing signed by the party
granting such extension or waiver.
Section 9.2 EXPENSES. Except as otherwise expressly provided in this
Agreement, whether or not the transactions contemplated by this Agreement are
consummated, the parties shall bear their own respective expenses (including,
but not limited to, all compensation and expenses of their respective employees
and all fees and expenses of financial advisors and financing sources,
consultants and other advisors, incurred in connection with this Agreement and
the transactions contemplated hereby. Notwithstanding the foregoing, CNC shall
bear all fees and expenses of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
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(U.S.) and Buyer shall bear all fees and expenses of ▇▇▇▇▇ Dutilh, Stibbe Simont
▇▇▇▇▇▇▇ Duhot and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Europe).
Section 9.3 PUBLIC DISCLOSURE. Each of the parties to this Agreement hereby
agrees with the other parties hereto that, except as may be required to comply
with the requirements of applicable law or the rules and regulations of each
stock exchange upon which the securities of either of the parties or its
Affiliates is listed, no press release or similar public announcement or
communication shall be made or caused to be made concerning the execution or
performance of this Agreement unless specifically approved in advance by all
parties hereto; PROVIDED, HOWEVER, that to the extent that either party to this
Agreement is required by law or the rules and regulations of any stock exchange
upon which the securities of either of the parties or its Affiliates is listed
to make such a public disclosure, such public disclosure shall only be made
after prior consultation with the other party to this Agreement.
Section 9.4 ASSIGNMENT. No party to this Agreement may assign any of its
rights or obligations under this Agreement without the prior written consent of
the other party hereto; PROVIDED, that CNC may assign this Agreement to a
wholly-owned subsidiary, PROVIDED, HOWEVER, that such assignment shall not be
permitted if it would subject Buyer to any additional obligations and PROVIDED
FURTHER that HAL may assign this Agreement to Newco.
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Section 9.5 ENTIRE AGREEMENT. This Agreement (including all Schedules
hereto) contains the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, with respect to such matters, except for the
Confidentiality Agreement which shall remain in full force and effect for the
term provided for therein.
Section 9.6 FULFILLMENT OF OBLIGATIONS. Any obligation of any party to any
other party under this Agreement, which obligation is performed, satisfied or
fulfilled by an Affiliate of such party, shall be deemed to have been performed,
satisfied or fulfilled by such party.
Section 9.7 PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer upon any Person other than
Buyer, CNC, or their successors or respective permitted assigns, any rights or
remedies under or by reason of this Agreement.
Section 9.8 COUNTERPARTS. This Agreement and any amendments hereto may be
executed in one or more counterparts, each of which shall be deemed to be an
original by the parties executing such counterpart, but all of which shall be
considered one and the same instrument.
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Section 9.9 SECTION HEADINGS. The section and paragraph headings and table
of contents contained in this Agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Agreement.
Section 9.10 NOTICES. All notices hereunder shall be deemed given if in
writing and delivered personally or sent by telecopy, telex or telegram or by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other addresses as shall be specified by like
notice):
(a) if to CNC, to:
▇▇▇▇ National Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
North Point
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to Buyer, to:
HAL Investments B.V.
"Plaza", Weena 674
3012 CN Rotterdam
The Netherlands
Attention: ▇▇▇ ▇▇▇▇▇
Fax: ▇▇-▇▇-▇▇▇-▇▇▇▇
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With a copy to:
▇▇▇▇▇ Dutilh
Weena 750
3014 DA Rotterdam
The Netherlands
Attention: ▇▇▇▇▇ Goes
Fax: ▇▇-▇▇-▇▇▇-▇▇▇▇
Any notice given by mail or telegram shall be effective when received. Any
notice given by telex shall be effective when the appropriate telex or telecopy
answer back is received.
Section 9.11 MEDIATION. All disputes arising under this Agreement shall be
governed under the laws of the Netherlands and shall be submitted to a mediation
panel to be conducted in accordance with the rules of the Netherlands Mediation
Institute in the English language prior to the commencement of arbitration;
PROVIDED, HOWEVER, that either party may seek a preliminary injunction or other
preliminary judicial relief regardless of the provisions of this Section, if, in
its judgment, such action is necessary to avoid irreparable damage. The
mediation panel shall consist of three persons. One shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
L.L.P. One shall be an internationally recognized firm of independent public
accountants of Buyer's choice. The third member of the mediation panel shall be
chosen by the other two members of the mediation panel. The party desiring to
submit any matter to mediation shall do so by written notice to the other party,
which notice shall set forth the items to be mediated. The mediation panel shall
be required to conduct
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a mediation session within fifteen (15) days after the receiving party receives
such notification. All parties shall send high level representatives with the
ability to resolve the dispute but no outside lawyers shall participate. The
parties shall work with the mediation panel in good faith for at least a period
of three (3) days if necessary to resolve the dispute. If the parties are unable
to resolve the dispute, arbitration may then be initiated by either party. Any
such arbitration will be in accordance with the rules of the Netherlands
Arbitration Institute. The arbitration proceedings and all documents delivered
to or by the arbitrators shall be in English and the arbitrators shall make
their award in accordance with the rules of law. The venue for the proceedings
shall be Rotterdam. The fees and expenses of the mediation panel shall be paid
equally by Buyer and CNC.
Section 9.12 SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or entity
or any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement
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and the application of such provision to other persons, entities or
circumstances shall not be affected by such invalidity or unenforceability, nor
shall such invalidity or unenforceability affect the validity or enforceability
of such provision, or the application thereof, in any other jurisdiction.
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IN WITNESS WHEREOF, this Agreement has been signed on behalf of each of the
parties hereto as of the date first written above.
▇▇▇▇ NATIONAL CORPORATION
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman and Chief
Executive Officer
HAL INVESTMENTS B.V.
By /S/ ▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Director
