SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
January 6, 2000
---------------
Date of Report (Date of earliest event reported)
POLO RALPH LAUREN CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation)
001-13057 13-2622036
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(Commission File Number) (IRS Employer Identification No.)
650 Madison Avenue, New York, New York 10022
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(Address of principal executive offices) (Zip Code)
(212) 318-7000
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(Registrant's telephone number, including area code)
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Item 2. Acquisition or Disposition of Assets.
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The stock and asset purchase (the "Purchase") by Polo Ralph Lauren
Corporation, a Delaware corporation (the "registrant" or "Polo"), of Poloco
S.A.S. and certain of its affiliates (the "Poloco Group") from S.A. Louis
Dreyfus et Cie, a company organized under the laws of France ("SALD"), was
consummated on January 6, 2000.
Polo acquired the Poloco Group for an aggregate cash consideration
of approximately $200 million, plus the assumption of approximately $30
million of short-term debt pursuant to the terms set forth in the Stock and
Asset Purchase Agreement dated as of November 23, 1999 between Polo and SALD
(the "Purchase Agreement").
A copy of the Purchase Agreement and a copy of the press release,
dated January 6, 2000, issued by Polo relating to the above-described
transaction are attached as exhibits to this report and are hereby
incorporated by reference.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
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(a) Financial Statements of the Business Acquired
Financial statements required by this item shall be filed not later
than 60 days after the date that this report is required to be filed.
(b) Pro Forma Financial Information
Financial statements required by this item shall be filed not later
than 60 days after the date that this report is required to be filed.
(c) The following exhibits are filed with this report:
Exhibit Number Description
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2.1 Stock and Asset Purchase Agreement between Polo and
SALD, dated November 23, 1999 (without exhibits and
schedules).
99.1 Press release of the registrant, issued January 6,
2000, regarding the Purchase.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
POLO RALPH LAUREN CORPORATION
By: /s/ Victor Cohen
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Name: Victor Cohen
Title: Senior Vice President
Dated: January 10, 2000
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EXHIBIT INDEX
Exhibit Description
Number -----------
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2.1 Stock and Asset Purchase Agreement between Polo Ralph Lauren
Corporation and S.A. Louis Dreyfus et Cie, dated November 23,
1999 (without exhibits and schedules).
99.1 Press release of the registrant, issued January 6, 2000.
Exhibit 2.1
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STOCK AND ASSET PURCHASE AGREEMENT
between
S.A. LOUIS DREYFUS ET CIE
and
POLO RALPH LAUREN CORPORATION
Dated as of November 23, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
SALE AND TRANSFER OF TRANSFERRED
SUBSIDIARY STOCK AND ASSETS . . . . . . . . . . 2
1.1 Sale and Transfer of Transferred Subsidiary Stock . . . 2
1.2 Sale of Assets . . . . . . . . . . . . . . . . . . . . . 2
1.3 Designated Purchasers . . . . . . . . . . . . . . . . . 2
1.4 Transfer of the Transferred Subsidiary Stock and the
Purchased Assets . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
PURCHASE PRICE AND ADJUSTMENTS . . . . . . . . . 3
2.1 Purchase Price . . . . . . . . . . . . . . . . . . . . . 3
2.2 Payment of Purchase Price . . . . . . . . . . . . . . . 4
2.3 Currency Conversion . . . . . . . . . . . . . . . . . . 4
2.4 Settlement of Purchase Price . . . . . . . . . . . . . . 4
2.5 Allocation of Purchase Price . . . . . . . . . . . . . . 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SALD . . . . . . . 6
3.1 Corporate Existence . . . . . . . . . . . . . . . . . . 6
3.2 Corporate Authority . . . . . . . . . . . . . . . . . . 7
3.3 Capitalization . . . . . . . . . . . . . . . . . . . . . 8
3.4 Governmental Approvals and Consents . . . . . . . . . . 9
3.5 Financial Statements . . . . . . . . . . . . . . . . . . 10
3.6 Absence of Certain Changes . . . . . . . . . . . . . . . 10
3.7 Contracts; Affiliate Transactions . . . . . . . . . . . 10
3.8 Litigation . . . . . . . . . . . . . . . . . . . . . . . 11
3.9 Insurance . . . . . . . . . . . . . . . . . . . . . . . 12
3.10 Intellectual Property Rights . . . . . . . . . . . . . . 12
3.11 Tax Matters . . . . . . . . . . . . . . . . . . . . . . 13
3.12 Employee Benefits . . . . . . . . . . . . . . . . . . . 16
3.13 Labor Matters . . . . . . . . . . . . . . . . . . . . . 17
3.14 Environmental Matters . . . . . . . . . . . . . . . . . 18
3.15 Transferred Assets and the Business; Dissolved and
Dormant Subsidiaries . . . . . . . . . . . . . . . . . 18
3.16 Undisclosed Liabilities . . . . . . . . . . . . . . . . 19
3.17 Receivables. . . . . . . . . . . . . . . . . . . . . . . 19
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3.18 Inventories . . . . . . . . . . . . . . . . . . . . . . 19
3.19 Finders; Brokers . . . . . . . . . . . . . . . . . . . . 19
ARTICLE IV
REPRESENTATIONS OF PURCHASER . . . . . . . . . 20
4.1 Corporate Existence . . . . . . . . . . . . . . . . . . 20
4.2 Corporate Authority . . . . . . . . . . . . . . . . . . 20
4.3 Governmental Approvals and Consents . . . . . . . . . . 21
4.4 Finders; Brokers . . . . . . . . . . . . . . . . . . . . 22
ARTICLE V
AGREEMENTS OF PURCHASER AND SALD . . . . . . . . 22
5.1 Operation of the Business . . . . . . . . . . . . . . . 22
5.2 Investigation of Business . . . . . . . . . . . . . . . 23
5.3 Best Efforts; No Inconsistent Action . . . . . . . . . . 23
5.4 Intercompany Transactions . . . . . . . . . . . . . . . 24
5.5 Non-Solicitation of Employees; Confidentiality . . . . . 25
5.6 Tax Matters . . . . . . . . . . . . . . . . . . . . . . 26
5.7 Reserved . . . . . . . . . . . . . . . . . . . . . . . . 29
5.8 Working Capital Facility . . . . . . . . . . . . . . . . 29
5.9 Transition Services Agreement. . . . . . . . . . . . . . 30
5.10 Transfer Taxes . . . . . . . . . . . . . . . . . . . . . 31
5.11 Working Capital Surplus . . . . . . . . . . . . . . . . 31
5.12 Certain Corporate Matters . . . . . . . . . . . . . . . 32
5.13 Future Investments in the Jeans Business or Vertical
Retail Program . . . . . . . . . . . . . . . . . . . . 33
5.14 Further Obligations of Purchaser and SALD . . . . . . . 33
ARTICLE VI
CONDITIONS TO CLOSING . . . . . . . . . . . 34
6.1 Conditions Precedent to Obligations of Purchaser and
SALD. . . . . . . . . . . . . . . . . . . . . . . . . 34
6.2 Conditions Precedent to Obligation of SALD . . . . . . . 35
6.3 Conditions Precedent to Obligation of Purchaser . . . . 36
6.4 Exception to the Conditions Precedent to Obligation
of Purchaser . . . . . . . . . . . . . . . . . . . . . 37
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ARTICLE VII
CLOSING . . . . . . . . . . . . . . . 37
7.1 Closing Date . . . . . . . . . . . . . . . . . . . . . . 37
7.2 Purchaser Obligations . . . . . . . . . . . . . . . . . 39
7.3 SALD Obligations . . . . . . . . . . . . . . . . . . . . 39
7.4 Termination of Certain Obligations on Closing . . . . . 40
ARTICLE VIII
INDEMNIFICATION . . . . . . . . . . . . . 40
8.1 Indemnification . . . . . . . . . . . . . . . . . . . . 40
8.2 Certain Limitations . . . . . . . . . . . . . . . . . . 42
8.3 Procedures for Third-Party Claims . . . . . . . . . . . 44
8.4 Tax Indemnification . . . . . . . . . . . . . . . . . . 45
8.5 Certain Claims Procedures . . . . . . . . . . . . . . . 47
ARTICLE IX
TERMINATION . . . . . . . . . . . . . . 47
9.1 Termination Events . . . . . . . . . . . . . . . . . . . 47
9.2 Effect of Termination . . . . . . . . . . . . . . . . . 48
ARTICLE X
MISCELLANEOUS AGREEMENTS OF THE PARTIES . . . . . . . 49
10.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . 49
10.2 Severability . . . . . . . . . . . . . . . . . . . . . . 49
10.3 Further Assurances; Further Cooperation . . . . . . . . 50
10.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . 50
10.5 Expenses . . . . . . . . . . . . . . . . . . . . . . . . 50
10.6 Non-Assignability . . . . . . . . . . . . . . . . . . . 50
10.7 Amendment; Waiver . . . . . . . . . . . . . . . . . . . 50
10.8 Third Parties; Holders of Qualifying Shares . . . . . . 51
10.9 Governing Law . . . . . . . . . . . . . . . . . . . . . 51
10.10 Consent to Jurisdiction; Waiver of Jury Trial . . . . . 51
10.11 Entire Agreement . . . . . . . . . . . . . . . . . . . . 52
10.12 Section Headings; Table of Contents . . . . . . . . . . 52
10.13 Specific Performance . . . . . . . . . . . . . . . . . . 52
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EXHIBITS
Annex A Definitions
EXHIBIT A Entity Sellers
EXHIBIT B Lower Tier Subsidiaries
EXHIBIT C Asset Sellers
EXHIBIT D Certain Purchased Assets
EXHIBIT E Legal Opinion of Purchaser's Counsel
EXHIBIT F Legal Opinion of SALD's Counsel
SCHEDULES
Schedule 2.1(a) 1998 Balance Sheet as Adjusted
Schedule 2.1(b) Model of the Hypothetical Closing Date Balance Sheet
as Adjusted
Schedule 2.1(c) Description of Required Adjustments to Financial
Statements for Purchase Price Calculation
Schedule 2.1(d) Illustration of the Purchase Price Computation
Schedule 2.5 Allocation of Purchase Price
Schedule 3.2 Corporate Authority
Schedule 3.3(a) Capitalization/Qualifying Shares
Schedule 3.4 Governmental Approvals and Consents
Schedule 3.5 Financial Statements
Schedule 3.6 Absence of Certain Changes
Schedule 3.7(a)(1) Contracts/Commitments with Non-Affiliates; Addendum
A: Warehouse Agreements; Addendum B: Copy Equipment
Leasing and Maintenance Agreements
Schedule 3.7(a)(2) Bank Guarantees/Deposits/Letters of Intent
Schedule 3.7(b)(1) Contracts/Commitments with Affiliates
Schedule 3.7(b)(2)(a) Poloco S.A. Foreign Exchange Contracts USD
Schedule 3.7(b)(2)(b) Poloco S.A. Foreign Exchange Contracts GBP
Schedule 3.7(b)(2)(c) Polo Jeans Company (Europe) Ltd Foreign Exchange
Contracts USD
Schedule 3.7(c)(1) Real Property Leases
Schedule 3.7(c)(2) Retail Store Locations
Schedule 3.8 Litigation
Schedule 3.10(a) Intellectual Property Rights
Schedule 3.10(b) Intellectual Property Licenses
Schedule 3.11 Tax Matters
Schedule 3.12 Employee Benefits
Schedule 3.13 Labor Matters
Schedule 3.14 Environmental Matters
Schedule 4.3 Governmental Approvals and Consents
Schedule 5.5(a) Non-Solicitation of Certain Employees
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<PAGE>
STOCK AND ASSET PURCHASE AGREEMENT
This Stock and Asset Purchase Agreement, dated as of November 23, 1999
(hereinafter, the "Agreement"), between S.A. Louis Dreyfus et Cie, a
corporation organized under the laws of France ("SALD"), and Polo Ralph
Lauren Corporation, a Delaware corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, certain of SALD's Subsidiaries (the "Licensees") together
conduct a business for the manufacture and wholesale marketing and
distribution of certain apparel and related products in Europe, North Africa
and the Middle East pursuant to licenses from Purchaser and Purchaser's
subsidiary, The Polo/Lauren Company, L.P. (the "Business");
WHEREAS, Purchaser desires to purchase from SALD and SALD's Subsidiaries
listed under "Entity Seller" on Exhibit A (collectively with SALD, the
"Entity Sellers") and SALD desires to sell and cause those SALD's
Subsidiaries to sell to Purchaser all of the equity ownership (whether in the
form of shares or otherwise, the "Transferred Subsidiary Stock") of those of
SALD's Subsidiaries listed under "Company Being Sold" on Exhibit A;
WHEREAS, some of the Licensees, listed under "Lower Tier Subsidiaries"
on Exhibit B, are Subsidiaries of SALD's Subsidiaries listed under
"Subsidiary" on Exhibit B (together with SALD's Subsidiaries listed under
"Company Being Sold" on Exhibit A, the "Transferred Subsidiaries");
WHEREAS, Purchaser desires to purchase from SALD and SALD desires to
sell to Purchaser certain of the assets (the "Purchased Assets") of the
Licensees listed on Exhibit C (the "Asset Sellers");
WHEREAS, capitalized terms used and not defined in the body of this
Agreement shall have the meaning set forth in Annex A hereto; and
NOW, THEREFORE, in consideration of the premises and the mutual promises
contained herein, the parties hereby agree as follows:
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ARTICLE I
SALE AND TRANSFER OF TRANSFERRED
SUBSIDIARY STOCK AND ASSETS
1.1 Sale and Transfer of Transferred Subsidiary Stock.
On the Closing Date, SALD shall or shall cause the Entity Sellers
and any holders of Qualifying Shares to sell, transfer and deliver to
Purchaser, and Purchaser shall purchase and acquire, all of the Transferred
Subsidiary Stock owned by the Entity Sellers and any Other Shareholders.
1.2 Sale of Assets.
On the Closing Date, SALD shall or shall cause the Asset Sellers to
sell, assign, transfer, convey and deliver to Purchaser, and Purchaser shall
purchase and acquire, all of the Asset Sellers' right, title and interest in
the Purchased Assets. Purchaser or the respective Designated Asset Purchaser
shall not assume, and the Asset Sellers shall remain fully responsible for,
any liabilities or obligations of the Asset Sellers (other than obligations
of the Asset Sellers set forth in the Purchased Licenses), including, but not
limited to the May 11, 1998 promissory note of Louis Dreyfus Fashions Corp.,
payable to L.D. Fashions Holdings Corp. in the principal amount of
$85,000,000 (the "Promissory Note") (such liabilities and obligations
hereinafter collectively, "Retained Liabilities").
1.3 Designated Purchasers.
By notice to SALD given not later than 10 Business Days prior to
the Closing Date, Purchaser may designate persons other than Purchaser (a) to
which any of the respective Entity Sellers shall transfer and deliver those
of the shares of the Transferred Subsidiary Stock owned by it (collectively,
the "Designated Share Purchasers") and (b) to which any of the Asset Sellers
shall transfer and deliver those of the assets owned by it to be transferred
in accordance with the terms hereof (collectively, the "Designated Asset
Purchasers" and together with Designated Share Purchasers, "Designated
Purchasers") and such transfers of the Transferred Subsidiary Stock and such
Purchased Assets shall be made at the Closing as so designated.
1.4 Transfer of the Transferred Subsidiary Stock and the Purchased
Assets.
The Transferred Subsidiary Stock and the Purchased Assets shall be
transferred by such assignments, deeds, bills of sale, notarial deeds, stock
certificates, stock powers and other instruments of transfer, each executed,
as required by the Entity Sellers, the Asset Sellers, Purchaser and each
Designated Purchaser, in each case, as appropriate and as required under the
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law applicable thereto, to transfer to Purchaser or the applicable Designated
Purchaser, as the case may be, all of the ownership, free of Liens, in the
Transferred Subsidiary Stock and the Purchased Assets, in each case in such
form as is reasonably acceptable to Purchaser (the "Transfer Documents").
ARTICLE II
PURCHASE PRICE AND ADJUSTMENTS
2.1 Purchase Price.
The aggregate purchase price for the Transferred Subsidiary Stock
and the Purchased Assets shall be an amount (the "Purchase Price") equal to
(A) the "Base Purchase Price," which is the sum of (i) US$195 million for
that portion of the Business other than the Jeans Business and (ii) (Pound
Sterling)9 million for the Jeans Business (the "Jeans Investment") minus (B)
the "Purchase Price Adjustment Amount", calculated in a manner consistent
with the illustration under Caption 5 on Schedule 2.1(d) and which is the sum
of the following three amounts:
(i) Funded Debt reflected on the balance sheet contained in
the Closing Date Financial Statements, calculated in a manner consistent
with the illustration under Caption 2 on Schedule 2.1(d);
(ii) the "Working Capital Shortfall", if any, which is the
amount by which the Current Assets are less than the sum of (1) 100% of
all declared but unpaid dividends shown as a liability on the Closing
Date Financial Statements (collectively, the "Dividends Liability") and
(2) 110% of all Current Liabilities other than the Dividends Liability,
determined based upon information reflected in the Closing Date
Financial Statements and calculated in a manner consistent with the
illustration under Caption 3 on Schedule 2.1(d); and
(iii) the excess, if any, of
(a) the "Net Worth Decrease", which is the excess,
if any, of (1) US$5,238,000, which is the "1998 Net Worth
of the Business" as shown under Caption 4 on Schedule
2.1(d) over (2) the "Closing Date Net Worth of the
Business", as that Closing Date Net Worth of the Business
is determined based upon information reflected in the
Closing Date Financial Statements and calculated in a
manner consistent with the illustration under Caption 4
on Schedule 2.1(d), over
(b) the Working Capital Shortfall, if any.
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2.2 Payment of Purchase Price.
On the Closing Date, Purchaser shall pay to SALD on account of the
Purchase Price US$175.5 million and (Pound Sterling)8.1 million, which is 90%
of the amount of the Base Purchase Price. Such amount shall be payable in
United States dollars in immediately available federal funds to such bank
account or accounts as are designated by SALD not less than three Business
Days prior to the Closing.
2.3 Currency Conversion.
For purposes of calculating the Purchase Price Adjustment Amount,
all calculations shall be made in U.S. dollars, and shall be based on the
dollar amounts reflected in the 1998 Financial Statements and the Closing
Date Financial Statements under the column headed U.S. Dollars; and the
amount of the Jeans Investment shall be converted to U.S. dollars at the
exchange rate announced by the Federal Reserve Bank of New York and printed
on Reuters Page "1FED" on the Business Day immediately preceding the Closing
Date.
2.4 Settlement of Purchase Price.
(a) Purchaser shall prepare (with the full participation of SALD
and its advisors) and deliver to SALD, no later than 90 days after the
Closing Date, the Closing Date Financial Statements and a statement setting
forth Purchaser's calculation of the Purchase Price Adjustment Amount (the
"Post-Closing Statement"), and in connection with the preparation of the
Closing Date Financial Statements and the Post-Closing Statement, Purchaser
will, or will cause the Transferred Subsidiaries (or the successors, if any,
to such entities) to, provide SALD and its authorized agents and
representatives, including its independent accountants, with reasonable
access, at reasonable hours, to all of the properties, books and records of
the Transferred Subsidiaries relating to the preparation of the Closing Date
Financial Statements and the Post-Closing Statement. The Business shall bear
the expense of the preparation of the Closing Date Financial Statements. The
Closing Date Financial Statements and the Purchase Price Adjustment Amount
(collectively, the "Post-Closing Calculations") shall be binding on the
Parties if SALD has not delivered to Purchaser a written notice of its
disagreement with such Post-Closing Calculations including any of the
calculations contained therein or in any of the financial statements and
other material used by Purchaser to prepare such Post-Closing Calculations (a
"Post-Closing Notice of Disagreement") within 30 days after receipt by
Purchaser of such Post-Closing Calculations (the "Objection Period"). Any
such Post-Closing Notice of Disagreement shall specify in reasonable detail
the nature of any disagreement so asserted. Within 30 days after the
delivery of a Post-Closing Notice of Disagreement all matters as specified in
such Post-Closing Notice of Disagreement that have not been resolved by the
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Parties (the "Post-Closing Disputed Matters") shall be submitted to and
reviewed by an arbitrator (the "Post-Closing Arbitrator"), which shall be the
New York office of any one of the so-called "Big Five" accounting firms
selected by the Parties. If within five Business Days following the
expiration of such 30-day period the Parties have failed to agree upon the
selection of the Post-Closing Arbitrator or any Post-Closing Arbitrator
selected by them has not agreed to perform the services called for hereunder,
the Post-Closing Arbitrator shall thereupon be selected by the American
Arbitration Association, with preference being given in making such selection
to any one of the "Big Five" accounting firms willing to perform such
services. The Post-Closing Arbitrator shall consider only the Post-Closing
Disputed Matters. The Post-Closing Arbitrator shall act promptly to resolve
all Post-Closing Disputed Matters and its decision with respect to all Post-
Closing Disputed Matters shall be final and binding upon the Parties. Upon
resolution by the Post-Closing Arbitrator of all Post-Closing Disputed
Matters, the Post-Closing Arbitrator shall cause to be prepared and shall
deliver to the Parties a definitive post-closing calculation statement (the
"Definitive Post-Closing Statement"), which shall (i) reflect the
determination of the Post-Closing Arbitrator with respect to any Post-Closing
Disputed Matters including its determination of the Purchase Price and (ii)
be final and binding upon the Parties. Each Party shall pay its own legal
and consultant fees incurred in connection with the arbitration and the costs
of the arbitration shall be charged to the Business.
(b) Within five Business Days after the earliest of (A) the
expiration of the Objection Period without objection, (B) the date the Post-
Closing Disputed Matters are resolved pursuant to Section 2.4(a) and (C) the
date on which SALD notifies Purchaser that SALD agrees with the Post-Closing
Calculation, either: (i) Purchaser shall pay in cash by wire transfer in
United States dollars in immediately available Federal funds to SALD to the
account designated under Section 2.2 the amount, if any, by which the
Purchase Price exceeds 90% of the Base Purchase Price; or (ii) SALD shall pay
in cash by wire transfer in United States dollars in immediately available
Federal funds to Purchaser to the bank account or accounts designated by
Purchaser, not less than three Business Days prior to the date payment is due
the amount, if any, by which the Purchase Price is less than 90% of the Base
Purchase Price. Purchaser shall pay to SALD (in the case of clause (i) of
this Section 2.4(b)) or SALD shall pay to Purchaser (in the case of clause
(ii) of this Section 2.4(b)) interest on any payment pursuant to this Section
2.4(b) for the period from the Closing Date to the date of payment at the
London Inter-Bank Offer Rate ("LIBOR") for six month deposits in U.S. dollars
as quoted on Telerate Page 3750 on the Closing Date plus 25 basis points.
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2.5 Allocation of Purchase Price.
The Purchase Price allocations among the Purchased Assets and
Transferred Subsidiaries is set forth on Schedule 2.5. For the purposes of
all Taxes, Purchaser and SALD agree to report the transactions contemplated
by this Agreement in a manner consistent with the allocations under this
Section 2.5, and that neither of them will take any position inconsistent
with such allocations on any Tax Return, in any refund claim, in any
litigation, or otherwise, without the consent of the other party except as
required by a final "determination" within the meaning of Section 1313 of the
Code or similar concepts under non-U.S. Tax law.
Purchaser shall prepare an allocation schedule of Purchase Price
among the classes of Purchased Assets, along with the first draft of Internal
Revenue Service Form 8594, and any similar form required by any foreign
jurisdiction which is necessitated by the transactions contemplated by this
Agreement with respect to the Purchased Assets, which shall be sent to SALD
within 60 days following agreement between the Parties as to the balance
sheet contained in the Closing Date Financial Statements. Within 30 days
after the receipt of such allocation schedule and Form 8594, SALD shall
propose any changes to such allocation schedule and Form 8594 or shall
indicate its concurrence therewith, which concurrence will not be
unreasonably withheld.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SALD
SALD represents and warrants to Purchaser as follows:
3.1 Corporate Existence.
Each of the Sellers and the Licensees (a) is duly organized and
validly existing and, where applicable, in good standing under the laws of
the jurisdiction of its organization, (b) has the requisite corporate or
similar power and authority to own, lease and operate its properties and
assets, including in the case of the Asset Sellers the properties and assets
included in the Purchased Assets, and to carry on the Business as the same is
now being conducted, and (c) is duly authorized, qualified or licensed to do
business and is in good standing in every jurisdiction wherein, by reason of
the nature of the Business, the same is required, except, in the case of
clause (c), where the failure of the foregoing to be true and correct would
not, individually or in the aggregate, have a material adverse effect on the
results of operations, financial condition, assets, liabilities or business
of the Business, taken as a whole (a "Business Material Adverse Effect").
SALD has previously provided Purchaser true and complete copies, as in effect
on the date of this Agreement, of the certificate of incorporation, bylaws or
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similar organizational documents (each of which are in full force and effect)
of each Licensee.
3.2 Corporate Authority.
This Agreement and the Transfer Documents to be executed, delivered
and/or filed in connection herewith (collectively with this Agreement and any
agreements entered into pursuant to Section 5.9, the "Transaction Documents")
by the Sellers and the Licensees and the consummation of the transactions
contemplated hereby and thereby involving such persons have been duly
authorized by the Sellers and the Licensees by all requisite corporate,
shareholder or other action prior to the Closing. SALD has full and complete
right, power and authority to execute and deliver this Agreement and to
perform its obligations hereunder, and each of the Sellers and Licensees has
or will have at, or prior to the Closing, full power and authority to
execute, deliver and/or file the Transaction Documents to which it is a party
and to perform its obligations hereunder or thereunder. This Agreement has
been duly executed and delivered by SALD, and the other Transaction Documents
will be duly executed (assuming due authorization by the Purchaser or the
applicable Designated Purchaser), delivered and/or filed by each of the
Sellers and Licensees party thereto and this Agreement constitutes, and each
of the other Transaction Documents when so executed (assuming due
authorization by the Purchaser or the applicable Designated Purchaser),
delivered and/or filed will constitute, a valid and legally binding
obligation of SALD and/or the applicable Seller or Licensee party thereto,
enforceable against it in accordance with its terms except as enforceability
may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law). Except (a) for required
filings under the HSR Act, European Union merger control and any other
applicable laws or regulations relating to antitrust or competition
(collectively, "Antitrust Regulations") and (b) as set forth in Schedule 3.2,
the execution, delivery and/or filing of this Agreement and the other
Transaction Documents by SALD and each of the Sellers or Licensees party
thereto and the consummation by SALD and each of the Sellers or Licensees of
the transactions contemplated hereby and thereby will not (i) violate or
conflict with any provision of the respective certificate of incorporation or
by-laws or similar organizational documents of any of the Sellers or any
Licensee, (ii) result in any breach or constitute any default (with or
without notice or lapse of time, or both) under, or require any consent or
give rise to a right of termination, cancellation, acceleration or amendment
of any obligation or a loss of a benefit under, or result in the creation of
any restriction, pledge, lien, claim, charge, security interest, option or
other encumbrance of any nature whatsoever (collectively, "Liens") under, any
Contract or any license (other than under any license granted by Purchaser or
its subsidiary, The Polo/Lauren Company, L.P. or by one of the Licensees
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pursuant to a license granted by Purchaser or its subsidiary, The Polo/Lauren
Company, L.P.) or permit to which SALD, any of the Sellers, or any Licensee
or any of their respective properties or assets in respect of the Business is
subject or is a party, or (iii) violate, conflict with or result in any
breach under any provision of any judgment, order, decree, statute, law,
ordinance, rule or regulation of any Governmental Authority applicable to
SALD, any of the Sellers, or any Licensee or any of their respective
properties or assets, except, in the case of clauses (ii) and (iii), to the
extent that any such breach, default, termination, cancellation,
acceleration, amendment, loss, Lien, violation, conflict, breach or loss
would not have or would not be reasonably likely to have, individually or in
the aggregate, a Business Material Adverse Effect, or a material adverse
effect on the ability of each of the Sellers, taken as a whole, to consummate
the transactions contemplated hereby (a "Seller Material Adverse Effect").
3.3 Capitalization.
(a) All of the shares of the Transferred Subsidiary Stock and
shares of the capital stock of the other Transferred Subsidiaries have been
validly issued and, to the extent applicable, as of the Closing Date will
have been fully paid and nonassessable and are owned by SALD and/or one or
more of the Sellers or Licensees free and clear of all Liens (except that
certain of those shares are owned by other Persons for the purpose of
compliance with applicable law as set forth on Schedule 3.3(a) (such shares
collectively, the "Qualifying Shares"). The Transferred Subsidiary Stock
represents all the issued and outstanding capital stock of the Transferred
Subsidiaries listed under "Company Being Sold" on Exhibit A (except for the
Qualifying Shares). Schedule 3.3(a) sets forth as of the date of this
Agreement and as of the Closing Date, for each of the Transferred
Subsidiaries the authorized capital stock, the number of shares of
outstanding capital stock or the nominal amount of the shares, the number of
shares of such outstanding capital stock owned by SALD and its Subsidiaries
and the name of each such owner, including the Qualifying Shares. None of
the shares of Transferred Subsidiary Stock and shares of the capital stock of
the other Transferred Subsidiaries was issued in violation of any preemptive
rights. There are no outstanding options, warrants, calls or other rights of
any kind relating to the sale, transfer, registration, issuance or voting of
any Transferred Subsidiary Stock or shares of the capital stock of the other
Transferred Subsidiaries or any securities convertible into or exercisable or
exchangeable for shares of Transferred Subsidiary Stock or shares of the
capital stock of the other Transferred Subsidiaries and all of the options on
Equity Interests of any of the Transferred Subsidiaries have been terminated.
Upon consummation of the transactions contemplated by this Agreement,
Purchaser or the applicable Designated Purchaser, assuming it shall have
purchased the shares of Transferred Subsidiary Stock in good faith and
without notice of any adverse claim, will own the shares of Transferred
Subsidiary Stock free and clear of all Liens. Louis Dreyfus Investment Co.
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Limited and Louis Dreyfus &Co. Limited are not insolvent and will not be
insolvent at the time of or as a result (whether directly or indirectly) of
(i) performing their obligations under this Agreement or (ii) entering into
any other agreement or arrangement, which causes all or any of the
transactions contemplated by this Agreement to be set aside or subject to a
Lien.
(b) None of the Transferred Subsidiaries has issued any preferred
equity securities to any of the Sellers.
3.4 Governmental Approvals and Consents.
None of SALD, the Sellers or any Licensee is subject to any order,
judgment or decree which would prevent the consummation of the Purchase. No
claim, legal action, suit, arbitration, governmental investigation, action or
other legal or administrative proceeding is pending or, to the knowledge of
SALD, threatened against SALD, any of the Sellers or any Licensee which would
enjoin or delay the consummation of the Purchase. Except as set forth in any
of Schedules 3.4, 3.8 and 3.11, and except for any consents required under
any Antitrust Regulations, no material consent, approval, order or
authorization of, license or permit from, notice to or registration,
declaration or filing with, any United States or foreign, federal, state,
provincial, municipal or local government, court of competent jurisdiction,
administrative agency or commission or other governmental or regulatory
authority or instrumentality ("Governmental Authority"), is required on the
part of SALD or any of the Sellers or any Licensee in connection with the
execution, delivery and/or filing of this Agreement or any of the other
Transaction Documents or the consummation of the transactions contemplated
hereby and thereby, except for such consents, approvals, orders or
authorizations, licenses or permits, filings or notices which have been
obtained and remain in full force and effect. Notwithstanding any provision
in this Agreement to the contrary, the inclusion of Schedule 3.4 shall not be
deemed to constitute (i) any acknowledgment by SALD that it is the sole
obligation of SALD to obtain or undertake to obtain or make all or any of the
government approvals, consents, orders, authorizations, filings or notices
which may be required in connection with the transactions contemplated by
this Agreement (including, without limitation, those identified on Schedule
3.4) and (ii) a waiver by SALD of Purchaser's obligation under Section 4.3
also to obtain or undertake all or any of the government approvals, consents,
orders, authorizations, filings or notices which may be required in
connection with the transactions contemplated by this Agreement and under
Sections 5.3 and 10.3 to cooperate with SALD in procuring all of the
Governmental Authority Consents.
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3.5 Financial Statements.
(a) Schedule 3.5 contains a copy of the audited combined balance
sheet of the Business as of December 31, 1998 and the related combined
statement of income for the year then ended, together with the accompanying
footnotes (the "1998 Financial Statements"). The 1998 Financial Statements
(i) were prepared in accordance with the books of account and other financial
records of the Business and (ii) present fairly in all material respects the
combined financial position and the combined results of operations of the
Business as of such dates and for such periods in accordance with GAAP as set
forth in the auditor's opinion and as described in the notes to the 1998
Financial Statements.
(b) Schedule 3.5 also contains a copy of the unaudited combined
balance sheet of the Business as of June 30, 1999 and the related combined
statement of income for the six months ended June 30, 1999 (such date
hereinafter, the "Balance Sheet Date" and such financial statements
hereinafter, the "June Financial Statements"). The June Financial Statements
(i) were prepared in accordance with the books of account and other financial
records of the Business, (ii) present fairly in all material respects the
combined financial position and the combined results of operations of the
Business as of such dates and for such interim periods in accordance with
GAAP and prepared on a basis consistent with the 1998 Financial Statements
and (iii) have been prepared in accordance with GAAP, except that (i) normal
and recurring adjustments that were not or are not expected to be in the
aggregate material in amount have not been made and (ii) the information
required to be included in the footnotes required by GAAP is not included.
3.6 Absence of Certain Changes.
Except as set forth in Schedule 3.6 or as otherwise permitted
pursuant to this Agreement, since the Balance Sheet Date, (i) the Business
has been conducted in all material respects in the ordinary course and in
substantially the same manner as previously conducted and (ii) there has been
no Seller Material Adverse Effect. Except as set forth in Schedule 3.6,
since the Balance Sheet Date, none of the Licensees in respect of the
Business has taken any of the actions referred to in Section 5.1.
3.7 Contracts; Affiliate Transactions.
(a) Except as arise under contracts which Purchaser or any of its
Affiliates is a party to or has countersigned its acceptance and approval and
except as otherwise disclosed in Schedules 3.7(c) (Leased Real Property),
3.10(a) (Intellectual Property Rights), 3.10(b) (Licenses) (the "Covered
Schedules") and Schedules 3.7(a)(1), (a)(2) and (b), there are no
commitments, contracts or groups of related contracts, indentures or
agreements to which any Licensee in respect of the Business is a party or by
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which any Licensee is bound that relates to the Business (hereinafter
"Contracts") that (i) involve commitments by any Licensee for terms of 12
months or longer and that involve, or are reasonably likely to involve,
payment by any Licensee or Asset Seller or to any Licensee in each case of
more than US$200,000 in the aggregate in the case of any individual Contract
or group of related Contracts, (ii) involve obligations of any Licensee for
borrowed money or to maintain deposits or advances of any kind or evidenced
by bonds, debentures, notes or similar instruments or guarantees or capital
lease obligations or any other obligations upon which interest charges are
customarily paid, other than those entered into in the ordinary course of
business or those that involve commitments to lend not in excess of
US$200,000, (iii) involve any non-compete agreement that will be applicable
to any Licensee following the Closing, (iv) constitute material joint venture
or partnership agreements or (v) constitute equipment or machinery financial
leases in respect of equipment or machinery with an original asset value in
excess of US$200,000. Each of the Contracts (including each of the Contracts
listed on the Covered Schedules) is valid and binding on the respective
Licensee that is a party thereto and, to the best of SALD's knowledge and
belief, on each other party thereto, and is in full force and effect
according to its terms, except where the failure to be in full force and
effect would not, individually or in the aggregate, have a Business Material
Adverse Effect, and the Licensees that are parties thereto are not in default
or breach under any such Contract, except where such default or breach would
not, individually or in the aggregate, have a Business Material Adverse
Effect. The consummation of the transactions contemplated by this Agreement
shall not, by itself, cause any Contract to fail to continue in full force
and effect without penalty or other adverse consequence.
(b) Except as disclosed in Schedule 3.7(b), there are no material
contracts, commitments, agreements, arrangements or other transactions to
which any Licensee is a party or by which any Licensee is bound which relate
to the Business with any current or former officer, director, shareholder,
employee, consultant, agent, other representative or any other Affiliate of
any Licensee.
(c) The Licensees do not own any real property or interests (other
than as lessees) in real property in respect of the Business. Schedule
3.7(c)(1) sets forth a list of all material leases for any real property or
interests in real property leased by any Licensee in respect of the Business.
Schedule 3.7(c)(2) identifies the location of all retail stores operated by
the Licensees in the Business.
3.8 Litigation.
Except as set forth in any of Schedules 3.4, 3.8 and 3.11, there
are no actions, suits, proceedings or investigations pending or, to the
knowledge of SALD, threatened in law or in equity, or before any Governmental
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Authority, against any Licensee. None of the matters set forth in any of
Schedules 3.4, 3.8 and 3.11 is reasonably likely to affect the legality,
validity or enforceability of this Agreement or the consummation of the
transactions contemplated hereby in any material respect.
3.9 Insurance.
The Licensees maintain with insurers that SALD believes, reasonably
and in good faith after due investigation, are financially sound and
reputable insurance with respect to the Business and properties against loss
or damage of the kinds that SALD believes, reasonably and in good faith after
due investigation, is customarily carried or maintained under similar
circumstances by entities of established reputation engaged in similar
businesses in the jurisdictions where the respective Licensees conduct their
business. To the best of SALD's knowledge and belief, such policies are
legal, valid, binding, enforceable in accordance with their terms and in full
force and effect; no Licensee is in breach or default thereunder; and no
event has occurred which, with notice or the lapse of time, would constitute
such a breach or default or permit termination or modification under any such
policy other than to the extent any such policy is due to expire in
accordance with its terms. Some of the insurance carried by the Licensees is
either provided (i) under group policies that cover SALD and its Subsidiaries
or (ii) under policies whose terms and conditions (including, but not limited
to, the premiums and deductibles) are a result of the Licensees' affiliation
with SALD and its Subsidiaries. Accordingly, effective as of the Closing
Date the insurance coverage described above in clause (i) will terminate and
the coverage described above in clause (ii) may change, terminate, or not be
replaceable and SALD will have no obligation to obtain insurance coverage
that continues after the Closing.
3.10 Intellectual Property Rights.
(a) Except with respect to Section 3.10(a)(i) and (ii), for the
Intellectual Property rights granted by Purchaser or Purchaser's subsidiary,
The Polo/Lauren Company, L.P., and with respect to Section 3.10(a)(iii), for
contracts which Purchaser or any of its Affiliates is a party to or has
countersigned its acceptance and approval, Schedule 3.10(a) contains (i) a
list of all the patents, copyright registrations, mask work registrations and
applications therefor included in the Purchased Assets, (ii) a list of all of
the trademark and service mark registrations and applications therefor owned
by the Licensees and (iii) a list of all Contracts involving licenses granted
by the Sellers or any of their Subsidiaries to any third party with respect
to any item of Intellectual Property included in the Purchased Assets or
owned by a Licensee, all as of the date of this Agreement.
(b) Schedule 3.10(b) contains a list of all Contracts that grant a
license for the use of Intellectual Property (other than for the use of
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software) granted to any Licensee in respect of the Business, all as of the
date of this Agreement.
(c) Except for the licensed use of computer software, the
Intellectual Property owned by the Licensees in respect of the Business or
included in the Purchased Assets or the Contracts listed in Schedule 3.10(b)
comprise all of the Intellectual Property rights owned by or licensed to
SALD, the Licensees or their Subsidiaries necessary for the conduct and
operation of the Business in all material respects as of the date hereof.
(d) All computer software and, as applicable, machinery and
equipment material to the Business, to the best knowledge and belief of SALD,
is either: (i) Year 2000 Compliant or (ii) timely expected to be Year 2000
Compliant, as commercially required.
3.11 Tax Matters.
Except as set forth in Schedule 3.11:
(a) Each of the Licensees in respect of the Business and each of
the Transferred Subsidiaries has duly and timely filed (after giving effect
to any valid extension of time in which to make such filings) or been
included in all Tax Returns that it, or the relevant Entity Seller or
Affiliate, as the case may be, is required to have filed and all such Tax
Returns are true, correct and complete in all material respects.
(b) All amounts required to be shown on such Tax Returns as due
and Taxes otherwise due from the Licensees or Transferred Subsidiaries either
directly, or as part of the consolidated tax return of another taxpayer, have
been fully and timely paid.
(c) No waivers of statute of limitations have been given or
requested with respect to the Tax Returns covering any Licensee or
Transferred Subsidiary with respect to any Taxes payable by it.
(d) There are no liens for Taxes upon any assets of any of the
Licensees, the Transferred Subsidiaries or the Purchased Assets other than
with respect to Taxes not yet due and payable.
(e) Each of the Licensees and Transferred Subsidiaries has, or has
caused to be, duly and timely reported and withheld from or on behalf of its
respective employees, all income, social security, unemployment insurance and
other employment taxes or obligations of any kind whatsoever (including,
without limitation, U.K. national insurance contributions and PAYE
obligations) and has either paid over to the appropriate taxing authority, or
set aside, all material amounts required to be collected or withheld. No
Transferred Subsidiary or Licensee has received any notice that it is or has
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been in violation (or with notice will be in violation) of any applicable law
relating to the payment or withholding of Taxes.
(f) No deficiency for any Tax has been assessed with respect to
any of the Licensees or the Transferred Subsidiaries which has not been paid
in full. No adjustment relating to any Tax Return described in Section
3.11(a) hereof has been proposed formally by any taxing authority. There are
no requests for information currently outstanding that could affect the Taxes
of any Licensee or Transferred Subsidiary. There are no pending audits,
actions or proceedings with respect to Taxes of any of the Licensees nor have
any of the Licensees or the Transferred Subsidiaries, received any notice
from any taxing authority that it intends to conduct such an audit, action or
proceeding. There are no proposed reassessments of any real property owned
by any Licensee. No power of attorney that is currently in force has been
granted with respect to any matter relating to Taxes that could affect any
Licensee or Transferred Subsidiary.
(g) No consent under Section 341(f) of the Code has been filed
with respect to any of the Transferred Subsidiaries.
(h) No closing agreement pursuant to Section 7121 of the Code (or
any predecessor provision) or any similar provision of any state, local or
non-U.S. law that could affect the Taxes of any of the Transferred
Subsidiaries or Licensees for periods ending after the Closing Date has been
entered into by or with respect to the Transferred Subsidiaries or Licensees.
(i) No Transferred Subsidiary or Licensee has either agreed to or
is required to make any adjustment with respect to taxable periods ending
after the Closing Date pursuant to Section 481(a) of the Code (or any
predecessor provision) by reason of any change in any accounting method of
such Transferred Subsidiary or Licensee, there is no application pending with
any taxing authority requesting permission for any such change in any
accounting method of such Transferred Subsidiary or Licensee and the Internal
Revenue Service ("IRS") has not proposed any such adjustment or change in
accounting method.
(j) There is no contract, agreement, plan or arrangement covering
any person that, individually or collectively, could give rise to the payment
by any Transferred Subsidiary or Licensee of any amount that would not be
deductible by such Transferred Subsidiary or Licensee during any period
commencing on or after the Closing Date by reason of Section 280G of the Code
or any similar or analogous provision of state, local or non-U.S. law.
(k) Each Licensee has timely filed or caused to be filed all Tax
Returns required to be filed with respect to it and has paid or provided for
all deficiencies or other assessments of Tax owed by it for all tax periods
ending on or prior to the Closing Date which if unpaid would result in a Lien
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upon or in respect of any of the Purchased Assets. No state of facts exists
or has existed with respect to any of the Sellers that would constitute
grounds for the assessment against the Designated Purchasers, whether by
reason of transferee liability or otherwise, of any liability for any Tax,
whether or not measured in whole or in part by net income, attributable to
any period ending on or before the Closing Date relating to the Sellers'
income, assets and operations, including the Purchased Assets, or arising out
of the transactions contemplated pursuant to this Agreement.
(l) No Transferred Subsidiary or Licensee is a "real estate
company" under Article 726 2 degrees of the French tax code.
(m) Each Licensee or Transferred Subsidiary has maintained
sufficient records to enable it to calculate any present or, to the extent
reasonably possible, future Tax liability, including any entitlement to
Relief.
(n) The representations set forth in this Section 3.11(n) apply
only with respect to the Transferred Subsidiaries and Licensees located in
the United Kingdom (each a "U.K. Company").
(i) To the extent that any U.K. Company has acquired any
asset other than from an unrelated third party, such acquisition was
effected through an arm's length transaction.
(ii) No U.K. Company has incurred or will incur any Tax
liability as a result of any other person's unsatisfied liability for
U.K. capital gains tax or corporation tax on chargeable gains.
(iii) Each U.K. Company has at all times since its formation
been a resident of the United Kingdom and has not at any time been a
resident of any non-U.K. jurisdiction.
(iv) Each U.K. Company: (x) is a registered and taxable person
for purposes of the VATA and (y) is entitled under the VATA to credit
for all of its input tax.
(v) Each U.K. Company has all of the documentation necessary
to the establishment or enforcement of title to any asset which, in the
United Kingdom or in any other jurisdiction, attracts stamp duty, and as
of the Closing all such documentation will have been stamped with a
particular stamp denoting that no duty is chargeable or has been stamped
by the relevant Taxing Authority. No documentation located outside the
United Kingdom would attract stamp duty if such document was brought
into the United Kingdom.
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(o) If Poloco Limited, Polo Factory Outlet (UK) Limited or Polo
Jeans Company (Europe) Ltd. is transferred to an Entity Seller that is a U.S.
entity, then prior to the Closing Date, a "check the box" election pursuant
to Treas. Reg. Section 301.7701-3 shall be made to classify Poloco Limited,
Polo Factory Outlet (UK) Limited or Polo Jeans Company (Europe) Ltd., as
applicable, as a single owner entity that is disregarded for U.S. federal
income tax purposes.
3.12 Employee Benefits.
(a) Definitions.
(i) "Labor Code" shall mean the French Labor Code.
(ii) "Professional Employees' Collective Agreement" shall mean
an agreement governed by Article L.132-11 et seq. of the Labor
Code.
(iii) "Company Employees' Collective Agreement" shall mean an
agreement governed by Article L.132-18 et seq. of the Labor
Code.
(iv) "Employee Benefit Plan" shall mean any oral or written
express or implied employee benefit or welfare plan or policy
including, without limitation, medical, disability, life
insurance, pension, retirement, profit-sharing, stock option,
savings, compensation policy, bonus plan, golden parachute,
severance or redundancy policy, vacation, sick leave, or other
perquisite under which any Transferred Subsidiary has current
or contingent liability with respect to any of its current or
former directors, officers, employees, agents or consultants
or which is otherwise maintained or contributed to for the
benefit of current or former directors, officers, employees,
agents or consultants in respect of services provided to any
company being sold or with respect to the Business for which
any Transferred Subsidiary would have any liability.
(b) Schedule 3.12 contains a complete list of all Employee Benefit
Plans.
(c) Each Employee Benefit Plan set forth on Schedule 3.12 has been
administered in accordance with its terms and each Transferred Subsidiary and
its respective Affiliates has met its obligations with respect to such
Employee Benefit Plan and has made all required contributions or payments
thereto. Each Transferred Subsidiary and all Employee Benefit Plans are in
compliance with (i) all applicable provisions of the Labor Code and other
applicable law, the regulations, directives and orders thereunder (including
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any special provisions relating to qualified plans where such Employee
Benefit Plan was intended to so qualify) and has been maintained in good
standing with any regulatory authorities, (ii) all Professional Employees'
Collective Agreements applicable to any employees of any Transferred
Subsidiary and (iii) all Company Employees' Collective Agreements applicable
to any employees of any Transferred Subsidiary.
(d) The Transferred Subsidiaries have furnished to Purchaser
copies of each written Employee Benefit Plan set forth on Schedule 3.12 and
disclosed the contents of any oral or implied Employee Benefits Plan set
forth on Schedule 3.12 to the Purchaser. There has been no amendment to,
written interpretation of or announcement (whether or not written) by a
Transferred Subsidiary or any of its Affiliates relating to, or changing
employee participation or coverage under, any Employee Benefit Plan that
would increase materially the expense of maintaining such Employee Benefit
Plan above the level of expense incurred in respect thereof for the most
recent fiscal year ended prior to the date hereof. According to the
actuarial assumptions and valuations most recently used for the purpose of
funding each Employee Benefit Plan (or, if the same has no such assumptions
and valuations or is unfunded, according to the actuarial assumptions and
valuations in use by the Pension Benefit Guaranty Corporation ("PBGC") on
the date hereof), as of the date hereof the total amount or value of the
funds available under such Employee Benefit Plan to pay benefits accrued
thereunder or segregated in respect of such accrued benefits, together with
any reserve or accrual with respect thereto, exceeded the present value of
all benefits (actual or contingent) accrued as of the date hereof for all
participants and past participants therein in respect of which a Transferred
Subsidiary or any of its Affiliates has or would have any obligation after
the Closing. From and after the Closing Date, Purchaser and its Affiliates
will get the full benefit of any such funds, accruals or reserves.
(e) No current or former director, officer, employee, agent or
consultant of any Licensee will become entitled to any bonus, retirement,
severance, job security or other benefit or enhanced benefit (including
acceleration of vesting or exercise of an incentive award) from any
Transferred Subsidiary as a result of the transactions contemplated hereby.
(f) No Employee Benefit Plan set forth on Schedule 3.12 is subject
to the Employee Retirement Income Security Act of 1974, as amended, or the
Internal Revenue Code of 1986, as amended.
3.13 Labor Matters.
Except as set forth on Schedule 3.13, no Licensee is presently a
party to any collective bargaining agreement, subject to a legal duty to
bargain with any labor organization on behalf of employees or the object of
any attempt to organize employees for collective bargaining or similar
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purposes or presently operating under an expired collective bargaining
agreement. As of the date of this Agreement, no Licensee is or has been a
party to or subject to any pending strike, work stoppage, organizing attempt,
picketing, boycott or similar activity. The compliance by Poloco S.A. with
French laws relating to employment is being audited by the French work
authorities.
3.14 Environmental Matters.
Except (a) as disclosed in Schedule 3.14 or (b) as would not,
individually or in the aggregate, be reasonably likely to have a Business
Material Adverse Effect, to the best of SALD's knowledge and belief: (i) the
Licensees are in compliance in all material respects with all applicable
Environmental Laws and (ii) the Licensees are in material compliance with and
possess all applicable Environmental Permits required under such
Environmental Laws to operate the Business as it is currently operated, and
as of the date of this Agreement there are no proceedings pending or, to the
knowledge of SALD, threatened to revoke, rescind or alter any such
Environmental Permits. Notwithstanding the generality of any other
representations and warranties in this Agreement, this Section 3.14 shall be
deemed to contain the only representations and warranties in this Agreement
with respect to matters relating to Environmental Laws.
3.15 Transferred Assets and the Business; Dissolved and Dormant
Subsidiaries.
(a) The transfer of the Transferred Subsidiary Stock and the
Purchased Assets will constitute a conveyance of all the assets, properties
and rights used by the Licensees to conduct the Business in all material
respects as currently conducted. The Licensees are the only direct and
indirect subsidiaries of the Entity Sellers which conduct the Business.
(b) As of the Closing Date, each of LD Retail Management Greece
S.A., a corporation organized under the laws of Greece, LDRM Ireland Ltd., a
corporation organized under the laws of Ireland, and Netherlands PRL Retail
Management B.V., a corporation organized under the laws of the Netherlands,
will have been dissolved, except to the extent that certain ministerial
actions required to complete the dissolution of LD Retail Management Greece
S.A. have not been obtained due to a delay caused by factors that are
reasonably beyond the control of the Sellers and the Transferred
Subsidiaries; and the Licensees will have no outstanding liabilities or
obligations of any nature or kind whatsoever as a result of such dissolution.
(c) Silvestro Inc. is a corporation organized under the laws of
the Virgin Islands, the exclusive management of which has been under the
control of an affiliate of Purchaser, and accordingly Seller makes no
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representations or warranties regarding the status of Silvestro Inc. or the
existence of any outstanding liabilities or obligations.
3.16 Undisclosed Liabilities.
To the best of SALD's knowledge and belief, the Licensees do not
have any liabilities or obligations of any nature or kind whatsoever (whether
absolute, accrued, contingent or otherwise), other than (i) liabilities that
are reserved against or reflected in the balance sheet included in the
Financial Statements (or described in the notes thereto) in a manner
consistent with prior practices, (ii) liabilities incurred in the ordinary
course of business since the Balance Sheet Date or (iii) other liabilities
that would not, in the aggregate, be material.
3.17 Receivables.
All accounts and notes receivable reflected on the 1998 Financial
Statements, and all accounts and notes receivable arising subsequent to the
1998 Financial Statements, (i) have arisen in the ordinary course of business
of the Licensees and (ii) subject only to a reserve for bad debts computed in
a manner consistent with past practice and reasonably estimated to reflect
the probable results of collection, have been collected, are collectible or
will be collectible, assuming performance by Purchaser in accordance with
Section 5.14(c), in the ordinary course of business of the Licensees in the
aggregate recorded amounts thereof in accordance with their terms.
3.18 Inventories.
As of the Closing Date, the inventory of the Licensees is in good
and merchantable condition, and suitable and usable or salable in the
ordinary course of business for the purposes for which intended. Neither the
Licensees nor any of the Sellers knows of any adverse condition affecting the
supply of materials available to any of the Licensees.
3.19 Finders; Brokers.
None of the Sellers or any of the Licensees has employed any finder
or broker in connection with the Purchase who would have a valid claim for a
fee or commission from Purchaser or any of the Licensees in connection with
the sale and purchase provided for in this Agreement.
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ARTICLE IV
REPRESENTATIONS OF PURCHASER
Purchaser represents and warrants to SALD as follows:
4.1 Corporate Existence.
Purchaser and each of the Designated Purchasers is duly organized
and validly existing and, where applicable, in good standing, under the laws
of the jurisdiction of its organization and has the requisite power and
authority to execute and deliver this Agreement (in the case of Purchaser)
and the other Transaction Documents to which it is a party and to perform its
obligations hereunder and thereunder.
4.2 Corporate Authority.
This Agreement and the Transfer Documents to which Purchaser and/or
any Designated Purchaser is a party and the consummation of the transactions
contemplated hereby and thereby involving such persons have been or, in the
case of the other Transaction Documents, prior to the Closing, will be duly
authorized by the Purchaser and such Designated Purchaser, by all requisite
corporate, shareholder, partnership or other action prior to the Closing, and
Purchaser and each Designated Purchaser has or at or prior to the Closing
will have full and complete right, power and authority to execute, deliver
and/or file the Transaction Documents to which it is a party and to perform
its obligations hereunder or thereunder. This Agreement has been duly
executed and delivered by Purchaser, and the other Transaction Documents will
be duly executed, delivered and/or filed by Purchaser and any Designated
Purchaser party thereto, and (assuming due authorization by the applicable
Seller) this Agreement constitutes, and the other Transaction Documents when
so executed, delivered and/or filed will constitute, a valid and legally
binding obligation of Purchaser and/or any Designated Purchaser party
thereto, enforceable against it or them, as the case may be, in accordance
with its terms except as enforceability may be affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law). The execution, delivery and/or filing of this Agreement and the other
Transaction Documents by Purchaser and/or any Designated Purchaser party
thereto and the consummation by Purchaser and/or any Designated Purchaser of
the transactions contemplated hereby and thereby will not (i) violate or
conflict with any provision of the respective certificate of incorporation or
by-laws or similar organizational documents of Purchaser and/or any
Designated Purchaser, (ii) result in any breach or constitute any material
default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any
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obligation or to the loss of a material benefit under, or result in the
creation of any Lien under any contract, indenture, mortgage, lease, note or
other agreement or instrument to which Purchaser and/or any Designated
Purchaser is subject or is a party, or (iii) violate, conflict with or result
in any breach under any provision of any judgment, order, decree, statute,
law, ordinance, rule or regulation of any Governmental Authority applicable
to Purchaser and/or any Designated Purchaser or any of their respective
properties or assets, except, in the case of clauses (ii) and (iii), to the
extent that any such default, violation, conflict, breach or loss would not,
individually or in the aggregate, have a material adverse effect on the
ability of Purchaser and/or any Designated Purchaser to consummate the
transactions contemplated hereby and thereby (a "Purchaser Material Adverse
Effect").
4.3 Governmental Approvals and Consents.
Neither Purchaser nor any Designated Purchaser is subject to any
order, judgment or decree which would prevent the consummation of the sale
and purchase provided for in this Agreement. No claim, legal action, suit,
arbitration, governmental investigation, action or other legal or
administrative proceeding is pending or, to the knowledge of Purchaser,
threatened against Purchaser or any Designated Purchaser which would enjoin
or delay the consummation of the Purchase. Except as set forth on Schedule
4.3 and except for any consents required under any applicable Antitrust
Regulations, no consent, approval, order or authorization of, license or
permit from, notice to or registration, declaration or filing with, any
Governmental Authority, is required on the part of Purchaser or any
Designated Purchaser in connection with the execution, delivery and/or filing
of this Agreement or any of the other Transaction Documents or the
consummation of the transactions contemplated hereby and thereby except for
such consents, approvals, orders or authorizations of, licenses or permits,
filings or notices which have been obtained and remain in full force and
effect and those with respect to which the failure to have obtained or to
remain in full force and effect would not, individually or in the aggregate,
have a Purchaser Material Adverse Effect. Notwithstanding any provision in
this Agreement to the contrary, the inclusion of Schedule 4.3 shall not be
deemed to constitute (i) any acknowledgment by Purchaser that it is the sole
obligation of Purchaser to obtain or undertake all or any of the government
approvals, consents, orders, authorizations, filings or notices which may be
required in connection with the transactions contemplated by this Agreement
(including, without limitation, those identified on Schedule 4.3) and (ii) a
waiver by Purchaser of SALD's obligation under Section 3.4 also to obtain or
undertake to obtain or make all or any of the government approvals, consents,
orders, authorizations, filings or notices which may be required in
connection with the transactions contemplated by this Agreement and under
Sections 5.3 and 10.3 to cooperate with Purchaser in procuring all of the
Governmental Authority Consents.
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4.4 Finders; Brokers.
None of Purchaser or any of its Subsidiaries has employed any
finder or broker in connection with the sale and purchase who would have a
valid claim for a fee or commission from any of the Sellers in connection
with the sale and purchase provided for in this Agreement.
ARTICLE V
AGREEMENTS OF PURCHASER AND SALD
5.1 Operation of the Business.
Between the date hereof and the Closing Date, SALD will cause the
Licensees to, and the Licensees shall, carry on the Business in a manner
consistent with past practices (which shall include, as being so consistent,
the making of payments or dividends to SALD or any of its Affiliates, or a
person designated by SALD or any of its Affiliates, to satisfy outstanding
obligations to the extent permitted by law), with respect to all operational
matters and in a manner to maximize on a prudent basis the profitability of
the Business on a combined basis, but without taking action that would
normally be expected to jeopardize the Business' ability to retain such
profitability (with normal and expected growth) in subsequent years and
without limitation, shall not, and shall cause each of the Licensees not to,
take any of the following actions in this Section 5.1 without the prior
written consent of Purchaser:
(a) the consolidation, combination or merger with or into any
other Person (other than a consolidation, combination or merger of any of the
Sellers or any Licensee with another Licensee);
(b) the sale, assignment, transfer or lease of any material assets
of the Business or any of the Licensees other than in the ordinary course of
business;
(c) the issuance or sale by any of the Licensees of any of its
equity securities (or securities exercisable for, exchangeable for or
convertible into such securities), except as contemplated under this
Agreement;
(d) the involvement by any of the Licensees in any line of
business other than the lines of business currently comprising the Business;
(e) the winding up, dissolution, administration, receivership,
composition with creditors generally or liquidation, or any analogous or
similar process or proceeding in any jurisdiction in which any of the
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Licensees operates of any of the Licensees except as contemplated under
Section 3.15;
(f) the voluntary bankruptcy or winding up of any of the
Licensees;
(g) any transaction, agreement, understanding or arrangement
entered into by any of the Licensees, other than those entered into in the
ordinary course of business and consistent with past practices, which could
have the result of imposing any liability or obligation on Purchaser or any
of its affiliates or any person, successor, or assignee of Purchaser at that
time, except as contemplated by this Agreement;
(h) any requirement that Purchaser contribute any capital to the
Business or to any of the Licensees; and
(i) any transfer by any of the Licensees of any interest under any
of its licenses pursuant to which it conducts the Business or portion
thereof.
5.2 Investigation of Business.
In order to facilitate its assuming operation of the Business on
the Closing Date and to confirm that the conditions set forth in Section
6.3(a), (b) and (d) are or will be satisfied, but for no other purpose, prior
to the Closing Date, Purchaser may make or cause to be made such
investigation of the business, properties and assets of the Business and of
its financial and legal condition as Purchaser deems necessary or advisable.
SALD will, or will cause the Licensees to, permit Purchaser and its
authorized agents or representatives, including its independent accountants
and legal counsel, to have reasonable access to the properties, books and
records of the Licensees at reasonable hours to review information and
documentation relative to the properties, books, contracts, commitments and
other records of the Licensees and reasonable access to the officers,
directors, employees, agents and accounts of the Licensees.
5.3 Best Efforts; No Inconsistent Action.
SALD and Purchaser will act in good faith and to use their best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement and to cause the
conditions to each Party's obligation to close the transactions contemplated
hereby as set forth in Article VI to be satisfied, including applying for
promptly and doing all things necessary to obtain by the Closing Date all
licenses, certificates, permits, approvals, clearances, authorizations,
qualifications and orders (each a "Consent") of any Governmental Authority
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required for the satisfaction of Section 6.1(b) to the extent set forth
therein, and in connection therewith (i) to minimize any negative tax and
other costs to the other Party but without material cost to itself and only
to the extent practicable, (ii) to obtain all other Consents listed on
Schedules 3.2, 3.4 and 4.3, (it being understood that the failure to obtain
any such Consents shall not, in and of itself, cause the condition set forth
in Section 6.3(b) to be deemed not to be satisfied) and (iii) to effect the
orderly transition of employees and to modify, amend or cause the assumption
by another person of employee benefit arrangements which, as a result of the
sale and purchase provided for in this Agreement, need to be modified,
amended or assumed pursuant to applicable law.
5.4 Intercompany Transactions.
(a) Effective on or prior to the Closing Date, to the extent
practicable, SALD will, and will cause its Subsidiaries to, use their
reasonable best efforts to cause all intercompany payables owed by any
Transferred Subsidiary (except for the Asset Sellers) to SALD or any
Subsidiaries of SALD which are not Transferred Subsidiaries to be paid; and
if and to the extent that any of those payables remains unpaid after the
Closing Date, Purchaser will cause it to be paid no later than 30 days
thereafter. As stated above in Section 2.1, Purchaser shall have no
obligations pursuant to this Section 5.4 to repay the Promissory Note.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 5.4, (i) Purchaser will pay or cause to be paid all amounts due under
Tax allocation and sharing agreements as shown as a Current Liability on the
Closing Date Financial Statements within 90 days after the Closing Date and
(ii) Purchaser will promptly and directly pay or cause to be paid to the
relevant taxing authority or SALD, as applicable, Taxes assessed against SALD
or any Transferred Subsidiary (or its successor) with respect to that
Transferred Subsidiary's operations during the Pre-Closing Period; provided,
however, that Purchaser will be required to make or cause to be made a
payment pursuant to this subsection (ii) only to the extent that SALD shall
have previously or simultaneously delivered to Purchaser in cash the full
amount of the corresponding indemnification payment, if any, owing under
Article VIII.
(c) Effective on or prior to the Closing Date SALD will cause the
termination of (i) the contract between SALD and Poloco S.A. for general
administrative and office services including, but not limited to, accounting
and tax support; (ii) the contract between Louis Dreyfus & Co. Limited and
Poloco Limited for general administrative and office services including, but
not limited to, accounting support; (iii) the contract between Louis Dreyfus
& Co. Limited and Polo Jeans Company (Europe) Limited for general
administrative and office services including, but not limited to, accounting
support; (iv) the contract between Louis Dreyfus & Co. Limited and Polo
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Factory Outlet (U.K.) Limited for general administrative and office services
including, but not limited to, accounting support; (v) the contract between
Louis Dreyfus Energy Limited and Poloco Limited for tax services; (vi) the
contract between Louis Dreyfus Energy Limited and Polo Jeans Company (Europe)
Limited for tax services; (vii) the contract between Louis Dreyfus Energy
Limited and Polo Factory Outlet (UK) Limited for tax services; (viii) the
contract between Louis Dreyfus Trading Limited and Poloco Limited for payroll
services and personnel management; (ix) the contract between Louis Dreyfus
Trading Limited and Polo Jeans Company (Europe) Limited for payroll services
and personnel management; and (x) the contract between Louis Dreyfus Trading
Limited and Polo Factory Outlet (UK) Limited for payroll services and
personnel management.
5.5 Non-Solicitation of Employees; Confidentiality.
(a) Except as shown on Schedule 5.5(a), for a period of two years
after the Closing Date, SALD shall not, and shall cause each of its
Subsidiaries not to, solicit or recruit any employees of the Business;
provided, however, that SALD shall have no obligation to Purchaser to assure
the continued employment by Purchaser or any of its Subsidiaries of any of
the employees of the Business and except that SALD and any of its
Subsidiaries may employ any of those employees so long as neither SALD nor
any of its Subsidiaries has so solicited or recruited their employment.
(b) For a period of two years after the Closing Date, Purchaser
shall not, and shall cause each of its Subsidiaries not to, solicit or
recruit, directly or indirectly, any employee of SALD or any of SALD's
Subsidiaries who is employed on the Closing Date by SALD or any of SALD's
Subsidiaries that is not a Transferred Subsidiary or Licensee and those
persons who are engaged in providing services to the Business prior to the
Closing or after the Closing under a Transition Services agreement referred
to in Section 5.9; except that Purchaser and its Subsidiaries may employ (i)
any of those employees so long as neither Purchaser nor any of its
Subsidiaries has so solicited or recruited any employee and (ii) any of those
employees whose principal activity and/or responsibility for SALD prior to
the Closing Date is the Business.
(c) Except as may be required to comply with any law or legal
process, SALD shall not, and shall cause each of its Subsidiaries not to,
disclose or furnish to anyone any confidential information relating to the
Business.
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5.6 Tax Matters.
(a) Preparation of Tax Returns; Payment of Taxes. SALD or
Purchaser shall, or Purchaser shall cause the Transferred Subsidiaries to, as
applicable, prepare and file or cause to be filed when due all U.S. federal,
state, local and non-U.S. income and franchise Tax Returns required to be
filed by or with respect to the Transferred Subsidiaries for all taxable
years or periods ending on or prior to the Closing Date in a manner
consistent with prior tax years unless different treatment is required by
applicable law. SALD shall allow Purchaser the opportunity to review and
comment upon any Tax Returns to be filed by the Transferred Subsidiaries (and
any relevant portion of the Tax Returns of SALD and any of SALD's
Subsidiaries relevant to the Transferred Subsidiaries). Without limitation
to the obligations of SALD or the Entity Sellers under Section 8.4, SALD
shall pay when due any and all Taxes shown to be due on such Tax Returns.
Purchaser shall file or cause to be filed when due all Tax Returns that are
required to be filed by or with respect to the Transferred Subsidiaries for
taxable years or periods ending after the Closing Date and shall remit when
due any Taxes due in respect of such Tax Returns.
(b) Contests. (i) Purchaser shall notify SALD in writing
promptly (and in any event within no more than 10 Business Days) upon receipt
by Purchaser, any of its Affiliates or the Transferred Subsidiaries of notice
of any pending or threatened Federal, state, local or non-U.S. income or
franchise tax audits or assessments or notification of any claim for taxation
which may materially affect the Tax liabilities of the Transferred
Subsidiaries for which SALD or the Entity Sellers would be required to
indemnify a Purchaser Indemnified Party pursuant to Section 8.4; provided,
however, that a failure to give such notice shall not affect such Purchaser
Indemnified Party's rights to indemnification thereunder, except to the
extent, if any, that, but for such failure, SALD or the Entity Sellers could
have avoided or reduced the Tax liability in question. SALD shall have the
right to control, and in that connection, shall be empowered by Purchaser
with the necessary authority for, the conduct of any audit, or the
prosecution or defense of any such audit or claim or administrative or
judicial proceeding relating to any Pre-Closing Period (other than an Interim
Period (as defined in Section 8.4(a)), the treatment of which is discussed in
Section 5.6(b)(ii)), and to employ counsel of its own choosing and at its
expense. Notwithstanding the foregoing, SALD may not settle, either
administratively or after the commencement of litigation, any claim for Taxes
which would adversely affect the liability for Taxes of Purchaser or the
Transferred Subsidiaries for any period after the Closing Date (including,
but not limited to, the imposition of income tax deficiencies, the reduction
of asset basis or cost adjustments, the lengthening of any amortization or
depreciation periods, the denial of any amortization or depreciation
deductions, the reduction of loss or credit carryforwards or the denial or
reduction of any credit or similar item) without the prior written consent of
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Purchaser, which consent shall not be unreasonably withheld or delayed. As
of the date of this Agreement, Purchaser and its representatives shall be
entitled, at the expense of Purchaser, to participate in any such audit, or
the prosecution or defense of any such audit or claim or administrative or
judicial proceeding (including, but not limited to the audits of Poloco, S.A.
currently being conducted by the French taxing authorities (the "French Tax
Audit")). If SALD does not assume the responsibility for the conduct or
defense of any such audit or claim or proceeding promptly (and in any event
within no more than 10 Business Days), Purchaser (or its representatives)
may, at SALD's reasonable expense and without any effect on the rights of any
Purchaser Indemnified Party to indemnification under Section 8.4, defend the
same in such manner as it may deem appropriate, including, but not limited
to, settling such audit or proceeding.
(ii) SALD shall be entitled, at the sole expense of SALD, to
participate in the prosecution or the defense of any claim for Taxes for an
Interim Period which may be subject to indemnification pursuant to Section
8.4, provided, however, that, notwithstanding the foregoing, SALD shall not
be entitled to settle or otherwise compromise, either administratively or
after the commencement of litigation, any such Tax claim without the prior
written consent of Purchaser (which consent shall not be unreasonably
withheld or delayed) if the settlement or compromise would result in any
additional liability for Taxes of Purchaser or the Transferred Subsidiaries
for such Interim Period or any period after the Closing Date (including, but
not limited to, the imposition of income tax deficiencies, the reduction of
asset basis or cost adjustments, the lengthening of any amortization or
depreciation periods, the denial of any amortization or depreciation
deductions, the reduction of loss or credit carryforwards or the denial or
reduction of any credit or similar item) which would not be fully indemnified
by SALD and the Entity Sellers under Section 8.4. Purchaser and the
Transferred Subsidiaries shall not agree to settle any Tax claim for the
portion of the year or period ending on the Closing Date which may be subject
to indemnification by SALD or the Entity Sellers under Section 8.4 without
the prior written consent of SALD, which consent shall not be unreasonably
withheld or delayed. Except as otherwise provided in Section 5.6(a) and this
Section 5.6(b), Purchaser shall control at its own expense any and all audit,
administrative and judicial proceedings related to the Taxes of the
Transferred Subsidiaries.
(c) Time of Payment. Except as otherwise provided in Section
5.6(a), payment of any amounts due under this Section 5.6 in respect of Taxes
shall be made by SALD or the Entity Sellers not later than the later of (i)
10 Business Days before the due date, and (ii) 5 Business Days after
Purchaser has notified SALD or the Entity Sellers (whichever is applicable),
of the applicable estimated or final Tax Return required under Section 5.6 to
be filed by Purchaser on which is required to be reported Taxes for an
Interim Period for which SALD or any of the Entity Sellers is responsible
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under Section 8.4, or, with respect to other indemnity payments due from SALD
or the Entity Sellers under Section 8.4, shall be paid not later than the
later of (i) 10 Business Days following a settlement or compromise of an
assessment or collection of a Tax by a taxing authority or a "determination"
as defined in Section 1313(a) of the Code or any similar or analogous
provision of state, local or non-U.S. law and (ii) 5 Business Days after
Purchaser has notified SALD or the Entity Sellers (whichever is applicable)
of the amount due, if liability under this Section 5.6 is in respect of other
costs or expenses other than Taxes, payment by SALD or the Entity Sellers of
any such amounts shall be made within 10 Business Days after the date that
SALD has been notified by Purchaser in writing that SALD has a liability for
a determination amount under this Section 5.6 and SALD is provided with
calculations or other material supporting SALD's liability for such amounts.
This provision shall apply pari passu to payments required to be made by
Purchaser to SALD.
(d) Cooperation and Exchange of Information. SALD and Purchaser
shall, and Purchaser shall cause the Transferred Subsidiaries to, provide
each other with such cooperation and information as any of them reasonably
may request of another in filing any Tax Return, amended Tax Return or claim
for refund, determining a liability for Taxes or a right to a refund of Taxes
or participating in or conducting any audit or other proceeding in respect of
Taxes. Such cooperation and information shall include the preparation of tax
packages or pro forma separate company Tax Returns as may be applicable for
SALD in substantially the same form in which such information customarily was
provided to SALD in previous Tax periods and providing copies of relevant Tax
Returns or portions thereof, together with accompanying schedules and related
work papers and documents relating to rulings or other determinations by Tax
authorities. Such information shall be provided at the time specified by
SALD so as to enable SALD to comply. Each such party shall make its
employees available on a mutually convenient basis to provide explanations of
any documents or information provided hereunder. Subject to the preceding
sentence, each party required to prepare Tax Returns pursuant to this
Agreement shall bear all costs of preparing and filing such Tax Returns.
Each such party will retain all Tax Returns, schedules and work papers and
all material records or other documents relating to Tax matters of the
Transferred Subsidiaries for their Tax period first ending after the Closing
Date and for all prior Tax periods until the later of (i) the expiration of
the statute of limitations of the Tax periods to which such Tax Returns and
other documents relate, without regard to extensions except to the extent
notified by another party in writing of such extensions for the respective
Tax periods, or (ii) eight years following the due date (without extension)
for such Tax Returns. Any information obtained under this Section 5.6(d)
shall be kept confidential, except as may be otherwise necessary in
connection with the filing of Tax Returns or claims for refund or in
conducting an audit or other proceeding.
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(e) Taxes for the Interim Period. For purposes of computing the
Taxes for the Interim Period for which SALD and the Entity Sellers are liable
under Sections 5.6 and 8.4, Taxes shall be computed for the period beginning
on the first day of the then current fiscal year and ending as if the tax
year ended on the Closing Date. Nothing herein shall be interpreted to
require the parties to elect with any relevant taxing authority to treat the
Closing Date as the last day of the tax year.
(f) Tax Sharing Agreements. Any written or unwritten Tax
allocation or sharing agreement to which any of the Transferred Subsidiaries
is a party (including without limitation, any agreement or arrangement
requiring any of the Transferred Subsidiaries to pay another Person for the
use of such Person's losses, credits or other tax benefits) shall be
terminated and of no further force and effect as of the Closing Date except
that any obligation arising under any written or unwritten Tax allocation or
sharing agreement for a Pre-Closing Period shall survive to the extent (i)
the liability for such obligation is reflected on the Closing Date Financial
Statements as a current liability or (ii) such obligation is described in
Section 5.4(b)(ii).
5.7 Reserved.
5.8 Working Capital Facility.
(a) Purchaser will assume the obligations, succeed to the rights
and use commercially reasonable efforts to cause SALD and any of SALD's
Subsidiaries party thereto to be released as guarantor of any indebtedness to
third party lenders for the Jeans Business (each, a "Facility"), so long as,
as of the Closing Date: (i) SALD is in compliance with all financial
covenants, including any working capital requirements, under the agreements
documenting any Facility and (ii) no event has occurred which, with notice,
or lapse of time, or both, would constitute a default or event of default
under such agreements, and the agreements documenting any Facility remain
enforceable against the lender or lenders thereunder following Purchaser's
assumption and succession and the release of SALD and any of SALD's
Subsidiaries as guarantor thereunder (other than the Transferred
Subsidiaries). If Purchaser is not able to assume, succeed to or cause SALD
or any of SALD's Subsidiaries to be released pursuant to this Section 5.8,
Purchaser will cause such working capital facilities to be repaid or retired
as soon as practicable after the Closing, but in no event later than 45 days
after the Closing.
(b) Unless it will result in a default under any Facility, SALD
will, or will cause its Subsidiaries (other than the Transferred
Subsidiaries) to, (i) terminate, effective as of the Closing Date, their
respective guarantees of amounts that are borrowed under any Facility on or
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after the Closing Date and (ii) notify the respective third party lenders
prior to the Closing Date of such termination.
(c) Notwithstanding the provisions of paragraph (a) of this
Section 5.8, if and to the extent that Purchaser or any Licensee fails to
timely pay any amount due under any Facility after the Closing Date that is
shown as a liability on the Closing Date Financial Statements and SALD or any
of its Subsidiaries is obligated under its guarantee to pay such amount to
the third party lender under that Facility or deems that it will be
detrimental to its relationship with the third party lender or the financial
community not to pay such amount. Purchaser will not be deemed to be in
breach of this Agreement, but Purchaser shall be obligated to reimburse SALD
on demand for all amounts that SALD or any of its Subsidiaries is obligated
to pay to the third party lender under such guarantee including, without
limitation, attorneys' fees and expenses and other costs, and such
reimbursement obligation shall not be subject to the Indemnification Base.
(d) For purposes of this Section 5.8, the words "guarantee" and
"guarantor" shall refer to any oral or written guarantee, comfort letter, or
other document, commitment or understanding reflecting assurance of repayment
based on an affiliation with SALD or any of its Subsidiaries.
5.9 Transition Services Agreement.
(a) Solely in order to facilitate the transition of the operation
of the Business to Purchaser after the Closing, SALD shall act in good faith
and use commercially reasonable best efforts to cause those of the Sellers
that at the date of this Agreement (or to the extent provided within the year
prior to the date of this Agreement and necessary to the conduct of the
Business) are providing clerical and ministerial services to any of the
entities that will constitute the Business after the Closing to negotiate the
terms of and enter into agreements with Purchaser on or prior to the Closing
Date to continue to provide certain of those services (the "Transition
Services") to those entities after the Closing Date. Those terms shall
provide, among other things, that, inasmuch as those Sellers have provided
services to the Business before the Closing using personnel and equipment
that those Sellers have used in their activities other than those related to
the Business, none of those Sellers shall be required to (a) provide services
that are different from or greater than or to a different recipient of those
services than those such Seller provided before the Closing, and (b) employ
additional personnel to provide the services or replace employees who have
participated in providing any of the services, but leave their employment
(other than by virtue of having been terminated) by that Seller
(notwithstanding that the amount or nature of the services or the efficiency
in providing the services are reduced), except to the extent that employees
are hired to replace such terminated employee.
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(b) The Transition Services will consist only of clerical and
ministerial services and shall not require the performance of any managerial
or decision-making function, and will not require the Sellers to provide
advice of any kind. The Sellers will provide the Transition Services in a
manner and with a degree of care that is substantially the same as the manner
and degree of care that the Sellers use in conducting their activities other
than the Business. In performing the Transition Services, the Sellers may
rely on and shall have no obligation to inquire into the accuracy or
completeness of any information that is provided to them by any Person that
is conducting any of the Business after the Closing. In no event shall the
Sellers be liable for any damage or loss suffered by Purchaser as a result of
the performance or failure to perform by the Sellers any of the Transition
Services, unless the damage or loss results from the gross negligence or
willful misconduct of the Sellers. Purchaser will use its best efforts to
provide its own staffing and facilities in order to permit the Sellers to
terminate providing the Transition Services within as short a period after
the Closing as is practicable, in any event, not later than 180 days after
the Closing unless otherwise agreed to by the Parties.
5.10 Transfer Taxes.
All sales, transfer and similar Taxes, duties or levies assessed or
payable in connection with the Purchase shall be paid by the party on whom
such Taxes are imposed by applicable law.
5.11 Working Capital Surplus.
(a) Purchaser acknowledges that, to the extent reasonably possible
and in accordance with applicable law, SALD will cause each of the
Transferred Subsidiaries to declare, on or before the Closing Date, dividends
which are payable directly or indirectly to SALD or its Affiliates other than
the Transferred Subsidiaries in an aggregate amount up to the amount legally
permitted. If and to the extent that there is any Working Capital Surplus
computed based on the Closing Date Financial Statements and taking into
account the declaration of those dividends, all as calculated in a manner
consistent with the illustration under Caption 7 on Schedule 2.1(d),
Purchaser shall pay or cause to be paid to SALD an amount equal to the lesser
of the Working Capital Surplus and US$10 million (such amount, the "Working
Capital Surplus Payment"), in either case together with interest for the
period from the Closing Date to the date of payment at LIBOR for six month
deposits in U.S. dollars as quoted on Telerate Page 3750 on the Closing Date
plus 25 basis points, in accordance with the procedures set forth in Section
2.4(b). For purposes of calculating the Purchase Price and the working
capital ratio based on information reflected in the Closing Date Financial
Statements, Current Liabilities shall mean the sum of (i) 100% of the
Dividends Liability and (ii) 110% of all Current Liabilities other than the
Dividends Liability, as shown under Caption 7 on Schedule 2.1(d).
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(b) Except as may be required to comply with applicable law,
Purchaser will take no action, and will not permit any of its Subsidiaries to
take any action, after the Closing Date that will result in a full or partial
revocation or cancellation of any dividend referred to in Section 5.11(a).
However, if Purchaser or, as applicable, its Subsidiaries is or are required
by law to take such action, then Purchaser will pay to SALD the amount of the
dividend that was revoked or canceled upon demand except to the extent that
the amount exceeds the Working Capital Surplus Payment provided for in
Section 5.11(a). If the revoked or canceled dividend had been paid before
being revoked or canceled, then SALD will pay the amount of that dividend to
the entity that paid the dividend and the amount of that payment shall be
added to the assets of the Business for the purpose of preparing the Closing
Date Financial Statements. If the revoked or canceled dividend had been
declared but was not paid before being revoked or canceled, then the
liability contained in the Closing Date Financial Statements for that
dividend shall be eliminated.
(c) Purchaser and SALD will allocate any Working Capital Surplus
Payment in accordance with Schedule 2.5.
(d) Notwithstanding any provision in Section 2.3 to the contrary,
the Post-Closing Statement described above in Section 2.3 shall include also
Purchaser's calculation of the Working Capital Surplus Payment, and all of
the terms and conditions of Section 2.3 shall be deemed to govern the
determination of the Working Capital Surplus Payment.
5.12 Certain Corporate Matters.
(a) Prior to the Closing Date, SALD shall use its reasonable best
efforts, and Purchaser shall cooperate as necessary, to transform each of
Poloco and LDRM in full compliance with all applicable French laws and
regulations into a societe par actions simplifiee including, without
limitation, registration and filing of instruments, certificates and other
documents with the appropriate local and national authorities, with respect
to each of Poloco and LDRM, and the adoption and filing of organizational
documents, as provided by Purchaser to SALD and subject to the approval of
SALD, however, the completion of such conversions shall not constitute a
condition to closing and the failure to complete both conversions shall not
constitute a breach of the Agreement.
(b) SALD shall cause to be delivered to Purchaser on or prior to
the Closing Date the resignations effective on the Closing Date of all
directors of each Transferred Subsidiary, and otherwise cooperate to cause
Purchaser's nominees to become the only directors of the Transferred
Subsidiaries; and in that connection, Purchaser will deliver to SALD the
names of its nominees no later than 10 Business Days prior to the Closing.
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(c) SALD and Purchaser will cooperate to change the name of any
Transferred Subsidiary containing "Louis Dreyfus" or "LD" on or prior to the
Closing Date and if and to the extent not accomplished before the Closing
Date, then as soon as practicable after the Closing Date to a name that does
not contain "Louis Dreyfus" or "LD" and that is agreed upon by Purchaser.
5.13 Future Investments in the Jeans Business or Vertical Retail
Program.
Between the date hereof and the Closing Date, neither SALD nor any
of its Subsidiaries shall make any investments in the Jeans Business or the
Vertical Retail Program without the prior written consent of Purchaser;
provided, however, that SALD and its Subsidiaries shall be permitted to make
loans to the Jeans Business or the Vertical Retail Program at a floating
simple interest rate equal to LIBOR for six month deposits in U.S. dollars as
quoted on Telerate Page 3750 plus 25 basis points.
5.14 Further Obligations of Purchaser and SALD.
(a) Amounts received by any of the Transferred Subsidiaries (or
their successors) after the Closing that result from the consummation of the
transactions contemplated by this Agreement such as, but not limited to,
payments in the nature of return of insurance premiums, rent and other
prepaid items, but only to the extent such amounts represent a refund or
rebate of amounts previously expended directly by SALD or any of the Sellers
and are not reflected as prepaid items on the balance sheet included in the
Closing Date Financial Statements, and shall be paid to SALD by Purchaser
promptly (and in any event within no more than 10 Business Days) upon
receipt.
(b) SALD shall have no obligation, other than as contemplated
herein, to expend money or to cause any of the Transferred Subsidiaries to
expend money upon the request of Purchaser. Notwithstanding the foregoing,
any additional costs which are not obligations of the Transferred
Subsidiaries pursuant to this Agreement or in connection with the
transactions contemplated hereby and which are incurred by any Transferred
Subsidiaries prior to the Closing upon the request of Purchaser that those
costs be incurred in anticipation of the change in control contemplated by
this Agreement shall be reimbursed to SALD by Purchaser upon demand to the
extent agreed by Purchaser in writing; and such costs shall be excluded in
the computation of the Purchase Price.
(c) Payments received after the Closing by any of the Transferred
Subsidiaries (or their successors) on account of receivables of any obligor
that arose prior to the Closing shall be applied to payment of the
receivables of such obligor to which they relate or, if not so specified, in
the direct order in which they arose unless a particular receivable has been
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and remains disputed by the relevant obligor, in which case such payment
shall be applied to the next most recent undisputed receivable and, upon
notice by the relevant Transferred Subsidiary to SALD, SALD may elect to be
subrogated with respect to such disputed receivable.
(d) On or prior to the Closing, SALD shall cause Louis Dreyfus
Investment Co. Limited to release any rights it may have to continue after
the Closing as the holder of a leasehold interest on 1 New Bond Street,
London.
(e) On or prior to the Closing, SALD shall cause Poloco Limited
and Polo Factory Outlets (UK) Limited or their respective successors to
release any rights they may have to continue after the Closing as the
holders, respectively, of leasehold interests on Queensberry House, 3 Old
Burlington Street, London.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 Conditions Precedent to Obligations of Purchaser and SALD.
The respective obligations of Purchaser and SALD to consummate and
cause the consummation of the transactions contemplated by this Agreement
shall be subject to the satisfaction (or waiver by the Party for whose
benefit such condition exists) at or prior to the Closing Date of each of the
following conditions:
(a) No Injunction, etc. At the Closing Date, there shall be (i)
no injunction, restraining order or decree of any nature of any
Governmental Authority of competent jurisdiction that is in effect that
restrains or prohibits the consummation of any of the transactions
contemplated hereby and (ii) no claim, action, suit or arbitration
commenced by any Governmental Authority against the Sellers, the
Licensees, Purchaser or any Designated Purchaser which seeks to restrain
or materially and adversely alter the transactions contemplated hereby
which in the reasonable good faith determination of the Sellers or
Purchaser would render it impracticable or unlawful to consummate the
transactions contemplated by this Agreement.
(b) Regulatory Authorizations. All consents or statutorily
required indications of no objection of any Governmental Authorities
shall have been obtained, and all waiting periods applicable under the
HSR Act and other applicable antitrust, merger control or competition
laws or regulations shall have expired or been terminated.
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(c) Inasmuch as the state of facts represented in the
representations and warranties provided by SALD and Purchaser may change
during the period from the date of this Agreement to the Closing Date,
the Party that has made the representation or warranty that is so
changed shall notify the other Party in writing of such change promptly
(and in any event within no more than 10 Business Days), and such
representation and warranty as amended (the "Amendment") shall be deemed
to supersede, for all purposes, the representation and warranty so
amended as of the date as of which the Amendment is intended to speak so
long as the Amendment, together with all such Amendments made after the
date hereof, will not adversely affect the ability of the parties to
perform each of their material obligations under this Agreement or
constitute, either individually or in the aggregate, a Business Material
Adverse Effect.
6.2 Conditions Precedent to Obligation of SALD.
The obligation of SALD to consummate and cause the consummation of
the transactions contemplated by this Agreement shall be subject to the
satisfaction (or waiver by SALD) at or prior to the Closing Date of each of
the following conditions:
(a) Accuracy of Purchaser's Representations and Warranties. The
representations and warranties of Purchaser contained in this Agreement
shall be true and correct on the date of this Agreement and on the
Closing Date as though made on the Closing Date, except (i) to the
extent such representations and warranties by their terms speak as of an
earlier date, in which case they shall be true and correct as of such
date or (ii) for such failures of representations and warranties to be
true and correct (without regard to any materiality qualifications
contained therein) which, individually or in the aggregate, would not be
reasonably likely to result in a Purchaser Material Adverse Effect, and
SALD shall have received a certificate signed by an officer of Purchaser
to such effect.
(b) Covenants of Purchaser. Purchaser shall have complied in all
material respects with all covenants contained in this Agreement to be
performed by it prior to the Closing.
(c) Legal Opinion. Purchaser shall have delivered to SALD a legal
opinion of Purchaser's legal counsel dated as of the Closing Date
substantially in the form of Exhibit E.
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6.3 Conditions Precedent to Obligation of Purchaser.
The obligation of Purchaser to consummate and cause the
consummation of the transactions contemplated by this Agreement shall be
subject to the satisfaction (or waiver by Purchaser) at or prior to the
Closing Date of each of the following conditions:
(a) Accuracy of Representations and Warranties of SALD. The
representations and warranties of SALD contained in this Agreement shall
be true and correct on the date of this Agreement and on the Closing
Date as though made on the Closing Date, except (i) to the extent such
representations and warranties by their terms speak as of an earlier
date, in which case they shall be true and correct as of such date, (ii)
to the extent any of the representations and warranties may relate to or
be affected by the French Tax Audit or the results thereof, in which
case they shall be deemed to have been made solely as of the date of
this Agreement, or (iii) for such failures of representations and
warranties to be true and correct (without regard to any materiality
qualifications contained therein) which, individually or in the
aggregate, would not be reasonably likely to result in a Business
Material Adverse Effect, and Purchaser shall have received a certificate
signed by an officer of SALD to such effect. For purposes of this
Section 6.3(a) and (d), the receipt of a "notification de redressement"
from the French taxing authorities in connection with the French Tax
Audit shall not (A) result in SALD's being deemed to have made a
misrepresentation or breached a warranty by it or (B) be deemed to cause
or to contribute to causing a Business Material Adverse Effect.
(b) Covenants of SALD. SALD shall have complied in all material
respects with all covenants contained in this Agreement to be performed
by it prior to the Closing.
(c) Legal Opinion. SALD shall have delivered a legal opinion of
SALD's legal counsel dated as of the Closing Date substantially in the
form of Exhibit F.
(d) Absence of Business Material Adverse Effect. Since the date
of this Agreement, no Business Material Adverse Effect shall have
occurred.
(e) Financing Condition. Purchaser shall have obtained financing
in an amount sufficient to pay the Purchase Price on the Closing Date
or, if it has been unable to obtain that financing, that inability (i)
has not resulted from Purchaser's failure (X) to have used its
commercially reasonable best efforts to enter into such agreements as
will permit Purchaser to obtain that financing, (Y) to perform its
obligations under any such agreements or (Z) to have sufficient
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creditworthiness to support borrowing of that financing and (ii) has
occurred solely as a result of significant disruptions in the financial
or capital markets (but not merely changes in interest rates) which make
the obtaining of financing for transactions similar to those
contemplated by this Agreement commercially unreasonable.
6.4 Exception to the Conditions Precedent to Obligation of Purchaser.
Notwithstanding Section 6.3(a) and (d), the conditions precedent to
the obligations of Purchaser to consummate the Closing contained in Section
6.3(a) and (d) shall be deemed satisfied if SALD delivers to Purchaser a
certificate dated the Closing Date and signed by an authorized officer of
SALD setting forth any failure of any condition contained in Section 6.3(a)
and undertaking to indemnify Purchaser with respect to any and all Purchaser
Losses arising from such failure, and if reasonably requested by Purchaser to
secure the payment of that indemnity, sets aside in an escrow account on
customary terms an amount reasonably sufficient, as agreed between Purchaser
and SALD, to pay those Purchaser Losses; provided, however, that the
exception set forth in this Section 6.4 shall apply (a) only in the case
where the aggregate amount of any such Losses that would reasonably be
expected to arise as a result of the failure of any such representations and
warranties to be true and correct does not exceed an amount equal to 25% of
the Purchase Price and (b) where the breach is of such a nature that it may
be compensated in its entirety by payment of money; provided further,
however, that any indemnification provided pursuant to this Section 6.4 shall
be subject to the provisions of Sections 8.3 and 8.5 and for purposes of
calculating the Purchase Price and the Working Capital Surplus and Working
Capital Shortfall based on information reflected in the Closing Date
Financial Statements, the liability for which an escrow payment has been made
by SALD in accordance with the terms of this Section 6.4 shall be ignored in
computing the Current Liabilities.
ARTICLE VII
CLOSING
7.1 Closing Date.
(a) Unless this Agreement shall have been terminated pursuant to
Article IX, the closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Simpson Thacher & Bartlett
in New York at 8:00 a.m., New York City time, and in such other places as are
necessary to effect the transactions to be consummated at the Closing, on
January 3, 2000 or on such date thereafter on which all of the conditions to
the Closing set forth in Article VI are satisfied or waived or such other
date, time and place as shall be agreed upon by SALD and Purchaser (the
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actual date on which the Closing occurs under this Section 7.1 being herein
called the "Closing Date");
(b) Notwithstanding the provisions of Section 7.1(a), if either
SALD or Purchaser determines in good faith that it will be adversely affected
by closing on January 3, 2000 or on such date thereafter on which all of the
conditions to the Closing set forth in Article VI are satisfied or waived,
then the Party so affected may, by notice to the other Party, designate a
date, which shall be as early as practicable, but no later than March 31,
2000 (except in accordance with Section 7.1(c)), on which the Closing shall
occur, and if each of SALD and Purchaser sends such notice, then the Closing
shall occur on the latest date provided in such notices.
(c) If the only condition to Purchaser's obligation to consummate
the transactions contemplated by this Agreement that is not satisfied is
Section 6.3(e), then the Closing Date shall be the earliest practicable date
following the date on which that condition is satisfied, as agreed to by SALD
and Purchaser, and not later than June 30, 2000.
(d) If the Closing has not occurred before July 1, 2000 as a
result of the condition under Section 6.3(e) not having been satisfied, then
Purchaser shall be deemed to have defaulted in the performance of its
obligations under this Agreement.
(e) If the Closing occurs after March 31, 2000 as provided in
Section 7.1(c), then for purposes of determining whether the conditions
precedent to Purchaser's obligation to consummate the Closing have been
satisfied, the conditions set forth in Sections 6.3(a), 6.3(b) and 6.3(d)
shall be required to have been satisfied only as of March 31, 2000 except to
the extent such conditions shall no longer be satisfied as a result of the
bad faith, willful misconduct or intentional breach by SALD and the Closing
shall occur so long as Purchaser is able to pay the amount of the Purchase
Price to be paid at Closing and SALD and the Sellers are able to transfer the
Transferred Subsidiary Stock and the Purchased Assets to Purchaser free and
clear of all Liens, it being understood that for the period from March 31,
2000 until the Closing Date, SALD and Purchaser will cooperate to cause each
of the obligations that are conditions to Closing to be satisfied and SALD
and Purchaser will cooperate after the Closing to cause each of the
obligations that are conditions to Closing that was not satisfied before the
Closing to be satisfied by performance, waiver or indemnity and take such
other actions as may be necessary to accord, as nearly as reasonably
possible, to each of SALD and Purchaser the benefits and protections to which
each of them would have been entitled if the Closing had occurred on March
31, 2000.
(f) If the Closing occurs later than January 3, 2000, then,
notwithstanding anything in this Agreement to the contrary, SALD shall not be
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required to declare dividends as provided in the first sentence of Section
5.11(a) for any period after December 31, 1999 but Purchaser shall remain
obligated to pay the Working Capital Surplus Payment as provided in Section
5.11(a).
7.2 Purchaser Obligations.
At the Closing, Purchaser shall execute, deliver to SALD and/or
file, or shall cause one or more of the Designated Purchasers to execute,
deliver to SALD and/or file the following in such form and substance (except
for clause (a)) as may be indicated in any applicable Schedule hereto, or as
are reasonably acceptable to SALD:
(a) the certificate signed by an Officer of Purchaser described in
Section 6.2(a);
(b) the payment on account of the Purchase Price to be made at the
Closing as provided in Section 2.2;
(c) the documents evidencing that all of the conditions precedent
described in Sections 6.1 and 6.2 to the extent that they affect SALD's
obligation to close the transactions contemplated by this Agreement,
have been satisfied;
(d) those of the Transfer Documents required to be executed by
Purchaser or Designated Purchaser; and
(e) such other documents and instruments as counsel for Purchaser
and SALD mutually agree to be reasonably necessary to consummate the
transactions described herein.
7.3 SALD Obligations.
At or prior to the Closing, SALD shall execute and deliver to
Purchaser, or SALD shall cause one or more of the Sellers and any Other
Shareholders to execute and deliver to Purchaser, the following in such form
and substance as may be indicated in any applicable Schedule hereto, or as
are reasonably acceptable to Purchaser:
(a) the certificate signed by an officer of SALD, pursuant to
Section 6.3(a);
(b) the documents evidencing that all of the conditions precedent
described in Sections 6.1 and 6.3, to the extent that they affect
Purchaser's obligation to close the transaction contemplated by this
Agreement, have been satisfied;
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(c) all of the Transfer Documents;
(d) the resignations, duly executed and dated as of the Closing
Date, of each member of the respective governing board or boards of each
Transferred Subsidiary; and
(e) such other documents and instruments as counsel for Purchaser
and SALD mutually agree to be reasonably necessary to consummate the
transactions described herein.
7.4 Termination of Certain Obligations on Closing.
During the period commencing with the execution of this Agreement
by both parties and ending upon completion of the Closing, neither party
shall be obligated to perform its obligations under the Master Agreement.
Upon the completion of the Closing, the Master Agreement shall terminate.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification.
(a) Following the Closing and subject to the terms and conditions
of this Article VIII, SALD shall indemnify, defend and hold harmless
Purchaser and its Affiliates and their respective officers, directors,
employees, assigns and successors (each, a "Purchaser Indemnified Party")
from and against, and shall reimburse each Purchaser Indemnified Party for,
all losses, damages, liabilities, costs and expenses, including interest,
penalties, court costs, Taxes and reasonable attorneys' fees and expenses
(but not punitive damages except to the extent awarded by a court of
competent jurisdiction in respect of a third party claim), imposed upon or
incurred by such Purchaser Indemnified Party ("Purchaser Losses"), as a
result of (i) any misrepresentation or breach of a warranty by SALD, under
this Agreement or any certificate delivered at Closing, (ii) any breach by
SALD of any covenant or agreement made by SALD herein or (iii) any Retained
Liabilities (each a "Purchaser Indemnified Claim"), it being understood that
such Purchaser Losses shall be reduced by (A) any recovery by Purchaser or
its Affiliates from any third party, including insurance proceeds, (B) any
provisions, reserves or any other liabilities shown on the Closing Date
Financial Statements established specifically for the Purchaser Indemnified
Claim and (C) any tax savings or recovery that is actually realized by
Purchaser or its Affiliates before January 1, 2005 as a result of any
Purchaser Indemnified Claim or the payment to Purchaser of any indemnity
payment hereunder.
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(b) Following the Closing and subject to the terms and conditions
provided in this Article VIII, Purchaser shall indemnify, defend and hold
harmless, SALD and its Affiliates and their respective officers, directors,
employees, assigns and successors (each, a "SALD Indemnified Party") from and
against, and shall reimburse each SALD Indemnified Party for, all losses,
damages, liabilities, costs and expenses (but not punitive damages, except to
the extent awarded by a court of competent jurisdiction in respect of a third
party claim), including interest, penalties, court costs and reasonable
attorneys' fees and expenses, imposed upon or incurred by such SALD
Indemnified Party ("SALD Losses"), resulting from (i) any misrepresentation
or breach of a warranty by Purchaser under this Agreement or any certificate
delivered at Closing or (ii) any breach of any covenant or agreement made by
Purchaser herein (each a "SALD Indemnified Claim"), it being understood that
such SALD Losses shall be reduced by (A) any recovery by SALD or its
Affiliates from any third party, including insurance proceeds, and (B) any
tax savings or recovery that is actually realized by SALD or its Affiliates
before January 1, 2005 as a result of any SALD Indemnified Claim or the
payment to SALD of any indemnity payment hereunder.
(c) Purchaser shall cause any of the Transferred Subsidiaries (or
their successors) which are entitled to payment in respect of any of the
Purchaser Indemnified Claims to indemnification under insurance policies to
use commercially reasonable efforts to obtain such payment.
(d) Purchaser shall deliver to SALD within 120 days after the end
of each calendar year commencing with the first calendar year in which SALD
is required to indemnify Purchaser for a Purchaser Indemnified Claim and
ending with the calendar year commencing January 1, 2004, (i) a certificate
signed by the chief financial officer of Purchaser certifying to and setting
forth (A) any actual tax savings or recoveries described above in Section
8.1(a) and below in Section 8.4(a) that are actually received or realized by
Purchaser or any of its Affiliates and any third party payments described
above in Section 8.1(a) (collectively, "Purchaser Recoveries") or (B) the
absence thereof. If, and to the extent that, such Purchaser Recoveries were
not previously paid or taken into account pursuant to this Section 8.1,
Purchaser shall pay the amount of such Purchaser Recoveries to SALD together
with the delivery of the officer's certificate.
(e) SALD shall deliver to Purchaser within 120 days after the end
calendar year commencing with the first calendar year in which Purchaser is
required to indemnify SALD for a SALD Indemnified Claim and ending with the
calendar year commencing January 1, 2004, (i) a certificate signed by the
chief financial officer of SALD certifying to and setting forth (A) any
actual tax savings or recoveries described above in Section 8.1(b) and below
in Section 8.4(b) that are actually received or realized by SALD or any of
its Affiliates and any third party payments described above in Section 8.1(b)
(collectively, "SALD Recoveries") or (B) the absence thereof. If, and to the
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extent that, such SALD's Recoveries were not previously paid or taken into
account pursuant to this Section 8.1, SALD shall pay the amount of such
SALD's Recoveries to Purchaser, together with the delivery of the officer's
certificate.
(f) After the payment of any indemnities pursuant to Sections
8.1(a), 8.1(b), or 8.4(a), if any Indemnified Party obtains reimbursement for
all or any part of such amount paid to them by an Indemnified Party, such
Indemnified Party shall promptly (and in any event within no more than 10
Business Days following its receipt of such reimbursement) pay to the
Indemnifying Party the amount of such reimbursement.
8.2 Certain Limitations.
(a) SALD shall not be obligated to make any indemnification
payment under Section 8.1(a)(i) unless and until the aggregate amount of
Purchaser Losses (calculated as specified in Section 8.1(a)(i)) exceed the
Indemnification Base, in which case any indemnification with respect to
Purchaser Losses shall be made by SALD only to the extent of such excess over
the Indemnification Base, with the exception of breaches of Sections 3.3 and
3.11, with respect to which all Purchaser Losses shall be indemnified.
Purchaser shall not be obligated to make any indemnification payment under
Section 8.1(b)(i) unless and until the aggregate amount of SALD Losses
(calculated as specified in Section 8.1(b)(i)) exceed the Indemnification
Base, in which case any indemnification with respect to SALD Losses shall be
made by Purchaser only to the extent of such excess over the Indemnification
Base.
(b) (i) The representations and warranties of SALD contained in
Section 3.3(a) shall survive the Closing indefinitely, (ii) the
representations and warranties of SALD contained in Section 3.11, Section
3.12, Section 3.13 or Section 3.14 shall survive the Closing until 60 days
after the expiration of the applicable statute of limitations in respect of
the tax, employment and environmental matters referred to in those sections;
provided, however, that the representations and warranties of SALD contained
in Section 3.11 as applied to the U.K. Companies shall survive the Closing
until the later of the time specified in subsection (ii) above or the seventh
anniversary of the Closing Date and (iii) all other representations and
warranties of the parties contained in this Agreement shall survive the
Closing until the second anniversary of the Closing Date.
(c) Claims for Purchaser Losses or SALD Losses caused by or
arising out of any misrepresentation, or breach of warranty, covenant or
undertaking may be made only pursuant to Article VIII and, as applicable,
only by written notice given within the survival period of the applicable
representation or warranty provided for in Section 8.2(b).
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(d) The obligations to indemnify and hold harmless a party hereto
pursuant to this Article VIII shall terminate when the applicable
representation, warranty, covenant or agreement terminates pursuant to
Section 8.2(b); provided, however, that such obligations to indemnify and
hold harmless shall not terminate with respect to any item as to which the
person to be indemnified shall have, before the expiration of the applicable
period, made a claim by delivering a notice (stating in reasonable detail the
basis of such claim) to the indemnifying person. The liability of an
Indemnifying Party in respect of any item that, but for the delivery of a
notice to the Indemnifying Party, would no longer survive, shall terminate no
later than the date on which a settlement or disposition of the claim made is
entered into or prosecution of the claim is abandoned.
(e) A Party shall not be held liable for indemnification if the
Purchaser Losses or SALD Losses, as the case may be, for which
indemnification is sought may be primarily attributed to any voluntary action
or omission on the part of the other Party or its Affiliates after the
Closing Date.
(f) Any indemnification due by SALD shall be reduced in the amount
which would have been covered by insurance if Purchaser or any of the
Transferred Subsidiaries (or their successors) had not modified the coverage
under the Transferred Subsidiaries' (or their successors') insurance policies
after the Closing Date from those in existence on the Closing Date provided
that SALD certifies with clear and convincing evidence that the Transferred
Subsidiary would have been entitled to recovery under those insurance
policies.
(g) Upon learning of any breach of a representation or warranty by
a Party, the other Party shall, and, if applicable, Purchaser shall cause the
Transferred Subsidiaries (or their successors) to, take all commercially
reasonable actions to mitigate damages.
(h) If an indemnity is paid by a Party pursuant to this Article
VIII, the Indemnified Party shall use commercially reasonable efforts to
ensure the preservation of all rights which it may have against third parties
in connection with the corresponding Purchaser Losses or SALD Losses, as the
case may be, for which the indemnification was paid, and, if commercially
reasonable, shall subrogate the Indemnifying Party to such rights at the
Indemnifying Party's request.
(i) If an Indemnifying Party pays any amount to an Indemnified
Party, and a fact emerges subsequently which would have resulted in a
reduction of that payment, the Indemnified Party shall repay promptly (and in
any event within no more than 10 Business Days following notice thereof) the
amount of that reduction to the Indemnifying Party, provided that, in the
case of facts of which the Indemnifying Party becomes aware, the Indemnifying
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Party provides clear and convincing evidence that it would have been entitled
to such reduction.
(j) Purchaser Losses shall not include claims made by third
parties, including, but not limited to, employees of any of the Transferred
Subsidiaries or their successors that they were injured or otherwise
adversely affected solely as a result of the consummation of the transactions
contemplated by this Agreement (it being understood that the foregoing shall
not apply to claims arising from the breach of any representation or warranty
contained herein).
(k) If a Tax-related loss or liability arises giving rise to an
obligation on SALD to indemnify under both Sections 8.1(a) and 8.4(a), then,
notwithstanding any provision in this Agreement to the contrary, SALD's sole
obligation to indemnify for such loss or liability shall be applied in a
manner not to cause duplicative recovery for the same Tax-related loss or
liability under both Sections 8.1(a) and 8.4(a).
8.3 Procedures for Third-Party Claims.
Upon the receipt by any Indemnified Party of a notice of any claim,
action, suit or proceeding against or involving it by any third party that
may be subject to indemnification under Article VIII, including for purposes
of this Section 8.3 any tax claim (pursuant to Section 8.4 below) such
Indemnified Party shall give written notice of such claim to the Indemnifying
Party hereunder (the "Indemnifying Party") within 10 Business Days following
receipt thereof stating the nature and basis of the claim and the amount
thereof, to the extent known, along with copies of all such relevant
documents evidencing the claim and the basis for indemnification sought.
Failure of the Indemnified Party to give such notice shall not relieve the
Indemnifying Party from liability on account of the indemnification, except
if and to the extent that the Indemnifying Party is actually prejudiced
thereby (including, without limitation, prejudice resulting from its loss of
or delay in obtaining the right to assume the defense of the indemnified
claim). The Indemnifying Party shall have the right to assume the defense of
the Indemnified Party against the third party claim if the Indemnifying Party
acknowledges in writing its obligation to indemnify the Indemnified Party.
So long as the Indemnifying Party has assumed the defense of the third party
claim in accordance herewith and notified the Indemnified Party in writing
thereof, (i) the Indemnified Party may retain separate co-counsel at its sole
cost and expense and participate in the defense of the third party claim,
except that the Indemnifying Party shall pay (x) all reasonable costs and
expenses of counsel for the Indemnified Party for all periods prior to such
time as the Indemnifying Party has notified the Indemnified Party that it has
assumed the defense of such third party claim, except to the extent that the
Indemnified Party fails to timely notify the Indemnifying Party of the claim,
and (y) all reasonable costs and expenses of separate counsel for the
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Indemnified Party if there exists or is reasonably likely to exist a conflict
of interest that would make it inappropriate in the reasonable judgment of
counsel for the Indemnified Party for the same counsel to represent both the
Indemnified Party and the Indemnifying Party, (ii) the Indemnified Party
shall not file any papers or consent to the entry of any judgment or enter
into any settlement with respect to the third party claim without prior
written consent of the Indemnifying Party (not to be unreasonably withheld or
delayed) and (iii) the Indemnifying Party will not consent to the entry of
any judgment or enter into any settlement with respect to the third party
claim without the prior written consent of the Indemnified Party (not to be
unreasonably withheld or delayed). The parties shall use commercially
reasonable efforts to minimize Losses from claims by third parties and shall
act in good faith in responding to, defending against, settling or otherwise
dealing with such claims. The parties shall also cooperate in any such
defense and give each other reasonable access to all information relevant
thereto. Whether or not the Indemnifying Party has assumed the defense, such
party shall not be obligated to indemnify the Indemnified Party for any
settlement entered into without the Indemnifying Party's prior written
consent, which consent shall not be unreasonably withheld or delayed.
8.4 Tax Indemnification.
(a) Except as otherwise provided herein, SALD and the Entity
Sellers (but for the Entity Sellers, only with respect to the Taxes
attributable to the Transferred Subsidiaries of which such Entity Sellers
were the Sellers) shall be jointly and severally liable to the Purchaser
Indemnified Parties and shall, unless otherwise directed by Purchaser, pay to
Purchaser an amount equal to any liability of the Licensee or Transferred
Subsidiaries for the following Taxes (including, without limitation, any
obligation to contribute to the payment of a Tax determined on a
consolidated, combined, unitary, aggregate or other similar basis with
respect to a group of corporations that includes or included the Licensees or
Transferred Subsidiaries, but excluding any unpaid Taxes treated as a current
liability for purposes of computing the Working Capital Surplus or Shortfall,
as the case may be) for any taxable year or period that ends on or before the
Closing Date and, with respect to any taxable year or period beginning before
and ending after the Closing Date, the portion of such taxable year ending on
and including the Closing Date (an "Interim Period") (Interim Periods and any
taxable year or period ending on or before the Closing Date shall be referred
to collectively as "Pre-Closing Periods"): (i) Taxes imposed on the Licensees
or Transferred Subsidiaries or for which the Licensees or Transferred
Subsidiaries may otherwise be liable pursuant to federal, state, local or
non-U.S. law; (ii) Taxes (including any Taxes which may relate to a Post-
Closing Period, as defined in Section 8.4 (b), below) attributable to any
other person for which the Licensees or Transferred Subsidiaries are liable
under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local
or non-U.S. law); (iii) Taxes triggered by Section 178 to 180 of the TCGA (or
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any similar provision of federal, state, local or non-U.K. law) arising out
of any Transferred Subsidiary or Licensee ceasing to be a member of an
affiliated group; and (iv) Taxes required to be paid or reimbursed by SALD or
any Entity Seller under Section 5.6(a) (to the extent such Taxes have not
been paid by SALD or such Entity Seller). SALD and the Entity Sellers shall
not be required to make indemnity payments under this Section 8.4 resulting
solely from any action taken by Purchaser or Purchaser Indemnified Parties
(other than an action taken pursuant to Section 5.6(b)) that results in
additional Tax attributable to any Pre-Closing Period. In addition, the
amount of any liability for Taxes required to be indemnified by SALD and the
Entity Sellers under this Section 8.4 shall be reduced by the amount of any
actual reduction in Taxes that Purchaser or any of its Affiliates actually
realizes in a Post-Closing Period solely as a result of the payment or
accrual of the Tax with respect of which SALD and the Entity Sellers are
required to make the indemnity payment, which reduction in Taxes, if any,
shall be determined after taking into account the tax effect of the indemnity
payment.
(b) Purchaser shall be liable for and shall indemnify SALD for the
Taxes of the Transferred Subsidiaries for any taxable year or period that
begins after the Closing Date and, with respect to any taxable year or period
beginning before and ending after the Closing Date, the portion of such
taxable year beginning after the Closing Date (the "Post-Closing Period").
Purchaser shall be entitled to any refund of Taxes of the Transferred
Subsidiaries received by SALD or any Entity Seller for such Post-Closing
Periods.
(c) Purchaser shall be liable for and shall indemnify SALD for all
Transfer Taxes payable by Purchaser as described in Section 5.10. Any
indemnity payments to or from SALD or the Entity Sellers or to or from the
Purchaser Indemnified Parties pursuant to this Agreement, whether under this
Section 8.4 or otherwise, shall be treated by the Purchaser Indemnified
Parties and SALD or the Entity Sellers as Purchase Price adjustments for all
purposes.
(d) Any refunds or credits of Taxes received by the Transferred
Subsidiaries (or their successors) for any Pre-Closing Period, other than (i)
any amount reflected as a Current Asset on the Closing Date Financial
Statements or (ii) any amount resulting from a carryback or other application
of losses credits or other items from a Post-Closing Period, shall be paid by
Purchaser promptly (and in any event within no more than 10 Business Days)
upon receipt by it to SALD.
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8.5 Certain Claims Procedures.
Except as provided in Section 8.3, the Indemnified Party shall
notify the Indemnifying Party promptly (and in any event within no more than
10 Business Days) of its discovery of any matter giving rise to a claim of
indemnity pursuant to Article VIII. The Indemnified Party shall cooperate
and assist the Indemnifying Party in determining the validity of any claim
for indemnity by the Indemnified Party and in otherwise resolving such
matters. Such assistance and cooperation will include providing access to
and copies of information, records and documents relating to such matters,
furnishing employees to assist in the investigation, defense and resolution
of such matters and providing legal and business assistance with respect to
such matters.
ARTICLE IX
TERMINATION
9.1 Termination Events.
Without prejudice to other remedies which may be available to the
parties by law or this Agreement, this Agreement may be terminated and the
transactions contemplated herein may be abandoned:
(a) by mutual consent of the parties hereto;
(b) by either Purchaser or SALD by notice to the other if the
Closing has not been consummated by July 1, 2000, unless extended by
written agreement of the Parties hereto, provided that the Party
terminating this Agreement shall not be in material default or breach
hereunder and provided, further, that the right to terminate this
Agreement under this clause (b) shall not be available (i) to any Party
whose failure to fulfill any obligation under this Agreement has been
the cause of, or resulted in, the failure of the Closing to occur on or
before such date; or (ii) in the event that the Closing has not occurred
as a result of a failure of any representation to be true and correct,
the terminating party shall not have the right to terminate this
Agreement if such party knew of such breach prior to the date of this
Agreement; or
(c) by either Purchaser or SALD, if any Governmental Authority has
issued a final order, decree or ruling enjoining or otherwise
permanently prohibiting any of the transactions contemplated by this
Agreement (unless such order, decree or ruling has been withdrawn,
reversed or otherwise made inapplicable ); provided, that this clause
(c) shall not apply in the case where all of the following apply: (x) to
any such order, decree or ruling in any country (or by any Governmental
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Authority in any country) other than the U.S., France, the U.K. and
Spain, (y) where the aggregate effect of all such orders, decrees or
rulings on the consummation of the transactions would not reasonably be
expected to have a Business Material Adverse Effect or a Purchaser
Material Adverse Effect following the Closing Date and (z) the order,
decree or ruling wherever it may have been issued, does not purport to
restrict in their entirety or substantially in their entirety the
transactions contemplated in this Agreement, in which case the Closing
shall proceed in accordance with Article VII except that any of the
transactions that are enjoined will not be closed until such time as it
no longer is enjoined and there shall be an appropriate adjustment in
the Purchase Price to reflect that such portion of the Business will not
be transferred; and provided, further, that the party seeking to
terminate this Agreement under this clause (c) is not then in material
breach of this Agreement; and provided, further, that the right to
terminate this Agreement under this clause (c) shall not be available to
any Party who shall not have used best efforts to avoid the issuance of
such order, decree or ruling. If the enjoinder or prohibition by its
terms would permit the Closing to occur before July 1, 2000, then the
Closing shall occur promptly after the enjoinder or prohibition no
longer is effective. If the Closing has occurred and any Transferred
Subsidiary or Purchased Asset has not been sold, assigned, transferred,
conveyed, delivered or acquired due to any enjoinder or prohibition, the
parties shall use their reasonable best efforts, and shall cooperate
with each other, to obtain promptly the removal of such enjoinder or
prohibition; provided, that neither Purchaser nor any of its respective
Affiliates shall be required to pay any consideration therefor, other
than filing, recordation or similar fees payable to any Governmental
Authority. Pending or in the absence of the removal of such enjoinder
or prohibition, the parties shall cooperate with each other in any
reasonable and lawful arrangements designed to provide to the Purchaser
and any respective Designated Purchaser the benefits and liabilities of
such Transferred Subsidiary or Purchased Asset which are enjoined or
prohibited from being sold, assigned, transferred, conveyed, delivered
or acquired.
9.2 Effect of Termination.
In the event of any termination of this Agreement as provided in
Section 9.1, this Agreement shall forthwith become wholly void and of no
further force and effect and there shall be no liability on the part of
Purchaser or SALD, except that (a) such termination shall not relieve either
party of any liability for any breach of any provision contained in this
Agreement and (b) the Master Agreement shall remain in effect and the Parties
shall be obligated to perform their obligations under the Master Agreement.
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ARTICLE X
MISCELLANEOUS AGREEMENTS OF THE PARTIES
10.1 Notices.
All communications provided for hereunder shall be in writing and
shall be deemed to be given when delivered in person or by private courier
with receipt, or when telefaxed and received and,
If to Purchaser: Polo Ralph Lauren Corporation
650 Madison Avenue
New York, New York 10022
U.S.A.
Attention: General Counsel
Fax: (212) 318-7183
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
U.S.A.
Attention: Caroline B. Gottschalk, Esq.
Fax: (212) 455-2502
If to SALD: S.A. Louis Dreyfus et Cie
87, Avenue de la Grande Armee
75782 Paris, France
Attention: Mr. Bernard Baldensperger
Fax: 011.331.45.01.70.28
or to such other address as any such party shall designate by written notice
to the other parties hereto.
10.2 Severability.
If any provision of this Agreement, other than Purchaser's
obligation to pay the Purchase Price to SALD and SALD's and Sellers'
obligation to deliver all of the shares of the Transferred Subsidiaries and
all of the Purchased Assets to Purchaser, is declared by any court of
competent jurisdiction to be illegal, void or unenforceable, all other
provisions of this Agreement shall not be affected and shall remain in full
force and effect, and SALD and Purchaser shall negotiate in good faith to
replace such illegal, void or unenforceable provision with a provision that
corresponds as closely as possible to the intentions of the parties as
expressed by such illegal, void or unenforceable provision.
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10.3 Further Assurances; Further Cooperation.
Subject to the terms and conditions hereof, each of the parties
hereto agrees to use its reasonable best efforts to execute and deliver, or
cause to be executed and delivered, all documents and to take, or cause to be
taken, all actions that may be reasonably necessary or appropriate, in the
reasonable opinion of the respective counsel for SALD and Purchaser, to
effectuate the provisions of this Agreement.
10.4 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument. Copies of executed counterparts
transmitted by telecopy, telefax or other electronic transmission service
shall be considered original executed counterparts for purposes of this
Section 10.4, provided that receipt of copies of such counterparts is
confirmed.
10.5 Expenses.
Whether or not the Closing occurs, SALD and Purchaser shall each
pay its respective expenses (such as legal, investment banker and accounting
fees) incurred in connection with this Agreement and the transactions
contemplated hereby.
10.6 Non-Assignability.
This Agreement shall inure to the benefit of and be binding on the
parties hereto and their respective successors and permitted assigns. This
Agreement shall not be assigned by either Party without the express prior
written consent of the other Party, and any attempted assignment, without
such consent, shall be null and void, except that Purchaser may assign its
rights and obligations hereunder to any Affiliate of Purchaser, provided that
no such assignment shall relieve Purchaser of any of its obligations
hereunder.
10.7 Amendment; Waiver.
This Agreement may be amended, supplemented or otherwise modified
only by a written instrument executed by the Parties. No waiver by either
Party of any of the provisions hereof shall be effective unless explicitly
set forth in writing and executed by the Party so waiving. Except as
provided in the preceding sentence, no action taken pursuant to this
Agreement, including without limitation, any investigation by or on behalf of
any Party, shall be deemed to constitute a waiver by the Party taking such
action of compliance with any representations, warranties, covenants, or
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agreements contained herein, and in any documents delivered or to be
delivered pursuant to this Agreement and in connection with the Closing
hereunder. The waiver by any Party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
10.8 Third Parties; Holders of Qualifying Shares.
(a) This Agreement does not create any rights, claims or benefits
inuring to any person other than SALD and Purchaser nor create or establish
any third party beneficiary hereto.
(b) None of the Persons holding Qualifying Shares shall have any
liability under this Agreement other than the liability to deliver its
Qualifying Shares at the Closing.
10.9 Governing Law.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, except for the internal matters of
any corporation, partnership or similar entity which shall be governed by the
laws of the jurisdictions of incorporation of such corporation, partnership
or similar entity.
10.10 Consent to Jurisdiction; Waiver of Jury Trial.
Each of the Parties irrevocably submits to the exclusive
jurisdiction of the United States District Court for the Southern District of
New York located in the borough of Manhattan in the City of New York, or if
such court does not have jurisdiction, the Supreme Court of the State of New
York, New York County, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated
hereby. Each of the Parties further agrees that service of any process,
summons, notice or document by any national or international, as applicable,
express courier service to such Party at its respective address set forth in
Section 10.1 shall be effective service of process for any action, suit or
proceeding in New York with respect to any matters to which it has submitted
to jurisdiction as set forth above in the immediately preceding sentence.
Each of the Parties irrevocably and unconditionally waives any objection to
the laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in (a) the United States
District Court for the Southern District of New York or (b) the Supreme Court
of the State of New York, New York County, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum. The Parties hereby irrevocably and
unconditionally waive trial by jury in any legal action or proceeding
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relating to this Agreement or any other agreement entered into in connection
therewith and for any counterclaim with respect thereto.
10.11 Entire Agreement.
This Agreement, Annex A, the Schedules and the Exhibits hereto set
forth the entire understanding of the parties hereto with respect to the
subject matter hereof and there are no agreements, understandings,
representations or warranties between the Parties or their respective
Subsidiaries other than those set forth or referred to herein with respect to
the subject matter hereof.
10.12 Section Headings; Table of Contents.
The section headings contained in this Agreement and the Table of
Contents to this Agreement are for reference purposes only and shall not
affect the meaning or interpretation of this Agreement.
10.13 Specific Performance.
The parties hereto agree that irreparable damage would occur in the
event any provision of this Agreement and the Exhibits hereto was not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement in addition to any other remedy to which they are entitled at law
or in equity.
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IN WITNESS WHEREOF, the parties have caused this Stock and Asset
Purchase Agreement to be duly executed as of the date first above written.
S.A. LOUIS DREYFUS ET CIE
By: /s/ B. Baldensperger
---------------------------------------
Name: Baldensperger
Title: Directeur General
POLO RALPH LAUREN CORPORATION
By: /s/ Victor Cohen
---------------------------------------
Name: Victor Cohen
Title: Senior Vice President
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Exhibit 99.1
Investor Contact: Nancy S. Murray (212) 813 -7862
Media Contact: Hamilton South (212) 318-7270
Jim Abernathy (212) 371-5999
Polo Ralph Lauren Completes
Acquisition of European Licensee
Gains new revenue and profit stream as well as significant new global
opportunities
New York City (January 6, 2000) - Polo Ralph Lauren Corporation (NYSE: RL)
announced today that it has completed its previously announced acquisition
of Poloco S.A.S. and certain of its affiliates, which hold licenses to sell
in Europe men's and boys' Polo apparel, the men's and women's Polo Jeans
business, and certain Polo accessories. In addition to the wholesale
business, included in the acquisition is a Polo store in Paris and six outlet
stores located in France, the United Kingdom and Austria. Poloco,
headquartered in Paris, France, and the acquired affiliates had revenues of
approximately $180 million for calendar year 1998. The acquisition is
expected to be accretive to earnings beginning in fiscal year 2001.
Polo acquired Poloco for an aggregate cash consideration of approximately
$200 million, plus the assumption of approximately $30 million of short-term
debt. The acquisition was funded by the proceeds from a recent 275 million
Euro offering.
"Europe is the cornerstone of our global brand expansion. By owning Poloco,
we plan to replicate the growth of the Polo brands we achieved in the U.S.
throughout Europe," said Ralph Lauren, Chairman and Chief Executive Officer.
"We believe there are many benefits to this acquisition. Our near-term
initiatives will be focused on increasing the Polo brands' market penetration
throughout the Continent through door expansion and market development. We
expect to introduce our Lauren and RALPH women's lines in apparel and
accessories, and to expand our children's lines from the existing boys' range
into infants, toddlers, girls 4-6x and girls 7-16. In addition, we expect our
acquisition to provide opportunities to leverage the sourcing, planning
technology, marketing, retail development and licensing processes we have
developed," said Doug Williams, Group President of Global Business
Development.
<PAGE>
Polo Ralph Lauren Corporation is a leader in the design, marketing and
distribution of premium lifestyle products in four categories: apparel, home,
accessories and fragrances. For more than 30 years, Polo's reputation and
distinctive image have been consistently developed across an expanding number
of products, brands and international markets. The Company's brand names,
which include "Polo", "Polo by Ralph Lauren", "Polo Sport", "Ralph Lauren",
"RALPH", "Lauren", "Polo Jeans Co.", and "Chaps", among others, constitute
one of the world's most widely recognized families of consumer brands.
Certain statements contained herein are forward-looking statements that are
made pursuant to the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. These forward-looking statements are based
largely on the Company's expectations and are subject to certain risks and
uncertainties that could cause actual results to differ materially from those
set forth in the forward-looking statements. Those risks include, among
others, risks associated with changes in the competitive marketplace,
including the introduction of new products or pricing changes by the
Company's competitors, changes in global economic conditions and other risks
and uncertainties detailed in the Company's Securities and Exchange
Commission filings. The Company undertakes no obligation to publicly update
or revise any forward-looking statements, whether as a result of new
information, future events or otherwise.
###
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