Registration Statement of a Foreign Private Issuer for Securities Issued in a Business-Combination Transaction — Form F-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: F-4 Registration Statement of a Foreign Private Issuer 251 1.21M
for Securities Issued in a
Business-Combination Transaction
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, 41 134K
Liquidation or Succession
11: EX-2.10 Plan of Acquisition, Reorganization, Arrangement, 6 19K
Liquidation or Succession
12: EX-2.11 Plan of Acquisition, Reorganization, Arrangement, 148 423K
Liquidation or Succession
13: EX-2.12 Plan of Acquisition, Reorganization, Arrangement, 71 176K
Liquidation or Succession
3: EX-2.2 Plan of Acquisition, Reorganization, Arrangement, 50 127K
Liquidation or Succession
4: EX-2.3 Plan of Acquisition, Reorganization, Arrangement, 66 158K
Liquidation or Succession
5: EX-2.4 Plan of Acquisition, Reorganization, Arrangement, 66 161K
Liquidation or Succession
6: EX-2.5 Plan of Acquisition, Reorganization, Arrangement, 35 60K
Liquidation or Succession
7: EX-2.6 Plan of Acquisition, Reorganization, Arrangement, 12 25K
Liquidation or Succession
8: EX-2.7 Plan of Acquisition, Reorganization, Arrangement, 9 25K
Liquidation or Succession
9: EX-2.8 Plan of Acquisition, Reorganization, Arrangement, 10 23K
Liquidation or Succession
10: EX-2.9 Plan of Acquisition, Reorganization, Arrangement, 9 25K
Liquidation or Succession
14: EX-3.1 Articles of Incorporation/Organization or By-Laws 39 106K
15: EX-3.2 Articles of Incorporation/Organization or By-Laws 26 85K
16: EX-3.3 Articles of Incorporation/Organization or By-Laws 14 56K
17: EX-3.4 Articles of Incorporation/Organization or By-Laws 26 70K
18: EX-4.1 Instrument Defining the Rights of Security Holders 129 533K
19: EX-4.3 Instrument Defining the Rights of Security Holders 20 91K
20: EX-5.1 Opinion re: Legality 4 21K
21: EX-10.1 Material Contract 28 123K
30: EX-10.10 Material Contract 1 15K
31: EX-10.11 Material Contract 1 15K
32: EX-10.12 Material Contract 8 33K
22: EX-10.2 Material Contract 107 523K
23: EX-10.3 Material Contract 34 120K
24: EX-10.4 Material Contract 23 62K
25: EX-10.5 Material Contract 54 144K
26: EX-10.6 Material Contract 29 56K
27: EX-10.7 Material Contract 28 54K
28: EX-10.8 Material Contract 10 46K
29: EX-10.9 Material Contract 1 15K
33: EX-12.1 Statement re: Computation of Ratios 3± 24K
34: EX-21.1 Subsidiaries of the Registrant 14 47K
35: EX-23.2 Consent of Experts or Counsel 1 14K
36: EX-24.1 Power of Attorney 9 45K
37: EX-25.1 Form T-1 5 29K
38: EX-99.1 Miscellaneous Exhibit 15 78K
39: EX-99.2 Miscellaneous Exhibit 3 21K
EX-2.11 — Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
Exhibit Table of Contents
| Page | (sequential) | | | | (alphabetic) | Top |
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- Alternative Formats (Word, et al.)
- Agreement
- Conditions precedent referred to in (a), (b), (c), (e) and (f) above shall be accomplished by December 15, 1997, The
- Indemnification Undertaking
- Notification No. 2
- Promise to Buy
- Quantifiable Deciding Elements
- Share Exchange Agreement
- Share Purchase Agreement
- The conditions precedent referred to in (a), (b), (c), (e) and (f) above shall be accomplished by December 15, 1997
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| 1 | 1st Page - Filing Submission
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| 2 | Agreement
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| 17 | Share Purchase Agreement
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| 29 | The conditions precedent referred to in (a), (b), (c), (e) and (f) above shall be accomplished by December 15, 1997
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| 36 | Quantifiable Deciding Elements
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| 38 | Promise to Buy
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| 105 | Share Exchange Agreement
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| 121 | Indemnification Undertaking
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| 141 | Notification No. 2
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Exhibit 2.11
The following exhibit no. 2.11 constitutes a fair and accurate English
translation of the original copy of this document.
/s/ Michael P. Chitty
----------------------------------------
Michael P. Chitty
Company Secretary of Willis Corroon Group Limited
Agreement
page 1
AGREEMENT
BETWEEN THE UNDERSIGNED:
1. Assurances Generales de France IART, a French law company having its
registered office at 87 rue de Richelieu, 75002 Paris, registered with the
Paris Commercial and Companies Registry under No. B 542 110 291,
represented by Guy Lallour, in his capacity as Directeur DIDRE, fully
empowered for the purposes hereof,
hereinafter "AGF",
2. UAP INCENDIE - ACCIDENTS, a French law company having its registered
office at 9, Place Vendome, 75001 Paris, registered with the Paris
Commercial and Companies Registry under No. B 777 349 192, represented by
Adrien Cadieux, acting pursuant to a special power and fully empowered for
the purposes hereof,
hereinafter "UAP",
3. Athena, a French law company having its registered office at 53/55 rue La
Boetie, 75008 Paris, registered with the Paris Commercial and Companies
Registry under No. B 304 951 833, represented by Daniel Ehrmann, acting
pursuant to a special power and fully empowered for the purposes hereof,
hereinafter "Athena",
4. Gras Savoye Euro Finance S.A., a Belgian law company having its registered
office at 8 avenue Bel-Air, 1180 Uccle, Belgium, registered with the
Brussels Commercial Registry under No. 258.054, represented by Patrick
Lucas in his capacity as President, fully empowered for the purposes
hereof,
hereinafter "GS Euro Finance",
Agreement
page 2
5. Mr. Emmanuel Gras, residing at 3, rue Parmentier, 59370 Mons-en-Baroeul,
in his capacity as a shareholder and general partner of Gras Savoye & Cie,
acting as guarantor for the shareholders designated as the "Gras
Shareholders" in Exhibit 1,
6. Mr. Patrick Lucas, residing at 3 avenue Emile Acollas, 75007 Paris, in his
capacity as a shareholder and general partner of Gras Savoye & Cie, acting
as guarantor for the shareholders designated as the "Lucas Shareholders"
in Exhibit 1,
7. Mr. Daniel Naftalski, residing at 2, rue des Beaux-Arts, 75006 Paris, in
his capacity as a shareholder and general partner of Gras Savoye & Cie,
acting as guarantor for the shareholders designated as the "Other
Individual Shareholders" in Exhibit 1,
AND:
Willis Corroon Group plc, an English law company whose registered office is at
Ten Trinity Square, London EC3P 3AX, United Kingdom, registered with the England
and Wales Companies Registration Office under No. 621757, represented by John
Reeve in his capacity as Chairman, fully empowered for the purposes hereof,
hereinafter "WCG",
Willis Corroon Europe B.V., a Netherlands law company whose registered office is
at Marten Meesweg 51, 3068 AV Rotterdam, Netherlands, registered with the
Rotterdam Commercial Registry under No. 135.835, represented by Sarah Turvill,
acting as a director and fully empowered for the purposes hereof,
hereinafter "WCE BV",
AND:
Gras Savoye & Cie, a societe en commandite par actions, with a capital of FRF
9,952,000 divided into 49,760 shares of FRF 200 each (hereinafter the "Shares"),
having its registered office at 2, rue Ancelle, 92200 Neuilly-sur-Seine,
registered with the Nanterre Commercial and Companies Registry under number B
457 509 867, represented by Mr. Patrick Lucas, in his capacity as general
partner gerant, fully empowered for the purposes hereof,
hereinafter the "Company",
Agreement
page 3
WITNESSETH:
On the date hereof, the Company's capital is held as indicated in Exhibit 1.
WCG is considering acquiring, through a company of the WCG Group (as defined
below), a shareholding in the Company's capital with the aim of developing with
it a worldwide network of insurance and reinsurance brokers placed among the
leaders in each region of the world, according to the principles set forth in
the "Framework for Partnership" in Exhibit 7 hereto.
In the context of the acquisition of this shareholding, the parties hereto have
decided to enter into this Agreement in order to determine their respective
rights and obligations in connection with their shareholding in the Company.
NOW, THEREFORE, IT HAS BEEN AGREED AS FOLLOWS:
ARTICLE 1 - ACQUISITION OF A SHAREHOLDING BY THE WCG GROUP
Certain shareholders of the Company and WCG agreed to sign a share purchase
agreement (the "Share Purchase Agreement"), pursuant to which a company of the
WCG Group (as defined below) will purchase, subject to certain conditions, and
such shareholders will sell, approximately 30.22% of the Company's capital,
i.e., 15,105 Shares which, with the 680 GS Shares acquired simultaneously from
GS Euro Finance in exchange for Willis Corroon France shares, corresponds to
approximately 31.72% of the capital and approximately 33.36% of the voting
rights of the Company, (hereinafter the "Initial Shareholding"). The Share
Purchase Agreement and the Share Exchange Agreement are attached to this
Agreement respectively in Exhibits 2 and 9.
The parties represent that the acquisition and maintenance by the WCG Group of
the Initial Shareholding giving it more than 33.35% of the Company's voting
rights is an essential condition of its consent to the transactions provided for
in this Agreement and its Exhibits.
ARTICLE 2 - PROMISES TO BUY AND TO SELL
On condition that the WCG Group has acquired the Initial Shareholding, the
signatories hereto shall be bound by the promises to buy and to sell attached
hereto in Exhibits 3, 3 bis, 3 ter, 4 and 5.
ARTICLE 3 - AMENDMENTS TO THE BY-LAWS
Agreement
page 4
The parties agree that the societe en commandite par actions structure must
continue for as long as Messrs. Gras or Lucas or Naftalski are general partners,
it being stipulated that by the deadline of December 31, 2009, the Company will
no longer have any general partners and will have to be transformed into a
societe anonyme, without any provisions of the by-laws granting any special
advantage to any one of the shareholders, provided that the WCG Group is the
owner of 50.1% of the Company's capital or voting rights.
The Company's by-laws must have been amended according to the text contained in
Exhibit 6 no later than on the Closing Date and they shall keep such form for as
long as the Company has the form of a societe en commandite par actions.
It is specified that the shareholders who are individuals and members of the
Gras and/or Lucas families are, on the date hereof, those indicated as such in
Exhibit 1 hereto.
ARTICLE 4 - SHAREHOLDERS' AGREEMENT
All the shareholders and general partners of the Company expressly agree as
follows:
(i) The parties agree that the WCG and GS Groups (defined respectively as all
of the companies controlled by WCG on the one hand and the Company on the
other hand, it being understood that the concept of control shall mean
here a direct or indirect holding of more than 50% of the capital or the
actual control of management) shall organize their relations in accordance
with the principles defined in the document entitled "Framework for
Partnership", attached in Exhibit 7.
(ii) An Advisory Committee of the Company shall be created as from the Closing
Date until the transformation of the Company into a societe anonyme. This
Advisory Committee shall be composed:
o of the general partners,
o of 2 representatives of WCG.
This Advisory Committee shall meet from time to time, a minimum of once
per quarter, and its task will be to discuss the following issues:
* operational and financial relations,
* the development of the activity of the Company and the Subsidiaries,
and the situation of the insurance brokerage market,
* the future of the Company and the Subsidiaries,
Agreement
page 5
* the adoption of any new computer system or any new management
software program having a certain importance,
* the evaluation of the solvency of insurance companies,
* the financial objectives.
(iii) The parties agree that the Company shall distribute every year to the
shareholders, in the form of dividends, a minimum amount representing 40%
of the Company's distributable profits (hereinafter the "Dividend
Distribution"). However, the dividend distribution made within the legal
time limit following the approval of the Company's accounts closed on
December 31, 1997 and December 31, 1998 shall represent for each of the
two years a minimum amount of FRF 10,000,000 for the WCG Group's Initial
Shareholding.
For subsequent years, the parties agree to fix the amount of the dividends
to be paid to the shareholders by the Company at a level which takes into
account the Company's investment budgets and working capital. Upon failure
to agree, the amount of the dividends distributed shall be the Dividend
Distribution. Subject to the rights of the general partners in accordance
with the provisions of Article 18-3(degree) of the Company's by-laws, it
is specified that the dividend distributions shall be identical for all
the Company's shareholders, in proportion to their actual shareholding in
the Company's capital.
Messrs. Gras, Lucas and Naftalski guarantee that the competent corporate
bodies of the Company's current or future Subsidiaries shall distribute an
amount of dividends which is sufficient to allow the application of this
clause.
(iv) Within a period of time compatible with the Company's material
requirements, the Company shall use reasonable efforts to supply financial
and accounting information concerning the GS Group regularly to WCG in
accordance with and in the form of Exhibit 8.
Before this procedure is able to be set up, the Company shall provide WCG
on a quarterly basis with the income statements concerning all its
Subsidiaries (as defined in the Share Purchase Agreement) which are
French, and its important foreign Subsidiaries, and on a six-monthly basis
with a consolidated balance sheet of the Company.
Immediately as from the Closing Date, the Company shall also provide WCG
on a monthly basis with an income statement concerning Gras Savoye S.A.,
in the available form, i.e., without the inventory corrections having a
connection with turnover.
(v) The parties expressly undertake throughout the entire term hereof not to
make any request to the relevant stock market authorities for the
Agreement
page 6
introduction onto a French or foreign stock market, whether regulated or
not, of any of the securities of the Company or of any one of the
Subsidiaries.
(vi) The parties agree that the provisions referred to in Article 10-3 of the
Company's by-laws requiring the prior authorization of the Supervisory
Board by a three-quarters majority shall be applied to all the Company's
Subsidiaries (as defined in the Share Purchase Agreement), it being
understood that the amounts referred to in Article 10-3 of the Company's
by-laws include all transactions carried out by the Company's
Subsidiaries. In this regard, the Company's general partners shall set up
internal procedures in each company of the GS Group allowing these
provisions to be applied.
(vii) As from the date hereof, and throughout the entire term of this Agreement,
none of the general partners and none of the Class A individual
shareholders of the Company, for as long as they carry on any professional
activity whatsoever within or for the benefit (employment contract or
consultancy agreement) of the Company and/or the Subsidiaries,
(a) shall hold, or have an option to acquire, directly or indirectly, on
any grounds whatsoever, a shareholding in a company or enterprise
carrying on, principally, activities which are the same as or
compete with those of the Company or one of the Subsidiaries,
subject however to the shares or securities held by one of them in
one or more companies meeting the above conditions which are listed
on a regulated or non-regulated market in France or abroad, provided
that such a shareholding does not exceed 5% of the capital or voting
rights of the company concerned;
(b) shall receive any compensation whatsoever from persons supplying
goods or services to the Company or one of the Subsidiaries, or from
persons acquiring goods or services from the Company or one of the
Subsidiaries, insofar as the nature of the connection at the origin
of such compensation constitutes a conflict of interest with the
Company or one of the Subsidiaries.
(viii) As from the time they cease their duties as gerant, or upon expiration
of their capacity as general partner, for any reason whatsoever, Messrs.
Lucas, Gras or Naftalski each undertake not to engage in any activity in
the insurance and reassurance brokerage area resulting, directly or
indirectly, in their personal name, on behalf of third parties and more
generally in any capacity whatsoever, in their dealing with or
soliciting in any manner whatsoever any one of the GS Group's clients
existing as at the date they cease their duties as gerant or their
capacity as general partner expires, or having been a client of the GS
Group within the
Agreement
page 7
12 months preceding such event.
This non-compete undertaking is made for a 3-year period following
respectively the cessation of their duties as gerant or the expiration of
their capacity as general partner, and shall be limited to French
territory.
(ix) The WCG Group and the Company, both on its own behalf and for any company
of the GS Group, each undertake to make available to the other the
resources necessary to offer a quality international homogeneous service
to their clients immediately upon signature hereof.
This undertaking shall remain in force for at least two years (i) as from
the date hereof, in the event that the share transfer contemplated in the
Share Purchase Agreement is not completed for any reason whatsoever or
(ii) as from the actual completion of the change of control of WCG, if
Promise to Sell No. 2 is exercised by the Beneficiaries of such promise.
(x) The parties have taken note that GS Euro Finance holds as of this day
3,120 shares of the Company, these self-held shares not having voting
rights, and take note that the WCG Group's Initial Shareholding gives it
more than approximately 33.35% of the Company's voting rights due to the
existence of the still remaining self-held shares.
The shareholders and the general partners undertake to ensure that any
transaction concerning the still remaining self-held shares shall be
carried out with WCG's prior agreement, in order to preserve a minimum
percentage holding of 33.35% of the Company's voting rights.
(xi) The parties agree on the principle of setting up, at Company level and
after the Closing Date, a Stock Option Plan for shares of the Company in
favor of certain employees of the GS Group, by means of purchase options
covering the existing shares of the Company, the terms and conditions of
which shall be approved by the Company's corporate structures in
accordance with the by-laws and the law.
In particular, any use of the Company's shares held by the Belgian
company, GS Euro Finance under this Stock Option Plan shall be authorized
in accordance with the terms and conditions described above and must be
carried out so that the WCG Group has the option of maintaining the
minimum percentage holding of 33.35% of the Company's voting rights.
(xii) The parties agree that it is in their interest and in the interest of the
Company that a French institutional or financial group acquire a
significant shareholding in the Company's capital, it being specified that
this shareholding must be less than the WCG Group's Initial Shareholding,
unless WCG otherwise agrees.
Agreement
page 8
(xiii) The parties undertake that the general meeting of the Company shall not
amend Article 9.II.2(degree).B of the Company's by-laws as long as each
and all of the Corporate Beneficiaries (within the meaning of the
Promises to Buy) have not exercised their option to sell, wholly or
partially, pursuant to such Promises to Buy.
(xiv) For the purposes of the Promises to Buy and to Sell referred to in Article
2 above, the parties undertake that the Company shall not carry out any
transaction involving the capital of the Company which may have an impact
on the Price per Share, such as, in particular, a division of the par
value or a distribution of free shares, without the parties having agreed
to the modifications to be made to the Promises to Buy and to Sell.
ARTICLE 5 - TRANSFER OF THE WILLIS CORROON FRANCE S.A. SHARES
The WCG Group and GS Euro Finance agreed to sign a share exchange agreement,
pursuant to which GS Euro Finance will acquire, on the Closing Date, 100% of the
capital of Willis Corroon France S.A. so that this company is integrated into
the GS Group. This share transfer shall be carried out in exchange for 680
Shares held by GS Euro Finance (hereinafter the "Share Exchange Agreement"). The
Share Exchange Agreement is attached in Exhibit 9 hereto.
The parties agree to use their best efforts so that the management employees and
managers of Willis Corroon France S.A. (it being specified that Mr. Nicholas
Davenport shall not be integrated into the GS Group) are integrated into the GS
Group at positions of responsibility and at conditions of remuneration which are
comparable with those they have at the moment and are compatible with those
currently in force in the GS Group for persons holding equivalent positions at
the time of their integration.
ARTICLE 6 - CONDITION PRECEDENT
The entry into force of this Agreement, with the exception of Article 4 (v),
(vii), (viii) and (ix), Article 7 and Article 12, shall be subject to the
condition precedent of the WCG Group's actually completing the acquisition of
the Initial Shareholding, as provided for in the Share Purchase Agreement
attached in Exhibit 2 and the Share Exchange Agreement attached in Exhibit 9
hereto, which must occur by December 31, 1997 or at a later date in the event of
a contractual extension, as provided for in such Share Purchase Agreement and
Share Exchange Agreement.
Agreement
page 9
ARTICLE 7 - OTHER UNDERTAKINGS
(i) Until the Closing Date or prior thereto, on the date on which this
Agreement automatically lapses for any reason whatsoever, the shareholders
and general partners undertake (a) not to sell the Shares, except for an
individual's donation to his or her descendants, (b) not to start
negotiations without the prior agreement of WCG with any third party for
the sale of all or part of the Shares and to stop any negotiations already
started for this purpose, (c) not to pledge the Shares to be transferred
under the Share Purchase Agreement or use them as collateral in any manner
whatsoever, particularly by means of a transfer to a financial instruments
account pledged in favor of any person whatsoever, and (d) more generally
not to do anything which is likely to prevent or delay the actual transfer
of the Shares to be transferred to the WCG Group on the Closing Date. All
the undertakings provided for in this paragraph shall also apply to the GS
Shares held by GS Euro Finance to be delivered to the WCG Group in
exchange for 100% of the Willis Corroon France S.A. shares.
(ii) Reciprocally, until the Closing Date or prior thereto, on the date on
which this Agreement automatically lapses for any reason whatsoever, WCG
undertakes not to start negotiations, directly or indirectly, for the
acquisition principally of any French insurance or reinsurance brokerage
company and/or to stop any negotiations already started for this purpose.
(iii) WCG undertakes that, after the Closing Date, Mr. Patrick Lucas shall be
appointed as a member of the Board of Directors of WCG, in accordance with
the provisions of WCG's by-laws. In addition, WCG undertakes, as from the
Closing Date, to appoint, subject to terms and conditions to be
determined, management employees and managers of the GS Group to the
appropriate international and/or regional boards or committees of the WCG
Group.
Reciprocally, as from the Closing Date, the GS Group undertakes to appoint
management employees and managers of the WCG Group to the equivalent or
appropriate boards or committees of the GS Group.
(iv) No later than on the Closing Date, the general partners of the Company and
the Company undertake that the entire capital of GS Euro Finance less one
share shall be held directly or indirectly by the Company.
(v) WCG undertakes that the commission sharing agreements in force on the date
hereof, pursuant to which Willis Corroon France shares:
(i) commissions with Willis Corroon Faber & Dumas Limited on the
Agreement
page 10
basis of a 50/50 share, with respect to French business covered by
reinsurance agreements (whatever the nationality of the reinsurance
companies);
(ii) with other companies of the WCG Group on bases which are currently
in force with respect to the other types of business not referred to
in (i) above,
shall be maintained. They may be modified with the sole agreement of the
companies of the WCG Group concerned and the Company.
ARTICLE 8 - TERM
This Agreement shall be entered into for a 13-year term.
ARTICLE 9 - MISCELLANEOUS PROVISIONS
(i) This Agreement shall be governed by French law.
(ii) Any disputes which might arise between the parties in connection with the
interpretation and performance of this Agreement shall be submitted to the
exclusive jurisdiction of the Nanterre Commercial Court, the place where
the Company's registered office is located, where all the parties
expressly declare that they elect domicile for the purposes hereof.
(iii) This Agreement and, as applicable, the attached documents, shall be the
subject of a press release which will be issued publicly immediately after
its signature and which must have been approved by all the parties hereto.
With the exception of the information which may be required by law or the
stock market regulations applicable to WCG or by law or the stock market
regulations applicable to the GS Group, any information concerning this
Agreement or the attached documents shall be confidential.
Any information obtained by any one of the parties hereunder shall be
confidential in nature and shall in any event continue to be covered by
the previously signed confidentiality undertaking. This undertaking shall
continue in the event that this Agreement lapses automatically.
(iv) This Agreement cancels and replaces any other agreements which might exist
between the parties relating to its subject matter, including, on the
Closing Date, the shareholders' agreement dated June 26, 1992 entered into
between Mr. Patrick Lucas, Mr. Emmanuel Gras, Athena, AGF and UAP, and
known to such parties only.
Agreement
page 11
(v) A refusal or a delay by one of the parties in exercising its rights
arising out of this Agreement shall not be deemed to constitute a waiver
of such rights or of other rights for the future.
(vi) The respective obligations of each of the parties under this Agreement
and its Exhibits shall form an indivisible whole. If for any reason
whatsoever one of the clauses of this Agreement or its Exhibits proved
to be invalid or unenforceable or if the fulfillment of any obligation
by one of the parties was prevented or significantly delayed as a result
of the failure to obtain any administrative authorization or as a result
of any regulation, the parties undertake to negotiate in good faith as
promptly as possible any provision intended to replace the invalid or
unenforceable clause, and any other clause which may be affected, as the
case may be, respecting the general equilibrium of their respective
initial undertakings. It is however specified that the invalidity or
unenforceability of any one of the non-essential clauses of this
Agreement or its Exhibits shall not be such as to affect the validity or
enforceability of the other clauses of this Agreement or its Exhibits.
(vii) Each party shall assume the fees and expenses of its own counsel,
accountants, brokers, representatives and attorneys-in-fact in
connection with this Agreement.
(viii) This Agreement shall be binding on the successors, heirs, legal
representatives, assignees and assigns, whether for valuable
consideration or as a gift, of the parties and shall inure to their
benefit.
(ix) The Exhibits to this Agreement form an integral part hereof.
(x) In the event that any one of the provisions hereof contradicts the text
of any one of the Exhibits hereto, the text of such Exhibits shall
prevail.
(xi) Any shareholder of the Company signing this Agreement guarantees that
all of the Company's shareholders, existing now or on the Closing Date,
and any subsequent transferee of the Shares, shall ratify this Agreement
by the Closing Date, directly or on the basis of a power of attorney
according to the model attached in Exhibit 10. In this regard, new
originals of this Agreement shall be signed, directly or on the basis of
a power of attorney, no later than on the Closing Date.
(xii) In the event of the transfer of the Shares to a party outside of this
Agreement, the recording of this new shareholder as the owner of the
Company's securities shall be subordinated to such shareholder's prior
written acceptance, with no restrictions or reservations, of this
Agreement.
(xiii) All the Gras Shareholders, as defined in Exhibit 1, represent that they
Agreement
page 12
have a common interest and they shall receive a single original of this
Agreement and its Exhibits, delivered to Mr. Emmanuel Gras, to whom the
selling shareholders grant power to receive this original, Mr. Emmanuel
Gras being responsible for delivering certified true copies to them.
(xiv) All the Lucas Shareholders, as defined in Exhibit 1, represent that they
have a common interest and they shall receive a single original of this
Agreement and its Exhibits, delivered to Mr. Patrick Lucas, to whom the
selling shareholders grant power to receive this original, Mr. Patrick
Lucas being responsible for delivering certified true copies to them.
(xv) All the Other Individual Shareholders, as defined in Exhibit 1,
represent that they have a common interest and they shall receive a
single original of this Agreement and its Exhibits, delivered to Mr.
Daniel Naftalski, to whom the selling shareholders grant power to
receive this original, Mr. Daniel Naftalski being responsible for
delivering certified true copies to them.
(xvi) All the other signatories of this Agreement shall each receive an
original of this Agreement and its Exhibits.
(xvii) It is specified that in the event of the failure by any one of the
parties to respect its undertakings under this Agreement and its
Exhibits and independently of any provisions set forth herein, each of
the parties shall be able to use all remedies at law to seek
compensation for the damage suffered.
(xviii) The Company undertakes to provide all the parties at any time at their
request with all information concerning the price and the components
used to calculate it in order to allow the parties to determine the
conditions for the exercise of the Promises to Buy and to Sell provided
for herein.
ARTICLE 10 - INTERVENTION OF GRAS SAVOYE & CIE
The Company has familiarized itself, in addition to its own undertakings, with
the undertakings referred to in this Agreement and undertakes to do what is
necessary for them to be respected.
ARTICLE 11 - REPRESENTATIONS AND WARRANTIES OF WCG
WCG represents and warrants that it has full power and has obtained all
necessary authorizations to enter into and sign this Agreement, that its
undertakings are valid and enforceable in accordance with their terms, subject
Agreement
page 13
to the condition precedent stipulated in Article 4 (f) of the Share Purchase
Agreement. WCG guarantees the undertakings made by any company of the WCG Group
that it might substitute for itself pursuant hereto.
ARTICLE 12 - ATHENA - UAP - AGF
The parties expressly acknowledge that Athena and UAP, with the exception of
what is stipulated below, shall not be held liable in respect of any one of the
other parties hereto for any reason whatsoever. The only obligations by which
Athena and UAP are bound by this Agreement are:
(i) to respect the Promise to Buy (Exhibit 3 bis for Athena and Exhibit 3 ter
for UAP) and Promise to Sell No. 1, in accordance with Article 2 of this
Agreement;
(ii) to vote at Supervisory Board and general meetings in such a way as to
allow the accomplishment of the provisions of this Agreement; and
(iii) to respect the provisions of Articles 4 (v), 8 and 9, with the exception
of Article 9 (xi).
The parties expressly acknowledge that AGF, with the exception of what is
stipulated below, shall not be held liable in respect of any one of the other
parties hereto for any reason whatsoever. The only obligations by which AGF is
bound by this Agreement are:
(i) to respect the Share Purchase Agreement (Exhibit 2), in accordance with
Article 1 of this Agreement;
(ii) to vote at Supervisory Board and general meetings in such a way as to
allow the accomplishment of the provisions of this Agreement; and
(iii) to respect the provisions of Articles 4 (v), 8 and 9, with the exception
of Article 9 (xi).
Executed in 10 originals,
For all the signatories excluding WCG and WCE BV, in Neuilly-sur-Seine, on July
23, 1997 at 12.00 p.m..
For WCG and WCE BV, in London, on July 23, 1997 at 5.00 p.m.
For the shareholders:
Agreement
page 14
------------------------------------- ------------------------------------
For the Gras Shareholders For the Lucas Shareholders
By Mr. Emmanuel Gras By Mr. Patrick Lucas
-------------------------------------
For the Other Individual Shareholders
By Mr. Daniel Naftalski
------------------------------------- ------------------------------------
Assurances Generales de France IART UAP Incendie - Accidents
By Guy Lallour By Adrien Cadieux
-------------------------------------
Athena
By Daniel Ehrmann
For the general partner gerants:
------------------------------------- ------------------------------------
Mr. Emmanuel Gras Mr. Patrick Lucas
-------------------------------------
Mr. Daniel Naftalski
Agreement
page 15
For the Company:
-------------------------------------
Gras Savoye & Cie
By Mr. Patrick Lucas
For GS Euro Finance:
-------------------------------------
Gras Savoye Euro Finance
By Mr. Patrick Lucas
For the Willis Corroon Group:
------------------------------------- ------------------------------------
Willis Corroon Group Plc Willis Corroon Europe B.V.
By Mr. John Reeve By Mrs. Sarah Turvill
--------------------------------------------------------------------------------
EXHIBIT 2 TO THE AGREEMENT
SHARE PURCHASE AGREEMENT
BETWEEN THE UNDERSIGNED
1. Assurances Generales de France IART, a French law company with its
registered office at 87 rue de Richelieu, 75002 Paris, registered with the
Paris Commercial and Companies Registry under No. B 542 110 291,
represented by Guy Lallour acting as Directeur DIDRE and fully empowered
for the purposes hereof,
2. The transferring individual shareholders of Gras Savoye & Cie, designated
as such in Exhibit 1 to the Agreement,
hereinafter jointly referred to as the "Transferors";
AND
Gras Savoye Euro Finance S.A., a Belgian law company having its registered
office at 8 avenue Bel-Air, 1180 Uccle, Belgium, registered with the Brussels
Commercial Registry under No. 258.054,
represented by Patrick Lucas acting as President and fully empowered for the
purposes hereof,
hereinafter referred to as "GS Euro Finance";
AND
Willis Corroon Group Plc., an English law company with its registered office at
Ten Trinity Square, London EC3P 3AX, United Kingdom, registered with the England
and Wales Company Registration Office under No. 621757,
represented by John Reeve acting as Chairman and fully empowered for the
purposes hereof,
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 2
with the option to substitute for itself hereunder any company of the WCG Group
(as defined in the Agreement),
hereinafter the "Transferee".
WHEREAS:
A. Gras Savoye et Cie is a societe en commandite par actions with a capital of
FRF 9,952,000 divided into 49,760 shares of FRF 200 each, with its registered
office at 2 rue Ancelle, 92200 Neuilly sur Seine, registered at the Nanterre
Commercial and Companies Registry under number B 457 509 867 (hereinafter
referred to as the "Company"). At the date hereof, the capital of the Company is
held as described in Exhibit 1 to the Agreement.
The shares of the Company shall hereinafter be referred to as the "GS Shares".
B. The Company has direct or indirect shareholdings in several other companies
or other legal entities, a list of which, indicating the percentage of such
shareholdings, is attached in Exhibit 1 to the Share Purchase Agreement. Those
of such companies or other legal entities in which the Company directly or
indirectly owns more than 50% of the capital or ensures the actual control of
the management shall hereinafter be collectively referred to as the
"Subsidiaries".
C. The Transferee has informed the Transferors that it is interested in
purchasing approximately 30.22% of the GS Shares, i.e. 15,105 GS Shares which,
with the 680 GS Shares acquired simultaneously from Gras Savoye Euro Finance,
corresponds to approximately 31.72% of the capital and approximately 33.36% of
the voting rights of the Company, and the Transferors have also indicated that
they are interested in such transfer.
D. Among the companies of the Gras Savoye Group, the following are of particular
importance, i.e.: (i) Gras Savoye & Cie S.C.A., (ii) Gras Savoye S.A., (iii)
Gras Savoye Reassurance S.A. (iv) SAGERI S.A., (v) AMI, (vi) Gras Savoye Lanvin
Lespiau, (vii) GS Re and (viii) Gras Savoye Euro Finance. These eight companies
are hereinafter collectively referred to as the "Main Companies".
--------------------------------------------------------------------------------
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 3
NOW, THEREFORE, THE FOLLOWING HAS BEEN AGREED UPON:
1. Acquisition
(a) Subject to ordinary legal guarantees and to the terms and conditions
of this Share Purchase Agreement, the Transferors shall jointly transfer to the
Transferee, and the Transferee shall acquire from the Transferors, 15,105 GS
Shares representing approximately 30.22% of the capital and, with the 680 GS
Shares acquired simultaneously from GS Euro Finance, approximately 31.72% of the
capital and approximately 33.36% of the voting rights of the Company, it being
specified that the Transferee intends to purchase shares of a Transferor only if
it is in a position to purchase shares from the other Transferors at the same
time.
The transferred GS Shares shall hereinafter be referred to as the
"Shares".
(b) The transfer of the Shares shall take effect on the date of the
effective transfer of the Shares (hereinafter referred to as the "Closing Date")
and the Transferee shall acquire the right to the full enjoyment of the Shares
as from such date, with all the rights to dividends attached thereto. The class
A Shares purchased by the Transferee in addition to the class B Shares purchased
just before, shall as a matter of course become class B Shares on the Closing
Date, pursuant to the Company's by-laws in effect as from the Closing Date.
(c) The transfer and acquisition of the Shares shall only take place if
all the conditions precedent set forth in Article 4 below have been fulfilled by
the Closing Date.
2. Price of the Shares
(A) Base Price
The base price of the Shares (hereinafter the "Base Price") is FRF
453,406,785 (four hundred and fifty-three million four hundred and six thousand
seven hundred and eighty-five French francs), i.e. FRF 30,017 (thirty thousand
and seventeen French francs) per Share, (hereinafter referred to as the "Base
Price per Share"). The Base Price has been determined on the basis of a
valuation of the Company of FRF 1,400,000,000 (one billion four hundred million
French francs).
(B) Deciding Elements and Adjustment of the Price
--------------------------------------------------------------------------------
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 4
If the accounting and legal audit conducted in accordance with Article 4
(d) below (hereinafter the "Audit") reveals one or more quantifiable or
unquantifiable elements or facts, contrary to any of the deciding elements of
the acquisition of the Shares indicated in Exhibits 2A and 2B to the Share
Purchase Agreement (hereinafter the "Quantifiable Deciding Elements", the
"Unquantifiable Deciding Elements" and together the "Deciding Elements"), the
Transferee shall inform the Representative of the Transferors (as defined in
Article 9 below) thereof no later than 8 business days in France (hereinafter
the "Business Days") following the date of the end of the Audit set for October
20, 1997 at the latest, unless extended contractually (hereinafter referred to
as the "Date of the End of the Audit"). The Transferee shall attach all the
necessary information to such notification along with copies of any necessary
documentary proofs. The notification shall also include the value of the
Adjustment of the Price per Share (as defined below) claimed by the Transferee
or its intention not to carry out the acquisition of the Shares, under the
conditions set forth in this Article.
(i) Inaccuracy in respect of any of the Quantifiable Deciding Elements
If the Audit reveals one or more elements or facts in contradiction with
any one of the Quantifiable Deciding Elements, a price reduction shall be
calculated in accordance with the adjustment formula contained in Exhibit 3
(hereinafter the "Adjustment of the Price per Share"), subject, however, to the
application of the Right of Withdrawal mentioned below.
The Transferors, through the Representative of the Transferors, may notify
the Transferee, within 6 Business Days following the notification received from
the Transferee, of any dispute concerning such notification (hereinafter the
"Notification in Response"), failing which they shall be deemed to have agreed
to all the elements and to the Adjustment of the Price per Share notified by the
Transferee, as a result of an inaccuracy in respect of one or more Quantifiable
Deciding Elements. In the event of a dispute, the parties shall negotiate in
good faith in order to reach an agreement on the existence or the amount of the
Adjustment of the Price per Share.
(a) Dispute of the Amount of the Consolidated Equity at June 30, 1997 and
Absence of Dispute of the Estimated Consolidated Net Turnover at December 31,
1997 (excluding acquisitions) and Absence of an Estimate by the Transferee of an
Estimated Group Share Consolidated Net Result at December 31, 1997 of less than
FRF 30,000,000
In the event of the occurrence of the 4 following conditions which are
cumulative:
(x) dispute by the Transferors of the amount of the Consolidated Equity
at June 30, 1997 (as defined in Exhibit 2A) estimated by
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 2 to the Agreement
Share Purchase Agreement
page 5
the Transferee;
(y) absence of dispute by the Transferors of the Estimated Consolidated
Net Turnover at December 31, 1997 (excluding acquisitions) (as
defined in Exhibit 2A) estimated by the Transferee;
(z) absence of an estimate by the Transferee of an Estimated Group Share
Consolidated Net Result at December 31, 1997 (as defined in Exhibit
2A) of less than FRF 30,000,000;
(t) absence of agreement between the parties within 6 Business Days
following the Notification in Response received by the Transferee,
the amount of the Consolidated Equity at June 30, 1997 shall be settled in
accordance with the Expert Assessment Procedure (as defined below).
The Expert shall accordingly determine the Price per Share within the
period defined in Article 2. (B) (ii) below, and in any event prior to the
Closing Date, by applying the formula contained in Exhibit 3.
(b) Dispute of the Amount of the Estimated Consolidated Net Turnover at
December 31, 1997 (excluding acquisitions) without such amount being estimated
by the Transferee at less than FRF 850,000,000 and Absence of Estimate by the
Transferee of an Estimated Group Share Consolidated Net Result at December 31,
1997 of less than FRF 30,000,000
In the event of the occurrence of the 3 following conditions which are
cumulative:
(x) dispute by the Transferors of the amount of the Estimated
Consolidated Net Turnover at December 31, 1997 (excluding
acquisitions) (as defined in Exhibit 2A) estimated by the Transferee
without such amount being estimated by the Transferee at less than
FRF 850,000,000;
(y) absence of an estimate by the Transferee of an Estimated Group Share
Consolidated Net Result at December 31, 1997 (as defined in Exhibit
2A) of less than FRF 30,000,000;
(z) absence of agreement between the parties within 6 Business Days
following the Notification in Response received by the Transferee,
the amount of the Estimated Consolidated Net Turnover at December 31, 1997
(excluding acquisitions) shall be determined pursuant to the Expert Assessment
--------------------------------------------------------------------------------
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 6
Procedure.
In addition, in the event that the Transferors dispute the amount of the
Consolidated Equity at June 30, 1997 as estimated by the Transferee, and in the
absence of an agreement between the parties within 6 Business Days following the
Notification in Response received by the Transferee, the amount of the
Consolidated Equity at June 30, 1997 shall also be determined in accordance with
the Expert Assessment Procedure.
The Expert shall accordingly determine the Price per Share within the
period of time set forth in Article 2. (B) (ii) below, by applying the formula
contained in Exhibit 3.
However, in the event that the Expert is unable to determine the amount of
the Estimated Consolidated Net Turnover at December 31, 1997 (excluding
acquisitions), it would determine the Price per Share on the basis of the amount
of the Actual Consolidated Net Turnover at December 31, 1997 and the amount of
the Consolidated Equity at December 31, 1997, as the case may be.
(c) Right of Withdrawal
Notwithstanding any provision to the contrary herein, and in addition to
the provisions set forth in Article 2 (B) (iii) below, the Transferee shall be
entitled, at its election, to a right of withdrawal (hereinafter the "Right of
Withdrawal") under the following conditions.
If, at the end of a period of 6 Business Days following the Notification
in Response received by the Transferee, the parties agree that (x) the total
price of the Shares is less than or equal to FRF 388,636,545 (three hundred and
eighty-eight million six hundred and thirty-six thousand five hundred and
forty-five French francs), i.e. FRF 25,729 per Share, following the application
of the adjustment formula contained in Exhibit 3 hereto, or that (y) the
Estimated Group Share Consolidated Net Result at December 31, 1997 is less than
FRF 30,000,000, or that (z) the Estimated Consolidated Net Turnover at December
31, 1997 (excluding acquisitions) is less than FRF 850,000,000, the Transferee
may notify its decision to the Transferors to end all of the transactions
provided for herein within 6 Business Days following the parties' agreement. In
such event, this Share Purchase Agreement shall automatically lapse, as shall
any related and/or inseparable document (with the exception of the provisions of
the Agreement expressly stipulated as surviving the lapsing of this Share
Purchase Agreement), without any indemnity being due by either of the parties.
In the event that, at the end of a period of 6 Business Days following the
Notification in Response received by the Transferee, the parties disagree on any
one of the assertions made in (x), (y) or (z) above, the Closing Date shall be
postponed until the Expert fails to confirm, if such is the case, in the context
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 7
of the Expert Assessment Procedure, the reality of the assertion or assertions
made.
Should the Expert determine the reality of at least one of the assertion
or assertions made by the Transferee referred to in (x), (y) or (z) above, the
Transferee may notify the Transferors, within 6 Business Days following the
confirmation by the Expert of the reality of at least one of the assertion or
assertions made by the Transferee referred to in (x), (y) or (z) above, of its
decision to end all of the transactions provided for herein. In such a case,
this Share Purchase Agreement shall automatically lapse, as shall any related
and/or inseparable document (with the exception of the provisions of the
Agreement expressly stipulated as surviving the lapsing of this Share Purchase
Agreement), without any indemnity being due by any one of the parties.
In all cases where the Transferee does not exercise its Right of
Withdrawal recognized by the parties or the Expert, and decides to acquire the
Shares, the Price per Share shall be determined in accordance with the formula
contained in Exhibit 3 on the basis of the Actual Consolidated Net Turnover at
December 31, 1997 and the Consolidated Equity at December 31, 1997, it being
specified that if the Price per Share is unable to be determined on the Closing
Date, the amount of FRF 25,729 per Share shall be paid on such Date.
In all cases where the Transferee decides to exercise its Right of
Withdrawal, recognized by the parties or the Expert, the parties undertake to
meet in order to determine together the optimum terms and conditions for the
public announcement, if any, of the exercise of this Right of Withdrawal.
Should the Expert fail to confirm the reality of all the assertions made
by the Transferee referred to in (x), (y) and (z) above, the Transferee shall be
required to acquire the Shares. The Expert shall determine the amount of the
Estimated Consolidated Net Turnover at December 31, 1997 (excluding
acquisitions) and as required of the Consolidated Equity at June 30, 1997 and
shall deduce from it the Price per Share in accordance with the formula
contained in Exhibit 3 hereto. If the Expert, having failed to confirm the
reality of all of the assertions made by the Transferee referred to in (x), (y)
and (z) above, is however unable to determine the amount of the Estimated
Consolidated Net Turnover at December 31, 1997 (excluding acquisitions) and/or
the amount of the Estimated Group Share Consolidated Net Result at December 31,
1997, the parties agree that a sum corresponding to FRF 25,729 per Share shall
be paid on the Closing Date, the Expert being responsible for determining the
price supplement on the basis of the elements described in the following
paragraph.
In any event, if the Expert was unable to determine the amount of the
Estimated Consolidated Net Turnover at December 31, 1997 (excluding
acquisitions) and/or the amount of the Estimated Group Share Consolidated Net
Result at December 31, 1997, it would determine the Price per Share on
--------------------------------------------------------------------------------
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 8
the basis of the Actual Consolidated Net Turnover at December 31, 1997 and, as
the case may be, of the amount of the Consolidated Equity at December 31, 1997.
It shall also determine, as the case may be, the Actual Group Share Consolidated
Net Result at December 31, 1997.
(ii) Expert Assessment Procedure
For the purposes hereof, the procedure described below is called the
"Expert Assessment Procedure".
Failing an agreement within a period of 6 Business Days following the
Notification in Response received by the Transferee, as provided in Article 2.
(B) (i) above, the parties expressly agree that the existence and/or the amount
of the inaccuracy alleged by the Transferee in respect of one or more of the
Quantifiable Deciding Elements or the reality of any one of the assertions
mentioned in Article 2. (B) (i) (c) above, shall be definitively settled,
without recourse of any kind, unless an obvious material error has been made, by
Coopers & Lybrand (hereinafter the "Expert"), within a period of 30 Business
Days following:
(x) the submission of the dispute to the Expert in order to determine
the amount of the Consolidated Equity at June 30, 1997, or
(y) the submission of the dispute to the Expert in order to determine
the amount of the Estimated Consolidated Net Turnover at December
31, 1997 (excluding acquisitions), or
(z) the submission of the dispute to the Expert in order to confirm or
not confirm the reality of the assertions notified by the Transferee
pursuant to paragraphs (x), (y) or (z) of Article 2 (i) (c) above,
or
(t) the submission of the dispute to the Expert, to which shall be
attached a copy of the Company's consolidated accounts for financial
year 1997, certified by the statutory auditor, in order to determine
the amount of the Actual Consolidated Net Turnover at December 31,
1997 or the amount of the Consolidated Equity at December 31, 1997
if the Expert has for any reason whatsoever to take into
consideration the amount of the Actual Consolidated Net Turnover at
December 31, 1997 or the amount of the Consolidated Equity at
December 31, 1997 or the Actual Group Share Consolidated Net Result
at December 31, 1997.
The dispute shall be submitted to the Expert at the request of the most diligent
party in writing with a copy sent to the other parties, and one-half of the
Expert's fees shall be paid by the Transferors and the other half by the
Transferee. The party referring the dispute to the Expert shall provide the
Expert with a copy of
--------------------------------------------------------------------------------
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 9
the notifications exchanged between the parties. The Expert declared prior to
the signature hereof that it accepted this appointment. Accordingly, the Expert
shall determine the existence and/or the amount of the inaccuracy alleged by the
Transferee in respect of one or more Quantifiable Deciding Elements, the reality
of the assertions referred to in Article 2. (B) (i) (c) above, which
determination shall be binding on the parties, and the Adjustment of the Price
per Share which shall also be binding on the parties, in accordance with Article
1843-4 of the Civil Code, it being understood that not only the definitions
contained in Exhibit 2A hereto but also the adjustment formula contained in
Exhibit 3 and the accounting rules and methods contained in Exhibit 4 shall be
binding on the Expert. If the Expert was unable to complete its mission for any
reason whatsoever, with the exception of the cases in which it would be unable
to determine the amount of the Estimated Consolidated Net Turnover at December
31, 1997 (excluding acquisitions) or the amount of the Estimated Group Share
Consolidated Net Result at December 31, 1997, a new Expert chosen from the list
of experts of the Court of Appeal of Versailles would be appointed by mutual
agreement between the Transferee and the Representative of the Transferors or,
failing this, by the Presiding Judge of the Commercial Court of Nanterre to
which the matter shall be referred in summary proceedings (referes) upon the
request of the most diligent party. The Transferors and the general partner
gerants of the Company guarantee the Expert's access to the premises of the
Company and/or its Subsidiaries as the case may be and the provision by the
Company and/or its Subsidiaries to the Expert of any information that the Expert
might reasonably request in connection with the accomplishment of its mission.
(iii) Inaccuracy of any one of the Unquantifiable Deciding Elements
If the Audit reveals one or more elements or facts that are contrary to
any one of the Unquantifiable Deciding Elements, insofar as such Unquantifiable
Deciding Elements are not disclosed in Exhibit 5, the Transferee may decide not
to purchase the Shares. In such event, it shall notify the Representative of the
Transferors within 6 Business Days following the Date of the End of the Audit of
its intention not to purchase the Shares.
The elements disclosed by the Transferors in Exhibit 5 hereto (it being
observed that this Exhibit with its own Exhibits has been provided to the
Transferee on the date of signature hereof, the Transferee not having been able
to become familiar with them in a satisfactory manner, as acknowledged by the
parties) which the Transferee has not valued on the date of signature hereof,
shall not constitute the Transferee's waiver of asserting, within 6 Business
Dates following the Date of the End of the Audit, any one of such elements (and
in particular any elements contained in the Exhibits to Exhibit 5) which have or
may have a significant effect on the value or the outlook of the Company and, as
the case may be, of their being taken into consideration with respect to the
Quantifiable Deciding Elements.
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 10
In the event of a dispute by the Transferors concerning the inaccuracy in
respect of the Unquantifiable Deciding Element(s) in question, it shall be the
Transferors' responsibility to show within 10 Business Days following the
notification received from the Transferee that the Unquantifiable Deciding
Element(s) in question are in reality accurate or do not have a significant
effect on the value or outlook of the Company. The Transferors shall also have
the possibility within the same period of time of carrying out any relevant
rectification, and presenting proof thereof to the Transferee, with regard to
the Unquantifiable Deciding Element(s) in question. Failing that, this Share
Purchase Agreement shall automatically lapse, as shall any related and/or
inseparable document (with the exception of the provisions of the Agreement
expressly stipulated as surviving the lapsing of this Share Purchase Agreement),
without any indemnity being owed by either of the parties.
(C) Payment terms and conditions
(i) In the event of the determination of the Price per Share without
using the Right of Withdrawal procedure
(x) In the event of the definitive determination of the Price per
Share, as revised, as the case may be, on the Closing Date, two-thirds of the
total price of the Shares shall be paid in cash in French francs on the Closing
Date in the form of a bank check delivered to the Representative of the
Transferors, and the remaining third shall be paid in the form of promissory
notes maturing on July 1, 1998, made out to each Transferor and guaranteed by a
first rank European bank (AA or better rating), the whole to be delivered to the
Representative of the Transferors on the Closing Date.
(y) In the event that the Price per Share is not determined
definitively on the Closing Date, two-thirds of the amount of FRF 388,636,545
(three hundred and eighty-eight million six hundred and thirty-six thousand five
hundred and forty-five French francs), representing FRF 25,729 per Share, shall
be paid in cash in French francs on the Closing Date in the form of a bank check
delivered to the Representative of the Transferors and the remaining third shall
be paid in the form of promissory notes maturing on July 1, 1998, made out to
each Transferor and guaranteed by a first rank European bank (AA or better
rating), the whole to be delivered to the Representative of the Transferors on
the Closing Date.
In such event, two-thirds of the difference between the total price of the
Shares and FRF 388,636,545 (three hundred and eighty-eight million six hundred
and thirty-six thousand five hundred and forty-five French francs), increased by
interest at the rate of 4% as from the Closing Date, shall be payable to the
Representative of the Transferors within 10 Business Days following the
determination of the Price per Share, and the last third of the difference
between the total price of the Shares and FRF 366,741,166 (three
--------------------------------------------------------------------------------
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 11
hundred and sixty-six million seven hundred and forty-one thousand one hundred
and sixty-six French francs) shall be paid in the form of promissory notes
maturing on July 1, 1998, made out to each Transferor and guaranteed by a first
rank European bank (AA or better rating), delivered to the Representative of the
Transferors at the same time as the above-mentioned payment.
(ii) In the event of the determination of the Price per Share after using
the Right of Withdrawal procedure
In the event that (a) the Expert fails to confirm the reality of all the
assertions made by the Transferee referred to in (x), (y) and (z) of Article 2.
(B) (i) (c) above, or (b) the Transferee waives exercising its Right of
Withdrawal, recognized by the Expert or by mutual agreement between the parties,
the total price of the Shares, as determined by the Expert or the parties in
accordance with the provisions of Article 2. (A) and (B) above and with the
formula in Exhibit 3, shall be payable as follows:
(x) In the event of the definitive determination of the Price per
Share, as adjusted, as the case may be, on the Closing Date, two-thirds of the
total price of the Shares shall be paid in cash in French francs on the Closing
Date in the form of a bank check delivered to the Representative of the
Transferors, and the remaining third shall be paid in the form of promissory
notes maturing on July 1, 1998, made out to each Transferor and guaranteed by a
first rank European bank (AA or better rating), the whole being delivered to the
Representative of the Transferors on the Closing Date.
(y) If the Price per Share is not definitively determined on the
Closing Date, two-thirds of the amount of FRF 388,636,545 (three hundred and
eighty-eight million six hundred and thirty-six thousand five hundred and
forty-five French francs), representing FRF 25,729 per Share, shall be paid in
cash in French francs on the Closing Date in the form of a bank check delivered
to the Representative of the Transferors, and the remaining third shall be paid
in the form of promissory notes maturing on July 1, 1998, made out to each
Transferor and guaranteed by a first rank European bank (AA or better rating),
the whole being delivered to the Representative of the Transferors on the
Closing Date.
In this case, two-thirds of the difference between the total price of the
Shares and FRF 388,636,545 (three hundred and eighty-eight million six hundred
and thirty-six thousand five hundred and forty-five French francs) shall be
payable, increased by interest at the rate of 6% as from the Closing Date, to
the Representative of the Transferors within 10 Business Days following the
determination of the Price per Share, and the last third of the difference
between the total price of the Shares and FRF 388,636,545 (three hundred and
eighty-eight million six hundred and thirty-six thousand five hundred and
forty-five French francs), shall be paid in the form of promissory notes
maturing on
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 12
July 1, 1998, made out to each Transferor and guaranteed by a first rank
European bank (AA or better rating), delivered to the Representative of the
Transferors at the same time as the payment provided for above.
(iii) The Representative of the Transferors shall personally carry out all
the formalities concerning the distribution of all or part of the Price of the
Shares between the Transferors.
3. Closing Date
The Closing Date shall be no later than 10 Business Days after the
fulfillment of the last condition precedent set forth in Article 4, it being
understood that the Closing Date shall not in any event be later than December
31, 1997, unless extended contractually or in the cases provided for in Article
2. (B) (i) (c) above. In these latter cases, all of the conditions precedent
referred to in Article 4 below otherwise being fulfilled, the Closing Date shall
be no later than 10 Business Days following (i) the delivery by the Expert of
its report failing to confirm the assertions referred to in (x), (y) and (z) of
Article 2. (B) (i) (c) above or (ii) the expiration of the period for the
Transferee's exercise of the Right of Withdrawal.
On the Closing Date, the part of the total price of the Shares which is
due and payable shall be paid by the Transferee, as indicated in Article 2
above, in exchange for:
(a) delivery to the Transferee of share transfer orders duly signed by the
Transferors or by their duly authorized representative pursuant to a power of
attorney, a model of which is contained in Exhibit 10 to the Agreement, and of
all other documents required to enable the transfer of the Shares and to render
such transfers enforceable against third parties, as well as the registration in
the Company's shareholders' registers of the transfer of the Shares to the
Transferee;
(b) delivery to the Transferee of a copy of the Agreement and of all the
related documents which are not separable from such Agreement, signed (directly
or pursuant to a power of attorney) by all the prospective authorized
signatories of such Agreement or of such documents;
(c) delivery to the Transferee of a certified true copy of the minutes of
the extraordinary general shareholders' meeting of the Company, with the consent
of the general partners (i) resulting in the approval of the Transferee as
shareholder of the Company and (ii) amending the Company's by-laws in accordance
with Exhibit 6 to the Agreement, without the special benefits auditor
(commissaire aux avantages particuliers) issuing any reserves in such respect;
(d) delivery to the Transferee of a certified true copy of the minutes of
the ordinary general shareholders' meeting of the Company appointing 3 new
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 13
members of the supervisory board designated by the Transferee at least three
weeks before the Closing Date.
4. Conditions precedent
The completion of the transfer of the Shares shall be subject to the
following conditions precedent, to the exclusive benefit of the Transferee,
which means that the Transferee alone may, completely freely, waive all or part
of any one of the conditions precedent below:
(a) approval of the Transferee by the extraordinary general shareholders'
meeting of the Company with the consent of the majority of the general partners;
(b) approval by the extraordinary general shareholders' meeting of the
Company, with the unanimous consent of the general partners, of the new by-laws
of the Company in accordance with Exhibit 6 to the Agreement, the special
benefits auditor not issuing any reserves in such respect;
(c) approval by the ordinary general shareholders' meeting of the Company
of the appointment of 3 new members of the supervisory board designated by the
Transferee;
(d) completion of the Audit by the Transferee;
(e) absence of any fact coming to light before the Closing Date likely to
invalidate any one of the Quantifiable Deciding Elements or any one of the
Unquantifiable Deciding Elements;
(f) approval by the general shareholders' meeting of Willis Corroon Group
plc of the completion of the transactions provided for in this Share Purchase
Agreement and its Exhibits. In this respect, the Transferee declares, and the
Transferors acknowledge that they have been informed, that such prior approval,
as a result of British stock market regulations, is an essential condition of
its undertaking.
The conditions precedent referred to in (a), (b), (c), (e) and (f) above
shall be accomplished by December 15, 1997.
The condition precedent referred to in (d) above shall be accomplished by
October 20, 1997.
In the event that at least one of the conditions precedent is not
fulfilled within the time limit indicated above for each condition respectively,
and unless extended contractually, this transfer shall be considered to have
automatically lapsed and shall not give rise to any indemnity on either side.
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 14
5. Transfer of ownership
The Transfer to the Transferee of the ownership and the right to the
enjoyment of the Shares shall occur on the Closing Date in exchange for payment
of the price of the Shares.
6. Administration of the companies
(a) Between the date hereof and the Closing Date, the Transferors
undertake to cause the Company and the Subsidiaries to be managed in a careful
and prudent manner. Unless otherwise stipulated herein or consented to in
writing by the Transferee, the Company and the Subsidiaries shall not conclude
any undertaking nor undertake any activity outside the normal course of business
and of prior normal practice, and, in particular, the Transferors shall take all
measures necessary to ensure that (i) the Company does not decide on the
distribution or payment of dividends of the Company (the Transferors, the
Company and the general partners represent in this regard that no decision to
distribute or pay dividends of the Company has been taken since January 1, 1997
outside of the context defined by the Company's general meeting of June 12, 1997
deciding to distribute a dividend to the shareholders of FRF 11,840,000,
increased by the right to the profits due under the by-laws to the general
partners, the whole being paid by the Company prior to June 30, 1997), or (ii)
the Company and/or its Subsidiaries (x) do not amend their by-laws without WCG's
agreement, which may not be unreasonably refused, with the exception of the
amendments provided for herein or in any document attached inseparably hereto,
(y) do not issue any share, option, right or other interest and security, (z) do
not carry out any of the operations mentioned in Article 10 of the draft
resolutions contained in Exhibit 6 to the Agreement, accounted as from the date
hereof, without having previously informed and consulted the Transferee.
(b) Messrs. Lucas, Gras and Naftalski, as general partner gerants of the
Company, undertake to ensure the proper respect of this clause.
7. Representations and warranties
AGF and GS Euro Finance (the "Corporate Transferors") on the one hand and
the Transferee on the other hand have agreed to an indemnification undertaking
which is contained in Exhibit 6 hereto and which forms an integral part hereof.
It is specified that GS Euro Finance shall intervene in this Share Purchase
Agreement only for the purposes of the representations and warranties and the
indemnification undertaking insofar as GS Euro Finance otherwise transfers 680
GS Shares to the WCG Group pursuant to a Share
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 15
Exchange Agreement which is inseparable from this Share Purchase Agreement.
The Corporate Transferors acknowledge that the Transferee has relied and
shall rely on the said undertaking to enter into this Share Purchase Agreement
and the purchase of the Shares and the Exchanged GS Shares (as defined in the
Share Exchange Agreement), regardless of the investigations that have been
conducted or shall be conducted concerning the facts described in such
undertaking.
In any event, each Transferor certifies and warrants to the Transferee
that on the Closing Date, the Shares transferred by it shall be freely
transferable and free of all option rights, claims, liens, guarantees, pledges,
sureties, easements, charges or restrictions of any nature whatsoever and that
on that same Date, the Transferee shall acquire full ownership of the Shares,
free of all option rights, claims, liens, guarantees, pledges, sureties,
easements, charges or restrictions of any nature whatsoever. Each Transferor
undertakes to indemnify the Transferee for any adverse consequences and
prejudice suffered by the Transferee as a result of any violation by it of the
undertaking in this paragraph.
8. Other undertakings
(i) The Transferors represent that the fulfillment of the conditions
precedent set forth in Article 4 (a), (b), and (c) is under their control and
undertake to carry out any action necessary for such conditions to be fulfilled
as provided for by the parties.
Reciprocally, the Transferee undertakes to proceed with the Audit provided
for in Article 4 (d) above within a period of time compatible with its being
completed by October 20, 1997. In addition, the Transferee undertakes to use its
best efforts to hold the general meeting of Willis Corroon Group plc provided
for in Article 4 (f) above within the required period of time and to provide its
shareholders with sincere information with a view to voting at this general
meeting.
(ii) The Transferors or the Representative of the Transferors shall sign
all declarations, reports and all other documents that may be necessary or
useful for the final completion of the transactions set forth herein.
(iii) The general partners of the Company guarantee the provision by the
Company and/or its Subsidiaries of all documents and information that may be
reasonably requested in writing by the Transferee and/or its representatives or
counsel in the course of the Audit in order to establish its information.
(iv) Until the Closing Date, the Transferors undertake (a) not to
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 16
transfer the Shares, unless they are donated by an individual to his
descendants, (b) not to enter into discussions with any third party with a view
to transferring all or part of the GS Shares and to end any negotiation
previously started for such purpose, (c) not to pledge the Shares or use them as
collateral in any manner whatsoever, in particular by transfer to a financial
instruments account pledged in favor of any person whatsoever, and (d) more
generally, not to do anything that may be likely to prevent or delay the
effective transfer of the Shares to the Transferee on the Closing Date. The
general partners of the Company guarantee this undertaking.
9. Representative of the Transferors
The Transferors hereby expressly and irrevocably authorize Mr. Patrick
Lucas or, in the event of his impediment or death, Mr. Emmanuel Gras or, in the
event of his impediment or death, Mr. Daniel Naftalski (hereinafter referred to
as the "Representative of the Transferors") to act jointly and severally in the
name and on behalf of each of them in connection with the mission defined below:
The mission of the Representative of the Transferors shall be as follows:
(a) to take any decision concerning the price or the abandonment of the
transactions set forth herein in accordance with Article 2 above;
(b) collect any check, receive any promissory note and distribute all or
part of the total price of the Shares between the Transferors;
(c) receive any notification from the Transferee in connection with this
Share Purchase Agreement and immediately inform each of the Transferors thereof
individually;
(d) send all notices in the name and on behalf of the Transferors in
connection herewith;
(e) more generally undertake any action necessary for the performance of
the operations set forth in this Share Purchase Agreement and in any related
and/or inseparable document.
The Representative of the Transferors shall report on his mission to the
Transferors.
In this regard, the Representative of the Transferors undertakes in
particular to keep the Transferors informed of any event likely to give rise to
an indemnification under Exhibit 6 to the Share Purchase Agreement. If the
Transferors required to indemnify contest all or part of the amount of the
indemnification, the Representative of the Transferors must follow this order of
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 17
contestation, if reasonable, and keep the Transferors informed of the conduct of
the proceedings.
10. Notices
All notices to a party hereunder shall be sent in writing and shall not be
deemed duly sent as regards the notifying party unless within the required
periods of time they are:
(i) sent by registered mail with return receipt requested, with a copy
sent by fax:
For the Transferee, to:
Willis Corroon Group Plc
10 Trinity Square
London EC3P 3AX
United Kingdom
For the attention of the Company Secretary
Fax 00 44 171 488 88 82
and
Fax 00 44 171 481 71 83
For the Transferors, to the Representative of the Transferors;
Patrick Lucas
Gras Savoye & Cie
2, rue Ancelle
92200 Neuilly sur Seine
Fax 01 41 43 69 85
or, in the event of his impediment or death,
Emmanuel Gras
Gras Savoye & Cie
2, rue Ancelle
92200 Neuilly sur Seine
Fax 03 20 42 43 59
or, in the event of his impediment or death,
Daniel Naftalski
Gras Savoye & Cie
2, rue Ancelle
92200 Neuilly sur Seine
Fax 01 41 43 69 09
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Exhibit 2 to the Agreement
Share Purchase Agreement
page 18
with a copy to
the Directeur General Adjoint Administration et Finances
Gras Savoye & Cie
2, rue Ancelle
92200 Neuilly sur Seine
Fax 01 41 43 69 06
or to such other address as the Transferee or the Representative of the
Transferors may designate by notice in accordance with this article, or
(ii) hand delivered to a representative of the Transferee whose name is
indicated above or to the Representative of the Transferors in exchange for a
signed receipt.
All notices made as indicated above shall be effective as regards the
notified party or parties on the date on which they are presented for the first
time for delivery (in the event they are sent by registered mail with return
receipt requested) or on which they are delivered (in the event of hand delivery
in exchange for a signed receipt).
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Exhibit 1
to the Share Purchase Agreement
EXHIBIT 1 TO THE SHARE PURCHASE AGREEMENT
LIST OF SUBSIDIARIES
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Exhibit 2A
to the Share Purchase Agreement
EXHIBIT 2A TO THE SHARE PURCHASE AGREEMENT
QUANTIFIABLE DECIDING ELEMENTS
A. Quantifiable Deciding Elements to be verified by the Transferee during the
Audit
Quantifiable Deciding Element Reference Value (FRF)
Consolidated Equity at June 30, 1997 234,600,000
Estimated Consolidated Net Turnover at
December 31, 1997 (excluding acquisitions) 950,000,000
Estimated Group Share Consolidated Net Result
at December 31, 1997 59,500,000
B. Quantifiable Deciding Elements intended to be taken into consideration by
the parties or the Expert, as the case may be, in accordance with Article
2 of the Share Purchase Agreement
Quantifiable Deciding Element Reference Value (FRF)
Consolidated Equity at June 30, 1997 234,600,000
Consolidated Equity at December 31, 1997 234,600,000
Estimated Consolidated Net Turnover at
December 31, 1997 (excluding acquisitions) 950,000,000
Actual Consolidated Net Turnover at December 31, 1997 1,000,000,000
Estimated Group Share Consolidated Net Result
at December 31, 1997 59,500,000
Actual Group Share Consolidated Net Result at
December 31, 1997 59,500,000
Definitions of the Quantifiable Deciding Elements (attached below)
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Exhibit 2A
to the Share Purchase Agreement
EXHIBIT 2A TO THE SHARE PURCHASE AGREEMENT
ACCOUNTING NOTE - DEFINITIONS
[Translation to be provided by Ernst & Young]
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Exhibit 3 to the Agreement
Promise to Buy
page 1
EXHIBIT 3 TO THE AGREEMENT
PROMISE TO BUY
BETWEEN THE UNDERSIGNED
WILLIS CORROON GROUP PLC, an English law company whose registered office is at
10, Trinity Square, London EC3P 3AX, Great Britain, registered with the England
and Wales Company Registration Office under number 621757,
hereinafter referred to as the "Promisor " or "WCG"
ON THE ONE HAND,
THE SHAREHOLDERS OF GRAS SAVOYE & CIE referred to in Exhibit A hereto,
hereinafter collectively referred to as the "Beneficiaries "
ON THE OTHER HAND,
WHEREAS
By virtue of an agreement entered into on this day between the Beneficiaries,
the Corporate Beneficiaries and the Promisor (hereinafter the "Agreement"), it
has notably been agreed that the Promisor shall grant to the Beneficiaries a
promise to buy covering all of their shareholding in the Company (as defined in
Article 1) in accordance with the terms and conditions of the present Contract.
IT IS THEREFORE AGREED AS FOLLOWS
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Exhibit 3 to the Agreement
Promise to Buy
page 2
1. DEFINITIONS
The terms and expressions beginning with a capital letter and not defined in the
present Contract shall have the meaning ascribed to them in the Agreement.
For purposes of the present Contract, the words and expressions below shall have
the following meanings:
GS Share Purchase Agreement means the agreement in Exhibit 2 to the Agreement.
Promise to Sell No. 2 means the contract entered into on this day between WCG
and Patrick Lucas, Emmanuel Gras and Daniel Naftalski, attached as Exhibit 5 to
the Agreement.
Closing Date means the date on which the Promisor or any company of the WCG
Group has acquired the Initial Shareholding.
Exceptional Event means any event whose origin was prior to the Closing Date and
whose existence was unknown at the Closing Date and which, between the Closing
Date and the three (3) years following the Closing Date, had the effect of
reducing the Consolidated Equity by FRF 234,600,000.
Business Day means any business day in France with the exception of any public
holiday or day of rest in accordance with the legislation and regulations
applicable in France.
Company means Gras Savoye & Cie, societe en commandite par actions with a
capital of FRF 9,952,000 divided into 49,760 shares of FRF 200 each, whose
registered office is at 2, rue Ancelle (92200) Neuilly sur Seine and which is
registered with the Nanterre Commercial and Companies Registry under number B
457 509 867.
2. UNILATERAL PROMISE TO BUY
The Promisor hereby promises to each of the Beneficiaries, who accept such
promise solely as a promise, to acquire, subject to ordinary legal guarantees
and the prior satisfaction of the preemption right granted to the shareholders
of the Company in accordance with the provisions of Article 9 (II) (2) (B) of
the Company's by-laws, the shares of the Company which are referred to in
Article 3, in accordance with the terms and conditions defined in the present
Contract (hereinafter, the "Option").
The Promisor may substitute any company of the WCG Group for itself provided
that it remains the guarantor thereof and provided that the company which has
been substituted for the Promisor undertakes in writing in favor of the
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Exhibit 3 to the Agreement
Promise to Buy
page 3
beneficiaries of Promise to Sell No. 2 to comply with the terms of such Promise.
3. SHARES
The Option shall cover all of the shares of the Company referred to below
(hereinafter the "Shares").
(a) All of the fully paid in, negotiable and non-amortized shares held on this
day by each of the Beneficiaries and referred to in Exhibit A hereto.
(b) In addition, if the shares of the Company referred to in subparagraph (a)
above were to be exchanged as a result of a merger, scission,
transformation of the Company or for any other reason, the Option shall
automatically cover all substituted equity interests deriving from such
shares in the Company. More generally, the Option shall cover all
transferable securities or all equity interests issued by the Company
between the date hereof and the date of exercise of the Option and which
have been acquired by any means by the Beneficiaries between the date
hereof and the date of exercise of the Option.
(c) Notwithstanding the provisions of subparagraphs (a) and (b) above, and for
as long as Patrick Lucas remains a general partner of the Company, the
exercise of this Option by Patrick Lucas may not cause his shareholding in
the Company's capital to fall to below five percent (5%) of the Company's
capital on the day of exercise of the Option, it being understood that
this minimum percentage shareholding of five percent (5%) of the Company's
capital may be held by Patrick Lucas either in full ownership or in
beneficial ownership provided that the ownership without use is kept by
his descendants.
(d) Notwithstanding the provisions of subparagraphs (a) and (b) above, and for
as long as Emmanuel Gras remains a general partner of the Company, the
exercise of this Option by Emmanuel Gras may not cause his shareholding in
the Company's capital to fall to below five percent (5%) of the Company's
capital on the day of exercise of the Option, it being understood that
this minimum percentage shareholding of five percent (5%) in the Company's
capital may be held by Emmanuel Gras either in full ownership or in
beneficial ownership provided that the ownership without use is kept by
his descendants.
(e) Notwithstanding the provisions of subparagraphs (a) and (b) above, and for
as long as Daniel Naftalski remains a general partner of the Company, the
exercise of this Option by Daniel Naftalski may not cause his shareholding
in the Company's capital to fall to below 0.26% of the Company's capital
on the day of exercise of the Option, it being understood that this
minimum percentage shareholding of 0.26% in the
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Exhibit 3 to the Agreement
Promise to Buy
page 4
Company's capital may be held by Daniel Naftalski either in full ownership
or in beneficial ownership provided that the ownership without use is kept
by his descendants.
4. TERM OF THE OPTION
The Option is granted for a period of twelve (12) years as from the Closing
Date. It shall terminate in advance, as necessary, as from the earlier of the
two following dates: (i) the date of the declaration of insolvency (cessation de
paiements) made by the legal representative of the Company or of the Main
Companies, with the exception of GS Re, or (ii) the date of the judgment
establishing the insolvency (cessation de paiements) of the Company or of the
Main Companies, with the exception of GS Re (hereinafter, the "Term of the
Option").
5. PERIOD OF EXERCISE OF THE OPTION
The Option may not be exercised for a period of three (3) years as from the
Closing Date (hereinafter the "Exemption Period"). Upon the expiration of the
Exemption Period, the Option may be exercised, in one or more operations, at any
time during the Term of the Option.
However, the occurrence of the death or any circumstance which results in the
total or permanent partial at least fifty percent (50%) invalidity of any one of
the Beneficiaries during the Exemption Period will authorize the Beneficiary
concerned or, depending on the case, his or her spouse, heirs or assigns, to
exercise the Option, wholly or partially, at any time from the occurrence of the
relevant circumstance (hereinafter, the "Period of Exercise of the Option").
6. EXERCISE OF THE OPTION
Each of the Beneficiaries may, in one or more times, exercise the Option by
sending to the attention of the Promisor, with a copy to the Representative (as
defined in Article 9), in accordance with the provisions of Article 11, a
written notification conforming to the model attached hereto as Exhibit B
(hereinafter "Notification No. 1").
In the event of exercise of the Option, the Beneficiary or Beneficiaries
concerned will also inform the Company of the proposed transfer by sending to
the Company, in accordance with the provisions of Article 9 (II) (2) (B) of the
Company's by-laws, a written notification conforming to the model attached
hereto as Exhibit C (hereinafter "Notification No. 2"). In the event of the
exercise of the preemption right by the shareholders of the Company on a portion
of the Shares, the actual transfer of the Shares to the transferee
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Exhibit 3 to the Agreement
Promise to Buy
page 5
hereunder shall cover the balance of the Shares on which the Option has been
exercised.
Each Beneficiary certifies and warrants to the Promisor that on the date of
actual transfer of the Shares on which the Option has been exercised, the Shares
transferred by such Beneficiary shall be freely negotiable and free of all
option rights, claims, liens, guarantees, pledges, sureties, easements, charges
or restrictions of any nature and that on that same date, the transferee of such
Shares will acquire full ownership thereof, free of all option rights, liens,
guarantees, pledges, sureties, easements, charges or restrictions of any nature.
Each Beneficiary undertakes to indemnify the transferee of the Shares for any
adverse consequences and prejudice suffered by the transferee of the Shares due
to any violation by such Beneficiary of the undertaking of the present
paragraph.
Furthermore, each Beneficiary undertakes to take all necessary measures so that
the Option for the Shares on which the ownership without use and the beneficial
ownership are not held by the same Beneficiary is exercised simultaneously by
the Beneficiaries holding the ownership without use and the beneficial ownership
of such Shares such that the full ownership pertaining to such Shares is
acquired by WCG or any other company of the WCG Group. In this regard, it is
specified that if the Beneficiaries concerned are not able to propose to the
Promisor Shares whose ownership without use and beneficial ownership can be
immediately grouped together after the transfer by the Promisor, the Promisor
will not in any manner be obligated to acquire the ownership without use or the
beneficial ownership of the corresponding Shares.
The transferee of the Shares hereunder will acquire the right to full enjoyment
of the Shares on which the Option has been exercised with all the attached
rights to dividends on the date of the delivery by the Representative (as
defined in Article 9) of the corresponding share transfer order(s) against
payment of the price.
If the Option is not exercised by the Beneficiaries during the Period of
Exercise of the Option, such Option shall be deemed to have lapsed, without any
right of indemnity for either party.
7. PRICE
The price per Share to be paid under the present Option (hereinafter the
"Transfer Price") shall be:
(a) with regard to any transfer resulting from an exercise of the Option which
is notified before the third anniversary of the Closing Date, the Price
per Share of the Company, as defined in the GS Share Purchase Agreement,
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Exhibit 3 to the Agreement
Promise to Buy
page 6
(b) with regard to any transfer resulting from an exercise of the Option which
is notified after the third anniversary and before the sixth anniversary
of the Closing Date, the greater of the two following amounts:
(i) the Price per Share of the Company as defined in the GS Share
Purchase Agreement, reduced, if relevant, in the event of the
occurrence of an Exceptional Event, by an amount of FRF 5,030 per
Share (i.e., 234,600,000/46,640), and
(ii) the price calculated between April 15 and April 30 of each year and,
for the first time, between April 15 and April 30, 2000, according
to the formula provided for in Exhibit D, it being understood that
this price shall be applicable to any transfer of Shares under the
present Option until the establishment of the price which is based
on the accounts of the following year and is calculated according to
the same formula and in the same time period,
(c) with regard to any transfer resulting from an exercise of the Option which
is notified after the sixth anniversary of the Closing Date, the price
calculated between April 15 and April 30 of each year according to the
formula provided for in Exhibit D, it being understood that this price
shall be applicable to any transfer of Shares under the present Option
until the establishment of the price which is based upon the accounts of
the following year and is calculated according to the same formula and in
the same time period.
The Transfer Price of the Shares for which the Option has been exercised will be
payable in cash, within forty-five (45) calendar days of the date of
Notification No. 1, by bank check denominated in French francs, against delivery
by the Representative (as defined in Article 9) to the transferee of the Shares
of the corresponding duly signed share transfer order(s) in favor of the
transferee of the Shares, subject to the Beneficiaries' respecting their
undertakings hereunder and the obtaining of any government or administrative
authorization which may be necessary. However, if, due to the exercise of this
Option or of the Options deriving from Exhibits 3 bis and 3 ter to the
Agreement, the Promisor has to pay over a 12-month period an aggregate amount
which is greater than one hundred and fifty million francs, the transfer price
of the Shares under this Option and the Options deriving from Exhibits 3 bis and
3 ter mentioned above shall be payable in cash within ninety (90) calendar days
of the date of Notification No. 1, according to the same conditions as those
indicated above.
In the event that the transfer of the Shares pursuant hereto is subject to the
obtaining of any government or administrative authorization, the Promisor and
the Beneficiaries shall mutually provide all assistance, exchange all
information,
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Exhibit 3 to the Agreement
Promise to Buy
page 7
sign all documents and, more generally, do all that is necessary or useful so
that the competent authority may rapidly decide upon the contemplated
transaction.
8. BENEFIT OF THE OPTION
In the event of the death of a Beneficiary, the Option shall be deemed to be
transferred to his/her spouse, heirs and/or all other assigns, even though they
may be minors or otherwise legally incapable, without any other formality being
necessary aside from the notification to the Promisor of the identity of such
spouse, heirs and/or assigns and the number of Shares allotted to each of them.
In the event of a gift made by a Beneficiary of all or part of his/her Shares,
whether such gift is made in full ownership or in ownership without use, and
subject to the provisions of the Company's by-laws, notably including Article 9
of such by-laws, the Option shall be deemed to be transferred to the donees
without any other formality being necessary aside from the notification to the
Promisor of the identity of such donees and the number of Shares allotted in
full ownership or ownership without use to each of them.
9. POWER OF REPRESENTATION
At the Promisor's request, the Beneficiaries expressly grant an irrevocable
power to Patrick Lucas or, in the case of his impediment or death, to Emmanuel
Gras or, in the case of his impediment or death, to Daniel Naftalski
(hereinafter the "Representative"), to act jointly and severally in the name and
on behalf of each of them within the framework of the mission defined as
follows:
(a) make any decision regarding the Transfer Price,
(b) in the event of the exercise of the Option, deliver to the transferee of
the Shares hereunder the share transfer order(s) corresponding to the
Shares transferred, in return for the check(s) made out to each of the
Beneficiaries concerned.
10. EXPENSES - DUTIES - REGISTRATION
Each party shall bear the fees and expenses of its own counsel with regard to
the performance of the present Contract.
All other expenses, duties and taxes of any nature resulting from the signature
or the performance of the present Contract shall be borne exclusively by the
Promisor which so agrees.
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Exhibit 3 to the Agreement
Promise to Buy
page 8
11. NOTICES
Unless specifically provided otherwise, all notifications, requests,
applications, claims or other communications authorized or required under the
present Contract (other than those which must be made in application of the
by-laws of the Company) will as far as the notifying party is concerned be duly
made if, within the required time period, they are delivered by hand in return
for a release or sent by registered mail with return receipt requested to the
addresses appearing above or to any other address notified beforehand in
accordance with the provisions of the present Article.
For purposes of this Contract, the notification date shall, as far as the
notified party is concerned, be deemed to be the date of remittance, in the case
of notification by hand, and the date of first presentation, in the case of
notification by registered mail with return receipt requested.
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EXHIBIT A TO EXHIBIT 3 OF THE AGREEMENT
LIST OF BENEFICIARIES AND SHARES OF THE BENEFICIARIES
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EXHIBIT B TO EXHIBIT 3 OF THE AGREEMENT
MODEL OF NOTIFICATION NO 1
At [_____], on [_____]
To: Willis Corroon PLC
Attention: [_____]
10 Trinity Square
London EC3P 3AX
Great Britain
Copy to: Patrick Lucas
Emmanuel Gras
Daniel Naftalski
(hereinafter the "Representative")
Registered letter with return receipt requested
Re: Exercise of the Promise to Buy of [_____], 1997
Gentlemen:
(1) The undersigned (indicate full name of the signatory), acting as holder of
the full ownership/ownership without use/beneficial ownership of the
[_____] shares of Gras Savoye & Cie, hereby declares that it transfers to
Willis Corroon Group PLC or to any other company of the WCG Group, the
full ownership/ownership without use/beneficial ownership of the [_____]
shares of Gras Savoye & Cie which it holds, in accordance with the terms
and conditions of the promise to buy dated [_____], 1997.
(2) In this regard, the undersigned informs Gras Savoye & Cie of the present
transfer in accordance with the provisions of Article 9 (II) (2) (B) of
such company's by-laws by letter dated this day.
(3) Consequently the undersigned:
(i) invites the Representative to take, as necessary, any decision
relating to the purchase price of the [_____] shares hereby
transferred, and
(ii) requires Willis Corroon Group PLC or any company of the WCG Group to
pay the transfer price within forty-five (45) calendar days
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 to the Agreement
Promise to Buy
page 11
of the date of this notification by remittance to the Representative
of a bank check denominated in French francs made out to the
undersigned against the delivery by such Representative of the share
transfer order covering the transfer to Willis Corroon Group PLC or
any other company of the WCG group of the [_____] shares hereby
transferred.
(4) All of the foregoing is conditional upon obtaining any government or
administrative authorization which may be necessary for purposes of this
transfer.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT C TO EXHIBIT 3 TO THE AGREEMENT
MODEL OF NOTIFICATION No 2
At [_____], on [_____]
To: Gras Savoye & Cie
2, rue Ancelle
92200 Neuilly sur Seine
Registered letter with return receipt requested
Re: Proposed transfer of shares
Gentlemen:
The undersigned (indicate full name of the signatory), acting as holder of the
full ownership/ownership without use/beneficial ownership of the [_____] shares
of Gras Savoye & Cie, respectfully informs you, in accordance with the
provisions of Article 9 (II) (2) (B) of the by-laws of Gras Savoye & Cie, of its
intention to transfer to Willis Corroon Group PLC or to any other company of the
WCG Group the full ownership/ownership without use/beneficial ownership of the
[_____] shares of Gras Savoye & Cie which it holds, at the price of FRF
[_______] per share, in accordance with the terms and conditions of the promise
to buy dated [_____], 1997.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT D TO EXHIBIT 3 TO THE AGREEMENT
TRANSFER PRICE DETERMINATION FORMULA
Price per Share =
(60% x 1.4 x (CA n + CA n-1) x 0.5 + 40% x K x (RN n + RN n-1) x 0.5)
---------------------------------------------------------------------
N
where
- CA is the Consolidated Net Turnover at December 31 of the Gras Savoye
Group, as defined in Exhibit 2A to the Share Purchase Agreement,
- n and n-1 are the reference financial years, n being the last closed
financial year and n-1 the next before last closed financial year,
- K = (CB/E(n))
CB = the Willis Corroon Group's average daily end of session stock
market capitalizations quoted on the London Stock Exchange during
the 12 months preceding March 30 of the year during which the option
price is determined.
E = Consolidated Net Result at December 31 of the Willis Corroon Group
being defined as the "earnings for the financial year" of the
financial year being considered as published, adjusted by the
elements included in the definition (given in Exhibit 2 A to the
Share Purchase Agreement) of the Group Share Consolidated Net
Result.
In any event, the value taken for K may never be less than 14 or
more than 18, it being understood that in the event that Willis
Corroon Group is absorbed by another company listed on the London
Stock Exchange, the K calculated will be that of such company. If K
is unable to be determined, it will be determined by the Expert
based on the corresponding data of the five leading insurance
brokers world-wide listed on a regulated market.
- RN is the Consolidated Net Result of the Gras Savoye Group as defined in
Exhibit 2A to the Share Purchase Agreement
- N = the number of shares composing the capital of Gras Savoye & Cie
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 to the Agreement
Promise to Buy
Exhibit D
page 14
on the date of the close of financial year n, excluding any self-held
shares.
Between April 15 and April 30 of each year, and for the first time in 2000, the
Representative (as defined in Article 9 of Exhibit 3 to the Agreement) shall
notify WCG (hereinafter "Notification A") of the Transfer Price obtained from
the application of the above formula (hereinafter the "Notified Price") and
shall attach to Notification A all necessary supporting documentation.
Within ten (10) Business Days following the date of Notification A, WCG may
notify the Representative of any dispute concerning the Notified Price
(hereinafter "Notification B"). Failing this, WCG shall be deemed to have
accepted the Notified Price.
In the event that WCG disputes the Notified Price, WCG and the Representative
shall negotiate in good faith to reach an agreement on the Transfer Price.
Upon failure to agree within ten (10) Business Days following the date of
Notification B, the parties expressly agree that the Transfer Price shall be
fixed definitively and without any possible recourse, except for an obvious
material error, by Coopers & Lybrand (hereinafter the "Expert") within thirty
(30) business days of the matter being referred to such Expert.
The matter shall be referred to the Expert by the most diligent party and
one-half of the expenses incurred in this regard shall be borne by the Promisor
and the other half by the Beneficiaries. The party referring the matter to the
Expert shall provide the Expert with a copy of the Notifications exchanged
between the parties. The Expert shall determine the Transfer Price by applying
the above formula and its decision shall be binding on the parties in accordance
with Article 1843-4 of the Civil Code. If the Expert is unable to complete its
mission for any reason whatsoever, a new Expert chosen from the list of experts
of the Court of Appeal of Versailles would be appointed by mutual agreement
between the Representative and the Promisor or, failing this, by the Presiding
Judge of the Commercial Court of Nanterre to which the matter shall be referred
in summary proceedings (referes) upon the request of the most diligent party.
The Representative and the general partners of the Company guarantee the
Expert's access to the premises of the Company and/or of its Subsidiaries and
that the Expert will be provided by the Company and/or the Subsidiaries with any
information which it might reasonably request in the context of the
accomplishment of its mission.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 bis to the Agreement
Promise to Buy
page 1
EXHIBIT 3 BIS TO THE AGREEMENT
PROMISE TO BUY
BETWEEN THE UNDERSIGNED
WILLIS CORROON GROUP PLC, an English law company whose registered office is at
10, Trinity Square, London EC3P 3AX, Great Britain, registered with the England
and Wales Company Registration Office under number 621757,
hereinafter referred to as the "Promisor " or "WCG"
ON THE ONE HAND,
ATHENA, a French law company whose registered office is at 53-55, rue de la
Boetie, 75008 Paris, registered with the Paris Commercial and Companies Registry
under number B 304 951 833,
hereinafter referred to as "Athena "
ON THE OTHER HAND,
WHEREAS
By virtue of an agreement entered into on this day between the shareholders of
the Company, including Athena, and the Promisor (hereinafter the "Agreement"),
it has notably been agreed that the Promisor shall grant to Athena a promise to
buy covering all of its shareholding in the Company (as defined in Article 1) in
accordance with the terms and conditions of the present Contract.
IT IS THEREFORE AGREED AS FOLLOWS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 bis to the Agreement
Promise to Buy
page 2
1. DEFINITIONS
The terms and expressions beginning with a capital letter and not defined in the
present Contract shall have the meaning ascribed to them in the Agreement and
its Exhibits.
For purposes of the present Contract, the words and expressions below shall have
the following meanings:
Corporate Beneficiary means (i) any insurance company which conducts an activity
referred to in Article 310-1 of the Insurance Code, any company which is under
the direct or indirect control of such an insurance company and or any company
which directly or indirectly controls one or more insurance companies, and (ii)
holds shares in the Company (including Athena).
GS Share Purchase Agreement means the agreement in Exhibit 2 to the Agreement;
Closing Date means the date on which the Promisor or any company of the WCG
Group has acquired the Initial Shareholding.
Indemnification Undertaking means, by incorporation for purposes of this
promise, the undertaking contained in Exhibit 6 to the GS Share Purchase
Agreement, it being specified that the definition of "Corporate Transferors"
also includes Athena.
Business Day means any business day in France with the exception of any public
holiday or day of rest in accordance with the legislation and regulations
applicable in France.
Promise to Sell No. 1 means the contract entered into on this day between WCG
and the shareholders of the Company including Athena, attached as Exhibit 4 to
the Agreement;
Promise to Sell No. 2 means the contract entered into on this day between WCG
and Patrick Lucas, Emmanuel Gras and Daniel Naftalski, attached as Exhibit 5 to
the Agreement;
Company means Gras Savoye & Cie, societe en commandite par actions with a
capital of FRF 9,952,000 divided into 49,760 shares of FRF 200 each, whose
registered office is at 2, rue Ancelle (92200) Neuilly sur Seine and which is
registered with the Nanterre Commercial and Companies Registry under number B
457 509 867.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 bis to the Agreement
Promise to Buy
page 3
2. UNILATERAL PROMISE TO BUY
The Promisor hereby promises to Athena, which accepts such promise solely as a
promise, to acquire, subject to ordinary legal guarantees and the prior
satisfaction of the preemption right granted to the shareholders of the Company
in accordance with the provisions of Article 9 (II) (2) (B) of the Company's
by-laws, all of the shares of the Company which Athena will own (hereinafter the
"Shares") on the date on which the rights granted pursuant to this promise are
exercised, in accordance with the terms and conditions defined in the present
Contract (hereinafter, the "Option").
If the shares of the Company referred to above were to be exchanged following a
merger, scission, transformation of the Company or for any other reason, the
Option shall automatically be extended to all the substituted equity interests
deriving from such shares of the Company. More generally, the Option shall be
extended to all the marketable securities or all the equity interests issued by
the Company between the date hereof and the date of exercise of the Option which
may have been acquired by any means by the Beneficiary between the date hereof
and the date of exercise of the Option.
The Promisor may substitute any company of the WCG Group for itself provided
that it remains the guarantor thereof and provided that the company which has
been substituted for the Promisor undertakes in writing in favor of the
beneficiaries of Promise to Sell No. 2 to comply with the terms of such Promise
and in favor of Athena to respect the terms of this Promise.
Athena may substitute for itself, subject to being the guarantor thereof, any
company of the Athena group which shall have become the owner of the Shares on
the date of exercise of the Option. A company shall be deemed to belong to the
Athena group if it is under the control of, is controlled by, or is under common
control with, Athena, control being defined in accordance with Article 355-1 of
the law on commercial companies.
3. TERM OF THE OPTION
The Option is granted for a period of twelve (12) years as from the Closing
Date. It shall terminate in advance, as necessary, as from the earlier of the
two following dates: (i) the date of the declaration of insolvency (cessation de
paiements) made by the legal representative of the Company or of the Main
Companies, with the exception of GS Re, or (ii) the date of the judgment
establishing the insolvency (cessation de paiements) of the Company or of the
Main Companies, with the exception of GS Re (hereinafter, the "Term of the
Option").
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 bis to the Agreement
Promise to Buy
page 4
4. PERIOD OF EXERCISE OF THE OPTION
The Option may not be exercised for a period of three (3) years as from the
Closing Date (hereinafter the "Exemption Period"). Upon the expiration of the
Exemption Period, the Option may be exercised, in one or more operations, at any
time during the Term of the Option. However, the Option may be exercised during
the Exemption Period insofar as the shareholding of Athena (or of the company of
the Athena group substituted for Athena) in the Company's capital has been
reduced, for any reason whatsoever other than due to a transfer (in any manner
whatsoever: contribution, sale, etc.) of shares by Athena (or by the company of
the Athena group substituted for Athena), with the exception of a transfer
resulting from the exercise of Promise to Sell No. 1, to an amount less than 10%
of the Company's capital (hereinafter the "Period of Exercise of the Option").
5. EXERCISE OF THE OPTION
Athena (or the company of the Athena group substituted for Athena) may, in one
or more times, exercise the Option by sending a written notification to the
attention of the Promisor, in accordance with the provisions of Article 8
(hereinafter "Notification No. 1").
In the event of exercise of the Option, Athena will also inform the Company of
the proposed transfer by sending a written notification to the Company, in
accordance with the provisions of Article 9 (II) (2) (B) of the Company's
by-laws, (hereinafter "Notification No. 2"). In the event of the exercise of the
preemption right by the shareholders of the Company on a portion of the Shares,
the actual transfer of the Shares to the transferee hereunder shall cover the
balance of the Shares on which the Option has been exercised.
Athena certifies and warrants to the Promisor that on the date of actual
transfer of the Shares on which the Option has been exercised, such Shares shall
be freely negotiable and free of all option rights, claims, liens, guarantees,
pledges, sureties, easements, charges or restrictions of any nature and that on
that same date, the transferee of such Shares will acquire full ownership, free
of all option rights, claims, liens, guarantees, pledges, sureties, easements,
charges or restrictions of any nature. Athena undertakes to indemnify the
transferee of the Shares for any adverse consequences and prejudice suffered by
the transferee of the Shares due to any violation by it of the undertaking of
the present paragraph.
The transferee of the Shares hereunder will acquire the right to full enjoyment
of the Shares on which the Option has been exercised with all attached rights to
dividends on the date of the delivery by Athena of the corresponding share
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 bis to the Agreement
Promise to Buy
page 5
transfer order against payment of the price.
If the Option is not exercised by Athena during the Period of Exercise of the
Option, such Option shall be deemed to have lapsed, without any right of
indemnity for either party.
6. PRICE
The price per Share to be paid under the present Option (hereinafter, the
"Transfer Price") shall be:
(a) with regard to any transfer resulting from an exercise of the Option which
is notified before the third anniversary of the Closing Date, the Price
per Share of the Company, as defined in the GS Share Purchase Agreement
reduced, if necessary, by any amount which should have been paid by Athena
under the Indemnification Undertaking, until each date of exercise of this
Option, if the Shares for which the Option has been exercised had been
transferred by Athena on the Closing Date,
(b) with regard to any transfer resulting from an exercise of the Option which
is notified after the third anniversary and before the sixth anniversary
of the Closing Date, the greater of the two following amounts:
(i) the Price per Share of the Company as defined in the GS Share
Purchase Agreement, reduced, if relevant, by any amount which should
have been paid under the Indemnification Undertaking, until each
date of exercise of this Option, if the Shares for which the Option
has been exercised had been transferred by Athena on the Closing
Date,
(ii) the price calculated between April 15 and April 30 of each year and,
for the first time, between April 15 and April 30, 2000, according
to the formula provided for in Exhibit D, it being understood that
this price shall be applicable to any transfer of Shares under the
present Option until the establishment of the price which is based
on the accounts of the following year and is calculated according to
the same formula and in the same time period,
(c) with regard to any transfer resulting from an exercise of the Option which
is notified after the sixth anniversary of the Closing Date, the price
calculated between April 15 and April 30 of each year according to the
formula provided for in Exhibit D, it being understood that this price
shall be applicable to any transfer of Shares under the present Option
until the establishment of the price which is based upon the accounts of
the
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 bis to the Agreement
Promise to Buy
page 6
following year and is calculated according to the same formula and in
the same time period.
The Transfer Price of the Shares for which the Option has been exercised will be
payable in cash, within forty-five (45) calendar days of the date of
Notification No. 1, by bank check denominated in French francs, against delivery
by Athena to the transferee of the Shares of the corresponding duly signed share
transfer order(s) in favor of the transferee of the Shares, subject to Athena's
respecting its undertakings hereunder and the obtaining of any government or
administrative authorization which may be necessary. However, if, due to the
exercise of this Option or of the Options deriving from Exhibits 3 and 3 ter to
the Agreement, the Promisor has to pay over a 12-month period an aggregate
amount which is greater than one hundred and fifty million francs, the transfer
price of the Shares under this Option and the Options deriving from Exhibits 3
and 3 ter mentioned above shall be payable in cash within ninety (90) calendar
days of the date of Notification No. 1, according to the same conditions as
those indicated above.
In the event that the transfer of the Shares pursuant hereto is subject to the
obtaining of any government or administrative authorization, the Promisor and
Athena shall mutually provide all assistance, exchange all information, sign all
documents and, more generally, do all that is necessary or useful so that the
competent authority may rapidly decide upon the contemplated transaction.
7. EXPENSES - DUTIES - REGISTRATION
Each party shall bear the fees and expenses of its own counsel with regard to
the performance of the present Contract.
All other expenses, duties and taxes of any nature resulting from the signature
or the performance of the present Contract shall be borne exclusively by the
Promisor which so agrees.
8. NOTICES
Unless specifically provided otherwise, all notifications, requests,
applications, claims or other communications authorized or required under the
present Contract (other than those which must be made in application of the
by-laws of the Company) will as far as the notifying party is concerned be duly
made if, within the required time period, they are delivered by hand in return
for a release or sent by registered mail with return receipt requested to the
addresses appearing above or to any other address notified beforehand in
accordance with the provisions of the present Article.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 bis to the Agreement
Promise to Buy
page 7
For purposes of this Contract, the notification date shall, as far as the
notified party is concerned, be deemed to be the date of remittance, in the case
of notification by hand, and the date of first presentation, in the case of
notification by registered mail with return receipt requested.
--------------------------------------------------------------------------------
EXHIBIT D TO EXHIBIT 3 TO THE AGREEMENT
TRANSFER PRICE DETERMINATION FORMULA
Price per Share =
(60% x 1.4 x (CA n + CA n-1) x 0.5 + 40% x K x (RN n + RN n-1) x 0.5)
---------------------------------------------------------------------
N
where
- CA is the Consolidated Net Turnover at December 31 of the Gras Savoye
Group, as defined in Exhibit 2A to the Share Purchase Agreement,
- n and n-1 are the reference financial years, n being the last closed
financial year and n-1 the next before last closed financial year,
- K = (CB/E(n))
CB = the Willis Corroon Group's average daily end of session stock
market capitalizations quoted on the London Stock Exchange during
the 12 months preceding March 30 of the year during which the option
price is determined.
E = Consolidated Net Result at December 31 of the Willis Corroon Group
being defined as the "earnings for the financial year" of the
financial year being considered as published, adjusted by the
elements included in the definition (given in Exhibit 2 A to the
Share Purchase Agreement) of the Group Share Consolidated Net
Result.
In any event, the value taken for K may never be less than 14 or
more than 18, it being understood that in the event that Willis
Corroon Group is absorbed by another company listed on the London
Stock Exchange, the K calculated will be that of such company. If K
is unable to be determined, it will be determined by the Expert
based on the corresponding data of the five leading insurance
brokers world-wide listed on a regulated market.
- RN is the Consolidated Net Result of the Gras Savoye Group as defined in
Exhibit 2A to the Share Purchase Agreement
Exhibit 3 bis to the Agreement
Promise to Buy
Exhibit D
page 1
- N = the number of shares composing the capital of Gras Savoye & Cie on the
date of the close of financial year n, excluding any self-held shares.
Between April 15 and April 30 of each year, and for the first time in 2000, the
Representative (as defined in Article 9 of Exhibit 3 to the Agreement) shall
notify WCG (hereinafter "Notification A") of the Transfer Price obtained from
the application of the above formula (hereinafter the "Notified Price") and
shall attach to Notification A all necessary supporting documentation.
Within ten (10) Business Days following the date of Notification A, WCG may
notify the Representative of any dispute concerning the Notified Price
(hereinafter "Notification B"). Failing this, WCG shall be deemed to have
accepted the Notified Price.
In the event that WCG disputes the Notified Price, WCG and the Representative
shall negotiate in good faith to reach an agreement on the Transfer Price.
Upon failure to agree within ten (10) Business Days following the date of
Notification B, the parties expressly agree that the Transfer Price shall be
fixed definitively and without any possible recourse, except for an obvious
material error, by Coopers & Lybrand (hereinafter the "Expert") within thirty
(30) business days of the matter being referred to such Expert.
The matter shall be referred to the Expert by the most diligent party and
one-half of the expenses incurred in this regard shall be borne by the Promisor
and the other half by the Beneficiaries. The party referring the matter to the
Expert shall provide the Expert with a copy of the Notifications exchanged
between the parties. The Expert shall determine the Transfer Price by applying
the above formula and its decision shall be binding on the parties in accordance
with Article 1843-4 of the Civil Code. If the Expert is unable to complete its
mission for any reason whatsoever, a new Expert chosen from the list of experts
of the Court of Appeal of Versailles would be appointed by mutual agreement
between the Representative and the Promisor or, failing this, by the Presiding
Judge of the Commercial Court of Nanterre to which the matter shall be referred
in summary proceedings (referes) upon the request of the most diligent party.
The Representative and the general partners of the Company guarantee the
Expert's access to the premises of the Company and/or of its Subsidiaries and
that the Expert will be provided by the Company and/or the Subsidiaries with any
information which it might reasonably request in the context of the
accomplishment of its mission.
Exhibit 3 bis to the Agreement
Promise to Buy
Exhibit D
page 10
--------------------------------------------------------------------------------
Exhibit 3 ter to the Agreement
Promise to Buy
page 1
EXHIBIT 3 TER TO THE AGREEMENT
PROMISE TO BUY
BETWEEN THE UNDERSIGNED
WILLIS CORROON GROUP PLC, an English law company whose registered office is at
10, Trinity Square, London EC3P 3AX, Great Britain, registered with the England
and Wales Company Registration Office under number 621757,
hereinafter referred to as the "Promisor " or "WCG"
ON THE ONE HAND,
UAP INCENDIE-ACCIDENTS, a French law company whose registered office is at 9
place Vendome, 75001 Paris, registered with the Paris Commercial and Companies
Registry under number B 977 349 192,
hereinafter referred to as "UAP "
ON THE OTHER HAND,
WHEREAS
By virtue of an agreement entered into on this day between the shareholders of
the Company, including UAP, and the Promisor (hereinafter the "Agreement"), it
has notably been agreed that the Promisor shall grant to UAP a promise to buy
covering all of its shareholding in the Company (as defined in Article 1) in
accordance with the terms and conditions of the present Contract.
IT IS THEREFORE AGREED AS FOLLOWS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 ter to the Agreement
Promise to Buy
page 2
1. DEFINITIONS
The terms and expressions beginning with a capital letter and not defined in the
present Contract shall have the meaning ascribed to them in the Agreement and
its Exhibits.
For purposes of the present Contract, the words and expressions below shall have
the following meanings:
Corporate Beneficiary means (i) any insurance company which conducts an activity
referred to in Article 310-1 of the Insurance Code, any company which is under
the direct or indirect control of such an insurance company and or any company
which directly or indirectly controls one or more insurance companies, and (ii)
holds shares in the Company (including UAP).
GS Share Purchase Agreement means the agreement in Exhibit 2 to the Agreement;
Closing Date means the date on which the Promisor or any company of the WCG
Group has acquired the Initial Shareholding.
Indemnification Undertaking means, by incorporation for purposes of this
promise, the undertaking contained in Exhibit 6 to the GS Share Purchase
Agreement, it being specified that the definition of "Corporate Transferors"
also includes UAP.
Business Day means any business day in France with the exception of any public
holiday or day of rest in accordance with the legislation and regulations
applicable in France.
Promise to Sell No. 1 means the contract entered into on this day between WCG
and the shareholders of the Company including UAP, attached as Exhibit 4 to the
Agreement;
Promise to Sell No. 2 means the contract entered into on this day between WCG
and Patrick Lucas, Emmanuel Gras and Daniel Naftalski, attached as Exhibit 5 to
the Agreement;
Company means Gras Savoye & Cie, societe en commandite par actions with a
capital of FRF 9,952,000 divided into 49,760 shares of FRF 200 each, whose
registered office is at 2, rue Ancelle (92200) Neuilly sur Seine and which is
registered with the Nanterre Commercial and Companies Registry under number B
457 509 867.
2. UNILATERAL PROMISE TO BUY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 ter to the Agreement
Promise to Buy
page 3
The Promisor hereby promises to UAP, which accepts such promise solely as a
promise, to acquire, subject to ordinary legal guarantees and the prior
satisfaction of the preemption right granted to the shareholders of the Company
in accordance with the provisions of Article 9 (II) (2) (B) of the Company's
by-laws, all of the shares of the Company which UAP will own (hereinafter the
"Shares") on the date on which the rights granted pursuant to this promise are
exercised, in accordance with the terms and conditions defined in the present
Contract (hereinafter, the "Option").
If the shares of the Company referred to above were to be exchanged following a
merger, scission, transformation of the Company or for any other reason, the
Option shall automatically be extended to all the substituted equity interests
deriving from such shares of the Company. More generally, the Option shall be
extended to all the marketable securities or all the equity interests issued by
the Company between the date hereof and the date of exercise of the Option which
may have been acquired by any means by the Beneficiary between the date hereof
and the date of exercise of the Option.
The Promisor may substitute any company of the WCG Group for itself provided
that it remains the guarantor thereof and provided that the company which has
been substituted for the Promisor undertakes in writing in favor of the
beneficiaries of Promise to Sell No. 2 to comply with the terms of such Promise
and in favor of AXA to respect the terms of this promise.
UAP may substitute for itself, subject to being the guarantor thereof, any
company of the AXA group which shall have become the owner of the Shares on the
date of exercise of the option. A company shall be deemed to belong to the AXA
group if it is under the control of AXA-UAP, is controlled by AXA-UAP, or is
under common control with UAP, control being defined in accordance with Article
355-1 of the law on commercial companies.
3. TERM OF THE OPTION
The Option is granted for a period of twelve (12) years as from the Closing
Date. It shall terminate in advance, as necessary, as from the earlier of the
two following dates: (i) the date of the declaration of insolvency (cessation de
paiements) made by the legal representative of the Company or of the Main
Companies, with the exception of GS Re, or (ii) the date of the judgment
establishing the insolvency (cessation de paiements) of the Company or of the
Main Companies, with the exception of GS Re (hereinafter, the "Term of the
Option").
4. PERIOD OF EXERCISE OF THE OPTION
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 3 ter to the Agreement
Promise to Buy
page 4
The Option may not be exercised for a period of three (3) years as from the
Closing Date (hereinafter the "Exemption Period"). Upon the expiration of the
Exemption Period, the Option may be exercised, in one or more operations, at any
time during the Term of the Option. However, the Option may be exercised during
the Exemption Period insofar as the shareholding of UAP (or of the company of
the AXA group substituted for UAP) in the Company's capital has been reduced,
for any reason whatsoever other than due to a transfer (in any manner
whatsoever: contribution, sale, etc.) of Shares by UAP (or by the company of the
AXA group substituted for UAP), with the exception of a transfer resulting from
the exercise of Promise to Sell No. 1, to an amount less than 10% of the
Company's capital (hereinafter the "Period of Exercise of the Option").
5. EXERCISE OF THE OPTION
UAP (or the company of the AXA group substituted for UAP) may, in one or more
times, exercise the Option by sending a written notification to the attention of
the Promisor, in accordance with the provisions of Article 8 (hereinafter
"Notification No. 1").
In the event of exercise of the Option, UAP will also inform the Company of the
proposed transfer by sending a written notification to the Company, in
accordance with the provisions of Article 9 (II) (2) (B) of the Company's
by-laws, (hereinafter "Notification No. 2"). In the event of the exercise of the
preemption right by the shareholders of the Company on a portion of the Shares,
the actual transfer of the Shares to the transferee hereunder shall cover the
balance of the Shares on which the Option has been exercised.
UAP certifies and warrants to the Promisor that on the date of actual transfer
of the Shares on which the Option has been exercised, such Shares shall be
freely negotiable and free of all option rights, liens, guarantees, pledges,
sureties, easements, charges or restrictions of any nature and that on that same
date, the transferee of such Shares will acquire full ownership, free of all
option rights, liens, guarantees, pledges, sureties, easements, charges or
restrictions of any nature. UAP undertakes to indemnify the transferee of the
Shares for any adverse consequences and prejudice suffered by the transferee of
the Shares due to any violation by it of the undertaking of the present
paragraph.
The transferee of the Shares will hereby acquire the right to full enjoyment of
the Shares on which the Option has been exercised with all the attached rights
to dividends on the date of the delivery by UAP of the corresponding share
transfer order against payment of the price.
If the Option is not exercised by UAP during the Period of Exercise of the
Option, such Option shall be deemed to have lapsed, without any right of
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Exhibit 3 ter to the Agreement
Promise to Buy
page 5
indemnity for either party.
6. PRICE
The price per Share to be paid under the present Option (hereinafter, the
"Transfer Price") shall be:
(a) with regard to any transfer resulting from an exercise of the Option which
is notified before the third anniversary of the Closing Date, the Price
per Share of the Company, as defined in the GS Share Purchase Agreement
reduced, if necessary, by any amount which should have been paid by UAP
under the Indemnification Undertaking, until each date of exercise of this
Option, if the Shares for which the Option has been exercised had been
transferred by UAP on the Closing Date,
(b) with regard to any transfer resulting from an exercise of the Option which
is notified after the third anniversary and before the sixth anniversary
of the Closing Date, the greater of the two following amounts:
(i) the Price per Share of the Company as defined in the GS Share
Purchase Agreement, reduced, if relevant, by any amount which should
have been paid under the Indemnification Undertaking, until each
date of exercise of this Option, if the Shares for which the Option
has been exercised had been transferred by UAP on the Closing Date,
(ii) the price calculated between April 15 and April 30 of each year and,
for the first time, between April 15 and April 30, 2000, according
to the formula provided for in Exhibit D, it being understood that
this price shall be applicable to any transfer of Shares under the
present Option until the establishment of the price which is based
on the accounts of the following year and is calculated according to
the same formula and in the same time period,
(c) with regard to any transfer resulting from an exercise of the Option which
is notified after the sixth anniversary of the Closing Date, the price
calculated between April 15 and April 30 of each year according to the
formula provided for in Exhibit D, it being understood that this price
shall be applicable to any transfer of Shares under the present Option
until the establishment of the price which is based upon the accounts of
the following year and is calculated according to the same formula and in
the same time period.
The Transfer Price of the Shares for which the Option has been exercised will be
payable in cash, within forty-five (45) calendar days of the date of
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Exhibit 3 ter to the Agreement
Promise to Buy
page 6
Notification No. 1, by bank check denominated in French francs, against delivery
by UAP to the transferee of the Shares of the corresponding duly signed share
transfer order(s) in favor of the transferee of the Shares, subject to UAP's
respecting its undertakings hereunder and the obtaining of any government or
administrative authorization which may be necessary. However, if, due to the
exercise of this Option or of the Options deriving from Exhibits 3 and 3 bis to
the Agreement, the Promisor has to pay over a 12-month period an aggregate
amount which is greater than one hundred and fifty million francs, the transfer
price of the Shares under this Option and the Options deriving from Exhibits 3
and 3 bis mentioned above shall be payable in cash within ninety (90) calendar
days of the date of Notification No. 1, according to the same conditions as
those indicated above.
In the event that the transfer of the Shares pursuant hereto is subject to the
obtaining of any government or administrative authorization, the Promisor and
UAP shall mutually provide all assistance, exchange all information, sign all
documents and, more generally, do all that is necessary or useful so that the
competent authority may rapidly decide upon the contemplated transaction.
7. EXPENSES - DUTIES - REGISTRATION
Each party shall bear the fees and expenses of its own counsel with regard to
the performance of the present Contract.
All other expenses, duties and taxes of any nature resulting from the signature
or the performance of the present Contract shall be borne exclusively by the
Promisor which so agrees.
8. NOTICES
Unless specifically provided otherwise, all notifications, requests,
applications, claims or other communications authorized or required under the
present Contract (other than those which must be made in application of the
by-laws of the Company) will as far as the notifying party is concerned be duly
made if, within the required time period, they are delivered by hand in return
for a release or sent by registered mail with return receipt requested to the
addresses appearing above or to any other address notified beforehand in
accordance with the provisions of the present Article.
For purposes of this Contract, the notification date shall, as far as the
notified party is concerned, be deemed to be the date of remittance, in the case
of notification by hand, and on the date of first presentation, in the case of
notification by registered mail with return receipt requested.
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Exhibit 3 ter to the Agreement
Promise to Buy
page 7
EXHIBIT D TO EXHIBIT 3 TO THE AGREEMENT
TRANSFER PRICE DETERMINATION FORMULA
Price per Share =
(60% x 1.4 x (CA n + CA n-1) x 0.5 + 40% x K x (RN n + RN n-1) x 0.5)/N
where
- CA is the Consolidated Net Turnover at December 31 of the Gras Savoye
Group, as defined in Exhibit 2A to the Share Purchase Agreement,
- n and n-1 are the reference financial years, n being the last closed
financial year and n-1 the next before last closed financial year,
- K = (CB/E(n))
CB = the Willis Corroon Group's average daily end of session stock
market capitalizations quoted on the London Stock Exchange during
the 12 months preceding March 30 of the year during which the option
price is determined.
E = Consolidated Net Result at December 31 of the Willis Corroon Group
being defined as the "earnings for the financial year" of the
financial year being considered as published, adjusted by the
elements included in the definition (given in Exhibit 2 A to the
Share Purchase Agreement) of the Group Share Consolidated Net
Result.
In any event, the value taken for K may never be less than 14 or
more than 18, it being understood that in the event that Willis
Corroon Group is absorbed by another company listed on the London
Stock Exchange, the K calculated will be that of such company. If K
is unable to be determined, it will be determined by the Expert
based on the corresponding data of the five leading insurance
brokers world-wide listed on a regulated market.
Exhibit 3 ter to the Agreement
Promise to Buy
page 8
- RN is the Consolidated Net Result of the Gras Savoye Group as defined in
Exhibit 2A to the Share Purchase Agreement
- N = the number of shares composing the capital of Gras Savoye & Cie on the
date of the close of financial year n, excluding any self-held shares.
Between April 15 and April 30 of each year, and for the first time in 2000, the
Representative (as defined in Article 9 of Exhibit 3 to the Agreement) shall
notify WCG (hereinafter "Notification A") of the Transfer Price obtained from
the application of the above formula (hereinafter the "Notified Price") and
shall attach to Notification A all necessary supporting documentation.
Within ten (10) Business Days following the date of Notification A, WCG may
notify the Representative of any dispute concerning the Notified Price
(hereinafter "Notification B"). Failing this, WCG shall be deemed to have
accepted the Notified Price.
In the event that WCG disputes the Notified Price, WCG and the Representative
shall negotiate in good faith to reach an agreement on the Transfer Price.
Upon failure to agree within ten (10) Business Days following the date of
Notification B, the parties expressly agree that the Transfer Price shall be
fixed definitively and without any possible recourse, except for an obvious
material error, by Coopers & Lybrand (hereinafter the "Expert") within thirty
(30) business days of the matter being referred to such Expert.
The matter shall be referred to the Expert by the most diligent party and
one-half of the expenses incurred in this regard shall be borne by the Promisor
and the other half by the Beneficiaries. The party referring the matter to the
Expert shall provide the Expert with a copy of the Notifications exchanged
between the parties. The Expert shall determine the Transfer Price by applying
the above formula and its decision shall be binding on the parties in accordance
with Article 1843-4 of the Civil Code. If the Expert is unable to complete its
mission for any reason whatsoever, a new Expert chosen from the list of experts
of the Court of Appeal of Versailles would be appointed by mutual agreement
between the Representative and the Promisor or, failing this, by the Presiding
Judge of the Commercial Court of Nanterre to which the matter shall be referred
in summary proceedings (referes) upon the request of the most diligent party.
The Representative and the general partners of the Company guarantee the
Expert's access to the premises of the Company and/or of its Subsidiaries and
that the Expert will be provided by the Company and/or the Subsidiaries with any
information which it might reasonably request in the context of the
accomplishment of its mission.
Exhibit 3 ter to the Agreement
Promise to Buy
page 9
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Exhibit 4 to the Agreement
Promise to Sell No. 1
page 1
EXHIBIT 4 TO THE AGREEMENT
PROMISE TO SELL No. 1
BETWEEN THE UNDERSIGNED
THE SHAREHOLDERS OF GRAS SAVOYE & CIE referred to in Exhibit A hereto, acting
jointly for the purposes hereof,
Hereinafter collectively referred to as the "Promisors"
ONE THE ONE HAND
WILLIS CORROON GROUP PLC, an English law company whose registered office is at
10, Trinity Square, London EC3P 3AX, Great Britain, registered with the England
and Wales Company Registration Office under number 621757,
hereinafter referred to as the "Beneficiary" or "WCG"
ON THE OTHER HAND
WHEREAS
By virtue of an agreement entered into on this day between the Beneficiary and
the Promisors (hereinafter the "Agreement"), it has notably been agreed that the
Promisors shall grant to the Beneficiary a promise to sell covering all of their
shareholding in the Company (as defined in Article 1) in accordance with the
terms and conditions of the present Contract.
IT IS THEREFORE AGREED AS FOLLOWS
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Exhibit 4 to the Agreement
Promise to Sell No. 1
page 2
1. DEFINITIONS
The terms and expressions beginning with a capital letter and not defined in the
present Contract shall have the meaning ascribed to them in the Agreement and
its Exhibits.
For purposes of the present Contract, the words and expressions below shall have
the following meanings:
Change of Control means:
(a) with regard to WCG, any operation of any nature (including a merger) which
has the object or effect:
(i) of resulting in the direct or indirect holding by any related entity
or entity belonging to a group directly or indirectly controlling,
within the meaning of Article 355-1 of Law No. 66-537 of July 24,
1996 on commercial companies, an insurance brokerage company ranked
among the 10 leading insurance brokerage companies world-wide in
terms of turnover or (ii) the 10 leading French insurance brokerage
companies in terms of turnover, of at least 30% of the capital of
WCG, or
(ii) of giving any of the above-mentioned entities the power to appoint
the majority of the members of the Board of Directors or any
equivalent corporate organ of WCG, or
(b) with regard to any Affiliated Company, any operation of any nature
(including a merger) which has the object or effect (i) of causing WCG's
direct or indirect control, within the meaning of Article 355-1 of Law No.
66-537 of July 24, 1996 on commercial companies, of any Affiliated Company
to terminate, or (ii) of giving to a third party the power to appoint the
majority of the members of the Board of Directors or any equivalent
corporate organ of any Affiliated Company.
GS Share Purchase Agreement means the agreement in Exhibit 2 to the Agreement.
Closing Date means the date on which the Beneficiary or any company of the WCG
Group has acquired the Initial Shareholding.
Indemnification Undertaking means, by incorporation for purposes of this
promise, the undertaking contained in Exhibit 6 to the GS Share Purchase
Agreement, it being specified that the definition "Corporate Transferors" also
includes Athena and UAP.
Exceptional Event means any event whose origin was prior to the Closing
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Exhibit 4 to the Agreement
Promise to Sell No. 1
page 3
Date and whose existence was unknown at the Closing Date and which, between the
Closing Date and the three (3) years following the Closing Date, had the effect
of reducing the Consolidated Equity by FRF 234,600,000.
Subsidiaries means all companies or other legal entities among those referred to
in Exhibit 1 to the GS Share Purchase Agreement in which the Company directly or
indirectly owns more than 50% of the capital or in which the Company maintains
the effective control of the management.
Business Day means any business day in France with the exception of any public
holiday or day of rest in accordance with the legislation and regulations
applicable in France.
Promise to Buy means the contract in Exhibit 3 to the Agreement.
Promise to Sell No. 2 means the contract entered into on this day between the
Beneficiary, Patrick Lucas, Emmanuel Gras and Daniel Naftalski, attached as
Exhibit 5 to the Agreement.
Corporate Promisor means (i) any insurance company which conducts an activity
referred to in Article 310-1 of the Insurance Code, any company which is under
the direct or indirect control of such an insurance company and/or any company
which directly or indirectly controls one or more insurance companies, and (ii)
which holds shares in the Company.
Company means Gras Savoye & Cie, a societe en commandite par actions with a
capital of FRF 9,952,000 divided into 49,760 shares of FRF 200 each, whose
registered office is at 2, rue Ancelle (92200) Neuilly sur Seine and which is
registered with the Nanterre Commercial and Companies Registry under number B
457 509 867.
Affiliated Company means any company (i) which at the relevant time is under the
control of WCG within the meaning of Article 355-1 of Law No. 66-537 of July 24,
1996 on commercial companies, and (ii) which holds shares in the Company.
Main Companies means the Company, Gras Savoye S.A., Gras Savoye Reassurance
S.A., SAGERI S.A., AMI, Gras Savoye Lanvin Lespiau, GS Re and Gras Savoye Euro
Finance.
2. UNILATERAL PROMISE TO SELL
The Promisors hereby promise to the Beneficiary, which accepts such promise
solely as a promise, to sell, pursuant to ordinary legal guarantees, the shares
of the Company referred to in Article 3 below, in accordance with the terms and
conditions defined in the present Contract (hereinafter the "Option").
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Exhibit 4 to the Agreement
Promise to Sell No. 1
page 4
The Beneficiary may substitute for itself any company of the WCG Group provided
that it remains the guarantor thereof and provided that the company which is
substituted for it undertakes in writing in favor of the beneficiaries of
Promise to Sell No. 2 to comply with the terms of such Promise.
Athena and UAP may substitute for them respectively any company of the Athena
group and the AXA group; i.e., a company which is under the control, within the
meaning of Article 355-1 of the Law of July 24, 1996 on commercial companies, of
Athena and AXA-UAP respectively, provided they remain the guarantors thereof
respectively.
3. SHARES
Subject to the provisions of Article 4, the Option shall cover all of the shares
of the Company referred to below (hereinafter the "Shares").
(a) All of the fully paid in, negotiable and non-amortized shares held on this
day by each of the Promisors and referred to in Exhibit A hereto.
(b) In addition, if the shares of the Company described in subparagraph (a)
above were to be exchanged as a result of a merger, scission,
transformation of the Company or for any other reason, the Option shall
automatically cover all the substituted equity interests deriving from
such shares in the Company. More generally, the Option shall cover all
transferable securities or all equity interests issued by the Company
between the date hereof and the date of exercise of the Option and which
have been acquired by any means by the Promisors between the date hereof
and the date of exercise of the Option.
(c) In the event of the exercise by the Promisors of their rights under the
Promise to Buy, the Beneficiary's rights hereunder shall be deemed to
cover the number of shares of the Company referred to in paragraphs (a)
and (b) which are still available after the exercise of the Promisors'
rights under the Promise to Buy.
4. OPTION LIMITATIONS
The Option may only be exercised for the number of Shares necessary to allow the
Beneficiary to achieve (taking into account, as the case may be, the shares of
the Company held on whatever grounds by any Affiliated Company) the percentages
of the capital, and in any event, of the voting rights of the Company set forth
below:
(a) either 50.1% of the capital and, in any event, of the voting rights of the
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Exhibit 4 to the Agreement
Promise to Sell No. 1
page 5
Company (hereinafter "Threshold A") in the event of the occurrence of one
of the three following events (hereinafter "Event A"):
(i) the first Business Day of the two (2) month period preceding the
expiration of the Term of the Option (as defined below), or
(ii) none of the three individuals (Patrick Lucas, Emmanuel Gras, Daniel
Naftalski) continues to be a general partner of the Company for
whatever reason, or
(iii) the failure, by any one of the Promisors as general partner or
shareholder of the Company, to comply with any one of the
obligations incumbent upon him pursuant to the obligations not
provided for in the by-laws referred to in Article 4 (v), (vi) and
(x) of the Agreement and the provisions of Article 10-3 (g), (h),
(i), (j) of the Company's by-laws and, as from January 1, 1998,
pursuant to the provisions of Article 10-3 (a) to (f) of the
Company's by-laws. In this regard, it is however expressly agreed
that if the failure to comply with any of the obligations not
provided for in the by-laws referred to in Article 4 (vi) of the
Agreement results from the non-performance of such obligations by
one of the Subsidiaries other than the Main Companies, the exercise
of the Option under this Article 4 (a) would only be deemed to be
permitted hereunder to the extent that the relevant non-performance
was committed with full knowledge by one of the general partners of
the Company and without such general partner having used his best
efforts to ensure the proper performance of the unperformed
obligation.
(b) or 66.7% of the capital and, in any event, of the voting rights of the
Company (hereinafter "Threshold B") in the event of the occurrence of the
two following events (hereinafter "Event B"):
(i) the Beneficiary (taking into account, as the case may be, the shares
of the Company held on whatever grounds by any Affiliated Company)
holds a shareholding in the Company corresponding to Threshold A,
and
(ii) the Company is not transformed into a societe anonyme within the
four (4) months following the occurrence of the event referred to in
(i) or (ii) of (a) of this Article 4, provided however that the
failure to transform does not result from the non-representation or
negative vote or abstention of the Beneficiary (including, as the
case may be, of any Affiliated Company) at the general meeting
called to decide on the transformation of the Company. For purposes
hereof, the Promisors expressly undertake to transform the Company
into a societe anonyme with a board of directors,
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Exhibit 4 to the Agreement
Promise to Sell No. 1
page 6
with no statutory provision conferring any particular advantage on
any of the shareholders, within the four (4) months following the
date of the occurrence of the Event referred to in (i) or (ii) of
(a) of this Article 4.
Thresholds A and B shall be calculated on the basis of all the shares and voting
rights of the Company held by the Beneficiary and any Affiliated Company.
5. TERM OF THE OPTION
The Option is granted for a period to end on February 1, 2010. It shall
terminate in advance on the day on which the Beneficiary or any Affiliated
Company is the subject of a Change of Control having given rise to the exercise
of the option by virtue of Promise to Sell No. 2 (hereinafter the "Term of the
Option").
6. PERIOD OF EXERCISE OF THE OPTION
The Option granted to the Beneficiary shall be exercised in the course of any
one of the following periods (hereinafter the "Period of Exercise of the
Option"):
(a) within the thirty (30) Business Days following the date of the occurrence
of Event A, with regard to attaining Threshold A, or
(b) within the thirty (30) Business Days following the date of the occurrence
of Event B, with regard to attaining Threshold B.
7. EXERCISE OF THE OPTION
The Beneficiary may exercise the Option by sending, in accordance with the
provisions of Article 12, a written notification to the attention of the
Promisors (hereinafter the "Notification").
In the event of exercise of the Option other than on the basis of the provisions
of Article 4 (a) (iii), the Shares to be transferred to WCG or to any other
company of the WCG Group shall be divided among the Promisors in proportion to
their respective shareholdings in the Company on the day on which the Option is
exercised compared to the total of such shareholdings. Fractions of shares shall
be divided among the greater of the shareholdings.
In the event that the Option is exercised on the basis of the provisions of
Article 4 (a) (iii), the Shares to be transferred to WCG or to any other company
of the WCG Group shall be divided among the Promisors on the basis of the
following
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Exhibit 4 to the Agreement
Promise to Sell No. 1
page 7
priority ranking: Shares held by (i) the general partner of the Company having
the capacity of president of the defaulting Subsidiary, if required, (ii) then
the other general partners of the Company in proportion to their respective
shareholdings in the Company, and (iii) finally, all the other Promisors in
proportion to their respective shareholdings in the Company.
Each Promisor certifies and warrants to the Beneficiary that on the date of
actual transfer of the Shares for which the Option has been exercised, such
Shares shall be freely negotiable and free of all option rights, liens,
guarantees, pledges, sureties, easements, charges or restrictions of any nature
whatsoever and that on that same date, the transferee of such Shares will
receive full ownership thereof, free of all option rights, claims, liens,
guarantees, pledges, sureties, easements, charges or restrictions of any nature.
Each Promisor undertakes to indemnify the transferee of the Shares for any
adverse consequences and prejudice suffered by the transferee of the Shares due
to any violation by such Promisor of the undertaking of the present paragraph.
WCG or any other company of the WCG Group will hereby acquire the full right to
the enjoyment of the Shares for which the Option has been exercised with all the
attached rights to dividends on the date of the delivery of the corresponding
share transfer orders against payment of the price.
If the Beneficiary or any other company of the WCG Group fails to exercise the
Option during the applicable Period of Exercise of the Option, such Option shall
be deemed to have lapsed, without any right of indemnity for either party.
8. PRICE
The price per Share to be paid under the present Option (hereinafter, the
"Transfer Price") shall be:
(a) with regard to any transfer resulting from an exercise of the Option which
is notified before the third anniversary of the Closing Date, the Price
per Share of the Company, as defined in the GS Share Purchase Agreement,
reduced, if relevant, with regard to the Corporate Promisors, by any
amount which should have been paid by each of them under the
Indemnification Undertaking, up until each date on which this option is
exercised, if the Shares for which the Option has been exercised had been
transferred on the Closing Date,
(b) with regard to any transfer resulting from an exercise of the Option which
is notified after the third anniversary and before the sixth anniversary
of the Closing Date, the greater of the two following amounts:
(i) the Price per Share of the Company as defined in the GS Share
Purchase Agreement, reduced, if relevant,
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Exhibit 4 to the Agreement
Promise to Sell No. 1
page 8
(x) with regard to all of the Individual Promisors, and in the
event of the occurrence of an Exceptional Event, by an amount
of FRF 5,030 per Share (i.e., 234,600,000/46,640), and
(y) with regard to the Corporate Promisors, by any amount which
should have been paid under the Indemnification Undertaking,
up until each date on which this option is exercised, if the
Shares for which the Option has been exercised had been
transferred on the Closing Date,
(ii) the price calculated between April 15 and April 30 of each year and,
for the first time, between April 15 and April 30, 2000, according
to the formula indicated in Exhibit D to the Promise to Buy, it
being understood that this price shall be applicable to all
transfers of Shares under the present Option until the establishment
of the price which is based upon the accounts of the following year
and is calculated according to the same formula and in the same time
period,
(c) with regard to any transfer resulting from an exercise of the Option which
is notified after the sixth anniversary of the Closing Date, the price
calculated between April 15 and April 30 of each year according to the
formula provided for in Exhibit D to the Promise to Buy, it being
understood that this price shall be applicable to all transfers of Shares
under the present Option until the establishment of the price which is
based upon the accounts of the following year and is calculated according
to the same formula and in the same time period.
The Transfer Price of the Shares for which the Option has been exercised will be
payable in cash, within forty-five (45) calendar days of the date of
Notification, by bank check denominated in French francs, against delivery by
the Representative (as defined in Article 10) to WCG or to any other company of
the WCG Group of the corresponding duly signed share transfer order(s) in favor
of WCG or any other company of the WCG Group, subject to the Beneficiary's
respecting its obligations hereunder and the obtaining of all government or
administrative authorizations which may be necessary.
In the event that the transfer of the Shares provided for herein is subject to
the obtaining of any government or administrative authorization, the Promisors
and the Beneficiary shall mutually provide all assistance, exchange all
information, sign all documents and, more generally, do all that is necessary or
useful so that the competent authority may rapidly decide upon the contemplated
transaction.
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Exhibit 4 to the Agreement
Promise to Sell No. 1
page 9
9. BENEFIT OF THE OPTION
In the event of the death of a Promisor, his/her spouse, heirs and/or all other
assigns, even though minors or otherwise legally incapable, shall be bound by
the terms hereof.
Each of the Promisors remains free to donate the full ownership or ownership
without use of all or part of his/her Shares on condition however that the
Promisor intending to make the donation (i) obtains from the concerned donee(s)
the undertaking in favor of the Beneficiary to respect the terms of the present
Contract for the number of Shares allotted to each of the donees, and (ii)
remains the guarantor vis-a-vis the Beneficiary of the donee(s)' respect of the
terms of the present Contract.
Subject to the provisions of the by-laws, each of the Promisors remains free to
transfer the Shares he/she owns to another Promisor. In such case, the Promisor
who made such a transfer will inform the Beneficiary in writing of the identity
of the Promisor to whom the transfer was made as well as the number of Shares
which were the subject of such transfer, and the present promise will apply to
the new number of shares held by the acquiring Promisor.
10. POWER OF REPRESENTATION
At the Beneficiary's request, the Promisors (with the exception of the Corporate
Promisors) expressly grant an irrevocable power to Patrick Lucas or, in the case
of his impediment or death, to Emmanuel Gras or, in the case of his impediment
or death, to Daniel Naftalski (hereinafter the "Representative"), to act jointly
and severally in the name and on behalf of each of them within the framework of
the mission defined as follows:
(a) make any decision regarding the Transfer Price,
(b) distribute the Shares to be transferred pursuant to the present Contract,
(c) sign the corresponding share transfer orders,
(d) receive the Transfer Price, issue a receipt for the same and distribute
the same amongst the Promisors.
11. EXPENSES - DUTIES - REGISTRATION
Each party shall bear the fees and expenses of its own counsel with regard to
the performance of the present Contract.
All other expenses, duties and taxes of any nature resulting from the signature
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Exhibit 4 to the Agreement
Promise to Sell No. 1
page 10
or the performance of the present Contract shall be borne exclusively by the
Beneficiary which so agrees.
12. NOTICES
Unless specifically provided otherwise, all notifications, requests,
applications, claims or other communications authorized or required under the
present Contract (other than those which must be made in application of the
by-laws of the Company) will as far as the notifying party is concerned be duly
made if, within the required time period, they are delivered by hand in return
for a release or sent by registered mail with return receipt requested to the
addresses appearing above or to any other address notified beforehand in
accordance with the provisions of the present Article.
For purposes of this Contract, the notification date shall, as far as the
notified party is concerned, be deemed to be the date of remittance, in the case
of notification by hand, and the date of first presentation, in the case of
notification by registered mail with return receipt requested.
13. NO JOINT LIABILITY BETWEEN CORPORATE PROMISORS
No provision may be considered to impose any obligation or liability whatsoever
on a Corporate Promisor, for any reason whatsoever which might not be directly
and totally attributable to it.
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Exhibit 5 to the Agreement
Promise to Sell No. 2
page 1
EXHIBIT 5 TO THE AGREEMENT
PROMISE TO SELL No. 2
BETWEEN THE UNDERSIGNED
WILLIS CORROON GROUP PLC, an English law company whose registered office is at
10, Trinity Square, London EC3P 3AX, Great Britain, registered with the England
and Wales Company Registration Office under number 621757,
hereinafter referred to as the "Promisor" or "WCG"
ON THE ONE HAND
EMMANUEL GRAS residing at 3, rue Parmentier (59370) Mons en Baroeul,
PATRICK LUCAS residing at 1, avenue Emile Acollas (75007) Paris,
DANIEL NAFTALSKI residing at 2, rue des Beaux Arts (75006) Paris,
hereinafter collectively referred to as the "Beneficiaries"
ON THE OTHER HAND
WHEREAS
By virtue of an agreement entered into on this day between all the shareholders
of the Company (including the Beneficiaries) and the Promisor (hereinafter the
"Agreement"), it has notably been agreed that the Promisor shall grant to the
Beneficiaries a promise to sell covering all of its shareholding in the Company
(as defined in Article 1) in accordance with the terms and conditions of the
present Contract.
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Exhibit 5 to the Agreement
Promise to Sell No. 2
page 2
IT IS THEREFORE AGREED AS FOLLOWS
1. DEFINITIONS
The terms and expressions beginning with a capital letter and not defined in the
present Contract shall have the meaning ascribed to them in the Agreement and
its Exhibits.
For purposes of the present Contract, the words and expressions below shall have
the following meanings:
Change of Control means:
(a) with regard to WCG, any operation of any nature (including a merger) which
has the object or effect:
(i) of resulting in the direct or indirect holding by any related entity
or entity belonging to a group directly or indirectly controlling,
within the meaning of Article 355-1 of Law No. 66-537 of July 24,
1996 on commercial companies, an insurance brokerage company ranked
among the 10 leading insurance brokerage companies world-wide in
terms of turnover or (ii) the 10 leading French insurance brokerage
companies in terms of turnover, of at least 30% of the capital of
WCG, or
(ii) of giving any of the above-mentioned entities the power to appoint
the majority of the members of the Board of Directors or any
equivalent corporate organ of WCG, or
(b) with regard to any Affiliated Company, any operation of any nature
(including a merger) which has the object or effect (i) of causing WCG's
direct or indirect control, within the meaning of Article 355-1 of Law No.
66-537 of July 24, 1996 on commercial companies, of any Affiliated Company
to terminate, or (ii) of giving to a third party the power to appoint the
majority of the members of the Board of Directors or any equivalent
corporate organ of any Affiliated Company.
GS Share Purchase Agreement means the agreement in Exhibit 2 to the Agreement.
Closing Date means the date on which the Promisor or any company of the WCG
Group has acquired the Initial Shareholding.
Indemnification Undertaking means the undertaking contained in Exhibit 6 to the
GS Share Purchase Agreement.
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Exhibit 5 to the Agreement
Promise to Sell No. 2
page 3
Business Day means any business day in France with the exception of any public
holiday or day of rest in accordance with the legislation and regulations
applicable in France.
Legal Entities means Gras Savoye Euro Finance, AGF and the beneficiaries of the
Promise to Buy in Exhibits 3 bis and 3 ter to the Agreement.
Promises to Buy means the contracts in Exhibits 3, 3 bis and 3 ter to the
Agreement.
Promise to Sell No. 1 means the contract in Exhibit 4 to the Agreement.
Company means Gras Savoye & Cie, a societe en commandite par actions with a
capital of FRF 9,952,000 divided into 49,760 shares of FRF 200 each, whose
registered office is at 2, rue Ancelle (92200) Neuilly sur Seine and which is
registered with the Nanterre Commercial and Companies Registry under number B
457 509 867.
Affiliated Company means any company (i) which is under the control of WCG
within the meaning of Article 355-1 of Law No. 66-537 of July 24, 1996 on
commercial companies, and (ii) which holds shares in the Company.
2. UNILATERAL PROMISE TO SELL
The Promisor hereby promises to the Beneficiaries, who accept such promise
solely as a promise, and to any person which the Beneficiaries might substitute
for the purposes hereof, to sell pursuant to ordinary legal guarantees, all of
the shares of the Company which the Promisor will own (hereinafter the
"Shares"), on the date on which the rights granted pursuant to this promise are
exercised, in accordance with the terms and conditions defined in the present
Contract (hereinafter, the "Option").
In the event that any Affiliated Company, and/or any company which is no longer
an Affiliated Company, within the meaning hereof, holds shares in the Company on
the date on which the Option is exercised, the compan(ies) concerned shall be
bound by this promise for the shares in the Company that such compan(ies) hold,
WCG guaranteeing the respect of the present promise by any Affiliated Company
and any company which is no longer an Affiliated Company within the meaning
hereof.
In this respect, any transfer of Shares of any nature whatsoever to an
Affiliated Company or any acquisition of Shares by an Affiliated Company shall
not be deemed valid unless (i) WCG has obtained the prior written undertaking
from the Affiliated Company concerned in favor of the Beneficiaries to respect
the terms of the present Contract, and (ii) this written undertaking has been
notified
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Exhibit 5 to the Agreement
Promise to Sell No. 2
page 4
to the Representative prior to the effective completion of the transfer in
question.
3. TERM OF THE OPTION
The Option is granted for a period of twelve (12) years as from the Closing Date
(hereinafter the "Term of the Option").
4. EXERCISE OF THE OPTION
(a) The exercise of the Option granted to the Beneficiaries is subject to the
following cumulative conditions (hereinafter the "Cumulative Conditions"):
(i) Change of Control affecting WCG or any Company. In this regard, and as
permitted by law or the applicable regulations, notably stock market
regulations, WCG expressly undertakes to inform each of the Beneficiaries
and the Company in writing of the occurrence and progress of any operation
which is likely to result in a Change of Control of WCG or of any
Affiliated Company.
(ii) holding by WCG and/or any Affiliated Company of a total shareholding less
than or equal to 50% of the capital of the Company, and
(iii) Patrick Lucas or Emmanuel Gras or Daniel Naftalski has the capacity of
general partner of the Company.
(b) When the Cumulative Conditions are satisfied, the Option may be exercised
under the conditions described below.
(i) The Beneficiaries acting jointly must first inform the Promisor of the
possible exercise of the Option by sending to WCG a written notification
conforming to the provisions of Article 8, within two (2) months following
the effective completion of any operation which resulted in a Change of
Control of WCG or of any Affiliated Company (hereinafter "Notification No.
1"), and
(ii) if necessary, they will then inform the Promisor of the effective exercise
of the Option, by sending to WCG a written notification conforming to the
provisions of Article 8, within five (5) months following the effective
completion of any operation which resulted in a Change of Control of WCG
or of any Affiliated Company (hereinafter "Notification No. 2").
In this regard, it is expressly agreed that (i) the time limits indicated
in paragraphs (b) (i) and (ii) above shall only start and run to the
extent that
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Exhibit 5 to the Agreement
Promise to Sell No. 2
page 5
the Beneficiaries and the Company have been informed in writing of the
operation(s) in progress pursuant to paragraphs (a) (i) and (ii) above. In
the event that such information was not furnished until after the date of
the effective completion of the operation(s) resulting in a Change of
Control of WCG or of any Affiliated Company, the date on which such
information was given shall be used for purposes of calculating the time
limits indicated in paragraphs (b) (i) and (ii) above.
In the event that one of the Beneficiaries waives the benefit of the
Option as in the case where one of them has ceased, for any reason
whatsoever, to be a general partner of the Company, then the Option may
only be exercised by the other Beneficiary or Beneficiaries jointly. In
any event, the Option may only be exercised once.
The exercise of the Option shall cover all of the Shares held by the
company or companies in which the control has changed.
(c) The Beneficiaries will acquire the full right to enjoyment of the Shares
for which the Option has been exercised with all the attached rights to
dividends on the date of the remittance of the corresponding share
transfer orders against payment of the price.
The Promisor certifies and warrants to the Beneficiaries that on the date
of actual transfer of the Shares for which the Option has been exercised,
such Shares shall be freely negotiable and free of all option rights,
claims, liens, guarantees, pledges, sureties, easements, charges or
restrictions of any nature whatsoever and that on that same date, the
transferee of such Shares will receive full ownership thereof, free of all
option rights, claims, liens, guarantees, pledges, sureties, easements,
charges or restrictions of any nature. The Promisor undertakes to
indemnify the transferee of the Shares for any adverse consequences and
prejudice suffered by the transferee of the Shares due to any violation by
it of the undertaking of the present paragraph.
(d) If the Beneficiaries fail to exercise the Option during the Period of
Exercise of the Option, such Option shall be deemed to have lapsed,
without any right of indemnity for either party.
5. PRICE
The price per Share to be paid under the present Option (hereinafter, the
"Transfer Price") shall be:
(a) with regard to the transfer resulting from the exercise of the Option
which is notified before the third anniversary of the Closing Date, the
Price per Share of the Company, as defined in the GS Share Purchase
Agreement, it being understood that the aggregate price due by the
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Exhibit 5 to the Agreement
Promise to Sell No. 2
page 6
Beneficiaries hereunder shall be reduced, if necessary, by any amount
which has been received by the Promisor under the Indemnification
Undertaking,
(b) with regard to the transfer resulting from the exercise of the Option
which is notified after the third anniversary and before the sixth
anniversary of the Closing Date, the greater of the two following amounts:
(i) the Price per Share of the Company as defined in the GS Share
Purchase Agreement, it being understood that the aggregate price due
by the Beneficiaries hereunder shall be reduced, if necessary, by
any amount which might have been paid by the Legal Entities or been
deducted from the price paid to the Legal Entities, at the time of
exercise of the Promises to Buy and to Sell, under the
Indemnification Undertaking, and also the aggregate amount deducted
from the price paid to the individual beneficiaries of the Promises
to Buy and to Sell in the event that an Exceptional Event (as
defined in the Promises to Buy and to Sell) has occurred,
(ii) the price calculated between April 15 and April 30 of each year and,
for the first time, between April 15 and April 30, 2000, according
to the formula provided for in Exhibit D to the Promise to Buy, it
being understood that this price shall be applicable to the transfer
of the Shares under the present Option until the establishment of
the price which is based upon the accounts of the following year and
is calculated according to the same formula and in the same time
period,
(c) with regard to the transfer resulting from the exercise of the Option
which is notified after the sixth anniversary of the Closing Date, the
price calculated between April 15 and April 30 of each year according to
the formula provided for in Exhibit D of the Promise to Buy, it being
understood that this price shall be applicable to the transfer of the
Shares under the present Option until the establishment of the price which
is based upon the accounts of the following year and is calculated
according to the same formula and in the same time period.
The Transfer Price of the Shares for which the Option has been exercised will be
payable in cash, within six (6) months, at the latest, following the date of the
effective completion of the operation resulting in the Change of Control of WCG
or of any Affiliated Company, by bank check denominated in French francs, in
return for delivery by the Promisor to the Representative (as defined in Article
6) of the corresponding duly signed share transfer order(s) in favor of the
Beneficiaries, subject to the obtaining of all government or administrative
authorizations which may be necessary.
In the event that the transfer of the Shares provided for herein is subject to
the
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Exhibit 5 to the Agreement
Promise to Sell No. 2
page 7
obtaining of any government or administrative authorization, the Promisor and
the Beneficiaries shall mutually provide all assistance, exchange all
information, sign all documents and, more generally, do all that is necessary or
useful so that the competent authority may rapidly decide upon the contemplated
transaction.
6. POWER OF REPRESENTATION
At the Promisor's request, the Beneficiaries expressly grant an irrevocable
power to Patrick Lucas or, in the case of his impediment or death, to Emmanuel
Gras or, in the case of his impediment or death, to Daniel Naftalski
(hereinafter the "Representative"), to act jointly and severally in the name and
on behalf of each of them within the framework of the mission defined as
follows:
(a) make any decision regarding the Transfer Price, and
(c) receive the corresponding share transfer order(s) in return for remittance
of the Transfer Price.
7. EXPENSES - DUTIES - REGISTRATION
Each party shall bear the fees and expenses of its own counsel with regard to
the performance of the present Contract.
All other expenses, duties and taxes of any nature resulting from the signature
or the performance of the present Contract shall be borne exclusively by the
Promisor which so agrees.
8. NOTICES
Unless specifically provided otherwise, all notifications, requests,
applications, claims or other communications authorized or required under the
present Contract (other than those which must be made in application of the
by-laws of the Company) will as far as the notifying party is concerned be duly
made if, within the required time period, they are delivered by hand in return
for a release or sent by registered mail with return receipt requested to the
addresses appearing above or to any other address notified beforehand in
accordance with the provisions of the present Article.
For purposes of this Contract, the notification date shall, as far as the
notified party is concerned, be deemed to be the date of remittance, in the case
of notification by hand, and the date of first presentation, in the case of
notification by registered mail with return receipt requested.
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Exhibit 5 to the Agreement
Promise to Sell No. 2
page 8
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Exhibit 6 to the Agreement
Draft Resolutions
page 1
EXHIBIT 6 TO THE AGREEMENT
DRAFT RESOLUTIONS
FIRST RESOLUTION
The general meeting, taking its decision pursuant to the same conditions of
quorum and majority as the extraordinary general meeting, after becoming
familiar with the proposed transfers notified to the company, pursuant to which
various shareholders are proposing to sell to Willis Corroon Europe BV (a
Netherlands law company whose registered office is in Marten Meerweg 51, 3068 AV
Rotterdam, Netherlands), and to the company (a company of the Willis Corroon
Group whose identity will have been notified to the company one month before the
date of the general meeting), 16,213 shares they hold in the company, decides to
authorize such transfers and to approve Willis Corroon Europe BV and the company
__________ as new shareholders.
SECOND RESOLUTION
The general meeting, taking its decision pursuant to the same conditions of
quorum and majority as the extraordinary general meeting, decides, provided that
on the one hand the general partners unanimously agree to the amendments to the
by-laws referred to below and that on the other hand the Third Resolution is
approved by the shareholders which will hold the A shares and the Fourth
Resolution is approved by the shareholders which will hold the B shares, to
amend Articles 6, 9, 10, 13, 16 and 18 of the by-laws as follows:
ARTICLE 6 - CAPITAL
The capital shall be NINE MILLION NINE HUNDRED AND FIFTY-TWO THOUSAND
(9,952,000) francs.
It shall be divided into 49,760 shares of a par value of 200 francs each.
The shares shall be divided into two classes, A and B.
In the event that shares are transferred by a holder of shares of one class to a
shareholder holding shares of another class, such shares would lose their
qualification and would be deemed, as from the date of the transfer, to be
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Exhibit 6 to the Agreement
Draft Resolutions
page 2
shares of the class to which the other shares held by the transferee belong.
In the event that shares are transferred, for valuable consideration or as a
gift, to a person who is not yet a shareholder, subject as the case may be to
respecting the right of approval referred to in Article 9, they would continue
to belong to the class to which they were deemed to belong before the change of
ownership.
Each share subscribed for in the context of a capital increase by a person who
is already a shareholder shall be deemed to belong to the class to which the
shares already held by such person belong.
In the event that a person who is not yet a shareholder subscribes for shares in
the context of a capital increase, the extraordinary general meeting of the
shareholders, simultaneously with its approval decision concerning the admission
of such person to the company's capital, shall decide on the class to which the
shares subscribed for by such person will belong.
In the event that, insofar as Willis Corroon is a shareholder, the total number
of shares of one of the classes were to be less than one-quarter of the number
of shares composing the company's capital, the breakdown of the company's shares
into two classes of shares would automatically cease to exist. The same shall
apply on the day on which none of the following three individuals: Mr. Patrick
Lucas, Mr. Emmanuel Gras and Mr. Daniel Naftalski, is a general partner. The
various provisions of these by-laws which refer to two classes of shares would
be amended to take account of this situation.
In this event, the management shall immediately convene a general meeting in
order to record this amendment to the by-laws and to decide on the appointment
of new members of the Supervisory Board.
ARTICLE 9
I - Unchanged.
II - Transmission and transfer of shares
1(degree) Unchanged.
2(degree)-A/ Transfers of shares, as a gift or for valuable
consideration, to ascendants, descendants, brothers, sisters
or the spouse of a shareholder or between shareholders who
are individuals, members of the Gras and/or Lucas families,
shall be freely carried out.
The following shall also be free:
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Exhibit 6 to the Agreement
Draft Resolutions
page 3
- the contribution by a shareholder who is an individual
of all or part of his/her shares to a legal entity
controlled by him/her, alone or with his/her spouse,
brothers and sisters, ascendants or descendants,
provided that the contributors first undertake in
respect of the other shareholders, in the event of the
transfer of control of the legal entity receiving the
contribution, that this transfer shall be treated in
light of the provisions set forth in B/ and C/ below
in the same manner as if the transfer concerned the
company's shares directly,
- any transfer, whether by means of a contribution or
otherwise, by a legal entity of all or part of its
shares to a company belonging to the same group as the
legal entity, i.e., to a company which is controlled
by, controls or is under common control with the
transferring company, control being defined within the
meaning of Article 355-1 of the law on commercial
companies, or to the controlling company,
- shares purchased pursuant to the provisions of
Articles 208-1 to 208-8-2 of the law on commercial
companies,
- the allotment of shares to any assign following the
partition of an estate or the liquidation of the
community property between spouses,
- transfers of A shares to owners of B shares, made in
performance of Promise to Sell No. 1 granted by the
owners of A shares pursuant to an Agreement signed in
___________ on ___________, 1997,
- transfers of B shares, regardless of whether they are
to a shareholder or third parties, made in performance
of Promise to Sell No. 2 granted to Messrs. Patrick
Lucas, Emmanuel Gras and Daniel Naftalski by the
owners of B shares pursuant to an Agreement signed in
___________ on ___________, 1997,
- transfers to persons who are members of the
Supervisory Board of the share required for them to
perform such duties, and transfers back of such
shares.
B/ All transmissions of shares between shareholders, other than
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Exhibit 6 to the Agreement
Draft Resolutions
page 4
those made freely pursuant to A above, shall be subordinated
to the exercise of a preemption right by all the A and B
shareholders other than the Transferor according to the
following conditions.
The transferring shareholder shall notify the proposed
transfer or change of ownership to the company by
extra-judicial writ or by registered letter with return
receipt requested, indicating the identity of the proposed
transferee(s), the number of shares whose transfer or change
of ownership is being considered and the price offered, if
it concerns a sale of the shares, or the estimate of the
price of the shares in the other cases (hereinafter referred
to as the "Notification").
Within eight days following the Notification made to the
company, the management shall notify the A and B
shareholders other than the transferor, individually and by
registered letter, of the number of shares transferred and
the price indicated in the Notification.
The shareholders shall have fifteen days in which to
announce their intention of acquiring the shares at the
price indicated in the Notification.
In the event of applications exceeding the number of shares
offered, the management shall divide out the shares between
the applicants (including the proposed transferee(s)) in
proportion to their fraction of the capital and within the
limits of their applications. However, for as long as a same
holder of A shares does not directly or indirectly hold a
number of shares greater than the number of B shares, the
distribution will be made as a priority among the owners of
A shares in proportion to their fraction of the capital,
then among the owners of B shares for the surplus of the
non-preempted shares.
In the event of applications for less than the number of
shares offered, the proposed transfer or change of ownership
may only be carried out for the shares which have not been
preempted.
The price of the preempted shares shall be equal to the
price indicated in the Notification. Except as otherwise
agreed, the price of the preempted shares shall be payable
in cash.
C/ Unchanged.
D/ Unchanged.
E/ Unchanged.
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Exhibit 6 to the Agreement
Draft Resolutions
page 5
F/ Unchanged.
G/ Unchanged.
ARTICLE 10
1/ The company shall be managed by one or more gerants, who shall be
individuals and who may but do not need to be general partners.
Any general partner shall automatically be a gerant.
The appointment of a gerant who is not a general partner shall be made
pursuant to a decision of the ordinary general meeting of the shareholders
with the agreement of the majority of the general partners or, if there
are less than three general partners, with the agreement of the general
partner or partners. The appointment may also be made pursuant to a
decision of the Supervisory Board taken by the majority of the members
present or represented, in the event that the company no longer has any
general partners.
Other than the case referred to in paragraph 3/ of this article, the
removal of a gerant who is not a general partner shall be made pursuant to
the same conditions as for his appointment.
Other than the case referred to in paragraph 3/ of this article, the
removal of a gerant who is a general partner shall be made pursuant to a
decision of the extraordinary general meeting of the shareholders with the
agreement of the other general partners. If there is only one gerant who
is a general partner, his removal may only be made for a legitimate cause
by a court decision at the request of one or more shareholders
representing more than one-half of the capital.
2/ Each of the gerants shall be vested with the broadest powers to act in all
circumstances in the name of the company. The gerant shall exercise such
powers within the limits of the corporate purpose and subject to those
powers expressly conferred by the law on the shareholders' meetings.
3/ Any limitation of the gerant's powers shall not be enforceable against
third parties.
The gerants shall hold separately the same powers as far as third parties
are concerned. However, an internal limitation of the individual powers
shall concern the following decisions, which are decisions to be taken
collectively by the gerants in office in the event of several gerants:
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Exhibit 6 to the Agreement
Draft Resolutions
page 6
- empowering any persons other than the gerant or gerants to bind the
company;
- all sureties, guarantees, mortgages, borrowings, loans and in
general all transfers and all commitments of the company exceeding
an amount fixed by the general partners taking their decision by a
two-thirds majority in numbers, or unanimously if there are only two
of them;
- all operations entailing for the company the acquisition of the
status of partner, in name or as a general partner.
Any violation of the rule of collective decision-making provided for above
shall be a faute lourde (gross misconduct) leading to the possible removal
of the gerant having committed such fault pursuant to a decision of the
majority of the general partners or, if the number of general partners is
less than three, pursuant to a decision of the general partner or
partners. If the gerant having committed the fault is himself a general
partner, he shall not take part in the decision. Moreover, the gerant
having committed the fault may be the subject of a claim for damages
insofar as the violation is prejudicial to the company.
Furthermore, it is agreed that the gerant or gerants, acting jointly or
separately, may not, without first having been authorized by the
Supervisory Board taking its decision by a three-quarters (3/4) majority
of its members, carry out the following operations:
a) Any acquisition not referred to in the investment budget approved by
the Supervisory Board, by any means, directly or indirectly, in
particular by the purchase of securities, any business, element of a
business, client portfolio, enterprise (a) exceeding an exemption of
FRF 50,000,000 excluding tax per calendar year, it being specified
that to calculate this exemption, the only operations taken into
consideration will be operations of more than FRF 2,000,000
excluding tax, or (b) exceeding an amount of FRF 25,000,000
excluding tax per operation;
b) any sale not referred to in the investment budget approved by the
Supervisory Board, by any means, directly or indirectly, in
particular by the sale of securities, any business, element of a
business, client portfolio, enterprise (a) exceeding an exemption of
FRF 50,000,000 excluding tax per calendar year, it being specified
that to calculate this exemption, the only operations taken into
consideration will be operations of more than FRF 2,000,000
excluding tax, or (b) exceeding an amount of FRF 25,000,000
excluding tax per operation;
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Exhibit 6 to the Agreement
Draft Resolutions
page 7
c) Any other acquisition of assets not referred to in the operating
budget approved by the Supervisory Board and not being the subject
matter of one of the above paragraphs, (a) exceeding an exemption of
FRF 30,000,000 excluding tax per calendar year, it being specified
that to calculate this exemption, the only operations taken into
consideration will be operations of more than FRF 1,000,000
excluding tax, or (b) exceeding an amount of FRF 10,000,000
excluding tax per operation;
d) Any other sale of assets not being the subject matter of one of the
above paragraphs, (a) exceeding an exemption of FRF 30,000,000
excluding tax per calendar year, it being specified that to
calculate this exemption, the only operations taken into
consideration will be operations of more than FRF 1,000,000, or (b)
exceeding an amount of FRF 10,000,000 excluding tax per operation;
e) Any subscription of a loan or a long term financial facility (more
than two years), the amount of which, in one or more operations, is
greater than or equal to FRF 25,000,000 per calendar year, intended
to finance an investment, excluding cash operations;
f) Any constitution of a guarantee of any kind for a total amount per
operation greater than or equal to FRF 25,000,000, or exceeding an
exemption of FRF 100,000,000 per calendar year, whatever the amount
of the guarantee;
g) Any conclusion, renewal or termination of any undertaking or
agreement, directly or indirectly, between the company on the one
hand and one of the shareholders or one of the general partners or
members of their family on the other hand, excluding employment
contracts entered into or renewed at normal conditions assessed
compared to the usual practice applicable in the Company;
h) The terms and conditions of any stock option plan;
i) Any entry into the capital of Gras Savoye Euro Finance of a third
party, particularly by any share transfer;
j) Any transfer of shares of Gras Savoye & Cie by Gras Savoye Euro
Finance.
Any investment budget which may be prepared by the company must be
approved by the Supervisory Board by a three-quarters majority of its
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Exhibit 6 to the Agreement
Draft Resolutions
page 8
members.
4/ In the event of several gerants, for all decisions to be taken
collectively by the gerants, they shall form a management board composed
of all the gerants in office.
The board shall be chaired by a gerant who is a general partner.
The chairman of the meeting shall be designated by the members present.
The management board shall meet at the registered office as often as the
interest of the company shall require upon being convened by one of the
gerants.
For the meeting to be validly held, each of the members must have been
convened by any means at least seven days in advance of the meeting,
unless all the members were present or represented at the meeting.
A member may only be represented by another member.
Collective decisions shall be taken by a majority of the gerants in
office. If there are only two gerants in office, the decision must be
unanimous.
The board's decisions shall be recorded in minutes written in a special
register and signed by the chairman of the meeting and another member
present at the meeting.
5/ Subject to the provisions of Article 16.2/, if there is only one general
partner left who is a gerant, he shall automatically cease to hold the
office of gerant either at the close of the ordinary annual general
meeting of the shareholders deciding on the accounts of the financial year
during which the gerant reached the age of seventy or on the day on which
he becomes the sole general partner gerant if on such day he is more than
70 years of age.
ARTICLE 13 - SUPERVISORY BOARD
1/ Composition - Appointment
a) The Supervisory Board shall be composed of eight members chosen
exclusively from among the limited partners.
Depending on the number of shares of each class, the breakdown of
the members of the Supervisory Board shall be made as follows:
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Exhibit 6 to the Agreement
Draft Resolutions
page 9
- if the number of class B shares is between 25% and 50% of the
capital, three members of the Supervisory Board out of eight
must be chosen from among the candidates presented by the
holders of class B shares and five from among the candidates
presented by the holders of class A shares;
- if the number of class B shares is equal to 50% of the
capital, four members of the Supervisory Board out of eight
must be chosen from among the candidates presented by the
holders of class B shares and four from among the candidates
presented by the holders of class A shares;
- if the number of class B shares is above 50% and below 75% of
the capital, five members of the Supervisory Board out of
eight must be chosen from among the candidates presented by
the holders of class B shares and three from among the
candidates presented by the holders of class A shares.
When, after one of the members of the Supervisory Board ceases to carry
out his duties, the holders of shares of one category were no longer
to be sufficiently represented on the Supervisory Board, the
chairman of the Supervisory Board shall be required to convene the
Supervisory Board within a maximum of 15 days in order to take note
of the above situation and to appoint a new member by cooptation.
In the event that one of the above thresholds is exceeded, the management
shall notify all the other members of the Supervisory Board thereof
immediately.
If one of such members should fail to resign within fifteen days following
this notification, the most senior in age of the members of the
Supervisory Board belonging to the class of shares whose number of
seats to be filled has been reduced shall be deemed to have resigned
as a matter of course.
The chairman of the Supervisory Board or the management shall convene the
Supervisory Board within a maximum of fifteen days in order to take
note of such resignation and appoint a new member of the Supervisory
Board by cooptation.
b) The members of the Supervisory Board shall be appointed by the
ordinary general meeting of the shareholders for a maximum of
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Exhibit 6 to the Agreement
Draft Resolutions
page 10
three years.
The duties of a member of the Supervisory Board shall terminate at
the close of the ordinary general meeting of the shareholders
deciding on the accounts of the preceding financial year, held in
the year during which such member's term of office expires.
The members of the Supervisory Board are eligible for re-election.
They may be removed at any time by the general meeting.
The partners who are general partners may not participate in the
appointment or removal of members of the Supervisory Board in
general meetings.
c) Each member of the Supervisory Board shall own at least ONE (1)
share of the company. If a member of the Supervisory Board does not
own ONE (1) share when he is appointed, he must acquire it within
three (3) months of his appointment.
d) In the event of a vacancy due to a death, resignation or for another
reason, the Board may provisionally appoint new members, respecting
the rules fixed above. These appointments shall be ratified by the
following general meeting.
The replacement member shall remain in office only for the remainder
of his predecessor's term of office.
If the provisional appointments are not ratified by the general
meeting, the resolutions adopted by the Supervisory Board shall
nevertheless be valid.
2/ Officers and meetings of the Supervisory Board
The Board shall appoint a chairman from among its members who is required
to be an individual. It shall in addition choose a secretary who may but
does not need to be one of its members.
In the absence of the chairman for any reason whatsoever for a period of
at least six months, the Board shall elect a new chairman. In the absence
of the chairman for a meeting, the Board shall designate one of its
members to chair the meeting.
The Board shall meet, upon being convened by its chairman or by one-half
of its members, as often as the interest of the company shall require, and
at least every six months, either at the registered office, or in any
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Exhibit 6 to the Agreement
Draft Resolutions
page 11
other place indicated in the letter of convocation. It may also be
convened by the gerant of the company, or by one of them if there are
several.
The presence of one-third of the members of the board shall be required
for the validity of its proceedings.
Except for another majority provided for in these by-laws, the decisions
shall be taken by the majority of the members present or represented, one
member present being able to represent a maximum of two absent members
upon presentation of express powers of attorney. In the event of equal
voting, the chairman of the Supervisory Board meeting shall have the
casting vote.
The Board's proceedings shall be recorded in minutes inserted or bound in
a special register and be initialed in accordance with the law. They shall
be signed by the Chairman of the meeting and the Secretary or by the
majority of the members present.
3/ Duties of the Supervisory Board
The Supervisory Board shall supervise permanently the management of the
company, in accordance with the law.
It shall authorize the gerant or gerants to carry out the operations
referred to in paragraph 3/ of Article 10 above.
It shall submit a report to the ordinary annual general meeting in which
it shall point out in particular any irregularities or inaccuracies noted
in the accounts of the financial year.
It shall be informed of the documents made available to the statutory
auditors.
It may convene the general meeting of the shareholders, in which case its
chairman shall chair such meeting.
4/ The Board members' directors' fees
The Supervisory Board may be awarded a fixed annual compensation as
directors' fees, the amount of which, charged to overheads, shall be
determined by the ordinary general meeting of the shareholders and shall
be maintained until otherwise decided by this general meeting.
The Board shall distribute its directors' fees between its members in the
proportions it considers appropriate.
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Exhibit 6 to the Agreement
Draft Resolutions
page 12
5/ Compensation of the chairman of the Supervisory Board
The chairman of the Supervisory Board may be awarded a compensation which
shall be fixed by the Supervisory Board in agreement with the general
partners.
6/ Age limit
The number of members of the Supervisory Board who are more than seventy
years of age may not be more than one-third of the members in office. Any
appointment contrary to this provision would be invalid.
When this legal limit is exceeded, the member who is the most senior in
age shall be deemed to have resigned as a matter of course.
Moreover, as from the age of seventy, the duration of the term of office
shall be one year.
A Supervisory Board member who reaches the age of seventy cannot therefore
remain in office beyond his seventy-first year, unless his term of office
is renewed annually by the general meeting.
ARTICLE 16
1/ There shall be at least one general partner. The general partner or
partners may only be individuals.
2/ The general partners are:
- Mr. Emmanuel Gras
- Mr. Patrick Lucas
- Mr. Daniel Naftalski
Notwithstanding any other provisions of these by-laws, the general
partners shall be appointed no later than until December 31, 2009. In the
four months preceding this date, the general partner or partners still in
office must have convened the extraordinary general meeting of the
shareholders to transform the Company into a societe anonyme with a board
of directors.
3/ The appointment of any new general partner shall be decided by the
extraordinary general meeting of the shareholders following the unanimous
proposal of the general partners, or the general partner if
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Exhibit 6 to the Agreement
Draft Resolutions
page 13
there is only one, it being understood that the new general partner may
only be chosen from among the candidate(s) presented by the general
partner or partners.
If there are no more general partners, the extraordinary general meeting
of the shareholders shall be convened by the Supervisory Board, within
three months following the occurrence of the event, to transform the
company into a societe anonyme with a board of directors.
4/ The general partner who stops being a gerant for any reason whatsoever
shall also no longer be a general partner.
In the event of any legal incapacity, withdrawal of a general partner or a
general partners' losing the status of general partner, the company shall
not be dissolved. The general partner losing such status shall be a simple
shareholder if he owns shares. The heirs of a deceased general partner
shall not inherit the status of general partner.
They shall be entitled to a proportion, prorata temporis, of the profit
provided for in Article 18.
The by-laws shall be amended automatically as a result; the amendment
shall be recorded and published by a gerant.
5/ The decisions shall be subject to the approval of the collective body of
the general partners, which shall decide by the majority of its members,
if there are more than two, or unanimously if there are less than three,
except when the by-laws provide for another majority and when it is a
question of transforming the company into a societe anonyme or a societe a
responsabilite limitee, in which case a simple majority is provided by the
law (Article 262 of the law of July 24, 1966).
However, the general partners may not decide on the appointment or removal
of members of the Supervisory Board and the in-house auditors.
The decisions of the collective body of the general partners may be made
by means of a written consultation (ordinary letter, telegram, telex, fax,
etc.), except for the annual approval of the accounts or when the general
meeting of the shareholders is convened by one or more general partners.
Each general partner shall have fifteen days in which to inform the
management of his decision on each of the resolutions. A partner who does
not reply within this period of time shall be considered to have
abstained.
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Exhibit 6 to the Agreement
Draft Resolutions
page 14
The management shall prepare minutes mentioning the date and the method of
consultation, the text of the resolutions and the answers given, which
must be attached to the minutes.
Copies of or excerpts from minutes shall be validly certified as true by
the gerant or one of the gerants if there are more than one.
ARTICLE 18 - ACCOUNTS OF THE COMPANY
1(degree) Each financial year shall begin on January 1 and end on December 31.
2(degree) The profit or loss of the financial year shall consist of the
difference between the income and expenditure for the year, after
deducting depreciation and allowances, as shown in the income
statement.
3(degree) From the profits of the year, reduced by the prior losses, if any, a
deduction shall first be made:
o of at least five percent allocated to forming a reserve fund
known as the "legal reserve". This deduction shall cease to be
compulsory when the amount of the legal reserve reaches
one-tenth of the capital;
o of any amount allocated to the reserves pursuant to the law.
The balance shall be distributed up to 3% to the general partners.
The surplus must be distributed to the owners of shares, whether
general or limited partners, in proportion to the number of their
shares, up to 40% of its amount. After these distributions, the
balance increased by the retained earnings, if any, may, upon the
decision of the ordinary general meeting and with the agreement of
the general partners, be distributed, or carried forward, or
allocated to one or more general or special reserves. This or these
reserve funds may be distributed solely to owners of shares or
allocated to the total or partial amortization of the shares.
THIRD RESOLUTION
The general meeting, upon the unanimous decision of the shareholders who will
hold B shares, after listening to the report of the special advantages drawn up
by the auditor appointed by order of the Presiding Judge of the Nanterre
Commercial Court, decides that the A shares shall be held, at the close of this
general meeting, by:
- Mr. [___________]
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Exhibit 6 to the Agreement
Draft Resolutions
page 15
- Mr. [___________]
- Mr. [___________]
- Mr. [___________]
it being observed that all these persons before the general meeting agreed to
hold A shares.
The general meeting approves the special advantages awarded to owners of A
shares, consisting of the right for the latter (i) to have a certain number of
members out of the eight members to compose the Supervisory Board and (ii) to be
able to exercise as a priority the preemption provided for in Article 9-II-2e-B/
of the by-laws.
FOURTH RESOLUTION
The general meeting, upon the unanimous decision of the shareholders who will
hold A shares, after listening to the report of the special advantages drawn up
by the auditor appointed by order of the Presiding Judge of the Nanterre
Commercial Court, decides that the B shares shall be held, at the close of this
general meeting, by:
- Mr. [___________]
it being observed that this person before the general meeting agreed to hold B
shares.
The general meeting approves the special advantages awarded to owners of B
shares, consisting of the right for the latter (i) to have a certain number of
members out of the eight members to compose the Supervisory Board and (ii) to be
able to acquire shares freely in the context of the performance of Promise to
Sell No. 1 granted by the owners of A shares pursuant to an Agreement signed in
_________ on _________, 1997.
FIFTH RESOLUTION
The general meeting, after listening to the report of the special advantages
drawn up by the auditor designated by order of the Presiding Judge of the
Nanterre Commercial Court, approves the special advantage granted to Messrs.
Patrick Lucas, Emmanuel Gras and Daniel Naftalski to be able to acquire B shares
or to have them acquired freely by a shareholder or by one or more third parties
in performance of Promise to Sell No. 2, which was granted to them pursuant to
an Agreement signed in _________ on _________, 1997.
SIXTH RESOLUTION
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Exhibit 6 to the Agreement
Draft Resolutions
page 16
The general meeting grants full powers to the bearer of an original or a copy of
or an excerpt from these minutes in order to accomplish all filing, publication
and other necessary formalities.
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Exhibit 9
to the Agreement
page 1
EXHIBIT 9 TO THE AGREEMENT
SHARE EXCHANGE AGREEMENT
BETWEEN THE UNDERSIGNED:
Willis Corroon Europe B.V., a Netherlands law company whose registered office is
at Marten Meesweg 51, 3068 AV Rotterdam, Netherlands, registered with the
Rotterdam Commercial Registry under No. 135.835, represented by Sarah Turvill,
acting as a director, fully empowered for the purposes hereof,
hereinafter "WCE BV",
AND
Gras Savoye Euro Finance S.A., a Belgian law company having its registered
office at 8 avenue Bel-Air, 1180 Uccle, Belgium, registered with the Brussels
Commercial Registry under No. 258.054, represented by Patrick Lucas in his
capacity as President, fully empowered for the purposes hereof,
hereinafter "GS Euro Finance".
IT IS RECALLED THAT:
A. Willis Corroon France S.A. is a societe anonyme with a capital of FRF
8,220,000, divided into 82,200 shares of FRF 100 each, having its registered
office at 18, boulevard Malesherbes, 75008 Paris and which is registered with
the Paris Commercial and Companies Registry under No. B 341 303 089 (hereinafter
"WCF"). As of the Closing Date of the Exchange (as defined below), the capital
of WCF will be held as described in Exhibit 1 hereto.
The WCF shares are referred to hereinafter as the "WCF Shares".
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Exhibit 9
to the Agreement
page 2
B. GS Euro Finance has indicated to WCE BV that it is interested in an exchange
of 82,200 WCF Shares representing 100% of the capital of WCF for 680 shares of
Gras Savoye & Cie (hereinafter the "Exchanged GS Shares"), and WCE BV has
indicated that it is interested in this exchange.
C. The exchange contemplated by the parties will occur in the context of an
overall transaction whose aim is (i) the acquisition by the WCG Group (as
defined in the Agreement) of approximately 31.72% of the capital and
approximately 33.36% of the voting rights of Gras Savoye & Cie and (ii) the
integration of Willis Corroon France's activities into the GS Group (as defined
in the Agreement).
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Exchange
(a) Subject to ordinary legal guarantees and to the terms and conditions
of this Share Exchange Agreement, WCE BV and GS Euro Finance exchange all of the
WCF Shares held by WCE BV representing 100% of WCF's capital for the Exchanged
GS Shares held by GS Euro Finance, in consideration for the Basic Cash
Distribution referred to in Article 2 (B) below.
(b) The exchange of the WCF Shares for the Exchanged GS Shares shall
become effective on the date on which the WCF Shares are actually exchanged for
the Exchanged GS Shares (hereinafter the "Closing Date of the Exchange") and GS
Euro Finance and WCE BV shall acquire the right to the full enjoyment
respectively of the WCF Shares and the Exchanged GS Shares as from such date,
with all the attached rights to dividends.
(c) The exchange of the WCF Shares for the Exchanged GS Shares shall only
be carried out if the condition precedent set forth in Article 4 below has been
fulfilled on the Closing Date of the Exchange.
2. Valuation and Cash Distribution (soulte)
(A) Valuation
The exchange provided for in Article 1 hereof shall be based on the one
hand on a valuation of WCF at an amount of FRF 50,400,000 (fifty million four
hundred thousand French francs), i.e., FRF 613 per WCF Share, and on the other
hand on a valuation of the Company (as defined in the Agreement) of FRF
1,400,000,000 (one billion four hundred million French francs),
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Exhibit 9
to the Agreement
page 3
i.e., FRF 30,017 per Exchanged GS Share. This exchange shall take place in
consideration for the Cash Distribution (as defined below), and for the other
provisions set forth below.
(B) Basic Cash Distribution
A cash distribution amounting to FRF 29,988,440 (hereinafter the "Basic
Cash Distribution") shall be paid by GS Euro Finance to WCE BV on the Closing
Date of the Exchange.
(C) WCF Quantifiable Deciding Element and Cash Distribution deriving from
a Lower Valuation of WCF
If the accounting and legal audit conducted by GS Euro Finance or by the
GS Group (hereinafter the "WCF Audit") reveals one or more quantifiable elements
or facts contrary to the quantifiable deciding element of the acquisition of the
WCF Shares contained in Exhibit 2 (hereinafter the "WCF Quantifiable Deciding
Element") to be verified during the WCF Audit, GS Euro Finance shall inform WCE
BV thereof no later than 8 business days in France (hereinafter the "Business
Days") following the date of the end of the WCF Audit set for October 20, 1997
at the latest, unless extended contractually (hereinafter referred to as the
"Date of the End of the WCF Audit"). GS Euro Finance shall attach all the
necessary information to such notification along with copies of any necessary
documentary proofs. The notification shall also include the value of the WCF
Cash Distribution (as defined below) claimed by GS Euro Finance.
(i) Inaccuracy in respect of the WCF Quantifiable Deciding Element to be
verified during the WCF Audit
If the WCF Audit reveals one or more elements or facts in contradiction
with the WCF Quantifiable Deciding Element to be verified during the WCF Audit,
a cash distribution will be calculated according to the formula contained in
Exhibit 3 (hereinafter the "WCF Cash Distribution").
WCE BV may notify GS Euro Finance within 6 Business Days following the
notification received from GS Euro Finance, of any dispute concerning such
notification (hereinafter the "Notification in Response"), failing which it
shall be deemed to have agreed to all the elements and to the WCF Cash
Distribution notified by GS Euro Finance, as a result of an inaccuracy in
respect of the WCF Quantifiable Deciding Element. In the event of a dispute, the
parties shall negotiate in good faith in order to reach an agreement on the
existence or the amount of the WCF Cash Distribution.
In the event of the occurrence of the 2 following conditions which are
cumulative:
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Exhibit 9
to the Agreement
page 4
(x) dispute by WCE BV of the amount of the Estimated Net Turnover at
December 31, 1997 (as defined in Exhibit 2) estimated by GS Euro
Finance;
(y) absence of agreement between the parties within 6 Business Days
following the Notification in Response received by GS Euro Finance,
the amount of the Estimated Net Turnover at December 31, 1997 shall be
determined in accordance with the Expert Assessment Procedure.
The Expert shall accordingly determine the WCF Cash Distribution within
the period set forth in Article 2. (C) (ii) below, by applying the formula
contained in Exhibit 3.
However, in the event that the Expert is unable to determine the amount of
the Estimated Net Turnover at December 31, 1997, it would determine the WCF Cash
Distribution on the basis of the amount of the Actual Net Turnover at December
31, 1997.
(ii) Expert Assessment Procedure
For the purposes hereof, the procedure described below is called the
"Expert Assessment Procedure".
Failing an agreement within a period of 6 Business Days following the
Notification in Response received by GS Euro Finance, as provided in Article 2.
(C) (i) above, the parties expressly agree that the existence and/or the amount
of the inaccuracy alleged by GS Euro Finance in respect of the WCF Quantifiable
Deciding Element will be definitively settled, without recourse of any kind,
unless an obvious material error has been made, by Coopers & Lybrand
(hereinafter the "Expert"), within a period of 30 Business Days following:
(x) the submission of the dispute to the Expert in order to determine
the amount of the Estimated Net Turnover at December 31, 1997, or
(y) the submission of the dispute to the Expert, to which shall be
attached a copy of WCF's accounts for financial year 1997, certified
by the statutory auditor, in order to determine the amount of the
Actual Net Turnover at December 31, 1997.
The Expert shall also settle any dispute about either the determination of
the amount of the Recurring Annual Expenditure, in accordance with Article 2 (D)
below, or the certification of the Closing Financial Statements provided for in
Article 2 (D) below, and shall within 30 Business Days of being
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Exhibit 9
to the Agreement
page 5
consulted reach a decision to determine the amount of the Recurring Annual
Expenditure and/or to determine and certify the Closing Financial Statements
and/or the net result for the period between the date of the Closing Financial
Statements and December 31, 1997.
The dispute shall be submitted to the Expert at the request of the most
diligent party in writing with a copy sent to the other party, and one-half of
its fees shall be paid by GS Euro Finance and the other half by WCE BV. The
party submitting the dispute to the Expert shall provide the Expert with copies
of the notifications exchanged between the parties. The Expert declared prior to
the signature hereof that it accepted this appointment. Accordingly, the Expert
shall determine the existence and/or the amount of the inaccuracy alleged by GS
Euro Finance in respect of the WCF Quantifiable Deciding Element and the WCF
Cash Distribution which shall be binding on the parties, in accordance with
Article 1843-4 of the Civil Code, and shall fulfill any other mission conferred
upon it hereunder, it being understood in particular that not only the
definitions contained in Exhibit 2 to the Share Purchase Agreement but also the
formula used to determine the WCF Cash Distribution contained in Exhibit 3 and
the accounting rules and methods contained in Exhibit 4 to the Share Purchase
Agreement (which is itself Exhibit 2 to the Agreement) shall be binding on the
Expert. If the Expert was unable to complete its mission for any reason
whatsoever, with the exception of the case in which it would be unable to
determine the amount of the Estimated Net Turnover at December 31, 1997, a new
Expert chosen from the list of experts of the Court of Appeal of Versailles
would be appointed by mutual agreement between GS Euro Finance and WCE BV or,
failing this, by the Presiding Judge of the Commercial Court of Nanterre to
which the dispute shall be referred in summary proceedings (referes) at the
request of the most diligent party. WCE BV guarantees the Expert's access to the
premises of WCF and that WCF shall provide the Expert with any information that
the Expert might reasonably request in connection with the accomplishment of its
mission.
(D) WCF Annual Expenditure
For the purposes of this Share Exchange Agreement, the valuation of WCF
has been established in particular on the basis of an estimated recurrent before
tax result of WCF of FRF 3,000,000.
Within three months as from the Closing Date of the Exchange, a balance
sheet and income statement of WCF as at the last day of the month preceding the
Closing Date of the Exchange (hereinafter the "WCF Closing Financial
Statements") shall be drawn up by mutual agreement between the parties or,
failing this, by the Expert, in the context of the Expert Assessment Procedure,
which shall certify them. The WCF Closing Financial Statements shall in
particular reflect the amount of the Equity on the Closing Date of the Exchange
(as defined in Exhibit 2) and the amount of the Recurrent Annual Expenditure (as
defined below).
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Exhibit 9
to the Agreement
page 6
WCE BV undertakes, prior the Closing Date of the Exchange, after informing
and consulting the GS Group, to take all necessary measures so that the amount
of the Recurrent Annual Expenditure (as defined below) is reduced to an amount
corresponding at most to the difference between the Estimated Net Turnover at
December 31, 1997 and FRF 3,000,000. For the purposes hereof, Recurrent Annual
Expenditure is defined as the estimated expenditure of WCF for financial year
1997 reduced by the estimated recurrent savings obtained from all the measures
implemented by WCF before the Closing Date of the Exchange and those that will
be taken by mutual agreement and implemented by WCF after the Closing Date of
the Exchange.
If the WCF Closing Financial Statements reflect an amount of Recurrent
Annual Expenditure higher than the difference between the Estimated Net Turnover
at December 31, 1997 (or as the case may be the Actual Net Turnover at December
31, 1997) and FRF 3,000,000, WCE BV and any company of the GS Group undertake to
collaborate in good faith in order to pursue together the measures to reduce the
Recurrent Annual Expenditure initiated by WCE BV before the Closing Date of the
Exchange and to adopt together and implement all additional necessary measures
with the aim of achieving this level of Recurrent Annual Expenditure as promptly
as possible. It is specified that the amount of the Recurrent Annual Expenditure
taken into consideration after the Closing Date of the Exchange shall be
calculated in constant management, i.e., excluding any expense of WCF related to
a modification of the WCF management by GS Euro Finance or the GS Group, which
resulted in an increase in WCF's management costs and which had not been
approved by WCE BV.
WCE BV undertakes to assume, or to indemnify WCF for (i) as from the date
of the Closing Financial Statements and for a period of five months, the surplus
of the amount of the Recurrent Financial Expenditure shown in the WCF Closing
Financial Statements over the difference between the Estimated Net Turnover at
December 31, 197 and FRF 3,000,000, these annual amounts being converted to a
monthly basis to take into account the seasonal nature, and with the amounts due
being payable at the end of the five months, (ii) all expenses of whatever kind
on which the parties will have agreed, resulting from the implementation of the
measures to reduce the Recurrent Annual Expenditure decided by mutual agreement,
and (iii) the expenses borne while waiting for the effects of these measures if
they have not already been assumed under (i) above.
The parties agree that no later than at the end of a five-month period
after the Closing Date of the Exchange, the amount of the Recurrent Annual
Expenditure shall be determined in good faith by mutual agreement or, failing
this, by the Expert in the context of the Expert Assessment Procedure.
If at the end of this five-month period, the amount of the Recurrent
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Exhibit 9
to the Agreement
page 17
Annual Expenditure as determined is less than or equal to the difference between
the Actual Net Turnover at December 31, 1997 and FRF 3,000,000, WCE BV shall be
deemed to have satisfied all its obligations under this Article 2 (D) and shall
be released from any obligation in this regard in the future, subject to the
undertakings made by WCE BV in (ii) and (iii) of the second paragraph above.
Conversely, if, at the end of this same five-month period, the amount of
the Recurrent Annual Expenditure as determined is greater than the difference
between the Actual Net Turnover at December 31, 1997 and FRF 3,000,000, WCE BV
undertakes to pay GS Euro Finance, as a price reduction, an amount corresponding
to 14 times the surplus from the amount of the Recurrent Annual Expenditure over
the difference between the Actual Net Turnover at December 31, 1997 and FRF
3,000,000, reduced by the corporation tax at the applicable rate. WCE BV shall
then be deemed to have satisfied all its obligations under this Article 2 (D)
and shall be released from an obligation in this regard in the future, subject
to the undertakings made by WCE BV in (ii) and (iii) of the third paragraph
above.
(E) Equity
If the Closing Financial Statements, certified as necessary by the Expert
as set forth in Article 2 (D) above, show an amount of Equity less than FRF
4,500,000, WCE BV shall pay GS Euro Finance, as a price reduction, a sum
corresponding to the difference between FRF 4,500,000 and the amount of the
Equity as determined by the Closing Financial Statements. It is specified that
between the date of the Closing Financial Statements and December 31, 1997,
WCF's net result shall be nil, WCE BV undertaking to pay GS Euro Finance any
amount corresponding to a negative result over such period, unless this negative
result is related to a modification in the management of WCF by GS Euro Finance
or the GS Group which resulted in an increase in WCF's management costs and
which had not been approved by WCE BV.
(F) Cash Distribution deriving from a Lower Valuation of Gras Savoye & Cie
In the event that the Price per Share (as defined in the Share Purchase
Agreement in Exhibit 2 to the Agreement) was determined by the parties to such
Share Purchase Agreement or by the Expert (as defined in such Share Purchase
Agreement) at a value less than FRF 30,017, a cash distribution equal to the
difference between FRF 30,017 and the Price per Share, multiplied by the number
of Exchanged GS Shares, shall be payable by GS Euro Finance to WCE BV
(hereinafter the "GS Cash Distribution").
(G) Payment terms and conditions
The amounts due pursuant to the above provisions shall be payable
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Exhibit 9
to the Agreement
page 8
within 10 Business Days of their determination by contract or by the Expert by
bank check delivered to the beneficiary.
However, a set off shall be made automatically, in accordance with Article
1289 of the Civil Code, between all or part of such amounts on the day on the
which such amounts are due, certain and liquid at the same date and between the
same parties. Only the outstanding amount of these sums shall, as the case may
be, be payable by the debtor party by bank check delivered to the beneficiary
within 10 Business Days following the occurrence of the set off.
3. Closing Date of the Exchange
The Closing Date of the Exchange shall be identical to the Closing Date
provided for in the Share Purchase Agreement attached in Exhibit 2 to the
Agreement. The actual completion of this exchange shall occur on the Closing
Date (as defined in the Share Purchase Agreement), by the actual exchange of the
Exchanged GS Shares for 82,200 WCF Shares, notwithstanding any provisional
failure to determine the WCF Cash Distribution, the GS Cash Distribution or any
other amount provided for in Article 2 above, as the case may be, on such date.
On the Closing Date of the Exchange, the exchange of the WCF Shares for
the Exchanged GS Shares shall be carried out as indicated in Article 2 above, as
follows:
(a) delivery to WCE BV of a share transfer order duly signed by GS Euro
Finance and of all other documents required to enable the transfer of the
Exchanged GS Shares and to render such transfer enforceable against third
parties, as well as the registration in the shareholders' registers of Gras
Savoye & Cie of the transfer of the Exchanged GS Shares to WCE BV;
(b) delivery to GS Euro Finance of a certified true copy of the minutes of
the board of directors' meeting of WCF approving GS Euro Finance as a new
shareholder of WCF;
(c) delivery to GS Euro Finance of a share transfer order duly signed by
WCE BV and of all other documents required to enable the transfer of the WCF
Shares and to render such transfers enforceable against third parties, as well
as the registration in the shareholders' registers of WCF of the transfer of the
WCF Shares to GS Euro Finance;
(d) delivery to GS Euro Finance of a letter waiving a return to better
fortune clause, substantially in the form of Exhibit 5 hereto;
(e) delivery to WCE BV of a bank check for FRF 29,988,440;
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Exhibit 9
to the Agreement
page 9
(e) as the case may be, delivery to WCE BV or GS Euro Finance respectively
of the amounts referred to in Article 2, other than the Basic Cash Distribution,
or the outstanding amount from the set off between these two amounts.
4. Condition precedent
The completion of the exchange of the WCF Shares for Exchanged GS Shares
is subject to the condition precedent of the actual completion of the transfer
of 15,105 shares of Gras Savoye & Cie to WCE BV (as defined in the Agreement)
according to the conditions set forth in the Agreement and in the Share Purchase
Agreement contained in Exhibit 2 to the Agreement.
5. Transfers of ownership
The transfer to GS Euro Finance of the ownership and the right to the
enjoyment of the WCF Shares, and the transfer to WCE BV of the ownership and the
right to the enjoyment of the Exchanged GS Shares, shall occur on the Closing
Date of the Exchange.
6. Administration of the companies
Between the date hereof and the Closing Date of the Exchange, WCE BV
undertakes to ensure that WCF is managed in a careful and prudent manner. Unless
otherwise stipulated herein or consented to in writing by GS Euro Finance, WCF
shall not conclude any undertaking nor engage in any activity outside the normal
course of business and of prior normal practice, and, in particular, WCE BV
shall take all measures necessary to ensure that WCF (i) does not decide to
distribute or pay dividends, (ii) does not amend its by-laws, (iii) does not
issue any share, option, right or other interest and security. However, WCE BV
may until the date of the Closing Financial Statements decide to distribute
and/or pay any WCF dividend provided that it is able to present an amount of
Equity on the date of the Closing Financial Statements that is equal to or
greater than FRF 4,500,000.
7. Representations and warranties
WCE BV and GS Euro have agreed to an indemnification undertaking which is
contained in Exhibit 4 hereto and forms an integral part hereof.
WCE BV acknowledges that GS Euro Finance has relied and will rely on the
said undertaking for the conclusion of this Share Exchange Agreement and the
exchange of the WCF Shares for the Exchanged GS Shares, regardless of
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--------------------------------------------------------------------------------
Exhibit 9
to the Agreement
page 10
the investigations that have been conducted or will be conducted concerning the
facts described in such undertaking.
In any event, WCE BV certifies and warrants to GS Euro Finance that on the
Closing Date of the Exchange, the WCF Shares shall be freely negotiable and free
of all option rights, claims, liens, guarantees, pledges, sureties, easements,
charges or restrictions of any nature whatsoever and that on that same Date, GS
Euro Finance shall acquire full ownership of the WCF Shares, free of all option
rights, claims, liens, guarantees, pledges, sureties, easements, charges or
restrictions of any nature whatsoever. WCE BV undertakes to indemnify GS Euro
Finance for any adverse consequences and prejudice suffered by GS Euro Finance
as a result of any violation by it of the undertaking of this paragraph.
Reciprocally, and with regard to the Exchanged GS Shares, GS Euro Finance
makes an undertaking in respect of WCE BV pursuant to the terms and conditions
of the representations and warranties and the indemnification undertaking of the
Share Purchase Agreement, which is attached as Exhibit 2 to the Agreement, and
its Exhibits, as recalled in the Share Purchase Agreement.
8. Other undertakings
(i) WCE BV on the one hand and GS Euro Finance on the other hand shall
sign all declarations, all reports and all other documents that may be necessary
or useful for the final completion of the transactions set forth herein.
(ii) WCE BV guarantees the provision by WCF of all documents and
information that may be reasonably requested in writing by GS Euro Finance
and/or its representatives or counsel in the course of the WCF Audit in order to
establish its information. GS Euro Finance and the GS Group undertake for their
part to conduct the WCF Audit within a period of time compatible with its being
completed by October 20, 1997.
(iii) Until the Closing Date of the Exchange, WCE BV and GS Euro Finance
undertake (a) not to transfer respectively the WCF Shares and the Exchanged GS
Shares, (b) not to enter into discussions with any third party in connection
with the sale of all or part of respectively the WCF Shares and the Exchanged GS
Shares and to end any negotiation previously started for such purpose, (c) not
to pledge respectively the WCF Shares and the Exchanged GS Shares or use them as
collateral in any manner whatsoever, in particular by transfer to a financial
instruments account pledged in favor of any person whatsoever, and (d) more
generally, not to do anything that might be likely to prevent or delay the
effective exchange of the WCF Shares for the Exchanged GS Shares on the Closing
Date of the Exchange.
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--------------------------------------------------------------------------------
Exhibit 9
to the Agreement
page 11
(iv) WCE BV undertakes to obtain the resignations of the WCF directors as
of the Closing Date of the Exchange and the convocation of a general
shareholders' meeting of WCF to be held on the Closing Date of the Exchange with
a view to appointing new directors.
(v) WCE BV authorizes GS Euro Finance and the GS Group to use the
corporate name and/or trade name Willis Corroon France until December 31, 1999.
As from such date, WCE BV may notify GS Euro Finance and the GS Group at any
time, upon giving 6 months' prior notice, of its prohibition of the use of the
corporate name and/or trade name Willis Corroon France.
9. Notices
All notices to a party hereunder shall be sent in writing and shall not be
deemed duly sent as regards the notifying party unless within the required
periods of time they are:
(i) sent by registered mail with return receipt requested, with a copy
sent by fax:
For WCE BV:
Willis Corroon Europe B.V.
Marten Meesweg 51
3068 AV Rotterdam
Netherlands
For the attention of the Company Secretary
Fax 00 31 20 661 0654
With a copy to:
Willis Corroon Group Plc
10 Trinity Square
London EC3P 3AX
United Kingdom
For the attention of: the Company Secretary
Fax 00 44 171 488 88 82
and
Fax 00 44 171 481 71 83
For GS Euro Finance:
Gras Savoye Euro Finance
8 avenue Bel-Air
1180 Uccle
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Exhibit 9
to the Agreement
page 12
Belgium
For the attention of Patrick Lucas
With a copy to:
Gras Savoye & Cie
2 rue Ancelle
92200 Neuilly sur Seine
For the attention of Patrick Lucas, Emmanuel Gras and Daniel Naftalski
Fax 00 33 1 41 43 69 85
With a copy to:
Directeur General Adjoint Administration et Finances
Gras Savoye & Cie
2 rue Ancelle
92200 Neuilly sur Seine
Fax: 01 41 43 69 06
or to such other address as WCE BV or GS Euro Finance may designate by
notice in accordance with this article, or
(ii) hand delivered to the representative of GS Euro Finance whose name is
indicated above or to the WCE BV Representative or WCE BV in exchange for a
signed receipt.
All notices made as indicated above shall be effective, as far as the
notified party is concerned, on the date on which they are presented for the
first time for delivery (in the event they are sent by registered mail with
return receipt requested) or on which they are delivered (in the event of hand
delivery in exchange for a signed receipt). Any notice may be validly made to or
by Gras Savoye & Cie and/or Gras Savoye S.A. in the place and stead of GS Euro
Finance.
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--------------------------------------------------------------------------------
EXHIBIT 1 TO THE SHARE EXCHANGE AGREEMENT
SHAREHOLDERS OF WILLIS CORROON FRANCE S.A.
Willis Corroon Europe B.V.: 82,200 WCF Shares (100% of the capital)
--------------------------------------------------------------------------------
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EXHIBIT 2 TO THE SHARE EXCHANGE AGREEMENT
WCF QUANTIFIABLE DECIDING ELEMENTS
A. WCF Quantifiable Deciding Elements to be verified by GS Euro Finance
during the WCF Audit
Quantifiable Deciding Element Reference Value (FRF)
Estimated Net Turnover at December 31, 1997 36,000,000
B. WCF Quantifiable Deciding Elements intended to be taken into consideration
by the parties or the Expert, as the case may be, in accordance with
Article 2 of the Share Exchange Agreement
Quantifiable Deciding Element Reference Value (FRF)
Estimated Net Turnover at December 31, 1997 36,000,000
Actual Net Turnover at December 31, 1997 36,000,000
Definitions of the WCF Quantifiable Deciding Elements (attached in Exhibit 2 to
the Share Purchase Agreement)
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--------------------------------------------------------------------------------
EXHIBIT 3 TO THE SHARE EXCHANGE AGREEMENT
DETERMINATION OF THE WCF CASH DISTRIBUTION
The parties have agreed to determine, as the case may be, the WCF Cash
Distribution according to the terms and conditions set forth in Article 2 of the
Share Exchange Agreement and according to the following formula.
(A) Net Turnover for financial year 1997
(i) Estimated Net Turnover for financial year 1997
If subsequent to the Date of the End of the WCF Audit and prior to the
Closing Date of the Exchange, the parties agree, or the Expert determines, that
the Estimated Net Turnover of WCF at December 31, 1997 (as defined in Exhibit 2)
will be less than FRF 34,200,000 (thirty-four million two hundred thousand
French francs), a cash distribution will be equal franc for franc to 1.4 (one
point four) times the difference between FRF 36,000,000 (thirty-six million
French francs) and such Estimated Net Turnover for financial year 1997 on which
the parties have agreed or which has been determined by the Expert (hereinafter
"WCF Cash Distribution No. 1").
For example, if the Estimated Net Turnover of WCF for financial year 1997
on which the parties have agreed or which is determined by the Expert is FRF
34,000,000 (thirty-four million French francs), WCF Cash Distribution No. 1 will
be in an amount equal to 1.4 (one point four) times FRF 2,000,000 (two million
French francs) i.e. FRF 2,800,000 (two million eight hundred thousand French
francs).
Conversely, if the event described above does not take place, WCF Cash
Distribution No. 1 will not be made.
(ii) Actual Net Turnover for financial year 1997
If the parties have not been able to reach an agreement within 6 Business
Days following the Notification in Response received from WCE BV by GS Euro
Finance (as provided for in Article 2 of the Share Exchange Agreement) on the
amount of the Estimated Net Turnover of WCF at December 31, 1997, and if the
Expert for any reason whatsoever was unable to calculate WCF Cash Distribution
No. 1 compared to the Estimated Net Turnover for financial year 1997 (as defined
in Exhibit 2), a cash distribution (hereinafter "WCF Cash Distribution No. 2")
will be determined as follows:
If the Actual Net Turnover of WCF at December 31, 1997 is less than FRF
34,200,000 (thirty-four million two hundred thousand French francs), WCF
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Exhibit 9
to the Agreement
page 16
Cash Distribution No. 2 will be equal franc for franc to 1.4 (one point four)
times the difference between FRF 36,000,000 (thirty-six million French francs)
and the Actual Net Turnover at December 31, 1997.
For example, if the Actual Net Turnover at December 31, 1997 is equal to
FRF 34,000,000 (thirty-four million French francs), WCF Cash Distribution No. 2
will be in an amount of 1.4 (one point four) times FRF 2,000,000 (two million
French francs), i.e. FRF 2,800,000 (two million eight hundred thousand French
francs).
Conversely, if the event described above does not take place, WCF Cash
Distribution No. 2 will not be made.
(B) WCF Cash Distribution
The WCF Cash Distribution shall be equal, as the case may be, to WCF Cash
Distribution No. 1 or WCF Cash Distribution No. 2.
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EXHIBIT 4 TO THE SHARE EXCHANGE AGREEMENT
INDEMNIFICATION UNDERTAKING
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EXHIBIT 5 TO THE SHARE EXCHANGE AGREEMENT
WAIVER OF A RETURN TO BETTER FORTUNE
[On Willis Corroon Europe BV letterhead]
[date]
Willis Corroon France S.A.
18, boulevard Malesherbes
75008 Paris
Gentlemen,
We hereby inform you of our irrevocable waiver of the return to better fortune
clause provided for in the agreement dated December 21, 1996 signed between
Willis Faber Europe BV, henceforth called Willis Corroon Europe B.V., and Willis
Corroon France S.A., providing for a forgiveness of debt in the amount of FRF
24,600,000.
Very truly yours,
-------------------------------------
Willis Corroon Europe B.V.
--------------------------------------------------------------------------------
Amendment No. 1
page 1
Translation from French - 15/12/97 - waf
AMENDMENT NO. 1 TO THE AGREEMENT
DATED JULY 23, 1997
BETWEEN THE UNDERSIGNED:
1. ASSURANCES GENERALES DE FRANCE IART, a French law company having its
registered office at 87 rue de Richelieu, 75002 Paris, registered with the
Paris Commercial and Companies Registry under No. B 542 110 291,
represented by Mrs. Francoise Labbe, specially empowered for the purposes
hereof,
hereinafter "AGF",
2. UAP - INCENDIE - ACCIDENTS, a French law company having its registered
office at 9, Place Vendome, 75001 Paris, registered with the Paris
Commercial and Companies Registry under No. B 777 349 192, represented by
Mr. Adrien Cadieux, specially empowered for the purposes hereof,
hereinafter "UAP",
3. PFA TIARD, a French law company having its registered office at 1 cours
Michelet, La Defense 10, 92800 Puteaux, registered with the Nanterre
Commercial and Companies Registry under No. B 328 597 738, represented by
Mr. Francois Thomazeau specially empowered for the purposes hereof,
substituting itself for Athena,
hereinafter "PFA",
4. GRAS SAVOYE EURO FINANCE S.A., a Belgian law company having its registered
office at 8 avenue Bel-Air, 1180 Uccle, Belgium, registered with the
Brussels Commercial Registry under No. 258.054, represented by Mr. Patrick
Lucas in his capacity as President, fully empowered for the purposes
hereof,
hereinafter "GS Euro Finance",
Amendment No. 1
page 2
5. Mr. Emmanuel Gras, residing at 3, rue Parmentier, 59370 Mons-en-Baroeul,
in his capacity as a shareholder and general partner of Gras Savoye & Cie,
6. Mr. Patrick Lucas, residing at 1 avenue Emile Acollas, 75007 Paris, in his
capacity as a shareholder and general partner of Gras Savoye & Cie,
7. Mr. Daniel Naftalski, residing at 2, rue des Beaux-Arts, 75006 Paris, in
his capacity as a shareholder and general partner of Gras Savoye & Cie,
8. All of the shareholders of Gras Savoye & Cie listed in Exhibit 1 to this
Amendment No. 1, who will agree to abide by the Initial Agreement and this
Amendment No. 1 by ratification.
AND:
9. WILLIS CORROON GROUP plc, an English law company whose registered office
is at Ten Trinity Square, London EC3P 3AX, United Kingdom, registered with
the England and Wales Companies Registration Office under No. 621757,
represented by Mr. John Percy Maxwell Taylor acting as a director, fully
empowered for the purposes hereof,
hereinafter "WCG",
10. WILLIS CORROON EUROPE B.V., a Netherlands law company whose registered
office is at Marten Meesweg 51, 3068 AV Rotterdam, Netherlands, registered
with the Rotterdam Commercial Registry under No. 135.835, represented by
Mrs. Sarah Turvill, acting as a director, fully empowered for the purposes
hereof,
hereinafter "WCE BV",
11. WILLIS CORROON B.V., a Netherlands law company whose registered office is
at Marten Meesweg 51, 3068 AV Rotterdam, Netherlands, registered with the
Amsterdam Commercial Registry under No. 239.060, represented by Mrs. Sarah
Turvill, acting as a director, fully empowered for the purposes hereof,
Amendment No. 1
page 3
hereinafter "WC BV",
AND:
12. Gras Savoye & Cie, a societe en commandite par actions, with a capital of
FRF 9,952,000 divided into 49,760 shares of FRF 200 each (hereinafter the
"Shares"), having its registered office at 2, rue Ancelle, 92200
Neuilly-sur-Seine, registered with the Nanterre Commercial and Companies
Registry under number B 457 509 867, represented by Mr. Patrick Lucas, in
his capacity as general partner gerant, fully empowered for the purposes
hereof,
hereinafter the "Company",
WITNESSETH:
The parties agreed on July 23, 1997, in an agreement (the "Agreement"), pursuant
to which WCG undertook amongst others to acquire a minority shareholding in the
Company from certain selling shareholders, in consideration amongst others for
the simultaneous completion of an exchange of Shares held by GS Euro Finance for
the entire capital stock of Willis Corroon France ("WCF") to be held by WCE BV,
and the entry into force on the Closing Date of certain promises to buy and to
sell Shares, which were attached to such Agreement.
The Agreement was completed by an addendum dated, as regards the last signatory,
October 31, 1997 (the "Addendum").
Article 4 (f) of the Share Purchase Agreement attached as Exhibit 2 to the
Agreement provides that the actual completion of the acquisition of the Initial
Shareholding and of all the transactions provided for in the Agreement is
subject to the condition precedent of the approval of such transactions by the
general meeting of WCG's shareholders. This approval is necessary because of the
qualification as "Super Class 1" of all the transactions provided for in the
Agreement which has been made by the London Stock Exchange on the basis of the
stock market regulations applicable to WCG.
Article 4 referred to above provides in addition that the general meeting of
WCG's shareholders approving the Agreement must have been held no later than
December 15, 1997 and that all the conditions precedent stipulated in Article 4
of the Share Purchase Agreement must have been fulfilled at the latest by such
date, failing which the Share Purchase Agreement, and as a consequence the
Agreement, would lapse automatically without any indemnity on either side.
Amendment No. 1
page 4
Article 6 of the Agreement and Article 3 of the Share Purchase Agreement provide
that the Closing Date may not occur after December 31, 1997, unless
contractually postponed.
The parties have been informed and take note that WCG is not in a position to
prepare all the documentation required by law and by the stock market
regulations applicable to WCG, to be submitted to its shareholders for the
general meeting, within a period of time which is compatible with the holding of
such general meeting by December 15, 1997 at the latest.
The purpose of this Amendment No. 1 is to amend several provisions of the
Agreement and, in particular, to bring about the waiver by WCG of the condition
precedent stipulated in its exclusive favor in Article 4 (f) of the Share
Purchase Agreement, in consideration for an exercise of the promises to buy and
to sell contained respectively in Exhibits 3, 3bis, 3ter, 4 and 5 of the
Agreement, in a manner which is compatible at all times with the respect of the
law and the stock market regulations applicable to WCG.
NOW, THEREFORE, IT HAS BEEN AGREED AS FOLLOWS:
DEFINITIONS
The terms and expressions having an initial capital letter which are not defined
herein shall keep the meaning ascribed to them in the Agreement.
The terms and expressions set out below shall have the meanings set opposite
them:
"Notice of Attainment" shall mean the notice sent by WCG according to the
conditions and in the form of the Article
"Notices" of each of the promises contained in
Exhibits 3, 3bis, 3ter, 4 and 5 of the Agreement
concerning the attainment of the Threshold, as
defined.
"Initial Agreement" shall mean the Agreement to which the parties
expressed their agreement on July 23, 1997,
including the Addendum.
"Amended Agreement" shall mean the Agreement, as amended by this
Amendment No. 1.
"Threshold" shall mean the threshold, such as WCG undertakes
to indicate to the Company in the event of
attainment of the Threshold, defined by the law
and the stock market regulations applicable to WCG
(whatever
Amendment No. 1
page 5
the exact name of this threshold may be pursuant
to such law and regulations), as such law and
regulations exist on this day (rules applicable to
Super Class 1 transactions referred to in Chapter
10 of the Listing Rules of the London Stock
Exchange) and may exist in the future, above which
any transaction of the acquisition, sale type,
etc., of a certain magnitude requires for its
validity, amongst others, a prior approval of the
general meeting of WCG's shareholders convened for
this purpose.
ARTICLE 1 - AGREEMENT
(i) Article 8 of the Initial Agreement is deleted and replaced by the
following text:
"This Agreement is entered into for a term of 15 (fifteen) years".
(ii) Article 9 (xi) of the Initial Agreement is deleted.
(iii) Article 9 (xii) of the Initial Agreement is deleted and replaced by the
following text:
"In the event of a sale of Shares to a party which is foreign to the
Amended Agreement, the registration of this new shareholder as an owner of
the Company's shares shall be conditional upon such shareholder's prior
unrestricted and unconditional written agreement to abide by the Amended
Agreement, as amended as the case may be".
(iv) Exhibit 1 to the Initial Agreement is replaced by Exhibit 1 hereto.
(v) The parties agree that PFA is substituted for Athena in the exercise of
all the rights and obligations of Athena pursuant to the Amended
Agreement.
PFA ratifies all of the undertakings made by Athena pursuant to the
Initial Agreement.
(vi) In Article 4 (xi) of the Initial Agreement, the following paragraph is
added:
"In the event that, after approval by the extraordinary general meeting of
the shareholders, a stock option plan is set up which calls up a promise
by WCG to repurchase all or part of the shares obtained from the exercise
of the options, the general partner gerants undertake to use their best
efforts so that the Company or any other third party may be
Amendment No. 1
page 6
substituted for WCG, subject to the provisions of the law and the
regulations, in its obligations under the promise. In any event, WCG's
financial effort as a consequence of this stock option plan shall be
proportional to its holding in the Company's capital. Patrick Lucas and
Emmanuel Gras may not benefit from this stock option plan".
ARTICLE 2 - SHARE PURCHASE AGREEMENT
(i) The Price per Share is fixed at FRF 30,017.
It shall be paid in the amount of FRF 20,011 per Share on the Closing Date
and in the amount of FRF 10,006 per Share by means of promissory notes
with a July 1, 1998 maturity date, without any other amendment to the
terms and conditions of Article 2 (C) of the Share Purchase Agreement.
(ii) The Closing Date shall occur by December 31, 1997 at the latest, unless
contractually postponed. However, if for any reason whatsoever the actual
completion of all of the transactions provided for in the Amended
Agreement does not take place on such date in accordance with its terms,
the parties agree that the Closing Date shall automatically be put back to
January 30, 1998 at the latest.
(iii) Article 3 (b) of the Share Purchase Agreement is replaced by the following
text:
"delivery to the Buyer by each of the Company's shareholders existing on
the Closing Date (not already signatories of Amendment No. 1) of a
document constituting ratification of the Amended Agreement, in the form
of Exhibit 2 to Amendment No. 1, amending Exhibit 10 to the Initial
Agreement".
(iv) By reason of the entry into force of Article 3 below, WCG waives the
conditions precedent stipulated in its exclusive favor contained in
Article 4 (e) and (f) of the Share Purchase Agreement.
The parties acknowledge that the condition precedent contained in Article
4 (d) of the Share Purchase Agreement has been fulfilled.
(v) The conditions precedent contained in Article 4 (a), (b) and (c) of the
Share Purchase Agreement are stipulated in favor of all the parties to the
Amended Agreement.
The paragraph of Article 4 of the Share Purchase Agreement drafted as
follows: "The conditions precedent referred to in (a), (b), (c), (e) and
(f) above shall be accomplished by December 15, 1997", is deleted.
Amendment No. 1
page 7
A new condition precedent is stipulated in Article 4 of the Share Purchase
Agreement in favor of all the parties, as follows:
"ratification of the Amended Agreement (i.e., both the Initial Agreement
and Amendment No. 1) by all of the Company's shareholders (not already
signatories of this Amended Agreement) existing on the Closing Date".
The last paragraph of Article 4 of the Share Purchase Agreement is
replaced by the following text:
"In the event that at least one of the above conditions precedent
(resulting from the Amended Agreement) is not fulfilled at the latest by
January 30, 1998, unless contractually postponed, this transfer shall be
considered to have automatically lapsed and shall not give rise to any
indemnity on either side".
ARTICLE 3 - PROMISES TO BUY AND TO SELL
(i) The parties agree that the obligation of WCG, or any company of the WCG
Group substituted for it, to buy or sell the Shares pursuant to the
Promises to Buy and to Sell contained respectively in Exhibits 3, 3bis,
3ter, 4 and 5 of the Amended Agreement, is subject to the condition
precedent of the approval of the general meeting of WCG's shareholders in
the case of the attainment of the Threshold, according to the following
conditions.
If the exercise by one or more of their beneficiaries of one or more
Promises to Buy or to Sell contained respectively in Exhibits 3, 3bis,
3ter and 5 of the Amended Agreement results in the attainment of the
Threshold, WCG undertakes to send a Notice of Attainment to the
beneficiary or beneficiaries having exercised their option and to the
Corporate Beneficiaries within 10 Business Days following the date on
which it was notified of the exercise of the option or options in
question, according to the conditions and in the form of the Article
"Notices" of the promise or promises concerned.
If the exercise by WCG, or any company of the WCG Group substituted for
it, of Promise to Sell No. 1 contained in Exhibit 4 to the Amended
Agreement results in the attainment of the Threshold, WCG undertakes to
inform the Company and the Corporate Beneficiaries thereof at the time
when the option is exercised or once WCG becomes aware of the attainment
of the Threshold, if later than the date on which the option is exercised.
Amendment No. 1
page 8
If the Threshold is attained, WCG undertakes to hold, within 3 months
following (a) the Notice of Attainment (for the exercise of the Promises
to Buy or to Sell contained respectively in Exhibits 3, 3bis, 3ter and 5
of the Amended Agreement), or (b) its becoming aware of the attainment of
the Threshold (for the exercise of Promise to Sell No. 1 contained in
Exhibit 4 to the Amended Agreement), a general meeting of its shareholders
called to approve the obligation of WCG, or any company of the WCG Group
substituted for it, to acquire or sell the Shares under the exercise of
the option or options in question.
In these cases, and as an essential condition of the holding of the
general meeting of WCG's shareholders within the above 3-month period, the
Company and the general partners undertake to collaborate fully with WCG
and its counsel and to provide all information and documents reasonably
necessary for the preparation of the documentation to be submitted to
WCG's shareholders for such general meeting. The Company and the general
partners shall use their best efforts to ensure that WCG and/or its
counsel through any third party, and particularly any statutory auditor,
shall have free access to any documents or information reasonably
requested by WCG and/or its counsel for the preparation of the
documentation mentioned above.
If in the case of the attainment of the Threshold any other formality or
action required by the law or the stock market regulations applicable to
WCG were to prove necessary to achieve the actual completion of the
transactions provided for in the Promises to Buy and to Sell contained in
Exhibits 3, 3bis, 3ter, 4 and 5 of the Amended Agreement, the parties
undertake to collaborate in good faith to accomplish such formalities as
promptly as possible so as to ensure the actual completion of the
transactions provided for in the Promises to Buy and to Sell contained in
Exhibits 3, 3bis, 3ter, 4 and 5 of the Amended Agreement, in compliance
with the law or the regulations mentioned above.
If in the case of the attainment of the Threshold the general meeting of
WCG's shareholders refused the actual completion of the transactions
following the exercise of one or more of the options to buy and to sell
contained in Exhibits 3, 3bis, 3ter, 4 and 5 of the Amended Agreement,
such Promises to Buy or to Sell would nevertheless continue to be valid
and exercisable in accordance with their terms, subject to the Threshold
not being attained.
WCG represents that the transactions provided for in the Promises to Buy
and to Sell, as amended by this Amendment No. 1, contained in Exhibits 3,
3bis, 3ter, 4 and 5 of the Amended Agreement, have been approved by its
Board of Directors which, subject to the respect at all times of its
duties and obligations (both individual and collective) towards WCG and
its shareholders, has undertaken to use its best efforts so that
Amendment No. 1
page 9
the general meeting of WCG's shareholders approves the purchase or the
sale of Shares resulting from the exercise of one or more options in the
event of the attainment of the Threshold.
(ii) The parties specify that the obligation of WCG, or of any company of the
WCG Group substituted for it, to acquire Shares pursuant to the Promises
to Buy contained respectively in Exhibits 3, 3bis and 3ter of the Amended
Agreement shall terminate in the event of the exercise, even partial, of
the Option resulting from Promise to Sell No. 2 contained in Exhibit 5 to
the Amended Agreement, subject to the Promisor's respecting its
undertakings for the exercise, even partial, of such Option resulting from
such Promise to Sell No. 2.
The Beneficiaries of Promise to Sell No. 2 contained in Exhibit 5 to the
Amended Agreement undertake in respect of the Beneficiaries of the
Promises to Buy contained in Exhibit 3, 3bis and 3ter of the Agreement
(hereinafter the "Promises to Buy") not to exercise such Promise to Sell
No. 2 without having first substituted themselves for WCG in the Promises
to Buy or without having obtained from the one or those substituted for
them pursuant to Promise to Sell No. 2 that it or they shall substitute
themselves for WCG in the Promises to Buy (the Beneficiaries of Promise to
Sell No. 2 and, as the case may be, the one or those substituted for them
are hereinafter referred to as the "Buyer"). In consideration for this
prohibition, the Beneficiaries of the Promises to Buy undertake, at the
first demand of the Beneficiaries of Promise to Sell No. 2, such demand
occurring between January 1, 2001 and December 31, 2005, to exercise the
option to sell available to them pursuant to their Promises to Buy and
accordingly to sell to the Buyer, according to the conditions set forth in
the Promises to Buy, a number of Shares allowing it to attain 50.1% of the
capital of the Company. The number of Shares to be sold to the Buyer shall
be broken down between the Beneficiaries of the Promises to Buy, in
proportion to their respective shareholdings in the Company, unless
another breakdown is agreed between some of such Beneficiaries.
(iii) The second sentence of Article 3 (b) of the Promise to Buy contained in
Exhibit 3 to the Initial Agreement is replaced by the following text:
"More generally, the Option shall be extended to all securities or all
equity interests issued by the Company until the date on which the Option
is exercised and which have been acquired by any and all means by the
Beneficiaries between the date hereof and the date on which the Option is
exercised".
The second sentence of Article 3 (b) of Promise to Sell No. 1 contained in
Exhibit 4 of the Initial Agreement is replaced by the following text:
Amendment No. 1
page 10
"More generally, the Option shall be extended to all securities or all
equity interests issued by the Company until the date on which the Option
is exercised and which have been acquired by any and all means by the
Promisors between the date hereof and the date on which the Option is
exercised".
(iv) In Article 3 (e) of the Promise to Buy contained in Exhibit 3 of the
Initial Agreement, the figure of "0.26%", as the minimum shareholding of
the Company to be held by Mr. Daniel Naftalski, is replaced by "0.20%".
(v) In Article 4 of the Promise to Buy contained in Exhibit 3 to the Initial
Agreement and in Article 3 of the Promises to Buy contained in Exhibits
3bis and 3ter to the Initial Agreement, the initial term of twelve (12)
years as from the Closing Date is replaced by a term of fourteen (14)
years as from the Closing Date.
(vi) The term "Affiliated Company" replaces the term "Company" in the first
sentence of Article 4 (a) (i) of Promise to Sell No. 2 contained in
Exhibit 5 to the Initial Agreement.
(vii) Article 7 of the Promise to Buy contained in Exhibit 3 to the Initial
Agreement is replaced by the following text:
"The price per Share to be paid under the present Option (hereinafter the
"Transfer Price") shall be:
(a) with regard to any transfer resulting from an exercise of the Option
which is notified before January 1, 2001: FRF 30,017,
(b) with regard to any transfer resulting from an exercise of the Option
which is notified after January 1, 2001 and before January 1, 2006,
the greater of the two following amounts:
(i) FRF 30,017, reduced, if necessary, in the event of the
occurrence of an Exceptional Event, by an amount of FRF 5,030
per Share (i.e., 234,600,000/46,640), and
(ii) the price calculated between April 15 and April 30 of each
year and, for the first time, between April 15 and April 30,
2000, according to the formula provided for in Exhibit D to
Exhibit 3 to the Agreement, it being understood that this
price shall be applicable to any transfer of Shares under the
present Option until the establishment of the price which is
based on the accounts of the following year and is calculated
according to the same formula and in the same time period,
Amendment No. 1
page 11
(c) with regard to any transfer resulting from an exercise of the Option
which is notified after January 1, 2006, the price calculated
between April 15 and April 30 of each year according to the formula
provided for in Exhibit D to Exhibit 3 to the Agreement, it being
understood that this price shall be applicable to any transfer of
Shares under the present Option until the establishment of the price
which is based upon the accounts of the following year and is
calculated according to the same formula and in the same time
period.
The Transfer Price of the Shares for which the Option has been exercised
will be payable in cash, within forty-five (45) calendar days of the date
of Notification No. 1, by bank check denominated in French francs, against
delivery by the Representative (as defined in Article 9) to the transferee
of the Shares of the corresponding duly signed share transfer order(s) in
favor of the transferee of the Shares, subject to the Beneficiaries'
respecting their undertakings hereunder and the obtaining of any
government or administrative authorization which may be necessary.
However, if, due to the exercise of this Option or of the Options deriving
from Exhibits 3bis and 3ter to the Agreement, the Promisor has to pay over
a 12-month period an aggregate amount which is greater than one hundred
and fifty million francs, the transfer price of the Shares under this
Option and the Options deriving from Exhibits 3bis and 3ter mentioned
above shall be payable in cash within ninety (90) calendar days of the
date of Notification No. 1, according to the same conditions as those
indicated above.
In the event that the transfer of the Shares pursuant hereto is subject to
the obtaining of any government or administrative authorization, the
Promisor and the Beneficiaries shall mutually provide all assistance,
exchange all information, sign all documents and, more generally, do all
that is necessary or useful so that the competent authority may rapidly
decide upon the contemplated transaction".
(viii) The definition of the "Indemnification Undertaking" contained in Article
1 of the Promises to Buy contained in Exhibits 3bis and 3ter of the
Initial Agreement is deleted and replaced by the following definition:
"Exceptional Event shall mean any event whose origin is prior to the
Closing Date and whose existence was unknown on the Closing Date, the
effect of which, between the Closing Date and the three (3) years
following the Closing Date, is to reduce the Consolidated Equity by FRF
234,600,000".
(ix) Article 6 of the Promise to Buy contained in Exhibit 3bis to the Initial
Agreement is replaced by the following text:
Amendment No. 1
page 12
"The price per Share to be paid under the present Option (hereinafter, the
"Transfer Price") shall be:
(a) with regard to any transfer resulting from an exercise of the Option
which is notified before January 1, 2001: FRF 30,017, reduced, if
necessary, in the event of the occurrence of an Exceptional Event,
by an amount of FRF 5,030 per Share (i.e., 234,600,000/46,640),
(b) with regard to any transfer resulting from an exercise of the Option
which is notified after January 1, 2001 and before January 1, 2006,
the greater of the two following amounts:
(i) FRF 30,017, reduced, if necessary, in the event of the
occurrence of an Exceptional Event, by an amount of FRF 5,030
per Share (i.e., 234,600,000/46,640), and
(ii) the price calculated between April 15 and April 30 of each
year and, for the first time, between April 15 and April 30,
2000, according to the formula provided for in Exhibit D to
Exhibit 3 to the Agreement, it being understood that this
price shall be applicable to any transfer of Shares under the
present Option until the establishment of the price which is
based on the accounts of the following year and is calculated
according to the same formula and in the same time period,
(c) with regard to any transfer resulting from an exercise of the Option
which is notified after January 1, 2006, the price calculated
between April 15 and April 30 of each year according to the formula
provided for in Exhibit D to Exhibit 3 to the Agreement, it being
understood that this price shall be applicable to any transfer of
Shares under the present Option until the establishment of the price
which is based upon the accounts of the following year and is
calculated according to the same formula and in the same time
period.
The Transfer Price of the Shares for which the Option has been exercised
will be payable in cash, within forty-five (45) calendar days of the date
of Notification No. 1, by bank check denominated in French francs, against
delivery by PFA to the transferee of the Shares of the corresponding duly
signed share transfer order(s) in favor of the transferee of the Shares,
subject to PFA's respecting its undertakings hereunder and the obtaining
of any government or administrative authorization which may be necessary.
However, if, due to the exercise of this Option or of the Options deriving
from Exhibits 3 and 3ter to the Agreement, the Promisor has to pay over a
12-month period an
Amendment No. 1
page 13
aggregate amount which is greater than one hundred and fifty million
francs, the transfer price of the Shares under this Option and the Options
deriving from Exhibits 3 and 3ter mentioned above shall be payable in cash
within ninety (90) calendar days of the date of Notification No. 1,
according to the same conditions as those indicated above.
In the event that the transfer of the Shares pursuant hereto is subject to
the obtaining of any government or administrative authorization, the
Promisor and PFA shall mutually provide all assistance, exchange all
information, sign all documents and, more generally, do all that is
necessary or useful so that the competent authority may rapidly decide
upon the contemplated transaction".
(x) Article 6 of the Promise to Buy contained in Exhibit 3ter to the Initial
Agreement is replaced by the following text:
"The price per Share to be paid under the present Option (hereinafter, the
"Transfer Price") shall be:
(a) with regard to any transfer resulting from an exercise of the Option
which is notified before January 1, 2001: FRF 30,017, reduced, if
necessary, in the event of the occurrence of an Exceptional Event,
by an amount of FRF 5,030 per Share (i.e., 234,600,000/46,640),
(b) with regard to any transfer resulting from an exercise of the Option
which is notified after January 1, 2001 and before January 1, 2006,
the greater of the two following amounts:
(i) FRF 30,017, reduced, if necessary, in the event of the
occurrence of an Exceptional Event, by an amount of FRF 5,030
per Share (i.e., 234,600,000/46,640), and
(ii) the price calculated between April 15 and April 30 of each
year and, for the first time, between April 15 and April 30,
2000, according to the formula provided for in Exhibit D to
Exhibit 3 to the Agreement, it being understood that this
price shall be applicable to any transfer of Shares under the
present Option until the establishment of the price which is
based on the accounts of the following year and is calculated
according to the same formula and in the same time period,
(c) with regard to any transfer resulting from an exercise of the Option
which is notified after January 1, 2006, the price calculated
between April 15 and April 30 of each year according to the
Amendment No. 1
page 14
formula provided for in Exhibit D to Exhibit 3 to the Agreement, it
being understood that this price shall be applicable to any transfer
of Shares under the present Option until the establishment of the
price which is based upon the accounts of the following year and is
calculated according to the same formula and in the same time
period.
The Transfer Price of the Shares for which the Option has been exercised
will be payable in cash, within forty-five (45) calendar days of the date
of Notification No. 1, by bank check denominated in French francs, against
delivery by UAP to the transferee of the Shares of the corresponding duly
signed share transfer order(s) in favor of the transferee of the Shares,
subject to UAP's respecting its undertakings hereunder and the obtaining
of any government or administrative authorization which may be necessary.
However, if, due to the exercise of this Option or of the Options deriving
from Exhibits 3 and 3bis to the Agreement, the Promisor has to pay over a
12-month period an aggregate amount which is greater than one hundred and
fifty million francs, the transfer price of the Shares under this Option
and the Options deriving from Exhibits 3 and 3bis mentioned above shall be
payable in cash within ninety (90) calendar days of the date of
Notification No. 1, according to the same conditions as those indicated
above.
In the event that the transfer of the Shares pursuant hereto is subject to
the obtaining of any government or administrative authorization, the
Promisor and UAP shall mutually provide all assistance, exchange all
information, sign all documents and, more generally, do all that is
necessary or useful so that the competent authority may rapidly decide
upon the contemplated transaction".
(xi) In the third paragraph of Article 7 of Promise to Sell No. 1 contained in
Exhibit 4 to the Amended Agreement, the priority ranking currently defined
is replaced by the following priority ranking: "Shares held by (i) the
Corporate Promisors which might wish to sell their shares by notifying the
Beneficiary within 10 Business Days following the date on which the Option
is exercised by the Beneficiary, (ii) the general partner of the Company
having the capacity of President of the defaulting Subsidiary, if
required, (iii) then the other general partners of the Company in
proportion to their respective shareholdings in the Company, and (iv)
finally, all the other Promisors in proportion to their respective
shareholdings in the Company".
(xii) Article 8 of Promise to Sell No. 1 contained in Exhibit 4 to the Initial
Agreement is replaced by the following text:
"The price per Share to be paid under the present Option (hereinafter,
Amendment No. 1
page 15
the "Transfer Price") shall be:
(a) with regard to any transfer resulting from an exercise of the Option
which is notified before January 1, 2001: FRF 30,017, reduced, if
necessary, with regard to the Corporate Promisors, and in the event
of the occurrence of an Exceptional Event, by an amount of FRF 5,030
per Share (i.e., 234,600,000/46,640),
(b) with regard to any transfer resulting from an exercise of the Option
which is notified after January 1, 2001 and before January 1, 2006,
the greater of the two following amounts:
(i) FRF 30,017, reduced, if necessary, with regard to all of the
Individual or Corporate Promisors, and in the event of the
occurrence of an Exceptional Event, by an amount of FRF 5,030
per Share (i.e., 234,600,000/46,640), and
(ii) the price calculated between April 15 and April 30 of each
year and, for the first time, between April 15 and April 30,
2000, according to the formula indicated in Exhibit D to
Exhibit 3 to the Agreement, it being understood that this
price shall be applicable to all transfers of Shares under the
present Option until the establishment of the price which is
based upon the accounts of the following year and is
calculated according to the same formula and in the same time
period,
(c) with regard to any transfer resulting from an exercise of the Option
which is notified after January 1, 2006, the price calculated
between April 15 and April 30 of each year according to the formula
provided for in Exhibit D to Exhibit 3 to the Agreement, it being
understood that this price shall be applicable to all transfers of
Shares under the present Option until the establishment of the price
which is based upon the accounts of the following year and is
calculated according to the same formula and in the same time
period.
The Transfer Price of the Shares for which the Option has been exercised
will be payable in cash, within forty-five (45) calendar days of the date
of Notification No. 1, by bank check denominated in French francs, against
delivery by the Representative (as defined in Article 10) to WCG or to any
other company of the WCG Group of the corresponding duly signed share
transfer order(s) in favor of WCG or any other company of the WCG Group,
subject to the Beneficiary's respecting its obligations hereunder and the
obtaining of all government or administrative authorizations which may be
necessary.
Amendment No. 1
page 16
In the event that the transfer of the Shares provided for herein is
subject to the obtaining of any government or administrative
authorization, the Promisors and the Beneficiary shall mutually provide
all assistance, exchange all information, sign all documents and, more
generally, do all that is necessary or useful so that the competent
authority may rapidly decide upon the contemplated transaction".
(xiii) Article 5 of Promise to Sell No. 2 contained in Exhibit 5 to the Initial
Agreement is replaced by the following text:
"The price per Share to be paid under the present Option (hereinafter, the
"Transfer Price") shall be:
(a) with regard to the transfer resulting from any exercise of the
Option which is notified before January 1, 2001, determined
according to the following formula:
A - B - C
---------
D
A being the total price paid (in view as the case may be of the
impact of the Exceptional Event) by the Promisor for all the
Shares acquired by it from the Closing Date inclusive until
the date on which the Option is exercised.
B being any amount which might be received by the Promisor from
AGF and GS Euro Finance or those substituted for them under
the Indemnification Undertaking.
C being the price received by the Promisor for all the Shares
sold by it in performance of this Promise to Sell No. 2 prior
to the exercise of the Option concerned (it being specified
that C shall equal 0 in the event of the purchase in a single
transaction of all the Shares held by the Promisor).
D being the number of Shares held by the Promisor on the day on
which the Option is exercised.
(b) with regard to the transfer resulting from any exercise of the
Option which is notified after January 1, 2001 and before January 1,
2006, the greater of the two following amounts:
(i) the Price per Share determined pursuant to the formula
referred to in (a) above;
(ii) the Price per Share calculated between April 15 and April 30
of each year and, for the first time, between April 15 and
Amendment No. 1
page 17
April 30, 2000, according to the formula provided for in
Exhibit D to the Promise to Buy in Exhibit 3 to the Agreement,
it being understood that this price shall be applicable to the
transfer of the Shares under the present Option until the
establishment of the price which is based upon the accounts of
the following year and is calculated according to the same
formula and in the same time period,
(c) with regard to the transfer resulting from any exercise of the
Option which is notified after January 1, 2006, the price calculated
between April 15 and April 30 of each year according to the formula
provided for in Exhibit D to the Promise to Buy contained in Exhibit
3 to the Agreement, it being understood that this price shall be
applicable to the transfer of the Shares under the present Option
until the establishment of the price which is based upon the
accounts of the following year and is calculated according to the
same formula and in the same time period.
The Transfer Price of the Shares for which the Option has been exercised
will be payable in cash, (a) within six (6) months, at the latest,
following the date of the effective completion of the operation resulting
in the Change of Control of WCG or of any Affiliated Company (following
the first Notification No. 2), or (b) within the four (4) months, at the
latest, following the date of any Notification No. 2 (other than the
first) or Notification No. 3 (as defined in this promise as amended by
Amendment No. 1), by bank check denominated in French francs, in return
for delivery by the Promisor to the Representative (as defined in Article
6) of the corresponding duly signed share transfer order(s) in favor of
the Beneficiaries, subject to the obtaining of all government or
administrative authorizations which may be necessary.
In the event that the transfer of the Shares provided for herein is
subject to the obtaining of any government or administrative
authorization, the Promisor and the Beneficiaries shall mutually provide
all assistance, exchange all information, sign all documents and, more
generally, do all that is necessary or useful so that the competent
authority may rapidly decide upon the contemplated transaction".
(xiv) The first sentence of the Article entitled "Period of exercise of the
Option" of the Promises to Buy contained in Exhibits 3, 3bis and 3ter of
the Initial Agreement is deleted and replaced by the following text:
"The Option may not be exercised before January 1, 2001 (hereinafter the
"Exemption Period")".
(xv) A new paragraph is added to Article 8 of the Promise to Buy contained in
Amendment No. 1
page 18
Exhibit 3 to the Initial Agreement, drafted as follows:
"The same shall apply in the case of a death or a donation between the
date of the Amended Agreement and the Closing Date".
(xvi) WCE BV, substituted for WCG under the Share Purchase Agreement,
undertakes to comply with the terms of Promise to Sell No. 2 contained
in Exhibit 5 to the Amended Agreement.
(xvii) Exhibit A to the Promise to Buy contained in Exhibit 3 to the Initial
Agreement is replaced by Exhibit 3 to this Amendment No. 1.
(xviii) Exhibit A to Promise to Sell No. 1 contained in Exhibit 4 to the Initial
Agreement is replaced by Exhibit 4 to this Amendment No. 1.
(xix) The last sentence in the second to last paragraph of Article 4 (b) (ii)
of Promise to Sell No. 2 contained in Exhibit 5 to the Agreement,
drafted as follows: " In any event, the Option may only be exercised
once", is deleted.
The last paragraph of Article 4 (b) (ii) of Promise to Sell No. 2,
contained in the Initial Agreement is amended as follows:
"The exercise of the Option, on one or more occasions, shall cover in
fine all of the Shares held by the company or companies in which the
control has changed",
and is completed as follows:
"The Option may be exercised on one or more occasions, within a period
expiring at the earlier of the two following dates: (x) December 31,
2009 or (y) two years and three months after the actual completion of
the transfer of the Shares resulting from the first Notification No. 2.
If the Option is only exercised partially, and notwithstanding any
contrary provision herein, the Option may be deemed exercised at any
time, at WCG's option, for all of the remaining shares, at the end of a
twelve-month period following the actual completion of the transfer of
the Shares resulting from the first Notification No. 2, during a period
of twelve months following the partial exercise of the Option resulting
from the first Notification No. 2 (hereinafter the "WCG Option).
In this case, WCG shall notify the Beneficiaries of Promise to Sell No.
2, according to the conditions and in the form of Article 8 (hereinafter
"Notification No. 3"). The terms and conditions of the actual completion
of the transfer of the Shares following the exercise of the WCG Option
by WCG by reason of a Notification No. 3 shall be identical, mutatis
mutandis, to those resulting from the exercise of the Option following a
Amendment No. 1
page 19
Notification No. 2.
However, if the actual completion of the transfer of the Shares following
the sending of Notification No. 3 by WCG does not occur within the time
agreed due solely to WCG (hereinafter the "Failure to Close"), the period
of two years and three months provided in (y) above shall be automatically
extended in the sole favor of the Beneficiaries and shall apply as from
the date of the Failure to Close, without the application of the December
31, 2009 deadline provided for in (x) above.
ARTICLE 4 - AMENDMENTS TO THE BY-LAWS
Exhibit 6 to the Initial Agreement is replaced by Exhibit 5 to this Amendment
No. 1.
The Company undertakes to convene an extraordinary general meeting of its
shareholders before the Closing Date in order to approve Exhibit 6, as amended,
to the Amended Agreement, with the agreement of all the general partners, such
amended by-laws to enter into force no later than on the Closing Date.
ARTICLE 5 - SHARE EXCHANGE AGREEMENT
(i) The parties agree that WCE BV shall be substituted for WC BV under the
Share Exchange Agreement and more generally the Initial Agreement as a
whole. The parties therefore make an exception to Article 8 (iii) (a) of
the Share Exchange Agreement.
WC BV ratifies all of the undertakings made by WCE BV under the Initial
Agreement.
WC BV undertakes to respect the terms of Promise to Sell No. 2 contained
in Exhibit 5 to the Amended Agreement.
(ii) The parties agree that, provided that WC BV transfers all of the capital
stock of WCF to GS Euro Finance on the Closing Date of the Exchange, WCE
BV shall be released from any obligation, under both the Initial Agreement
and the Amended Agreement, except for its obligation pursuant to Article 3
(d) of the Share Exchange Agreement and the obligations it may have to
assume as the company substituted for WCG under the Share Purchase
Agreement. WCG shall be the guarantor of WC BV's undertakings under the
Share Exchange Agreement.
(iii) The WCF Cash Distribution amounts to FRF 1,400,000 (one million four
hundred thousand French francs); accordingly, Articles 3 (e) and (f) of
Amendment No. 1
page 20
the Share Exchange Agreement are deleted and replaced by the following
text:
"(e) delivery to WCE BV of a bank check for FRF 28,588,440 (twenty-eight
million five hundred and eighty-eight thousand four hundred and forty
French francs);
(iv) All the representations and warranties concerning the Exchanged GS Shares
under the Share Exchange Agreement, that are made and given by GS Euro
Finance in favor of WC BV as the company substituted for WCE BV, shall be
exact as at the Closing Date of the Exchange.
(v) For the purposes of Article 9 of the Share Exchange Agreement, all notices
to WC BV shall be made to the following address:
Willis Corroon B.V.
Marten Meesweg 51,
3068 AV Rotterdam,
Netherlands,
For the attention of the Company Secretary
Fax 00 31 20 661 06 54
With a copy to:
Willis Corroon Group plc
10 Trinity Square
London EC3P 3AX
United Kingdom
For the attention of the Company Secretary;
Fax 00 44 171 488 88 82
and
Fax 00 44 171 481 71 83
or by delivery by hand to the representative of WC BV or WCG, as indicated
above, in return for delivery of a signed receipt.
ARTICLE 6 - MISCELLANEOUS PROVISIONS
(i) To the extent that the Initial Agreement is not amended hereby, its
provisions shall remain in force.
However, to the extent that any one of the provisions of the Initial
Agreement which is contrary to this Amendment No. 1 has not been expressly
amended hereby, the provision of the Initial Agreement concerned shall
nevertheless be deemed to have been tacitly amended and shall be
interpreted with a meaning allowing the actual completion of
Amendment No. 1
page 21
the transactions provided for herein.
(ii) As may be necessary, it is specified that Articles 9 (xiii) to 9 (xvi) of
the Initial Agreement are expressly incorporated herein.
Executed in 11 originals,
For all of the signatories excluding WCG, WCE BV and WC BV, in Neuilly-sur-Seine
on December 10, 1997,
For WCG, WCE BV and WC BV, in London on December 11, 1997
For the shareholders:
--------------------------- ---------------------------
Mr. Emmanuel Gras Mr. Patrick Lucas
---------------------------
Mr. Daniel Naftalski
--------------------------- ---------------------------
Assurances Generales de France UAP Incendie - Accidents
IART By Mr. Adrien Cadieux
By Mrs. Francoise Labbe
---------------------------
PFA TIARD
By Mr. Francois Thomazeau
For the general partner gerants:
--------------------------- ---------------------------
Mr. Emmanuel Gras Mr. Patrick Lucas
---------------------------
Mr. Daniel Naftalski
For the Company:
Amendment No. 1
page 22
---------------------------
Gras Savoye & Cie
By Mr. Patrick Lucas
For GS Euro Finance:
---------------------------
Gras Savoye Euro Finance
By Mr. Patrick Lucas
For the Willis Corroon Group:
--------------------------- ---------------------------
Willis Corroon Group Plc Willis Corroon Europe B.V.
By Mr. John Percy Maxwell Taylor By Mrs. Sarah Turvill
---------------------------
Willis Corroon B.V.
By Mrs. Sarah Turvill
1
TRANSLATION
ADDENDUM TO THE PROTOCOL OF AGREEMENT DATED 23 JULY 1997
BETWEEN THE UNDERSIGNED:
1. ASSURANCES GENERALES DE FRANCE IART, a company incorporated under French
law, domiciled at 87 rue de Richelieu, 75002 Paris, entered in the Paris
Register of Commerce and Companies under no. B 542 110 291, represented by
Mr Guy Lallour, acting in the capacity of DIDRE Manager, specially
authorized for the purposes hereof,
hereinafter called "AGF"
2. UAP - INCENDIE - ACCIDENTS, a company incorporated under French law,
domiciled at 9, Place Vendome, 75001 Paris, entered in the Paris Register
of Commerce and Companies under no. B 777 349 192, represented by Mr
Adrien Cadieux, specially authorized for the purposes hereof,
hereinafter called "UAP"
3. ATHENA, a company incorporated under French law, domiciled at 53/55 rue La
Boetie, 75008 Paris, entered in the Paris Register of Commerce and
Companies under no. B 304 951 833, represented by Mr Daniel Ehrmann,
specially authorized for the purposes hereof,
hereinafter called "ATHENA"
4. GRAS SAVOYE EURO FINANCE S.A., a company incorporated under Belgian law,
domiciled at 8 avenue Bel-Air, 1180 Uccle, Belgium, entered in the
Brussels Register of Commerce under no. 258,054, represented by Mr Patrick
Lucas, acting in the capacity of Chairman and holding all powers for the
purposes hereof,
hereinafter called "GS Euro Finance"
5. Mr Emmanuel Gras, resident at 3, rue Parmentier, 59370 Mons-en-Baroeul, in
the capacity of shareholder and sleeping partner of Gras Savoye & Cie.,
representing the shareholders named as "Gras shareholders" in Appendix 1
to the Protocol of Agreement dated 23 July 1997
6. Mr Patrick Lucas, resident at 3 avenue Emile Acollas, 75007 Paris, in the
capacity of shareholder and sleeping partner of Gras Savoye & Cie.,
representing the shareholders named as "Lucas shareholders" in Appendix 1
to the Protocol of Agreement dated 23 July 1997
7. Mr Daniel Naftalski, resident at 2 rue des Beaux-Arts, 75006 Paris, in the
capacity of shareholder and sleeping partner of Gras Savoye & Cie.,
representing the shareholders named as "Other shareholding natural
persons" in Appendix 1 to the Protocol of Agreement dated 23 July 1997
AND:
8. WILLIS CORROON GROUP, a company incorporated under English law, domiciled
at Ten Trinity Square, London EC3P 3AX, United Kingdom, entered in the
Register of
2
Companies of England and Wales under no. 621757, represented by Mr John
Reeve, acting in the capacity of Chairman and holding all powers for the
purposes hereof,
hereinafter called "WCG"
9. WILLIS CORROON EUROPE B.V., a company incorporated under Dutch law,
domiciled at Marten Meesweg 51, 3068 AV Rotterdam, Netherlands, entered in
the Rotterdam Register of Commerce under no. 135,835, represented by Mrs
Sarah Turvill, acting in the capacity of director and holding all powers
for the purposes hereof,
hereinafter called "WCE BV"
AND:
10. GRAS SAVOYE & CIE, a partnership limited by shares with a capital of FRF
9,952,000, divided into 49,760 shares of FRF 200 each (hereinafter called
the "Shares"), domiciled at 2 rue Ancelle, 92200 Neuilly sur Seine,
entered in the Nanterre Register of Commerce and Companies under no. B 457
509 867, represented by Mr Patrick Lucas, acting in the capacity of
manager and sleeping partner and holding full powers for the purposes
hereof,
hereinafter called the "Company".
SOLE ARTICLE
The Parties recognize that the following appended and initialled page was
omitted in error on signature of the Protocol of Agreement dated 23 July 1997.
This page forms an integral part of Appendix 3 to the Share Transfer Agreement
attached as Appendix 2 to this Protocol of Agreement. It is inserted between the
two existing pages forming the aforesaid Appendix 3. As the Parties declared
their agreement to the content of this page on 23 July 1997, this Addendum does
not in any way constitute a new agreement between the Parties in relation to its
object, the page appended below having to be interpreted as if it had been
initialled on 23 July 1997.
For the shareholders:
[signed]
------------------------------------- ---------------------------------
for the Gras shareholders for the Lucas shareholders
by Mr Emmanuel Gras by Mr Patrick Lucas
-------------------------------------
for the other shareholding natural persons
by Mr Daniel Naftalski
------------------------------------- ---------------------------------
Assurances Generales de France IART UAP Incendie - Accidents
by Mr Guy Lallour by Mr Adrien Cadieux
-------------------------------------
ATHENA
by Mr Daniel Ehrmann
3
For the managers and ordinary partners:
------------------------------------- ---------------------------------
Mr Emmanuel Gras Mr Patrick Lucas
-------------------------------------
Mr Daniel Naftalski
For the Company:
-------------------------------------
Gras Savoye & Cie
by Mr Patrick Lucas
For GS Euro Finance:
-------------------------------------
Gras Savoye Euro Finance
by Mr Patrick Lucas
For the Willis Corroon Group:
------------------------------------- ---------------------------------
Willis Corroon Group plc Willis Corroon Europe B.V.
by Mr John Reeve by Mrs Sarah Turvill
...which the Parties agree, or determined by the Expert, divided by 46,640
(hereinafter called "Share Adjustment No. 2).
For example, if the Estimated Consolidated Net Turnover for the 1997 financial
year (net of acquisitions) on which the Parties agree amounts to FRF
860,000,000, Share Adjustment No. 2 shall be for an amount of 1.4 times FRF
90,000,000, i.e. FRF 126,000,000, divided by 46,640, i.e. FRF 2,702.
Conversely, if the event described above does not occur, Share Adjustment No. 2
shall not take place.
(ii) Actual Consolidated Net Turnover for the 1997 financial year
If the Parties have not reached an agreement within a period of six Working Days
following the Notification of Reply received by the Transferee from the
Transferor's Representative (as provided for in Article 2 of the Share Transfer
Contract) on the amount of the Estimated Consolidated Net Turnover at 31
December 1997 (net of acquisitions) (as defined in Appendix 2A), and if the
Expert is unable to calculate Share Adjustment No. 2 in relation to that
Estimated Consolidated Net Turnover at 31 December 1997 (net of acquisitions),
the possible price adjustment per Share (hereinafter called "Share Adjustment
No. 3") shall be determined as follows:
If the Actual Consolidated Net Turnover at 31 December 1997 is less than FRF
950,000,000, Share Adjustment No. 3 shall be equal franc for franc to 1.4 times
the difference between FRF 1,000,000,000 and the Actual Consolidated Net
Turnover at 31 December 1997, divided by 46,640.
For example, if the Actual Consolidated Net Turnover at 31 December is equal to
FRF 900,000,000, Share Adjustment No. 3 will be for an amount of 1.4 times FRF
100,000,000, i.e. FRF 140,000,000, divided by 46,640, i.e. FRF 3,002.
Conversely, if the event described above does not occur, Share Adjustment No. 3
will not take place.
(C) Price per Share and Total Adjustments
The price per Share (the "Price per Share") shall be equal to the Basic Price
per Share less, where appropriate, Share Adjustment No. 1 and, where
appropriate, Share Adjustment No. 2 or Share Adjustment No. 3.
Dates Referenced Herein and Documents Incorporated by Reference
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