Exhibit 10.19
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SHARE PURCHASE AGREEMENT
between
COMDISCO GLOBAL HOLDING COMPANY, INC.
and
COMPRENDIUM INVESTMENT SA
Dated as of October 10, 2002
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ARTICLE I DEFINITIONS.........................................................2
1.1 Definitions.......................................................2
ARTICLE II SALE AND PURCHASE OF THE SHARES....................................3
2.1 Sale and Purchase.................................................3
2.2 Purchase Price....................................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER..........................5
3.1 Due Incorporation and Ownership...................................5
3.2 Authority; Consents and Approvals.................................5
3.3 Ordinary Business.................................................6
3.4 No Other Representations or Warranties............................6
3.5 Seller's Limitation on Liability..................................6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER........................6
4.1 Power, Authority and Consents.....................................6
4.2 Familiarity with the Company's Business...........................7
ARTICLE V COVENANTS...........................................................7
5.1 Cooperation after Closing.........................................7
5.2 Reasonable Inspection after Closing...............................7
5.3 Comdisco Trademark................................................8
5.4 Confidentiality...................................................8
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER......................8
6.1 Warranties True as of Closing Date................................8
6.2 Compliance with Agreements and Covenants..........................8
6.3 No Injunctions or Restraints......................................8
6.4 Board Approval....................................................9
6.5 Payment of the Purchase Price.....................................9
ARTICLE VII INDEMNIFICATION...................................................9
7.1 Purchaser's Indemnification.......................................9
7.2 Release...........................................................9
ARTICLE VIII MISCELLANEOUS...................................................10
8.1 Expenses.........................................................10
8.2 Amendment........................................................10
8.3 Notices..........................................................10
8.4 Waivers..........................................................11
8.5 Counterparts.....................................................11
8.6 Interpretation...................................................11
8.7 Governing Law, Arbitration.......................................12
8.8 Assignment.......................................................12
8.9 No Third Party Beneficiaries.....................................12
8.10 Calculation of Time Periods......................................12
8.11 Further Assurances...............................................12
8.12 Severability.....................................................12
8.13 Entire Understanding.............................................13
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT is made by and between COMDISCO GLOBAL
HOLDING COMPANY, INC., a corporation duly established and validly existing under
the laws of the State of Delaware, USA, with its corporate seat in 60018
Rosemont, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ (the "Seller") and COMPRENDIUM
INVESTMENT SA, a corporation duly established and validly existing under the
laws of Switzerland, with its corporate seat in 6341 Baar, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇▇▇ (the "Purchaser"). Certain capitalized terms used herein are defined
in Article I.
W I T N E S S E T H:
WHEREAS, the Seller's group is engaged in the business of leasing and
providing remarketing services for distributed computing systems (servers,
workstations, personal computers, local area networks and other high technology
equipment), (the "Business");
WHEREAS, COMPRENDIUM FINANCE SA (the "Company"), formerly known as
Comdisco (Switzerland) SA, is a corporation duly established and validly
existing under the laws of Switzerland with its corporate seat in ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ and registered with the commercial register of the
Canton of Zug under CH-170.3.017.551-7. The stated share capital of the Company
amounts to CHF 2,100,000 (two million one hundred thousand Swiss Francs);
WHEREAS, Seller is the legal and beneficial owner of 2,100 (two
thousand one hundred) registered shares with restricted transferability and with
an aggregate nominal value of CHF 2,100,000 (two million one hundred thousand
Swiss Francs) representing 100% of the stated share capital of the Company (the
"Shares"). The stated share capital of the Company has been fully paid up in
cash;
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇, a Swiss citizen, born on the 17 th day of March,
1960, resident in London, managing director and sole shareholder of Purchaser,
has effectively been working for the Seller's group and the Company until
January 6, 2001 in a senior position and - until that date - has thereby been
engaged in the Business of the Company;
WHEREAS, subject to the terms and conditions set forth in this
Agreement, Seller desires to sell all of its right, title and interest in the
Shares and Purchaser desires to purchase such rights, title and interest in the
Shares from Seller.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and warranties herein contained, the parties agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms shall have the following meanings
for the purposes of this Agreement:
"Agreement" Shall mean this Share Purchase Agreement, including
all Schedules hereto;
"Business" Shall have the meaning set forth in the recitals to
this Agreement;
"Business Day" Shall mean any day of the year other than (i)
any Saturday or Sunday or (ii) any other day on which
banks located in Switzerland generally are closed for
business;
"Closing Date" Shall mean the date on which the Closing occurs
or is to occur; "Chapter 11 Case" Shall mean that
Seller's parent company, along with certain of its
affiliates, has filed a voluntary petition for relief
commencing a case under Chapter 11 of Title 11 of the
United States Code, 11 U.S.C. ▇▇.▇▇. 101 et seq., as
amended, in the United States Bankruptcy Court for
the Northern District of Illinois;
"Comdisco Trademark" Shall have the meaning set forth in Section 5.3;
"Company" Shall have the meaning set forth in the
recitals to this Agreement;
Numbers preceded by the Shall mean amounts in Swiss Francs;
symbol "CHF"
Numbers preceded by the Shall mean amounts in Euros;
symbol "(euro)"
"Governmental Authority" Shall mean the government of the United States or any
foreign country or any state or political subdivision
thereof and any entity, body or authority exercising
executive, legislative, judicial, regulatory or
administrative functions of or pertaining to
government, including quasi-governmental entities
established to perform such functions;
"Material Adverse Effect" means any event, condition, or matter in respect of
the operation of the Business or the Shares that
results in or has a material adverse effect on the
business, financial condition or operations of the
Business taken as a whole; provided, however, that,
the effects of changes that (i) are generally
applicable to (A) the industries and markets in which
the Business operates or (B) the United States and
global economies or (ii) relate to foreign currency
exchange rate fluctuations, shall in each case be
excluded from the determination of Material Adverse
Effect; and provided, further, that any adverse
effect on the Business, taken as a whole, resulting
from the execution of this Agreement and the
announcement of this Agreement, the Chapter 11 Case
and the announcement of the Chapter 11 Case and the
other transactions contemplated by this Agreement
shall also be excluded from the determination of
Material Adverse Effect;
"Petition" Shall have the meaning set forth in the recitals to
this Agreement;
"Purchase Price" Shall have the meaning set forth in Section 2.2;
"Purchaser" Shall have the meaning set forth in the recitals to
this Agreement;
"Seller" Shall have the meaning set forth in the recitals to
this Agreement;
"Shares" Shall have the meaning set forth in the recitals to
this Agreement;
"Trademark" Shall mean U.S. and foreign registered and
unregistered trademarks, service marks, logos, trade
names, corporate names and all registrations and
applications to register the same;
ARTICLE II
SALE AND PURCHASE OF THE SHARES
2.1 Sale and Purchase. Effective as of the Closing Date and subject to
the terms and conditions set forth herein, Seller sells and transfers and
Purchaser purchases and accepts from the Seller all rights, title and interest
in the Shares with all the rights attached or accruing to them at the Closing
Date.
2.2 Purchase Price. At the Closing Date and in consideration for the
Shares, Purchaser shall pay CHF 814.312 (eight hundred fourteen thousand three
hundred twelve) (i.e., the amount of CHF 3,700.312 (three million seven hundred
thousand three hundred twelve) less the amount of USD 1,450,000 (one million
four hundred fifty thousand), which has been credited to Purchaser in accordance
with the terms set forth in the first paragraph under the heading
"Resolution/Status of Claims" in the letter summarizing the terms of the
settlement between Comdisco, Inc. et al and ▇▇▇▇▇▇ ▇▇▇▇▇ dated July 29, 2002
less the amount of USD 500,000 (five hundred thousand) Comdisco, Inc. et al and
▇▇▇▇▇▇ ▇▇▇▇▇ have agreed upon as a final settlement of ▇▇▇▇▇▇ ▇▇▇▇▇'▇ claim for
commission in the amount of USD 1.75 mio. in connection with the signing of a
technology refreshment option agreement between COMDISCO Deutschland GmbH and
Deutsche Telekom Computer Services Management AG in April 2000 which was filed
by ▇▇▇▇▇▇ ▇▇▇▇▇ with the Kantonsgericht Zug (Schlichtungsstelle fur
arbeitsrechtliche Streitigkeiten) on June 3, 2002 and with the Courts of the
Sate of Illinois, USA (the "Commission Claim")) by transfer of immediately
available funds to the Seller's account at Bank of America, Amsterdam, account
number 600415869023, bank sort code BOFANLNX (the "Purchase Price"). The parties
acknowledge and agree that the Purchase Price - as determined by the Company's
auditors - is fair and determined on the basis of the book value of the
Company's net assets - as determined by the Company's auditors - under Swiss
statutory accounting principles as of September 30, 2002 in accordance with the
method of determination (e.g. adjustments) accepted by the parties. Purchaser
hereby expressly waives any and all claims he may have relating to the
determination of the Purchase Price. Seller shall not be obligated to sell and
transfer the Shares unless it receives written confirmation from Bank of America
that the Purchase Price has been received and credited to its account. Purchaser
acknowledges and agrees that if Seller provides a letter of credit (guarantee on
the full amount of outstanding rents as of September 30, 2002) until the end of
October, 2002 for Swissport outstanding rents, Purchaser shall be obligated to
transfer within 3 Business Days from receipt of the letter of credit the
difference between the 80% of the book value paid by it for these receivables
and an amount equal to 96% of the book value of the Swissport receivables
guaranteed by such letter of credit.
(b) At the Closing Date and immediately following the signing of this
Agreement, Purchaser shall cause the Company to transfer to the Seller's account
(as specified in the preceding paragraph) the amount of CHF 12,178.874 (twelve
million one hundred seventy eight eight hundred seventy four), i.e. retained
earnings stemming from the time period ending September 30, 2002 belonging to
the Seller, minus 5% withholding tax minus inter-company receivables. Purchaser
acknowledges and agrees that these retained earnings exclusively belong to
Seller and that the immediate transfer of the amount of CHF 12,178.874 (twelve
million one hundred seventy eight eight hundred seventy four) to the Seller's
account shall be a condition subsequent to the sale and transfer of the Shares
to Purchaser. Should the Company fail to transfer the amount of CHF 12,178.874
(twelve million one hundred seventy eight eight hundred seventy four) to the
Seller's account in a manner that allows Seller's bank to confirm to Seller in
writing on the Closing Date that the full amount has been received and credited
to Seller's bank account, this Agreement shall be null and void. ▇▇▇▇▇▇ ▇▇▇▇▇
and Purchaser assume personal liability for the fact that the amount of CHF
12,178.874 (twelve million one hundred seventy eight eight hundred seventy four)
will not be spent by Purchaser, the Company or any other person for any purpose
other than a timely transfer of the full amount to the Seller's account.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
The parties acknowledge that ▇▇▇▇▇▇ ▇▇▇▇▇, managing director and sole
shareholder of Purchaser, has effectively been working for the Company and the
Seller's group until January 6, 2001 in a senior position and therefore has
comprehensive knowledge of the Business and the legal and commercial condition
of the Company until that date. In addition, Purchaser has been provided with
all the information requested by him regarding the time period January 6, 2001
up to the Closing Date. The Seller represents and warrants to Purchaser, as of
the Closing Date (as if such representations and warranties were remade on the
Closing Date), as follows:
3.1 Due Incorporation and OwnershipSeller is duly organized and validly
existing under the laws of the State of Delaware, with all requisite power and
authority to own foreign investments and to carry on its respective businesses
as it is now being owned and conducted. The Company is duly organized and
validly existing under the laws of Switzerland and has full right and authority
to own and to operate their properties.
(b) Seller is the sole legal, beneficial and of record owner of and has
good and valid title to the Shares. The Shares are clear and free of any liens,
similar encumbrances, options, and claims arising from any privilege, pledge or
security arrangement. Seller has full right and capacity to sell and transfer
complete title to the Shares. Upon delivery to Purchaser of the Shares endorsed
in blank, the original copy of the share registry book, if any, of the Company
showing that the Shares have been recorded in the name of the Purchaser, the
original copy of the resolution of the Company's board of directors consenting
to the transfer of the Shares to Purchaser, Purchaser will receive good and
valid title to the Shares, clear and free of all liens, encumbrances or similar
rights of third parties.
3.2 Authority; Consents and Approvals
(a) The Seller has the corporate power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution, delivery
and performance of this Agreement by the Seller and the consummation by the
Seller of the transactions contemplated hereby have been duly authorized by all
requisite corporate action. This Agreement has been duly and validly executed
and delivered by the Seller and (assuming this Agreement constitutes a valid and
binding obligation of the Purchaser) constitutes a valid and binding agreement
of the Seller, enforceable against the Seller in accordance with its terms.
(b) No consent, approval, or authorization of, or declaration, filing
or registration with, any Governmental Entity is required to be made or obtained
by the Seller in connection with the execution, delivery and performance of this
Agreement and the consummation of the transaction, except (i) for consents,
approvals or authorizations of the Seller's board of directors or Company's
board of directors (Verwaltungsrat), and (ii) for consents, approvals,
authorizations, declarations, filings or registrations, which, if not obtained,
would not, individually or in the aggregate, have a Material Adverse Effect.
3.3 Ordinary Business. In the time period between September 30, 2002
and the Closing Date, the Company has abstained from any transaction (e.g., the
entering into new contractual arrangements) outside the ordinary course of
business. With the exception of office and payroll related expenses, the Company
has not made any payments exceeding in a single case CHF 10,000 without the
prior approval of Purchaser.
3.4 No Other Representations or Warranties. Except as specifically and
expressly set forth in this Article III, (i) the Seller makes no representation
or warranty, express or implied, in law or in equity, relating to the
transferred Shares or otherwise, including without limitation, any
representation or warranty as to value, merchantability, fitness for a
particular purpose or for ordinary purposes, or any other matter, (ii) the
Seller makes no, and hereby disclaims any, other representation and warranty
regarding the transferred Shares and (iii) the transferred Shares being
transferred to the Purchaser is conveyed on an "as is, where is" basis as of the
Closing, and the Purchaser shall rely upon its own examination thereof, in
particular its long lasting experience as employee of the Company. Without
limiting the generality of the foregoing, the Seller makes no representation or
warranty regarding any assets other than expressly set forth above, and none
shall be implied by law or in equity.
3.5 Seller's Limitation on Liability. The Purchaser shall not be
entitled in any event to any lost profits, indirect, consequential, liquidated
or other damages in respect of any claim or claims, including, without
limitation, any claim or claims under the Seller's representations and
warranties. Purchaser hereby expressly waives any entitlements or claims to
damages other than direct damages directly resulting from an intentional breach
by Seller of the Seller's representations and warranties with the exception of
the representations and warranties provided for in Sections 3.1 and 3.2. Only in
the case Seller breaches the representations and warranties provided for in
Sections 3.1 and 3.2, Purchaser may claim lost profits up to an amount of 50% of
the Purchase Price, if Purchaser can prove that it actually incurred these
damages. With the exception of claims in respect of the representations and
warranties provided for in Sections 3.1 and 3.2, no claim shall be brought
against the Seller in respect of any of the Seller's representations and
warranties unless the Purchaser shall have given to the Seller written notice of
such claim specifying in detail the matter which gives rise to the claim, the
nature of the claim and the amount claimed in respect thereof on or before the
date which is one month after the Closing Date. With respect to the Seller's
warranties provided for in Sections 3.1 and 3.2, the statutory limitation period
shall apply.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller, as of the Closing Date (as if such
representations and warranties were remade on the Closing Date), as follows:
4.1 Power, Authority and Consents. Purchaser has the requisite power
and authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. This Agreement has been duly executed and
delivered by Purchaser and constitutes a valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with and subject to its
terms.
4.2 Familiarity with the Company's Business. Due to the long term top
level employment of ▇▇▇▇▇▇ ▇▇▇▇▇ with the Seller's group and the Company,
Purchaser (i) is familiar with and has comprehensive knowledge of every aspect
of the Company's Business until January 6, 2001 and (ii) has been provided with
all the information requested by him regarding the time period January 6, 2001
up to the Closing Date.
ARTICLE V
COVENANTS
5.1 Cooperation after Closing. Seller and Purchaser agree to use
commercially reasonable efforts in continuing their cooperation after Closing.
In particular, but without limitation:
(a) For a period of 3 (three) months following the Closing Date, Seller
shall allow Company to access and use the Seller's information technology
systems, for the limited purpose of accessing and processing the Company's
financial accounts, to the extent they are currently stored in Seller's
information technology system. Thereafter, until December 31 (thirty- first),
2002 (two thousand and two), Seller shall grant Company read-only access to such
information technology systems, and the Company shall no longer be entitled to
use such information technology system for processing the Company's accounts.
Seller shall use commercially reasonable efforts to provide this access and
shall in no event be liable for any damage caused to the Company as a result of
such access. Purchaser shall indemnify and hold Seller harmless for any damage
and cost caused by this information technology access. Purchaser shall not and
shall cause the Company to not allow any third party access to Seller's
information technology systems and will treat all information obtained through
their access strictly confidential. Purchaser and the Company may not use any
information obtained through their access for any purpose other than the
processing of the Company's accounts. Purchaser and the Company acknowledge and
agree that access to the Seller's information technology systems remains subject
to the policies and instructions of the Seller which Purchaser and the Company
will fully comply with at all times.
(b) Seller shall use commercially reasonable efforts to provide
Purchaser or the Company with electronic and hard copies of the Company's
financial accounts and certain information relating thereto in connection with
the last 10 (ten) business years preceding the Closing Date, if and to the
extent such information is in the possession of Seller.
5.2 Reasonable Inspection after Closing. Purchaser shall afford Seller
and its agents such as, but not limited to, its lawyers and certified
accountants, reasonable access to the Company's books of account, financial and
other records, information, employees and auditors to the extent such items and
contact with such persons is required in connection with Seller's defense
against a claim brought by Purchaser under Article III of this Agreement.
5.3 Comdisco Trademark. Notwithstanding anything contained in this
Agreement to the contrary, it is expressly agreed that Purchaser is not
purchasing, acquiring or otherwise obtaining any right, title or interest in any
Trademark employing Seller's name or any part or variation of such name or
anything confusingly similar thereto (the "Comdisco Trademark"). Neither
Purchaser, Company nor any of their affiliates shall be entitled to retain nor
to make any use of the Comdisco Trademark after the Closing Date. Purchaser will
hold Seller fully harmless from any and all damages of whatever nature resulting
from the use by Purchaser, the Company or any of their respective affiliates of
the Comdisco Trademark after the Closing Date.
5.4 Confidentiality. Each party to this Agreement will not
intentionally disclose, and will use its best efforts to prohibit the
unintentional disclosure, to any third party except to its employees, advisers
and/or Governmental Authorities, or otherwise required by any applicable law, of
any confidential or proprietary information concerning the other party or the
Company or its processes, inventions, formulae, customers, suppliers, or any
trade secret, unless the disclosure is expressly assented to in writing. This
obligation will survive termination of this Agreement for a period of 3 (three)
years. All information furnished to one party by the other party and all
information furnished to either party by the Company will be considered
confidential or proprietary information, unless otherwise indicated by the party
furnishing the information or the Company, as the case may be. Purchaser
acknowledges in its own capacity and on behalf of the company that Seller may
also disclose information which would otherwise be deemed confidential to the
extent it is required to do so under the rules or regulations of any stock
exchange or governmental body.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller under Article II of this Agreement are subject to the
satisfaction or waiver by Seller of the following conditions precedent on or
before the Closing Date:
6.1 Warranties True as of Closing Date. Each of the representations and
warranties of Purchaser set forth in this Agreement, disregarding all
qualifications and exceptions contained therein relating to materiality or
Material Adverse Effect, shall be true and correct in all material respects as
of the Closing Date as though made on and as of the Closing Date (except to the
extent that such representations and warranties are expressly limited by their
terms to another date, in which case such representations and warranties shall
be true and correct as of such other date), and Seller shall have received a
certificate (which certificate may be qualified by "knowledge" to the same
extent as the representations and warranties of Purchaser contained herein are
so qualified) signed on behalf of Purchaser by an authorized officer of
Purchaser, in such capacity, to such effect.
6.2 Compliance with Agreements and Covenants. Purchaser shall have
performed and complied in all material respects with all of its covenants,
obligations and agreements required to be performed by it under this Agreement
at or prior to the Closing Date.
6.3 No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other order issued by any Governmental
Authority of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the transactions contemplated by this Agreement
shall be in effect.
6.4 Board Approval. Seller shall confirm that prior to the Closing
Date, its board of directors and the board of directors (Verwaltungsrat) of the
Company have voted in favor of the sale of the Shares as contemplated hereunder.
6.5 Payment of the Purchase Price. Purchaser shall have transferred the
amount of CHF 814.312 (eight hundred fourteen thousand three hundred twelve) to
the Seller's account at Bank of America, Amsterdam, account number 600415869023,
bank sort code BOFANLNX and Bank of America shall have confirmed to Seller in
writing that the Purchase Price has been transferred in immediately available
funds and received by Bank of America. For the avoidance of doubt, the Seller
shall not be obligated to transfer the Shares and the Shares shall not be
transferred to Purchaser prior to the receipt of the confirmation described
above. The timely transfer (i.e., received by Seller on the Closing Date) by the
Company of CHF 12,178.874 (twelve million one hundred seventy eight eight
hundred seventy four) to the Seller's account shall be a condition subsequent to
the effectiveness of this Agreement.
ARTICLE VII
INDEMNIFICATION
7.1 Purchaser's Indemnification. The Purchaser shall be entitled to
claim damages resulting from a breach by the Seller of the Seller's
representations and warranties subject to the limitations set forth in Sections
3.4 and 3.5. If the Purchaser becomes aware that there has been a material
breach of the Seller's warranties or any other term of this Agreement, the
Purchaser shall - except in the case of a breach of Sections 3.1 and 3.2 - not
be entitled to rescind or avoid this Agreement or treat this Agreement as
terminated but shall only be entitled to claim damages or exercise any other
right, power or remedy under this Agreement.
7.2 Release. ▇▇▇▇▇▇ ▇▇▇▇▇, acting on behalf of himself, Purchaser and
any other entity directly or indirectly controlled by him, generally releases
and forever discharges Seller and any of its affiliates and Seller and its
affiliates generally release and forever discharge ▇▇▇▇▇▇ ▇▇▇▇▇, from any and
all claims, demands, liabilities, suits, damages, losses, expenses, attorneys'
fees and costs, obligations or causes of action, known or unknown, of any kind
and any nature whatsoever, fixed or contingent, and whether or not accrued or
matured, which Seller or ▇▇▇▇▇▇ ▇▇▇▇▇ or their respective affiliates and
entities, ever had or may have in or under any jurisdiction whatsoever arising
out of or in connection with (i) ▇▇▇▇▇▇ ▇▇▇▇▇'▇ former employment with Seller
and its respective affiliates or (ii) ▇▇▇▇▇▇ ▇▇▇▇▇'▇ activities for Seller and
its respective affiliates or any other activities of ▇▇▇▇▇▇ ▇▇▇▇▇, in each case
including but not limited to any claim against Seller or its respective
affiliates or ▇▇▇▇▇▇ ▇▇▇▇▇ based on or relating to breach of contract (whether
oral or written), tort, fraud, defamation, negligence, promissory estoppel or
otherwise. Further, following the execution of this Agreement, each of ▇▇▇▇▇▇
▇▇▇▇▇ and Seller covenant on their own behalf and on behalf of their respective
affiliates and entities, to cease, terminate and forego, and forever not to
assert, file, prosecute, maintain, commence, institute or sponsor (or purposely
facilitate any person in connection with the foregoing), any complaint,
arbitration or lawsuit or any legal, equitable or administrative proceeding of
any nature, against the other in connection with any matter released hereby.
This Section 7.2 shall not be deemed a release of any claim Seller and/or
Purchaser may have under the terms of this Agreement and shall not in any way
affect the rights of Comdisco, Inc. et al and ▇▇▇▇▇▇ ▇▇▇▇▇ as set forth in the
letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (Skadden, Arps) to ▇▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇ & ▇▇▇▇▇▇)
dated July 29, 2002 under the heading "SIP Claim". ▇▇▇▇▇▇ ▇▇▇▇▇ agrees to stop
and withdraw any legal proceedings against Comdisco, Inc. and its affiliates
immediately and not to commence any legal action against Comdisco, Inc. and its
affiliates to the extent the underlying claims have been waived under this
Section 7.2.
ARTICLE VIII
MISCELLANEOUS
8.1 Expenses. Each party hereto shall bear its own expenses with
respect to the transactions contemplated hereby, provided, however, that
Purchaser shall pay all value added, sales, use, stamp, transfer, service and
like taxes or fees, if any, imposed by any Governmental Authority in connection
with the transfer and assignment of the Shares or other transaction contemplated
by this Agreement with the exception of any direct taxes imposed on the Seller
in connection with the sale and transfer of the Shares.
8.2 Amendment. This Agreement may be amended or supplemented only
by an instrument in writing executed by the party against whom enforcement is
sought.
8.3 Notices. Any notice, request, instruction or other document to be
given hereunder by a party hereto shall be in writing and shall be deemed to
have been given, (a) when received if given in person or by courier or a courier
service, or (b) on the date of transmission if sent by telex, facsimile or other
wire transmission so long as a copy is delivered by overnight courier the next
Business Day:
(a) If to Seller, addressed as follows:
Comdisco Global Holding Company, Inc.
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ E.T. ▇▇▇▇▇▇
Telephone: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Telephone: ▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇▇
Facsimile: ▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇▇
(b) If to Purchaser, addressed as follows:
COMPRENDIUM INVESTMENT SA
c/o ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇
or to such other individual or address as a party hereto may designate for
itself by notice given as herein provided.
8.4 Waivers. The failure of a party hereto at any time or times to
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. No waiver by a party of any condition or of
any breach of any term, covenant, representation or warranty contained in this
Agreement shall be effective unless in writing, and no waiver in any one or more
instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
8.5 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
8.6 Interpretation. The headings preceding the text of Articles and
Sections included in this Agreement and the headings to Schedules attached to
this Agreement are for convenience only and shall not be deemed part of this
Agreement or be given any effect in interpreting this Agreement. The use of the
masculine, feminine or neuter gender herein shall not limit any provision of
this Agreement. The use of the terms "including" or "include" shall in all cases
herein mean "including, without limitation" or "include, without limitation,"
respectively. Underscored references to Articles, Sections, Subsections or
Schedules shall refer to those portions of this Agreement. Consummation of the
transactions contemplated herein shall not be deemed a waiver of a breach of or
inaccuracy in any representation, warranty or covenant or of any party's rights
and remedies with regard thereto. No specific representation, warranty or
covenant contained herein shall limit the generality or applicability of a more
general representation, warranty or covenant contained herein. A breach of or
inaccuracy in any representation, warranty or covenant shall not be affected by
the fact that any more general or less general representation, warranty or
covenant was not also breached or inaccurate.
8.7 Governing Law, Arbitration. Notwithstanding anything to the
contrary contained in this Agreement, this Agreement shall be governed by and
construed and enforced in accordance with the laws of Switzerland without regard
to the rules and principles of conflict of laws. Any dispute, controversy or
claim arising out of or in connection with this Agreement shall be referred to
and finally settled by arbitration under and in accordance with the Rules of
Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with those rules. The place of arbitration shall be
Paris, France. The arbitration proceedings shall be conducted, and the award
shall be rendered, in the English language.
8.8 Assignment. Each party must not assign this Agreement without the
prior written consent of the other party, with the exception of intra-group
transfers to entities which are at least 90 % controlled by the party making the
transfer and any such prohibited assignment shall be void. Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
respective legal representatives, successors, assigns, heirs, and devisees of
the parties.
8.9 No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and, to the extent provided herein, their
respective affiliates, directors, officers, employees, agents and
representatives, and no provision of this Agreement shall be deemed to confer
upon other third parties any remedy, claim, liability, reimbursement, cause of
action or other right.
8.10 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event after
which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday (in Switzerland), in which event the period
shall run until the end of the next day which is neither a Saturday, Sunday or
legal holiday (in Switzerland). The last day of any period of time described
herein shall be deemed to end at 5:00 p.m., local time (Switzerland).
8.11 Further Assurances. Upon the reasonable request of Purchaser,
Seller shall on and after the Closing Date execute and deliver to Purchaser such
other documents, releases, assignments and other instruments as may be required
to effectuate completely the transfer and assignment to Purchaser of, and to
vest fully in Purchaser title to, the Shares, and to otherwise carry out the
purposes of this Agreement.
8.12 Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of
the other provisions hereof shall not be affected thereby, and there shall be
deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
8.13 Entire Understanding. This Agreement embodies the entire agreement
between the parties and supersedes all prior agreements, arrangements and
understandings between the parties.
COMDISCO GLOBAL HOLDING COMPANY, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: Attorney-in-Fact
COMPRENDIUM INVESTMENT SA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇
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