STOCK PURCHASE AGREEMENT
dated as of April 11, 2000
by and between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ HOLDINGS, LTD.
JARDINE ▇▇▇▇▇▇▇ BANK LIMITED
JARDINE ▇▇▇▇▇▇▇ INTERNATIONAL HOLDINGS LIMITED
COPTHALL OVERSEAS LIMITED
▇. ▇▇▇▇ PRICE ASSOCIATES, INC.
and
THE CHASE MANHATTAN CORPORATION
ARTICLE I
SHARE PURCHASE
Section 1.1. Share Purchase...............................................2
Section 1.2. Consideration for the Flemings Shares........................2
Section 1.3. Closing......................................................2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Section 2.1. Organization and Good Standing...............................3
Section 2.2. Flemings Shares..............................................3
Section 2.3. Authorization of Agreement...................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OTHER PARTIES
Section 3.1. Organization and Good Standing...............................4
Section 3.2. Authorization of Agreement...................................4
ARTICLE IV
COVENANTS
Section 4.1. Notifications................................................4
Section 4.2. Public Announcements.........................................4
Section 4.3. Ancillary Agreement..........................................4
Section 4.4. Termination of Joint Venture Agreement and
Related Agreementss..........................................4
Section 4.5. Cooperation; Further Assurances..............................5
Section 4.6. Use of ▇▇▇▇▇▇▇ Names.........................................6
Section 4.7. Certain Employee Matters.....................................6
Section 4.8. Nonsolicitation of Employees.................................7
Section 4.9. Records......................................................7
Section 4.10. Conduct of Business..........................................7
Section 4.11. Client Transition............................................8
Section 4.12. TRFAM........................................................8
Section 4.13. Information..................................................8
Section 4.14. Guarantees...................................................8
Section 4.15. Certain Securities Law Matters...............................9
ARTICLE V
CONDITIONS
Section 5.1. Conditions Precedent to Obligations of Purchaser............ 9
Section 5.2. Conditions Precedent to Obligations of the Sellers..........10
ARTICLE VI
CLOSING DELIVERIES
Section 6.1. Deliveries by the Sellers to Purchaser......................10
Section 6.2. Deliveries by Purchaser to JFIH.............................10
Section 6.3. Deliveries by Purchaser to Copthall.........................11
Section 6.4. Delivery by Flemings........................................11
ARTICLE VII
TERMINATION
Section 7.1. Termination.................................................11
Section 7.2. Effect of Termination.......................................11
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1. Survival of Representations, Warranties, Covenants and
Agreements; No Implied Representations or Warranties........12
Section 8.2. Notices.....................................................12
Section 8.3. Successors, Assigns and Transferees.........................13
Section 8.4. Governing Law; Jurisdiction.................................14
Section 8.5. Severability................................................14
Section 8.6. Entire Agreement; Waiver....................................14
Section 8.7. Counterparts................................................15
ARTICLE IX
DEFINITIONS
Section 9.1. Defined Terms...............................................15
Section 9.2. General Interpretive Principles.............................16
THIS STOCK PURCHASE AGREEMENT (together with the Schedules and
Exhibits hereto, this "Agreement"), dated as of April 11, 2000, is by and
between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holdings, Ltd. ("Flemings"), Jardine ▇▇▇▇▇▇▇ Bank Limited
(formerly Jardine ▇▇▇▇▇▇▇ & Company Limited), a wholly-owned subsidiary of
Flemings ("JFBL"), Jardine ▇▇▇▇▇▇▇ International Holdings Limited, a
wholly-owned subsidiary of Flemings ("JFIH"), Copthall Overseas Limited, a
wholly-owned subsidiary of Flemings ("Copthall", and together with JFIH, the
"Sellers" and together with Flemings, JFBL and JFIH, the "▇▇▇▇▇▇▇ Parties"), ▇.
▇▇▇▇ Price Associates, Inc., a Maryland corporation ("TRP") and The Chase
Manhattan Corporation, a Delaware corporation ("Chase").
RECITALS
WHEREAS, pursuant to an agreement, dated as of May 15, 1979 between
TRP and Flemings, as modified by a letter agreement, dated as of May 15, 1979
between Flemings and TRP (such agreement and letter agreement being
collectively, the "1979 Agreement"), TRP and Flemings agreed to form and share
equally in the equity of ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇ International, Inc. (the "Company"),
a Maryland corporation registered as an Investment Adviser under the Investment
Advisers Act of 1940, as amended, for the purpose of managing investments by
United States investors in non-U.S. securities;
WHEREAS, pursuant to the 1979 Agreement Flemings subscribed for
100,000 shares (the "Flemings Shares") of Common Stock -- ▇▇▇▇▇▇▇, par value
$0.10 each, of the Company, representing 50% of the issued and outstanding
capital stock of the Company, and TRP subscribed for 100,000 shares (the "TRP
Shares") of Common Stock --- TRP, par value $0.10 each, of the Company,
representing 50% of the issued and outstanding capital stock of the Company;
WHEREAS, pursuant to a Supplementary Stockholders Agreement, dated as
of June 30, 1982 (the "1982 Agreement") between TRP, Flemings and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ International Limited ("JFI"), a wholly-owned subsidiary of JFBL,
Flemings sold and transferred 50,000 Flemings Shares to JFI;
WHEREAS, pursuant to a Supplementary Stockholders Agreement, dated as
of November 1, 1985 (the "1985 Agreement") among TRP, Flemings, JFBL, JFI and
JFIH, JFI sold and transferred 50,000 Flemings Shares to JFIH;
WHEREAS, pursuant to a Supplementary Stockholders Agreement, dated as
of November 30, 1987 (the "1987 Agreement") among TRP, Flemings, JFBL, JFI, JFIH
and Copthall, Flemings sold and transferred 50,000 Flemings Shares to Copthall;
WHEREAS, pursuant to a letter agreement, dated as of April 5, 1989
(the "1989 Letter Agreement"), from TRP to Flemings and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(Securities) Limited, the parties thereto agreed to amend the provisions of
Section B, Item 4 of the 1979 Agreement;
WHEREAS, pursuant to a Supplementary Stockholders Agreement, dated as
of June 30, 1991 (the "1991 Agreement"), among TRP, TRP Finance, Inc. ("TRPF"),
Flemings, JBFL, JFI, JFIH and Copthall, TRP sold and transferred the TRP Shares
to TRPF;
WHEREAS, on February 10, 1994, each of the shareholders of the Company
accepted modifications to the application of clause B of the 1979 Agreement (the
"1994 Modification", and with the 1991 Agreement, the 1989 Letter Agreement, the
1987 Agreement, the 1985 Agreement, the 1982 Agreement and the 1979 Agreement,
the "Joint Venture Agreement");
WHEREAS, each of JFIH and Copthall desires to sell to TRP
("Purchaser") and Purchaser desires to purchase from each of JFIH and Copthall,
50,000 Flemings Shares; and
WHEREAS, Chase has agreed to commence a takeover offer for all the
outstanding shares of Flemings (the "Takeover Offer");
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, each of the parties hereto agrees as
follows:
ARTICLE I
SHARE PURCHASE
Section 1.1. Share Purchase. On the terms and subject to the conditions of
this Agreement, at the Closing, Purchaser shall purchase from each Seller and
each Seller shall deliver to Purchaser, legal and beneficial ownership of 50,000
Flemings Shares, free and clear of all Liens.
Section 1.2. Consideration for the Flemings Shares. The aggregate
consideration for the Flemings Shares shall be US$390,000,000 for the Flemings
Shares to be sold by JFIH (the "JFIH Purchase Price") and US$390,000,000 for the
Flemings Shares to be sold by Copthall (the "Copthall Purchase Price").
Section 1.3. Closing. The closing of the purchases by the Purchaser of the
Flemings Shares (the "Closing") shall take place on the earliest of (i) the
fifth Business Day following the date that Chase notifies the other parties to
this Agreement that Chase has purchased at least 80% of the outstanding Flemings
ordinary shares, pursuant to the Takeover Offer (the "Acquisition"), (ii) the
fifth Business Day following delivery of a notice from the Sellers to Purchaser
that the Takeover Offer has lapsed or is otherwise terminated without Chase
purchasing at least 80% of the outstanding Flemings ordinary shares, and (iii)
December 31, 2000; provided, that the Closing shall not occur less than 30 days
from the date hereof. The Closing shall take place at the offices of Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Chase
and the Sellers shall provide the notices contemplated by this Section 1.3
immediately upon the occurrence of the applicable event. If on such earliest
date the conditions to Closing set forth in Article V have not been satisfied or
waived, the Closing will occur on the fifth Business Day following such
satisfaction or waiver. At the Closing:
(a) JFIH shall deliver to the Purchaser or its assignee a certificate
evidencing 50,000 Flemings Shares, duly endorsed to Purchaser or accompanied by
duly executed stock powers in favor of Purchaser;
(b) Copthall shall deliver to the Purchaser or its assignee a
certificate evidencing 50,000 Flemings Shares, duly endorsed to Purchaser or
accompanied by duly executed stock powers in favor of Purchaser;
(c) Purchaser shall deliver to the account specified by JFIH prior to
the Closing a wire transfer in immediately available funds in the amount equal
to the JFIH Purchase Price; and
(d) Purchaser shall deliver to the account specified by Copthall prior
to the Closing a wire transfer in immediately available funds in the amount
equal to the Copthall Purchase Price.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller hereby severally represents and warrants to the Purchaser as
set forth in this Article II:
Section 2.1. Organization and Good Standing. Such Seller is duly organized
or incorporated, validly existing and, to the extent applicable, in good
standing under the law of the jurisdiction of its organization or incorporation.
Section 2.2. Flemings Shares. Such Seller is the legal and beneficial owner
of 50,000 Flemings Shares which are owned by such Seller free and clear of any
and all Liens.
Section 2.3. Authorization of Agreement. Such Seller has the full power,
authority and legal right to execute, deliver and perform this Agreement and to
consummate the transactions contemplated herein. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all necessary action, corporate
or otherwise, of such Seller. This Agreement has been duly executed and
delivered by such Seller and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OTHER PARTIES
Purchaser hereby represents and warrants to each ▇▇▇▇▇▇▇ Party, and each
▇▇▇▇▇▇▇ Party (other than the Sellers) hereby severally represents and warrants
to Purchaser, as set forth in this Article III:
Section 3.1. Organization and Good Standing. Such party is duly organized
or incorporated, validly existing and, to the extent applicable, in good
standing under the law of the jurisdiction of its organization or incorporation.
Section 3.2. Authorization of Agreement. Such party has the full power,
authority and legal right to execute, deliver and perform this Agreement and to
consummate the transactions contemplated herein. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all necessary action, corporate
or otherwise, such party. This Agreement has been duly executed and delivered by
such party and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally.
ARTICLE IV
COVENANTS
Section 4.1. Notifications. Until the Closing, each party to this Agreement
shall promptly notify the other in writing of any fact, change, condition,
circumstance or occurrence or nonoccurrence of any event of which it is aware
that will or is reasonably likely to result in any of the conditions set forth
in Article V of this Agreement becoming incapable of being satisfied.
Section 4.2. Public Announcements. Until the Closing has occurred, each
party agrees that it will not, without the prior approval of the other parties,
issue any press release or written statement for general circulation relating to
the transactions contemplated hereby (including the Closing), except as
otherwise required by applicable law or regulation or applicable stock exchange
rules and then only after consulting with the other parties as to the content of
such release or statement.
Section 4.3. Ancillary Agreement. At the Closing, Flemings shall execute
and deliver to the Company the Transition Services Agreement.
Section 4.4. Termination of Joint Venture Agreement and Related Agreements.
(a) Each party hereby agrees that, effective as of the Closing,
without any further action of any party hereto and notwithstanding anything to
the contrary contained therein, the Joint Venture Agreement and each other
agreement or understanding (whether or not in writing and whether or not legally
binding) between the parties hereto or their Affiliates with respect to the
transactions contemplated by the Joint Venture Agreement (such other agreements,
the "Related Agreements") shall terminate without any further liability or
obligation of any party thereto and each party (on behalf of itself and its
Affiliates) hereby unconditionally and irrevocably releases each other party and
its Affiliates, effective as of the Closing, from any claim or liability arising
from or related to the Joint Venture Agreement, the Related Agreements or the
transactions contemplated thereby.
(b) The termination and release in Section 4.4(a) shall not apply to
(i) amounts due in respect of services performed prior to the Closing under and
any accrued liabilities arising pursuant to the terms of any Related Agreement
and (ii) any liabilities or obligations under this Agreement or the Transition
Services Agreement.
(c) Each party further agrees that if the Closing occurs pursuant to
clause (i) of Section 1.3, then during the period from the date of the
consummation of the Acquisition until the Closing, any references in the Joint
Venture Agreement and any Related Agreements to "affiliates" of any Flemings
Entity shall refer only to Flemings and any of its direct or indirect
Subsidiaries and not to Chase or any of Chase's other direct or indirect
Subsidiaries or Affiliates. If the Takeover Offer has lapsed or is otherwise
terminated without Chase purchasing at least 80% of the outstanding Flemings
ordinary shares, then Chase shall immediately cease to be a party to this
Agreement.
Section 4.5. Cooperation; Further Assurances.
(a) Each of the parties hereto agrees to use its reasonable best
efforts to take, and to cause its officers, employees, representatives, advisors
and agents to take, all action and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the transactions contemplated by this Agreement and to cooperate
with each other in connection with the foregoing, including using reasonable
best efforts (i) to obtain promptly all necessary waivers, consents and
approvals from other parties to material agreements, leases, licenses and other
contracts or agreements, (ii) to make promptly all filings and obtain promptly
all necessary consents, approvals and authorizations as are required to be
obtained under any applicable Law, (iii) to defend all lawsuits or other legal
proceedings challenging this Agreement or the consummation of the transactions
contemplated hereby, (iv) to cause to be lifted or rescinded any injunction or
restraining order or other order adversely affecting the ability of the parties
to consummate the transactions contemplated by this Agreement, (v) to determine
whether any action by or in respect of, or filing with, any Governmental Entity
is required to effect promptly all necessary registrations and other filings and
submissions of information requested by Governmental Entities in connection with
this Agreement and the transactions contemplated hereby, (vi) to obtain approval
of the assignment of institutional separate account agreements to the Company if
and to the extent required by the terms thereof or by applicable Law, (vii) to
obtain approval of new advisory agreements by the directors and shareholders of
the Company's funds if and to the extent required by the terms thereof or by
applicable Law, and (viii) to cause and facilitate the prompt satisfaction of
all conditions in Article V.
(b) The parties shall keep each other apprised of the status of
matters relating to the completion of the transactions contemplated hereby and
work cooperatively in connection with obtaining the requisite approvals,
consents or orders of each applicable Governmental Entity.
(c) At any time and from time to time, each party to this Agreement
agrees, subject to the terms and conditions of this Agreement, to take such
actions and to execute and deliver such documents as may be necessary to
effectuate the purposes of this Agreement at the earliest practicable time.
Section 4.6. Use of ▇▇▇▇▇▇▇ Names. From and after the Closing, as between
the parties hereto, subject to this Section 4.6, Flemings and its Affiliates
shall have the absolute and exclusive proprietary right to (including the right
to license or sell to third-parties) any and all corporate names, brand names,
trade names or other names, and any and all trademarks or service marks, whether
registered or not (collectively, "Marks") incorporating "▇▇▇▇▇▇▇", "▇▇▇▇▇▇
▇▇▇▇▇▇▇" or "▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇" by itself or in combination with any other Marks
(other than the Former Name), including, without limitation, any corporate
design logos associated therewith and any and all goodwill associated therewith
("▇▇▇▇▇▇▇ Names"), and none of the rights thereto or goodwill represented
thereby or pertaining thereto are being retained by the Company, Purchaser or
any of their Affiliates. The Company and its Subsidiaries and the Purchaser
shall use their reasonable best efforts to discontinue all use of the ▇▇▇▇▇▇▇
Names as soon as practicable after Closing; provided, however, that the Company
and its Subsidiaries shall be permitted to continue to use the ▇▇▇▇▇▇▇ Names in
their corporate name in the same manner as such were being used prior to Closing
("Former Name") for a period of no longer than 120 days after Closing, and for a
period of no longer than two years after the Closing in their literature, sales
materials, products or other materials, solely for the purpose of referring as a
historical fact to the Former Name as the corporate name of the Company prior to
or until such date as the corporate name of the Company shall not include any of
the ▇▇▇▇▇▇▇ Names; provided, that in no event shall the corporate name of the
Company contain any of the ▇▇▇▇▇▇▇ Names on a date after the date which is 120
days after the Closing. Except as set forth in the proviso to the preceding
sentence, Purchaser will not, nor will Purchaser permit any of its Affiliates
(including the Company) to, use any ▇▇▇▇▇▇▇ Name, phrase or logo incorporating a
▇▇▇▇▇▇▇ Name or any such corporate design logo in or on any of its literature,
sales materials or products or otherwise in connection with the sale of any
products or services. With respect to TRFAM, the term "Closing" as used in this
Section 4.6 shall mean the closing of the option described in Section 4.12.
Section 4.7. Certain Employee Matters.
(a) Each of Flemings and the Purchaser agrees to use its reasonable
best efforts to ensure that, at or promptly following the Closing, any employees
of Flemings or its Affiliates located outside the United States who are at the
date hereof, or who are at the time of Closing, seconded to the Company or any
of its Subsidiaries, or who devote the majority of their time and efforts to the
business of the Company and its Subsidiaries (the "Transferred Employees")
become employed directly by the Company or such Subsidiary on substantially the
same terms and conditions of employment as applied to such Transferred Employee
prior to the Closing, or on such terms more favorable to the employee as may be
determined by the Purchaser.
(b) If, in connection with any such transfer, the Company or any of
its Subsidiaries enters into an agreement to assume pension or similar liability
in respect of any Transferred Employee, (and accrued under an approved
occupational pension scheme in which Flemings or its Affiliates participate),
Flemings shall transfer, or cause to be transferred, to the pension scheme
designated by the Company or such Subsidiary, assets which are sufficient to
meet such pension liability. Such transfer shall take place only in relation to
those Transferred Employees who agree to the relevant pension or similar
benefits being transferred. Where the pension scheme concerned is a UK defined
benefit scheme, Flemings and its Affiliates shall instruct is actuaries to
calculate the transfer value using the assumptions adopted in such scheme's last
actuarial valuation (subject to a minimum equal to the member's statutory
transfer value calculated without reduction on account of any scheme deficit).
The ▇▇▇▇▇▇▇ Parties shall be responsible for, and shall indemnify and hold the
Purchaser, the Company and its Subsidiaries harmless from any liability or costs
which the Purchaser, the Company or any of its Subsidiaries may incur by virtue
of the Purchaser, the Company and its Subsidiaries and/or any of the Transferred
Employees having participated in a pension scheme sponsored by Flemings or its
Affiliates or in which any of them participate or have participated. Such
indemnity shall include (but not be limited to) any debt arising pursuant to
Section 75 of the Pensions ▇▇▇ ▇▇▇▇. Flemings will cooperate with the Purchaser
to permit the transfer of such pension liabilities and assets on a basis
consistent with this paragraph.
(c) All existing compensation arrangements with respect to the
Transferred Employees shall continue from the date of this Agreement through the
Closing in a manner consistent with past practices.
Section 4.8. Nonsolicitation of Employees. Other than as contemplated by
Section 4.7, each of Flemings and the Purchaser hereby agrees that, without the
other party's prior written consent, each will not (and will not permit any of
its Affiliates to), for a period of two years from the date of this Agreement,
directly or indirectly, solicit the employment of any member of senior
management of the other party or its Affiliates; provided, however, that the
foregoing provision will not prevent either such party or its Affiliates from
(a) soliciting or employing ▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇, or (b) employing any
such person (i) who initiates contact with the hiring party or its Affiliates
without any direct or indirect solicitation by or encouragement from that party
or its Affiliate or (ii) who responds to a general advertisement or
solicitation.
Section 4.9. Records. At or before the Closing, Flemings shall, subject to
applicable Law, deliver to the Purchaser copies of all personnel, regulatory,
corporate or other records reasonably relating to the employees, clients or
business of the Company or regulatory or compliance matters related to the
Company that are in the possession of Flemings. To the extent delivery at the
Closing is impracticable, Flemings shall use its reasonable best efforts to
provide the Purchaser and the Company with reasonable access to such
information, and use its reasonable best efforts to deliver such information to
the Purchaser as soon as practicable after the Closing. As soon as practicable
from the date hereof, Flemings and the Purchaser shall each designate a person
to coordinate the transfer of these records.
Section 4.10. Conduct of Business. From the date of this Agreement to the
Closing, (a) each of Flemings and the Purchaser shall cause the Company to
conduct its business in the ordinary course on a basis consistent with past
practice, and (b) each of Flemings, the Purchaser and their respective
Affiliates shall continue to provide services and support to the Company on a
basis consistent with past practice.
Section 4.11. Client Transition. Flemings agrees to use its reasonable best
efforts to support the transition process as set out in the Transition Services
Agreement and Schedule I thereto. In addition, Flemings agrees to, and to cause
its Affiliates to, use their respective best efforts to cause their employees
not to target in a systematic way, for a period of twelve months after the date
of the Closing, any persons or entities that were institutional separate account
clients of the Company as at the Closing in order to provide EAFE or world
ex-U.S. assignments to such persons or entities. For the avoidance of doubt, the
phrase "targeting in a systematic way" shall refer to the determination to
solicit such accounts in a systematic way because of their known status as
clients of the Company. It is understood and agreed by the parties to this
Agreement that nothing in this Agreement shall limit or restrict the ability of
Flemings, Chase or their respective Affiliates to solicit present or former
clients of the Company for any product or service other than EAFE or world
ex-U.S. assignments for institutional separate account clients.
Section 4.12. TRFAM. The Purchaser shall have the option from the Closing
until the first anniversary of the date of this Agreement to purchase all of the
interest of ▇▇▇▇▇▇▇ and its Affiliates in ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ Asset Management
Limited ("TRFAM") for an aggregate consideration of US$10. The Purchaser may
exercise this option at any time until the first anniversary of the date of this
Agreement by delivering written notice thereof to Flemings. Upon exercise, the
parties shall use their reasonable best efforts to obtain any required approvals
or consents of any applicable Governmental Entity as soon as practicable. Upon
the closing of this option, Flemings and its Affiliates shall transfer all
interest in TRFAM, free and clear of all Liens, and deliver to the Purchaser or
its assignee a certificate evidencing all interest of Flemings or its Affiliates
in TRFAM, duly endorsed to the Purchaser or accompanied by duly executed stock
powers in favor of the Purchaser. Flemings and its Affiliates shall take such
other actions and deliver or cause to be delivered to the Purchaser any other
certificates or documents reasonably requested by the Purchaser in connection
with the transfer of interest TRFAM.
Section 4.13. Information. The Purchaser acknowledges and agrees that
Purchaser (i) currently is the owner of the TRP Shares and as such is familiar
with and has made its own inquiry and investigation into, and based thereon, has
formed an independent judgment concerning the Company and its Subsidiaries, the
Flemings Shares and the transactions contemplated by this Agreement and (ii) is
not relying on any information or representations provided by Flemings, Chase,
any Affiliate of Flemings (including the Sellers) or Chase, or any of their
respective directors, officers, advisors, agents or employees in making its
decision to acquire the Flemings Shares pursuant to this agreement, other than
the express representations and warranties in Articles II and III hereof.
Section 4.14. Guarantees. The Purchaser hereby guarantees, as primary
obligor, performance by Purchaser of its obligations under this Agreement.
Flemings hereby guarantees, as primary obligor, performance by each Seller of
its obligations under this Agreement. Each of the Purchaser and Flemings hereby
waives suretyship defenses, demand of payment, protest and notice of dishonor or
nonperformance of any such guaranteed obligation.
Section 4.15. Certain Securities Law Matters. Purchaser hereby acknowledges
and agrees that the Flemings Shares have not been registered under the U.S.
Securities Act of 1933, as amended, or any state securities or "blue sky" laws
and it is acquiring the Flemings Shares solely for investment for Purchaser's
account and not with a view to, or for resale in connection with, the
distribution or other disposition thereof, except for such distributions and
dispositions which are effected in compliance with such Act and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder and
applicable state securities and "blue sky" laws.
ARTICLE V
CONDITIONS
Section 5.1. Conditions Precedent to Obligations of Purchaser. The
obligations of Purchaser to acquire the Flemings Shares and otherwise consummate
the Closing are subject to the satisfaction at or prior to the Closing of each
of the following conditions (unless satisfaction of any such condition is
expressly waived in a writing delivered by Purchaser to each of the Sellers):
(a) the representations and warranties of each ▇▇▇▇▇▇▇ Party contained
herein shall be accurate in all material respects as of the date hereof and as
of the Closing as though restated on and as of such date (except that any
representation or warranty which, by its terms, is made as of a date specified
therein, shall be accurate in all material respects as of such date);
(b) each of ▇▇▇▇▇▇▇ Party shall have performed and complied with, in
all material respects, all covenants required by this Agreement to be performed
or complied with by it prior to or at the Closing;
(c) no order of a Governmental Entity shall have been issued and
continue to be effective that prohibits or declares illegal the transactions
contemplated by this Agreement and no Law shall be in effect having any such
result; and
(d) all consents, waivers, approvals, authorizations, exemptions,
registrations, licenses, permits, notifications, declarations or filings from or
with a Governmental Entity, the receipt or making of which is required for the
completion by Purchaser of the purchase and sale of the Flemings Shares
contemplated by this Agreement shall have been obtained or made and all waiting
periods specified under applicable Laws, and all extensions thereof, the passing
of which is necessary for such completion, shall have passed, except to the
extent the failures to obtain or make such consents, waivers, approvals,
authorizations, concessions, notifications, declarations and filings,
individually or in the aggregate, would not have, or be reasonably likely to
have, a material adverse effect on the business or operations of (i) the Company
and its Subsidiaries, taken as a whole, or (ii) Purchaser and its Subsidiaries,
taken as a whole.
Section 5.2. Conditions Precedent to Obligations of the Sellers. The
obligations of the Sellers to sell the Flemings Shares to Purchaser and
otherwise consummate the Closing are subject to the satisfaction at or prior to
the Closing of each of the following conditions (unless satisfaction of any such
condition is expressly waived in a writing delivered by such Seller to
Purchaser):
(a) the representations and warranties of the Purchaser contained
herein shall be accurate in all material respects as of the date hereof and as
of the Closing Date as though restated on and as of such date (except that any
representation or warranty which, by its terms, is made as of a date specified
therein, shall be accurate in all material respects as of such date);
(b) the Purchaser shall have performed and complied with, in all
material respects, all covenants required by this Agreement to be performed or
complied with by it prior to or at the Closing;
(c) no order of a Governmental Entity shall have been issued and
continue to be effective that prohibits or declares illegal the transactions
contemplated by this Agreement and no Law shall be in effect having any such
result; and
(d) all consents, waivers, approvals, authorizations, exemptions,
registrations, licenses, permits, notifications, declarations or filings from or
with a Governmental Entity, the receipt or making of which is required for the
completion by Sellers of the purchase and sale of the Flemings Shares
contemplated by this Agreement shall have been obtained or made and all waiting
periods specified under applicable Laws, and all extensions thereof, the passing
of which is necessary for such completion, shall have passed, except to the
extent the failures to obtain or make such consents, waivers, approvals,
authorizations, concessions, notifications, declarations and filings,
individually or in the aggregate, would not have, or be reasonably likely to
have, a material adverse effect on the business or operations of Flemings and
its Subsidiaries, taken as a whole.
ARTICLE VI
CLOSING DELIVERIES
Section 6.1. Deliveries by the Sellers to Purchaser. At the Closing, each
of the Sellers shall deliver, or shall cause to be delivered, to the Purchaser
the following:
(a) a certificate representing 50,000 Flemings Shares duly endorsed or
accompanied by stock power as contemplated by Section 1.3; and
(b) any other certificates and documents reasonably requested by the
Purchaser relating to the transfers of the Flemings Shares.
Section 6.2. Deliveries by Purchaser to JFIH. At the Closing, the Purchaser
shall deliver, or shall cause to be delivered, to JFIH the following:
(a) wire transfer of the JFIH Purchase Price in immediately available
funds to the account specified by JFIH; and
(b) any other certificates and documents reasonably requested by JFIH
relating to the sale of the Flemings Shares, including the agreement of TRPF to
be bound by the provisions of this Agreement to the same extent as the
Purchaser.
Section 6.3. Deliveries by Purchaser to Copthall. At the Closing, Purchaser
shall deliver, or shall cause to be delivered, to Copthall the following:
(a) wire transfer of the Copthall Purchase Price in immediately
available funds to the account specified by Copthall; and
(b) any other certificates and documents reasonably requested by
Copthall relating to the sale of the Flemings Shares, including the agreement of
TRPF to be bound by the provisions of this Agreement to the same extent as the
Purchaser.
Section 6.4. Delivery by Flemings. At the Closing, Flemings shall deliver
to Purchaser a duly executed Transition Services Agreement.
ARTICLE VII
TERMINATION
Section 7.1. Termination. This Agreement shall terminate before the Closing
upon notice of termination by Purchaser to each of the Sellers or by the Sellers
to Purchaser if:
(a) the Closing has not occurred by January 15, 2001, except to the
extent that the failure of the Closing to occur arises out of or results from
the breach of this Agreement by the party seeking to terminate pursuant to this
Section 7.1(a);
(b) any condition set forth in Section 5.1 or 5.2, as the case may be,
to such party's Closing obligations shall become incapable of satisfaction and
is not waived, provided that the right to terminate this Agreement pursuant to
this Section 7.1(b) shall not be available to any party who has not used its
reasonable best efforts to cause such condition to be satisfied; or
(c) any Governmental Entity shall have issued an order, decree or
ruling or taken any other action (which order, decree, ruling or other action
the parties hereto shall use their reasonable best efforts to lift), in each
case permanently restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated by this Agreement and such order,
decree, ruling or other action shall have become final and non-appealable,
provided, that the right to terminate this Agreement pursuant to this Section
7.1(c) shall not be available to any party who has not used its reasonable best
efforts to cause such order, decree, ruling or other action to be lifted.
Section 7.2. Effect of Termination. If this Agreement is terminated in
accordance with Section 7.1, then such termination shall not relieve any party
of any liabilities arising from violations of this Agreement that occurred prior
to such termination. Section 4.2 and Articles VIII and IX shall survive any
termination of this Agreement.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1. Survival of Representations, Warranties, Covenants and
Agreements; No Implied Representations or Warranties. The representations,
warranties, covenants and agreements in this Agreement shall survive the
Closing. Except as specifically stated herein, the sale of the Flemings Shares
to Purchaser as contemplated by this Agreement is made without any
representations or warranties or any kind, express or implied.
Section 8.2. Notices. All notices, other communications or documents
provided for or permitted to be given hereunder, shall be made in writing and
shall be given either personally by hand-delivery, by facsimile transmission, by
mailing the same in a sealed envelope, registered first-class mail, postage
prepaid, return receipt requested, or by air courier guaranteeing overnight
delivery:
if to the Purchaser to:
▇. ▇▇▇▇ Price Associates, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: M. ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇. ▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to any Flemings Party to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Holdings, Ltd.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attention: Corporate Secretary
Fax: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Chase to:
The Chase Manhattan Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Each party, by written notice to the other party given in accordance with this
Section 8.2 may change the address to which notices, other communications or
documents are to be sent to such party. All notices, other communications or
documents shall be deemed to have been duly given: (i) at the time delivered by
hand, if personally delivered; (ii) when receipt is acknowledged in writing by
addressee, if by facsimile transmission; and (iii) on the first Business Day
with respect to which a reputable air courier guarantees delivery; provided,
however, that notices of a change of address shall be effective only upon
receipt.
Section 8.3. Successors, Assigns and Transferees.
(a) The rights and obligations under this Agreement may be transferred
by a party only with the written consent of the other parties, except that the
Purchaser may transfer and assign its rights and obligations under this
Agreement to any Affiliate of the Purchaser, provided such Affiliate agrees to
be bound by the terms hereof. In addition, in lieu of purchase of the Flemings
Shares by the Purchaser or an Affiliate of the Purchaser, the Purchaser may
arrange to have such purchase effected through a complete redemption of the
Flemings Shares by the Company. No such assignment or redemption shall relieve
the Purchaser of any of its obligations hereunder.
(b) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns and there shall be no third-party beneficiaries of this Agreement other
than the Affiliates of the parties hereto as contemplated by Sections 4.4, 4.6,
4.8 and 4.11.
Section 8.4. Governing Law; Jurisdiction.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland.
(b) To the fullest extent permitted by applicable law, each party
hereto (i) agrees that any claim, action or proceeding by such party seeking any
relief whatsoever arising out of, or in connection with, this Agreement or the
transactions contemplated hereby may be brought in the United States District
Court for the District of Maryland or any Maryland State court, in each case
located in the City of Baltimore, or in any other State or Federal court in the
United States of America, and not in any other court in any other country, (ii)
agrees to submit to the non-exclusive jurisdiction of such courts for purposes
of all legal proceedings arising out of, or in connection with, this Agreement
or the transactions contemplated hereby, (iii) waives and agrees not to assert
any objection that it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court or any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum and
(iv) agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by applicable Law.
Section 8.5. Severability. In the event that any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby as long as the remaining provisions do not fundamentally alter
the relations among the parties.
Section 8.6. Entire Agreement; Waiver.
(a) This Agreement, together with the Transition Services Agreement,
sets forth the entire understanding and agreement between the parties with
respect to the transactions contemplated hereby and supersedes and replaces any
prior understanding, agreement or statement of intent, in each case written or
oral, of any kind and every nature with respect thereto. Any provision of this
Agreement may be amended, modified or waived in whole or in part at any time by
an agreement in writing between the parties executed in the same manner as this
Agreement.
(b) The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a further or continuing
waiver of such breach or as a waiver of any other or subsequent breach. Except
as otherwise expressly provided herein, no failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder, or
otherwise available in respect hereof at law or in equity, shall operate as a
waiver thereof, nor shall any single or partial exercise of such right, power or
remedy by such party preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
Section 8.7. Counterparts. This Agreement may be executed in any number of
separate counterparts each of which when so executed shall be deemed to be an
original and all of which together shall constitute one and the same agreement.
ARTICLE IX
DEFINITIONS
Section 9.1. Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Acquisition" has the meaning set forth in Section 1.3 hereof.
"Affiliate" means, with respect to any Person, a Person that controls,
is controlled by, or is under common control with such Person (it being
understood that a Person shall be deemed to "control" another Person, for
purposes of this definition, if such Person directly or indirectly has the power
to direct or cause the direction of the management and policies of such other
Person, whether through holding beneficial ownership interests in such other
Person, through contracts or otherwise).
"Agreement" has the meaning set forth in the opening paragraph.
"Business Day" means any day on which banks are open for general
banking business in London and New York City, other than a Saturday, a Sunday, a
legal holiday or any other day in which banks in London and New York City are
required or authorized by law or executive order to close.
"Closing" has the meaning set forth in Section 1.3.
"Closing Date" means the date on which the Closing takes place.
"Company" has the meaning set forth in the recitals hereto.
"▇▇▇▇▇▇▇ Names" has the meaning set forth in Section 4.6.
"▇▇▇▇▇▇▇ Parties" has the meaning set forth in the recitals hereto.
"Former Names" has the meaning set forth in Section 4.6 hereof.
"Governmental Entity" means any United Kingdom (national or local),
United States (federal, state or local) or other government, or governmental,
regulatory or administrative authority, agency or commission or court of
competent jurisdiction.
"Joint Venture Agreement" has the meaning set forth in the recitals
hereto.
"Law" means any statute, law, constitutional provision, code,
regulation, ordinance, rule, judgment, order, decree, permit, concession, grant,
franchise, license, agreement, directive, binding guideline or policy or rule of
common law, requirement of, or other governmental restriction of or
determination by any Governmental Entity or any interpretation of any of the
foregoing by any Governmental Entity.
"Lien" means any pre-emptive right, mortgage, charge, pledge, security
interest, encumbrance, lien (statutory or other), hypothecation, assignment for
security, claim, or preference or priority or other encumbrance of any kind.
"Marks" has the meaning set forth in Section 4.6.
"Person" means an individual, corporation, partnership, trust, limited
liability company, a branch of any legal entity, unincorporated organization,
joint stock company, joint venture, association, other entity, or any
Governmental Entity.
"Purchaser" has the meaning set forth in the recitals hereto.
"Related Agreements" has the meaning set forth in Section 4.4.
"Subsidiary" means, with respect to any Person, an Affiliate of which
at least a majority of the voting interest under ordinary circumstances is at
the time, directly or indirectly, owned by such Person.
"Takeover Offer" has the meaning set forth in the recitals hereto.
"Transferred Employees" has the meaning set forth in Section 4.7
hereof.
"Transition Services Agreement" means the Transition Services
Agreement between Flemings and the Company, substantially in the form of Exhibit
A hereto.
"TRFAM" has the meaning set forth in Section 4.12.
Section 9.2. General Interpretive Principles. Whenever used in this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, any noun or pronoun shall be deemed to include the plural as
well as the singular and to cover all genders. The name assigned this Agreement
and the section captions used herein are for convenience of reference only and
shall not be construed to affect the meaning, construction or effect hereof.
Unless otherwise specified, the terms "hereof," "herein," "hereunder" and
similar terms refer to this Agreement as a whole (including the annexes,
exhibits, schedules and disclosure statements hereto), and references herein to
Sections refer to Sections of this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ HOLDINGS, LTD.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
Title: Chairman
JARDINE ▇▇▇▇▇▇▇ BANK LIMITED
(Formerly known as Jardine ▇▇▇▇▇▇▇ & Co. Ltd.)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
JARDINE ▇▇▇▇▇▇▇ INTERNATIONAL HOLDINGS LIMITED
By: /s/ T.G. Freshwater
Title: Director
COPTHALL OVERSEAS LIMITED
By: /s/ S.P. Ball
Title: Director
▇. ▇▇▇▇ PRICE ASSOCIATES, INC.
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice Chairman of the Board
THE CHASE MANHATTAN CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice Chairman
