EXHIBIT 10.5
DATE 31ST OCTOBER 2005
FRAMLINGTON HOLDINGS LIMITED
AND
CCF S.A.
AND
COMERICA INCORPORATED
AND
AXA INVESTMENT MANAGERS S.A.
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SECOND AMENDMENT AGREEMENT
IN RELATION TO AN IMPLEMENTATION AGREEMENT DATED 28TH JULY 2005
(AS AMENDED ON 7 SEPTEMBER 2005)
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SLAUGHTER AND MAY
ONE BUNHILL ROW
LONDON
EC1Y 8YY
(JCXP/SHB)
CE052360014
THIS AMENDMENT AGREEMENT is made as a deed on 31st OCTOBER 2005 BETWEEN
1. FRAMLINGTON HOLDINGS LIMITED, a company incorporated in England and
Wales (registered number 02314914), whose registered office is at 155
Bishopsgate, London EC2M 3XJ;
2. CCF S.A., a French societe anonyme incorporated under number 775 670
284, whose registered office is at 103, avenue des Champs-Elysees,
75008, Paris, France;
3. COMERICA INCORPORATED, a company incorporated in the State of Delaware,
United States of America, whose principal place of business is at 500
Woodward Avenue, Detroit, Michigan, 48226 United States of America; and
4. AXA INVESTMENT MANAGERS S.A., a French societe anonyme incorporated
under number B 393 051 826, whose registered office is at Coeur La
Defense, 100 Esplanade du Generale de Gaulle, 92932 Paris La Defense
Cedex, France.
WHEREAS:
(A) On 28th July 2005 the parties entered into an Implementation Agreement
(the "IMPLEMENTATION AGREEMENT") which was amended by an amendment
agreement dated 7 September 2005 executed by all of the parties hereto.
(B) The parties now wish to amend the Implementation Agreement on the terms
set out in this Amendment Agreement.
NOW THIS DEED WITNESSETH as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Terms defined in the Implementation Agreement have the same meanings in
this Amendment Agreement.
1.2 Save as otherwise contemplated, the provisions of clauses 1.2 (c), (e),
(f) and (g) and 1.3 of the Implementation Agreement shall apply to this
Amendment Agreement as if each reference to "[T/t]his Agreement" in
those clauses were a reference to "this Amendment Agreement".
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2. AMENDMENTS TO THE IMPLEMENTATION AGREEMENT
2.1 A new clause 10.6 shall be included in the Implementation Agreement in
the following terms: "The provisions of Schedule 10 shall apply in
accordance with their terms."
2.2 The provisions of Schedule 10 shall be amended as set out in the
Schedule to this Amendment Agreement.
2.3 The definition of "Completion Accounts" shall be amended by the addition
of the following words after "as at" - "the close of business on".
2.4 Paragraph 3.1(a) and paragraph 3.1(e) of Schedule 6 to the
Implementation Agreement shall be amended by the addition of the
following words at the end of each such paragraph: "AND PROVIDED FURTHER
THAT such voluntary act, omission or transaction is not required or
permitted by the terms of this Agreement".
2.5 The following words in clause 3.1(f) of Schedule 6 to the Implementation
Agreement shall be deleted "in accordance with the terms of this
Agreement or".
2.6 The following new paragraph 10 shall be added to Part C of Schedule 7 of
the Implementation Agreement: "The Completion Accounts shall exclude (1)
any payments made by the Buyer on the Completion Date to any Group
Company or to the LTIP Trust and (2) any payments made on the Completion
Date by the Seller to any Group Company".
2.7 Each of the amendments to the Implementation Agreement set out in this
clause 2 shall take effect from the time at which the Implementation
Agreement was executed by all parties thereto (being the parties to this
Amendment Agreement) on 28th July 2005.
3. IMPLEMENTATION AGREEMENT
The Implementation Agreement (as amended pursuant to this Amendment
Agreement) shall remain in full force and effect.
4. MISCELLANEOUS MATTERS
The provisions of clauses 20, 23, 26 to 28 (inclusive) and 29.2 of the
Implementation Agreement shall apply to this Amendment Agreement as if
each reference to "[T/t]his Agreement" in those clauses were a
reference to "this Amendment Agreement".
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5. GOVERNING LAW AND JURISDICTION
This Amendment Agreement is governed by, and shall be construed in
accordance with, the laws of England and Wales.
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SCHEDULE TO AMENDMENT AGREEMENT
SCHEDULE 10
THE AFRICAN EXIT PLAN
PART A -
1.1 SALE TO EMP
(A) On 1 September 2005, the Company entered into certain
documentation (which, as amended from time to time, shall be
referred to as the "TRANSACTION DOCUMENTATION") pursuant to
which it agreed, subject to certain conditions, to (amongst
other things) (a) procure the novation of the management
agreements between FIML and each of the African Funds; (b) sell
the Sale Shares (as defined below) and the entire issued share
capital of FAMCA, and (c) sell its interest in West Africa
Growth Fund, in each case to EMP Fund Management II LP ("EMP").
The transactions contemplated by the Transaction Documentation
shall together be referred to as the "Transaction".
(B) The parties acknowledge and agree that, notwithstanding any
other provision of this Agreement, any Losses suffered or
incurred by any member of the Buyer's Group or any Group Company
arising under, or in connection with, the Transaction
Documentation shall, subject to the provisions of Schedule 6
which are applicable to claims made under clause 10.2(e), be
recoverable from the Seller pursuant to clause 10.2(e) PROVIDED
THAT such Losses shall not be recoverable to the extent that
they result from an act or omission after Completion by any
Group Company which constitutes a breach of such Transaction
Documentation (other than any term or provision of the
Transaction Documentation which no reasonable seller would have
agreed to). For the avoidance of doubt, Losses suffered or
incurred by any member of the Buyer's Group or any Group Company
under or in connection with any warranty, indemnity or other
similar covenant (including any tax covenant) contained in the
Transaction Documentation shall not, for the purposes of this
paragraph, be considered to result from a breach by any Group
Company of the Transaction Documentation.
(C) Subject to the provisions of paragraph (D) immediately below,
the Buyer confirms that the Company will not make any material
amendment to the Transaction Documentation from time to time
without the prior consent of the Seller (such consent not to be
unreasonably withheld or delayed). The Buyer shall give the
Seller prior written notice of any proposed amendments to the
Transaction Documentation. The Buyer shall procure that the
Company takes
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reasonable steps to comply with the Transaction Documentation
(save for any term or provision of the Transaction Documentation
which no reasonable seller would have agreed to and without
prejudice to the Buyer's right to agree amendments to the
Transaction Documentation with the consent of the Seller (such
consent not to be unreasonably withheld or delayed)) and that
the Company negotiates with EMP in good faith to complete the
Transaction.
(D) For the purposes of this Schedule, the indemnity in the form
reviewed by the Seller prior to Completion given or to be given
by the Company to EMP in connection with any actual or potential
dispute, claim or litigation involving Mr Ela (referred to as
the "ELA INDEMNITY") will not be considered an amendment to the
Transaction Documentation. The Seller undertakes to the Buyer
that the terms of the Ela Indemnity have been agreed in
principle with EMP prior to Completion. The Seller also
undertakes to the Buyer that any Losses suffered or incurred by
the Buyer or any Group Company in connection with the Ela
Indemnity will, if given by the Company and subject to the
provisions of Schedule 6 applicable to a claim under clause
10.2(e), be recoverable from the Seller pursuant to clause
10.2(e). The Buyer shall not prevent the Company from giving the
Ela Indemnity (or an indemnity in substantially the same form)
if the Company reasonably considers that the giving of the Ela
Indemnity is lawful and necessary or desirable to ensure
completion of the Transaction.
(E) The parties acknowledge their common desire for the Company to
complete the Transaction as soon as reasonably practicable after
Completion. The Seller agrees that it shall be responsible for
any and all the professional fees and expenses, and other
out-of-pocket costs and expenses, reasonably incurred by the
Buyer and any Group Company in connection with the Transaction
PROVIDED THAT the Seller shall not be responsible for any such
costs, fees and expenses if, and only to the extent, that such
costs, fees and expenses are specifically provided for in the
Completion Accounts.
(F) It is agreed that, notwithstanding any other provision of this
Schedule, the rights and obligations arising under or in
connection with the provisions of paragraphs 1.2 to 2.2
(inclusive) of this Schedule shall have no effect unless and
until the earlier to occur of (a) the termination of the
Transaction Documentation (subject, for the avoidance of doubt,
to completion of the Transaction not having occurred at that
time) and (b) 31st December 2005 (or such later date as the
parties may agree) provided that, on that date, completion of
the Transaction Documentation has not occurred (either event
being referred to in this Schedule as a "FAILURE EVENT").
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1.2 NOTICE TO TERMINATE
The Buyer will, as soon as reasonably practicable after the occurrence
of a Failure Event (and in any event within 20 Business Days thereof)
procure that FIML gives notice to terminate the management agreements
with each of the African Funds. The Buyer will, after it has given
notice to terminate such management agreements, take reasonable steps to
ensure that subject to the completion of any required legal or
regulatory formalities which the Buyer shall use its reasonable
endeavours to complete, the Company resigns as sponsor or co-sponsor of
each of the African Funds.
1.3 SERVICES AGREEMENT
The Buyer may, at any time after the occurrence of a Failure Event,
procure that FIML, Framlington Asset Management Central Africa S.A.
("FAMCA") and Framlington Asset Management West Africa SA ("FAMWA")
submit a draft of a Services Agreement to the Buyer and the Seller for
their approval (such approval, in each case, not to be unreasonably
withheld or delayed). In the event that such approvals are given by the
Buyer and the Seller, the Buyer may, at its sole option, procure that
FIML and the African Companies enter into the Services Agreement at any
time thereafter.
1.4 PUT OPTION
1.4.1 In consideration of the mutual covenants contained in this Schedule 10,
the Seller irrevocably undertakes to acquire, from the Company, the
shares which the Company owns in FAMWA (referred to as the "SALE
Shares") and the whole of the issued share capital of FAMCA ("PUT
OPTION") at the Buyer's first request pursuant to paragraph 1.4.2 for
Pound Sterling1 PROVIDED THAT such request is given at any time during
the period from the occurrence of a Failure Event until the first
anniversary of the occurrence of that Failure Event. 1.4.2 The Put
Option may be exercised by the Buyer serving written notice on the
Seller and such notice shall state the date (which shall be not more
than 20 Business Days nor less than 10 Business Days after the date upon
which such notice is received by the Seller) and place in the United
Kingdom where completion of the sale and purchase of the Sale Shares,
and the completion of the sale of the entire issued share capital of
FAMCA, shall take place. Subject only to clause 1.4.3, the parties shall
be obliged to take all steps within their power to effect completion of
such sales on the date nominated by the Buyer pursuant to this clause
1.4.2.
1.4.3 The Seller will not be obliged to complete the purchase of the Sale
Shares until such time as:
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(a) it is able lawfully to acquire the Sale Shares without the
Company having to offer any of such Sale Shares to any other
person, whether pursuant to the constitutional documents of
FAMWA or any other agreements between the shareholders;
(b) the Services Agreement in the form approved by the Buyer and the
Seller (such approval not to be unreasonably withheld or
delayed) has been entered into by FIML, FAMWA and FAMCA; and
(c) any consents or approvals to the sale of the Sale Shares and the
shares held by the Seller in FAMCA which are required from any
applicable Regulatory Authority have been obtained on terms that
will not have a material adverse effect on the ability of either
the Seller, FAMWA or FAMCA to carry on FAMWA's or as appropriate
FAMCA's business in substantially the same manner as FAMCA's or
FAMWA's business was carried out prior to completion of the Put
Option.
The Seller shall, with effect from service of the relevant notice
pursuant to clause 1.4.2, use all reasonable endeavours to promptly
obtain the regulatory consents or approvals necessary or desirable in
respect of any sale of the Sale Shares to it, and the shares held by the
Company in FAMCA to it, pursuant in each case to the Put Option. The
Buyer shall procure that the Company will provide any information and
documents reasonably required and requested by the Seller for the
purposes of making any submissions, filings or notifications in
connection with such regulatory consents.
1.4.4 In consideration of the mutual covenants contained in this Schedule 10,
the Seller irrevocably undertakes (subject to the completion of any
required legal or regulatory formalities which the Seller shall use
reasonable endeavours to complete) to acquire from the Company, at the
Buyer's first request pursuant to this paragraph, the Company's interest
in the African Funds PROVIDED THAT such request is given at any time
during the period from the occurrence of a Failure Event until the first
anniversary of the occurrence that Failure Event. This option shall be
referred to as the "AFRICAN FUNDS OPTION". The Seller will acquire any
such interest pursuant to the African Funds Option for Pound
Sterling204,000. The African Funds Option may be exercised by the Buyer
serving written notice on the Seller and such notice shall state the
date (which shall not be more than 20 Business days nor less than 10
Business Days after the date upon which such notice is received by the
Seller) and place in the United Kingdom where completion of the sale and
purchase of the relevant interest(s) shall take place. The parties shall
be obliged to effect completion of the sale and purchase of the
Company's interest in the African Funds on the date nominated by the
Buyer pursuant to this paragraph. On such
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completion, the Seller shall pay to the Buyer the consideration in
immediately available funds.
2. EXIT ARRANGEMENTS
Liquidation or Winding-up of the African Companies
2.1 As soon as practicable after FIML has ceased to be the manager of the
African Funds the Buyer shall (provided that an Exit Event has not
occurred at such time), take (or procure that there are taken) all such
reasonable steps and actions as are necessary to be taken to cause the
Winding-up of both of the African Companies.
2.2 The Buyer shall procure that, following completion of the liquidation of
either African Company, an amount equal to the aggregate amount returned
to any shareholder of each African Company that is a member of the
Buyer's Group upon each Winding-up net of any taxation payable by any
member of the Buyer's Group in respect of such receipt shall be paid to
the Seller (or as the Seller may direct) within 5 Business Days of
payment to the relevant shareholder.
Payment for successful completion
2.3 In the event that either:
(a) the Winding-up of the African Companies is completed and
any payment pursuant to paragraph 2.2 has been made
within 14 months of the occurrence of a Failure Event;
or
(b) the shares owned by the Company in the African Companies
have been sold to, and both of the management agreements
with the African Funds have been novated to, one or more
third parties (being a person other than a Connected
Person) within 12 months of the occurrence of a Failure
Event,
then within five Business Days of receipt of notice from the Buyer
requesting the same, the Seller shall pay to the Buyer the sum of Pound
Sterling204,000 PROVIDED THAT upon such payment being made following the
receipt of that notice, the indemnity in Clause 10.2(e) shall cease to
apply other than in respect of Losses arising under or in connection
with any contract entered into for the purpose of such sale or novation
to which the Seller has consented PROVIDED FURTHER THAT the Buyer may
not despatch such notice more than 20 Business Days after the completion
of such third party sale.
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Professional fees and expenses
2.4 The Seller shall be responsible for any and all the professional fees
and expenses, and other out-of-pocket expenses, reasonably incurred by
the Buyer and any Group Company in connection with carrying out the
terms and provisions of this Schedule.
3. CONDUCT OF THE BUSINESS UNTIL EXIT
3.1 The Buyer shall procure that, for so long as FIML remains the investment
manager of the African Funds (or either of them) and subject to the
terms of the Transaction Documentation, FIML shall perform its duties
and obligations and shall exercise its rights, powers and authorities in
accordance with the terms of the relevant investment management
agreement(s).
3.2 The Buyer shall procure that until the earlier of (a) completion of the
Transaction and (b) the termination of management agreements with
respect to the African Funds:
(a) the Seller shall be entitled from time to time and at
its sole expense to require the replacement of any Key
African Employee with such other persons as it may
nominate and on such terms as it may reasonably require,
provided that such person is of reasonable repute
PROVIDED THAT the Seller shall only be entitled to
exercise such right with the consent of the Buyer, which
the Buyer may, in its absolute discretion, give or not
give before the occurrence of a Failure Event but which
it shall not unreasonably withhold or delay after a
Failure Event; and
(b) FIML and the African Companies are given reasonable
access during normal UK business hours to the Group's
administrative employees, including (without limitation)
Andrew Dysch, Eleanor Cramner and Josie Tubbs (and
anyone who from time to time may replace such employees)
and shall receive reasonable administrative and other
support from Group Companies (other than the African
Companies); and
(c) it provides, to the extent it is able to do so, to the
Seller such financial and other information relating to
the African Companies and the African Funds as the
Seller may from time to time reasonably request.
3.3 Save with the prior written consent of the Seller (such consent not to
be unreasonably withheld or delayed) the Buyer shall procure that until
the earlier to occur of (a)
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completion of the Transaction Documentation and (b) the earlier to occur
of termination of the management agreements with respect to the African
Funds and an Exit Event:
(a) save as contemplated by the Transaction Documentation,
the Company does not dispose of its shares in the
African Companies; and
(b) save as contemplated by the Transaction Documentation,
each African Company shall operate its businesses or
operations in the usual and ordinary course including
the provision of services to FIML.
3.4 Until the earlier to occur of (a) completion of the Transaction and (b)
the termination of the management agreements in respect of the African
Funds, the Seller shall pay to the Buyer within 20 Business Days of the
receipt of a Quarterly Statement an amount equal to the following
expenses incurred during the Quarter to which the Quarterly Statement
relates:
(a) the remuneration (including any related employer's
costs) during the relevant Quarter of Messrs Vallance
and Ngon (and anyone who from time to time may replace
such employees) (but only for the 12 month period
expiring on the anniversary of a Failure Event or such
shorter period as the Buyer and the Seller may agree)
and the remuneration (including any related employer's
cost) of Mr Okoto (and anyone who from time to time may
replace such employee) (but only for the 6 month period
expiring on the date which is six months after the
occurrence of a Failure Event or such shorter period as
the Buyer and the Seller may agree);
(b) any costs reasonably and properly incurred during the
relevant Quarter by any member of the Buyer's Group in
connection with the termination of the employment of
Messrs Vallance, Ngon and Okoto; and
(c) the actual operating costs of the African Companies, and
FIML (to the extent that they relate to the management
of the African Funds), properly incurred during the
relevant Quarter together with any costs incurred by any
member of the Buyer's Group in the carrying out the
terms and provisions of this Schedule,
LESS an amount equal to all fees, including performance fees, and other
payments paid to FIML under or in connection with the relevant
investment management agreement(s).
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Such amounts shall be paid in sterling (and original currencies shall be
converted at the spot rate shown in the Financial Times on the last
Business Day of the relevant Quarter).
3.5 The Buyer shall at the same time as it delivers the Quarterly Statement
provide to the Seller such supporting data and information as is
reasonably necessary for the Seller to calculate the net amount payable
in respect of the relevant Quarter.
3.6 All VAT costs borne by the Buyer and/or the African Companies shall be
compensated by a payment from the Seller to the Buyer and/or the African
Companies of an equivalent amount.
4. DEFINITIONS
In this Schedule 10 the following definitions shall apply:
"AFRICAN FUNDS" means the Central Africa Growth Fund a collective investment
Company currently organised under the laws of the Grand Duchy of Luxembourg as a
Societe d'Investissment a Capital Variable and whose registered office is at 13,
rue Goethe, L-2014 Luxembourg and the West Africa Growth Fund a collective
investment company currently organised under the laws of the Grand Duchy of
Luxembourg as a Societe d'Investissment a Capital Variable and whose registered
office is at 8, avenue Marie-Therese, L-2132 Luxembourg;
"EXIT EVENT " means either (a) completion of the sale of all the shares of the
African Companies owned by any Group Company or (b) completion of the Winding-up
of both of the African Companies:
"FIML" means Framlington Investment Management Limited a company registered in
England under company number 01858790;
"KEY AFRICAN EMPLOYEES" means Messrs. Vallance, Ngon, Okoto and such other
employees who may from time to time replace one or more of those employees;
"QUARTERS" means the periods 1st October to 31st December, 1st January to 31st
March, 1st April to 30th June and 1st July to 30th September and "QUARTER" shall
be any one of such periods, provided that the first Quarter shall commence on
the day following the Completion Date and shall expire on the earliest of the
next following 31st December, 31st March, 30th June or 30th September;
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"QUARTERLY STATEMENT" means a statement showing the amount of the expenses
incurred and income earned in respect of a particular Quarter as more
particularly set out in paragraph 2.5 of this Schedule 10;
"SERVICES AGREEMENT" means an agreement between FIML, FAMCA and FAMWA for, inter
alia, the provision of services to FIML;
"WINDING-UP" means the winding up, liquidation, dissolution or such other
equivalent or similar legal process in the relevant jurisdiction which results
in the dissolution of a company without further liability upon its shareholders.
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IN WITNESS WHEREOF the parties have executed and delivered this Amendment
Agreement as a deed on the date first appearing above.
<Table>
Executed as a deed by )
AXA INVESTMENT MANAGERS S.A. ) /s/ Xavier Thomin
acting by a person or persons who, in ) .......................................
accordance with the laws of the territory in )
which AXA INVESTMENT MANAGERS S.A. is ) Authorised signatory(ies))
incorporated, is or are acting under the ) /s/ Jan Putnis
authority of AXA INVESTMENT MANAGERS S.A. ) .......................................
) Witness Jan Putnis
Solicitor
London ECZ
Executed as a deed by )
COMERICA INCORPORATED ) /s/ Michael Michalak
acting by a person or persons who, in ) .......................................
accordance with the laws of the territory in )
which COMERICA INCORPORATED is incorporated, is ) (Authorised signatory(ies))
or are acting under the authority of COMERICA )
INCORPORATED ) /s/ Sunil Sharma
) .......................................
Witness Sunil Sharma
Executed as a deed by )
CCF S.A. ) /s/ John Botley
acting by a person or persons who, in ) .......................................
accordance with the laws of the territory in )
which CCF S.A. is incorporated, is or are ) (Authorised signatory(ies))
acting under the authority of CCF S.A. )
) /s/ David Whear
) .......................................
Witness David Whear
/s/ David Burnett
Executed as a deed ) ..............................Director
by FRAMLINGTON HOLDINGS LIMITED acting by a )) /s/ Eleanor Cranmer
director and its secretary/two ..............................Secretary/
Directors ) Director
</Table>