1 The Settlement Agreement
This agreement is made 3 october 2001
Between
The Estate of Anders Jahre Estate No 7/1982 Sandefjord Probate Court, P.O. Box 73, 3 201 Sandefjord («the Estate»).
Even Wahr-Hansen of Stranden 1, P.O. Box 1 524 Vika, N-0117 Oslo, Norway (the «Personal Representative» which expression shall except where the context requires include the successors in title of Even Wahr-Hansen as Personal Representative).
Lazard LLC whose registered office is situated at 1 209 Orange Street, Wilmington, Delaware, USA, acting on its own behalf and as agent and on trust for each of its subsidiaries, controlling, associated and affiliated undertakings as of the date of this agreement, and any new entities formed in the future to manage all or part of Lazard LLC's existing business under a genuine corporate reconstruction («the Lazard Group»).
The Right Honourable Robert Hugh Molesworth Baron Kindersley of West Green Farm, Shipbourne Road, Shipbourne, Kent, TN11 9PH, England («Lord Kindersley»).
Whereas
| (A) | The Estate is a legal entity and makes this Agreement on its own behalf and on behalf of its creditors (whether preferential, approved or unapproved) and beneficiary. |
| (B) | The Personal Representative is the personal representative of the Estate and makes this Agreement in that capacity and on behalf of the Estate and his successors in title. |
Now the parties agree as follows:
| 1 | Definitions | |||
| In this Agreement | ||||
| 1.1 | «Lazard» shall mean Lazard Bank Limited. | |||
| 1.2 | The «Cayman Proceedings» means the proceedings in the Grand Court of the Cayman Islands, the short reference to the record whereof is Bridge Trust Co Ltd & Others v The Attorney General of The Cayman Islands & Others, cause no 296 of 1994. | |||
| 1.3 | «Connected Proceedings» means, subject to clauses 7.1 and 7.2, proceedings or claims in any jurisdiction brought by any party or parties to the Cayman Proceedings, the Norwegian Proceedings and/or the English Proceedings or arising out of any proceedings or claims brought by any party or parties to the Cayman Proceedings, the Norwegian Proceedings and/or the English Proceedings. A list of the parties to the Cayman Proceedings, the Norwegian Proceedings and the English Proceedings appears at Schedule 4 hereto. | |||
| 1.4 | The «English Proceedings» means the discontinued proceedings in England in the High Court of Justice, the short reference to the record whereof was Even Wahr-Hansen & Others v Aall Trust & Banking Corporation Ltd & Others, CH 1994 W No 2574. | |||
| 1.5 | The «English Costs» means the costs totalling £728,950 paid by the Estate to Aall Trust and Banking Corporation Limited, Compass Trust Co Limited, the Trustees of the Aall Foundation and Lazard in connection with the English Proceedings. | |||
| 1.6 | The «Escrow Account» means the bank account referred to in clause 2 hereof. | |||
| 1.7 | The «Norwegian Parties» means the Estate and Even Wahr-Hansen. | |||
| 1.8 | The «Norwegian Proceedings» means the action presently brought on behalf of the Estate against Lazard, Lord Kindersley and Bjørn Bettum in Norway as Drammen City Court's case 97-00586A (96 377A at Sandefjord City Court). | |||
| 1.9 | A «BT Claim» means a claim arising out of or connected in any way with the holding by Lazard of shares in Bulls Tankrederi A/S or the letter from David Thomson to Jørgen Jahre and Marian A/S dated 22 June 1975 concerning pre-emption rights over those shares. | |||
| 1.10 | The «BT Proceedings» means the action presently pending before the Agder Lagmannsrett (Appellate Court) under Action No.99-01411A. | |||
| 1.11 | «The Dividends» means the capital distributions and/or dividend payments made in respect of the shares in Bulls Tankrederi A/S currently held in bank accounts No.1594.26.67407 at Gjensidige NOR, Sandefjord, and No. 71760968557 at Den norske Creditbank. | |||
| 1.12 | «Owned directly or indirectly» means owned whether directly or indirectly or through another person or persons (including a chain of persons) or partly directly and partly through a person or persons (including through a chain of persons) and «controlled directly or indirectly» shall have a like meaning. | |||
| 2. | Condition Precedent | |||
| 2.1 | The obligations upon the parties set out in clauses 4 and 5 hereof are conditional upon due performance of the following events («the Condition Precedent»), provided always that the Personal Representative shall use his best endeavours (not including commencing new legal proceedings) to obtain the authorisation and approval hereinafter referred to: | |||
| (a) | A written confirmation from the relevant Ministry of the Norwegian Government that the Norwegian Government will propose to the Norwegian Parliament in a Bill the approval of the execution of the state guarantee in favour of Lazard and Lord Kindersley as required by clause 2.1(e); | |||
| (b) | Lazard's insurers approving this settlement or other response acceptable to it; | |||
| (c) | Lazard within 28 days of the execution of this Agreement but only following satisfaction of clause 2.1(a) and (b) above transferring or otherwise delivering or causing to be delivered into a bank account in the joint names of Lazard, Lord Kindersley and the Personal Representative, the sum of US$41,500,000 (Forty One Million Five Hundred Thousand United States Dollars), together with the sum of £170,000 (One Hundred and Seventy Thousand British Pounds) being Lazard's share of the English Costs, together with simple interest on such sums at 4% with effect from 1 August 2001 to the date of transfer to such bank account («the Deposit»). The Deposit shall be placed in an interest bearing account and earn interest at a rate approved by the Estate (such approval not to be unreasonably withheld). In the event that the conditions precedent specified in clauses 2.1(d) and (e) are met, the Estate shall be entitled to all the interest earned on the Deposit; | |||
| (d) | the Sandefjord Probate Court within 42 days of the execution of this agreement approving this settlement on behalf of the Estate; and | |||
| (e) | the Kingdom of Norway executing a state guarantee in favour of Lazard and Lord Kindersley in the form set out in Schedule 5 or in such other substantially similar form as the parties may agree. | |||
| 2.2 | Clause 2.1(d) above of the Condition Precedent shall be deemed to be satisfied upon receipt by Lazard from the Estate of a certified copy of the decision mentioned in clause 2.1(d) above. | |||
| 2.3 | It is hereby agreed that the sum of US$41,500,000 includes US$23,645,498.65 being the money set aside in October 1975 in order to refund Anders Jahre Rederi AS for payment it made in order to meet Anders Jahre's commitment to donate funds for the construction of the Sandefjord Town Hall compounded at 9% per annum from 10 th October 1975 to 31st October 2001. | |||
| 3. | If the Condition Precedent is not satisfied by 21 December 2001, unless the parties agree an extension of time, the Agreement shall be of no effect, save that the Deposit shall be repaid to Lazard together with interest thereon. | |||
| 4. | Implementation | |||
| 4.1 | Upon the Condition Precedent being met, the following shall take place immediately: | |||
| 4.2 | The Deposit and accrued interest shall be transferred to a client account established in accordance with the instructions of the Personal Representative on behalf of the Estate; | |||
| 4.3 | Lazard shall deliver a stock transfer form in relation to 3 021 shares in Bulls Tankrederi A/S beneficially owned by Anders Jahre Rederi A/S and will do all things necessary to assist Anders Jahre Rederi A/S in procuring the release to it of the Dividends; | |||
| 4.4 | The Lazard Group agrees to withdraw its pending appeal in the Norwegian Proceedings against an order of the Norwegian Court dated 19 September 2001 requiring the production of certain documents to the Estate, and shall then produce those documents; and the Estate agrees to indemnify the Lazard Group against any liability the Lazard Group may incur due to the production of such documents. | |||
| 4.5 | The Lazard Group and Lord Kindersley will as soon as reasonably practicable supply the Estate with one set of copies of all materials (including but not limited to financial statements, reports or summaries, and accounting work papers of any kind; monthly or other periodic statements for the accounts maintained at the Lazard Group; documents relating to any investments made in the Lazard Brothers International Income Fund, the Lazard Brothers Capital Growth Bond Fund, Lazard Brothers International Capital Fund, or Lazard Brothers International Asset Fund), that are in the files of Lazard Bank Limited, Lazard Frères Co. LLC, Lazard Frères SAS, Maison Lazard SAS, Lazard Frères Banque SA, Lazard Asset Management Limited and Lord Kindersley respectively, in so far as such documents relate to, directly or indirectly, the issues raised in the Cayman Proceedings, the English Proceedings and the Norwegian Proceedings, or the facts and matters raised therein, or any of them; and the Lazard Group will use best endeavours (not including bringing legal proceedings) to procure that the Estate be supplied with one set of copies of all such materials in the files of Lazard Bank Limited's and Lazard Asset Management Limited's former subsidiaries in Jersey and Guernsey | |||
| which, in each case, are the property of any of: | ||||
| (i) | Anders Jahre; | |||
| (ii) | Thor Jørgen Jahre; | |||
| (iii) | Kosmos A/S; and | |||
| (iv) | the entities, corporations and companies set out in Schedule 1 hereof; | |||
| to the extent that such materials are not correspondence to or from legal advisers for the purpose of obtaining or giving legal advice, and were not produced for the purposes of actual or contemplated litigation. The Estate confirms that the obligation of the Lazard Group in relation to documents in the files of the Lazard companies named above shall be satisfied by provision of all such materials from the files produced by Lazard in compliance with a requirement to produce documents to the Serious Fraud Office and its reasonable endeavours to locate such material in any other of the files of the Lazard companies named above. The Estate warrants that each of the persons and entities referred to in (i), (ii), (iii), and (iv) has agreed to release the Lazard Group and Lord Kindersley from any duty of confidentiality the Lazard Group and Lord Kindersley may owe towards it in respect of such materials, or that any such duty no longer exists. | ||||
| 4.6 | The Estate will as soon as reasonably practicable lodge with the court hearing the Norwegian Proceedings a document in the form annexed hereto as Schedule 6 confirming the limitation on the Estate's continued claim against Bjørn Bettum provided for in clause 5.1. | |||
| 5. | The Proceedings | |||
| Upon the provisions of clauses 4.2, 4.3 and 4.4 being complied with in full: | ||||
| 5.1 | The Norwegian Proceedings | |||
| The Estate, with Lazard and Lord Kindersley will, within 7 working days of the provisions of clauses 4.2, 4.3 and 4.4 being complied with in full, take all necessary steps to withdraw the Estate's claim in the Norwegian Proceedings against Lazard and Lord Kindersley only, on the terms set out in Schedule 3 which will be formally recorded. For the avoidance of doubt it is here confirmed that the withdrawal of those claims shall not operate to discharge meet or limit the Estate's claim against Bjørn Bettum save that the Estate will seek to recover from Bjørn Bettum only that part of its loss which in the Court's opinion should finally be borne by him. | ||||
| 5.2 | The Estate agrees that if it commences any proceedings in any jurisdiction against Per M Hansson and/or Terje Bratt in relation to a claim or claims arising out of or connected in any way with the claims made in the Norwegian Proceedings, the Cayman Proceedings and the English Proceedings or any of them, and the facts and matters alleged therein, then it will seek to recover from each of Per M Hansson or Terje Bratt only that part of its loss which in the Court's opinion should finally be borne by him. | |||
| 6. | Full and Final Settlement | |||
| 6.1 | Save as provided for in clauses 6.3, 6.4 and 6.5, the parties agree that: | |||
| (i) | this Agreement shall operate as a full and final settlement of, and | |||
| (ii) | each party will (a) waive and not bring in future against any other party hereto (or its present and former partners, directors, legal advisors, officers and employees (including Lord Kindersley) save only Bjørn Bettum, Per M Hansson and Terje Bratt) and (b) (where appropriate) withdraw, | |||
| all causes of action, claims (including proprietary claims) whether pleaded or otherwise, demands, liabilities, damages, costs, charges and expenses which any party hereto has, has had or might have in the future against any other party hereto, whether acting in their own or in any other capacity, in respect of or arising out of or connected with the claims made between the parties to this agreement or issues raised directly or indirectly in the Cayman Proceedings, the English Proceedings and the Norwegian Proceedings and the facts and matters alleged therein or any of them, including as against the Lazard Group and each of its present and former partners, directors, officers and employees (including Lord Kindersley) save only Bjørn Bettum, Per M Hansson and Terje Bratt. | ||||
| 6.2 | If a party hereto shall fail to carry out its obligations under this agreement no party shall on that ground be entitled to avoid this agreement as between it and the parties who have fulfilled their obligations and without prejudice to the generality of that, those parties shall remain entitled to the full benefit of clause 6.1. This clause shall not apply to a failure to comply with clauses 4.2 or 4.3. | |||
| 6.3 | If the Estate enters into a settlement agreement within 28 days after date of this Agreement (or within such longer period as the Estate may be authorised to agree any such settlement agreement) in substantially the form of the draft multi-lateral settlement discussed between the potential parties to it on 1 October 2001 (for the avoidance of doubt such agreement must include a provision whereby the Estate receives (i) not less than US$100 million (One Hundred Million United States Dollars) (ii) the English costs less £170,000 (One Hundred and Seventy Thousand Pounds Sterling) (iii) interest at a rate of at least 4% from 1 August 2001) with any of the parties to the English or Cayman Proceedings which results in: | |||
| (i) | the Estate receiving as a result of this Agreement and the subsequent agreement or agreements a total cash sum of US$101.5 million (One Hundred and One Million Five Hundred Thousand United States Dollars) or more (exclusive of any interest); or | |||
| (ii) | the Estate receiving as a result of an agreement or agreements with the Trustee of the Aall Foundation (including (i) its successors in title; (ii) the directors from time to time of Bridge Trust Company Limited (and Tove Brown in her capacity as director of Bridge) or other future corporate trustee of the Aall Foundation in their capacity as such directors; (iii) the trustees for the time being and directors for the time being of any corporate trustee of any charitable institution, settlement or organisation to whom the Trustee may in future transfer all or substantially all of the assets of the Aall Foundation) («the Trustee») a cash sum of US$42 million (Forty Two Million United States Dollars) or more (exclusive of any interest); or | |||
| (iii) | the Estate receiving as a result of an agreement or agreements with any or all of Aall Trust & Banking Corporation Limited, Mads Erik Monsen, Thomas John Monsen, Tove Brown, Hurford Holdings, Compass Trust Co Limited as executor of the late Thorleif Monsen, The Right Honourable Anthony George Merrik Baron Tryon of Durnford, Forrester Holdings Limited, Chester Portfolio Limited, Aall Group Inc, Aall & Co Limited Inc, Aall Investment Management (Cayman) Limited, Meriken Nominees Limited, Guri McKinnell, Anchor Trust Co Limited, Oriental Maritime Corporation Limited and Forrester Maritime Corporation Limited («the Monsen and Aall parties») a cash sum of US$18 million (Eighteen Million United States Dollars) or more (exclusive of any interest); | |||
| then the Estate shall repay to Lazard the sum of US$1,500,000 (One Million Five Hundred Thousand United States Dollars). The Estate undertakes to use its best endeavours to assist in concluding a multi-lateral settlement within 28 days of the date of this agreement. If as a result of this Agreement and the subsequent agreement or agreements referred to in clause 6.3 the Estate receives a total cash sum of between US$100 million (One Hundred Million US Dollars) and US$101.5 million (One Hundred and One Million Five Hundred Thousand United States Dollars) (exclusive of any interest), the Estate shall repay to Lazard that part of the total sum received over $100 million (One Hundred Million United States Dollars). | ||||
| 6.4 | In the event of the Estate entering into a settlement agreement with any of the parties to the English or Cayman Proceedings the Estate shall include a term in the settlement agreement by which that settling party releases the Lazard Group and Lord Kindersley from any liabilities that arise directly or indirectly from matters in the Norwegian Proceedings, the English Proceedings or the Cayman Proceedings, and prohibiting that settling party from pursuing any claims for contribution that arise from the Cayman Proceedings in any jurisdiction against Lazard or Lord Kindersley. | |||
| 6.5 | Without prejudice to clauses 6.3 and 6.4, if the Estate enters into a settlement agreement to which Lazard and Lord Kindersley are parties prior to the completion of the Condition Precedent in this Agreement, then this agreement shall cease to have effect. The Estate agrees to use reasonable endeavours to include Lazard and Lord Kindersley as parties to any subsequent settlement agreement it enters into with the Trustee and/or the Monsen and Aall parties. | |||
| 7. | Indemnity in respect of Connected Proceedings | |||
| 7.1 | The Estate agrees to indemnify the Lazard Group (and each of its present and former partners, directors and employees save only Lord Kindersley, Bjørn Bettum, Per M. Hansson and Terje Bratt), against any claims, including the costs incurred in contesting such claims (save all costs in the Norwegian Proceedings, the English Proceedings and the Cayman Proceedings up to the date of this agreement), that may be made against them that may arise directly or indirectly in connection with Connected Proceedings save contribution claims made by Lord Kindersley based on any claims brought by Bjørn Bettum against him. The Lazard Group acknowledges for the avoidance of doubt that this indemnity does not relate to claims arising out of contracts or agreements entered into by the Lazard Group subsequent to this Agreement. The Estate's obligation in this clause shall be guaranteed by the State of Norway. | |||
| 7.2 | The Estate agrees to indemnify Lord Kindersley against any claims, including the costs incurred in contesting such claims (save all costs in the Norwegian Proceedings, the English Proceedings and the Cayman Proceedings up to the date of this Agreement), that may be made against him that arise directly or indirectly in connection with Connected Proceedings save for any claims that may be made directly against him by Bjørn Bettum in the Norwegian Proceedings. Lord Kindersley acknowledges for the avoidance of doubt that this indemnity does not relate to claims arising out of contracts or agreements entered into by Lord Kindersley subsequent to this Agreement. The Estate's obligation in this clause shall be guaranteed by the Kingdom of Norway. | |||
| 7.3 | In the event of the Estate settling its claim against Bettum or any successor in title to his estate the Estate shall include a term in the settlement agreement prohibiting Bettum and any successors in title to his estate from pursuing any claims for contribution that arise from the Norwegian Proceedings in any jurisdiction against any party or parties hereto. | |||
| 7.4 | In the event of the Estate settling any present or future claim that may arise directly or indirectly in connection with Connected Proceedings (including but not limited to any claim against Per M Hansson or Terje Bratt), the Estate shall include a term in any settlement agreement prohibiting the other party or parties from pursuing any claims for contribution that arise from those Connected Proceedings in any jurisdiction against any party or parties hereto. | |||
| 7.5 | Except pursuant to an order of a court of competent jurisdiction, no admission, offer, promise or payment shall be made or given in respect of any liabilities in respect of which an obligation to indemnify arises under or by virtue of clause 7.1 and / or clause 7.2 («Relevant Liabilities») by or on behalf of the Lazard Group (and each of its present and former partners, directors and employees (including Lord Kindersley) save only Bjørn Bettum, Per M Hansson or Terje Bratt) («the Indemnified Party») without the written consent of the Estate. The Estate shall be entitled if it so desires to take over and conduct in the name of the Indemnified Party the defence or settlement of any Relevant Liabilities, including making a counterclaim in the proceedings giving rise to the Relevant Liabilities. In that event the Indemnified Party shall, upon payment by the Estate of its reasonable costs and expenses of so doing, give all such documents and other information in relation to any Relevant Liability as it or they can reasonably provide and as the Estate may from time to time reasonably require as the relevant Indemnified Party would be entitled to use in presenting its own defence; | |||
| Provided that: | ||||
| (a) | The Estate's written consent will not be unreasonably refused and will be given or refused within a reasonable time of being notified of the Relevant Liability; | |||
| (b) | If the Estate does not: | |||
| (i) | give written notice to the Indemnified Party of their desire to take over and conduct the defence or settlement of a Relevant Liability within 28 days of being notified of such Relevant Liability; or | |||
| (ii) | diligently and expeditiously take over and conduct the defence or settlement of a Relevant Liability upon giving such written notice or thereafter fail diligently and expeditiously to conduct the defence or settlement of such liability; | |||
| the Indemnified Party shall thereafter be free to make such admissions, offers, promises, payments or indemnities in respect of such Liability as it or they reasonably see fit. | ||||
| (c) | The Estate may only take over and conduct the defence or settlement of a Relevant Liability if it first undertakes with the Indemnified Party that, as a consequence of being permitted to do so: | |||
| (i) | it will indemnify the Indemnified Party against the Relevant Liability and all costs and other liabilities arising directly or indirectly out of such defence or settlement which it may incur or be ordered or otherwise obliged to pay in relation to such defence or settlement, and | |||
| (ii) | it will not be entitled to avoid such liability to indemnify on any ground whatsoever or, without prejudice to the generality of the foregoing, claim any remedy whatsoever except (in either case) on the ground of negligent or fraudulent misrepresentation (including a breach of any obligation of disclosure) in relation to such defence or settlement. | |||
| (d) | The Estate shall not settle any Relevant Liability or make any admission, offer, promise or payment in respect of it without the prior written consent of the Indemnified Party, such consent not unreasonably to be withheld. | |||
| 7.6 | Provided that the Indemnified Party has complied with its obligations in clause 7.5, the Estate shall not dispute the amount or existence of any claim that has been determined by compromise or a decision of a court of competent jurisdiction. | |||
| 7.7 | The Estate and the Personal Representative agree that they will not bring at any time in the future any cause of action or claim that any of them may have in any jurisdiction, arising out of or connected in any way with the claims made in the Cayman Proceedings, the English Proceedings and the Norwegian Proceedings or any of them, and the facts and matters alleged therein, against: | |||
| (a) | John Worsley, or | |||
| (b) | the Estate and the Personal Representative of Douglas Gibson or partners in his former firm | |||
| save that the Estate and the Personal Representative may bring counterclaims against the parties listed in (a) and (b) if any of them bring claims against the Estate and the Personal Representative (other than in response to claims, or the threat of claims, by the Estate and the Personal Representative). | ||||
| 8. | Bulls Tankrederi A/S | |||
| 8.1 | The Lazard Group agrees that it has no claim either individually or collectively to any beneficial interest in any shares in Bulls Tankrederi A/S. | |||
| 8.2 | The Estate: | |||
| (a) | will not bring any BT claim they may have against the Lazard Group and each of its present and former partners, directors, officers and employees (including Lord Kindersley) save only Bjørn Bettum, Per M Hansson and Terje Bratt; | |||
| (b) | will procure that the bankruptcy estate of Thor Jørgen Jahre will execute a release in the form of the draft at Schedule 2 of any BT claim he or it may have against the Lazard Group and each of its present and former partners, directors, officers and employees (including Lord Kindersley) save only Bjørn Bettum, Per M Hansson and Terje Bratt. | |||
| 8.3 | The Estate indemnifies the Lazard Group and any of the Lazard Group's present and former partners, directors, officers and employees (including Lord Kindersley) save only Bjørn Bettum, Per M Hansson and Terje Bratt, in respect of any liability losses or costs whatsoever arising out of any BT claim which may be brought by Marian A/S, Jørgen Jahre Junior, Bjørn Bettum, Forrester Maritime Corporation Limited or the Kingdom of Norway against the Lazard Group and each of its present and former partners, directors, officers and employees (including Lord Kindersley) save only Bjørn Bettum, Per M Hansson and Terje Bratt, including any claims arising from the transfer of shares referred to in 4.3 above. The Estate's obligation in this clause shall be guaranteed by the Kingdom of Norway. | |||
| 8.4 | Clause 7.5 shall apply equally to clause 8.3 above as it does to clause 7.1, save that in its application to clause 8.3 the first sentence shall read: | |||
| «Except pursuant to an order of a court of competent jurisdiction, no admission, offer, promise or payment shall be made or given in respect of any liabilities in respect of which an obligation to indemnify arises under or by virtue of clause 8.3 («Relevant Liabilities») by the Lazard Group and any of the Lazard Group's present and former partners, directors, officers and employees (including Lord Kindersley) save only Bjørn Bettum, Per M Hansson and Terje Bratt, («the Indemnified Parties») without the written consent of the Estate.» | ||||
| 9. | Warranties | |||
| 9.1 | Lazard warrants to the Estate that to the best knowledge and belief of the Lazard personnel having conduct of the Norwegian proceedings as of today's date; and Lord Kindersley warrants to the Estate that to his best of his knowledge and belief: | |||
| (i) | since 17 January 1991 they have not (save in relation to agreements for costs) entered into any material written contractual relationship with any of the other parties to the Norwegian, Cayman or English proceedings not known to the Estate; | |||
| (ii) | without prejudice to their defence generally in the Norwegian, Cayman, or English proceedings, since 17 January 1991 they have not acted dishonestly or fraudulently towards any of the parties to the Norwegian, Cayman or English proceedings; | |||
| (iii) | that as at the date of this agreement they have not been notified of a claim by any of the parties listed in Schedule 4 of this Agreement save for those claims known to all parties as having been brought or threatened in the Norwegian, Cayman or English proceedings. | |||
| 9.2 | The persons signing this Agreement warrant that they have authority (subject only to the above-mentioned conditions) to do so on behalf of the parties on whose behalf they purport to do so. | |||
| 10. | The Lazard Group«s directors, employees and insurers | |||
| 10.1 | Insofar as the Lazard Group enters into this Agreement and takes releases and indemnities for the benefit of itself and its present and former partners, directors, officers and employees, it does so with the intention that it may enforce on behalf of any of them any release or indemnity given to it on that person's behalf. | |||
| 10.2 | Insofar as the Lazard Group enters into this Agreement and takes releases and indemnities for the benefit of itself and its present and former partners, directors, officers and employees, it does so with the intention that it may enforce on behalf of its insurers any release or indemnity given in this Agreement. | |||
| 11. | Waiver of rights to set aside this Agreement | |||
| All parties hereto acknowledge that: | ||||
| (a) | evidence unknown to some or all of the parties may shed new light on the events which have given rise to the existing litigation, and that such evidence may be in favour of one or more of the parties; and | |||
| (b) | they have taken into account the possibility of such new evidence coming to light and in all events intend that this Agreement shall operate as a full and final settlement as set out in clause 6 of this Agreement. | |||
| 12. | Service | |||
| 12.1 | Subject to clause 12.2, any notices, documents or legal proceedings to be served under or in connection with this Agreement may be served by post or fax on the addresses of the parties set out in clause 1 above. Communications by post shall be deemed received on the sixth working day after posting and communications by fax shall be deemed received on the date of despatch or, if sent on a non-working day or received after 5.00 pm in the country of receipt, on the next working day. | |||
| 12.2 | Any notices, documents or legal proceedings to be served on the Estate: | |||
| (i) | before all the steps listed in clauses 4 and 5 have taken place, shall be served upon the Personal Representative, but | |||
| (ii) | after all the steps listed in clauses 4 and 5 have taken place, shall be served upon the Sandefjord Probate Court. | |||
| 13. | Confidentiality | |||
| 13.1 | The parties agree to keep the following matters confidential, for the time periods and in the circumstances specified below: | |||
| (i) | Save for the provisions of this agreement, all of the matters discussed and negotiated between the parties on a confidential and without prejudice basis and documents created during the period of negotiating this agreement shall be kept confidential between the parties at all times; | |||
| (ii) | Prior to the fulfilment of the Condition Precedent, the provisions and existence of Schedule 3 shall be kept confidential between the parties; | |||
| (iii) | In the events of the Condition Precedent not being fulfilled by the date specified in clause 3, no party shall be entitled to refer to the provisions of the existence of this agreement in any court proceedings howsoever arising. | |||
| 13.2 | Nothing provided in 13.1 shall prevent: | |||
| (i) | Any party from disclosing any matters to its insurers or professional advisors or as otherwise required by law or relevant regulatory body; | |||
| (ii) | The Estate from disclosing any matter falling within the restrictions in 13.1 above to any or all of (1) the Norwegian Ministry of Justice, (2) the Norwegian Ministry of Finance or (3) the Sandefjord Probate Court, or (4) Bess Jahre or (5) Anders Jahre AS or (6) Sandefjord Municipality, and in each case their professional advisers, provided that such disclosure is made on terms that such matters are kept confidential. | |||
| 14. | Governing Law and Jurisdiction | |||
| This Agreement shall be governed by and construed in accordance with Norwegian law. The courts of Norway shall have exclusive jurisdiction to determine any dispute which may arise out of or in connection with this Agreement. | ||||
| 15. | Entire Agreement | |||
| Each of the parties to this Agreement confirms that, save as disclosed in writing between them upon execution, this Agreement represents the entire understanding between the parties, and constitutes the whole agreement between them, in relation to its subject matter and supersedes any previous agreement between the parties with respect thereto and, without prejudice to the generality of the foregoing, excludes any warranty, condition or other undertaking implied at law or by customs. | ||||
Schedule 1
Firma Anders Jahre
Anders Jahre AS
Anders Jahre & Co. AS
Bulls Tankrederi AS
Skibs AS Jaris (trading as Skibs Jaris or Jaris AS)
Skibs AS Noravind (trading as Skibs Noravind or Noravind AS)
Skibs AS Rose (trading as Skibs Rose or Rose AS)
Skibs AS Ranvik (trading as Skibs Ranvik or Ranvik AS)
Skibs AS Apache (trading as Skibs Apache or Apache AS)
Skibs AS Haugar (trading as Skibs Haugar or Haugar AS)
Pankos Operating Company
Continental Trust Company
A/B Jan
Spermacet Whaling Company SA
Spermacet Whaling & Shipping Company, SA
Crevettes du Cameroun, S.A.
Anders Jahre Rederi AS
Anders Jahre Rederi II AS
Anders Jahre Rederi III AS
Anders Jahre Rederi IV AS
Jasmin Operating Co.
Jacar Fund SA
Arizona Holding Corp.
Arizona Shipping & Trading Corp.
Western Operating Co.
Western Chartering Co.
Guardian Investment Trust SA
Sunday Trading Corp.
Continental Foundation
Chexof Trust
Tang Shipping Co.
Universal Trading & Shipping Co.
AS Marian
Indotanker Enterprises Inc
Monbusi Inc
And also, if the Monsen and Aall state that the following are not companies within their ownership and control, the obligation to produce documents extends to the following;
Clarmon Corp.
Clarmon Corp. (Cayman)
Harmon Corp.
Harmon Corp. (Cayman)
Amelon Corp Ltd (Cayman)
Amelon Corp (Liberia)
Larmal Corp
Alison Property Ltd
Alison Real Estate Ltd
Schedule 2
To:
| (a) | Lazard LLC, acting on its own behalf and as agent and on trust for each of its subsidiaries, controlling, associated and affiliated undertakings from time to time, and |
| (b) | each present and former partner, director, officer and employee, including Lord Kindersley (save only Bjørn Bettum, Per M Hansson and Terje Bratt), of Lazard LLC, its subsidiaries, controlling, associated and affiliated undertakings from time to time, |
In consideration of the payment to me by Lazard Bank Limited of £1 (one pound), receipt of which I acknowledge, I release and give up any claim I might have against any of you arising out of or connected in any way with the holding by Lazard Bank Limited of shares in Bulls Tankrederi A/S or the letter from David Thomson dated 22 June 1976 to Jørgen Jahre and Marian A/S concerning pre-emption rights over those shares.
This release shall be governed by and constructed in accordance with English law. The courts of England shall have exclusive jurisdiction to determine any dispute which may arise out of or in connection with it.
[The Personal Representative of Thor Jørgen Jahre]
Schedule 3
Translation from Norwegian
Judicial Settlement
In light of the evidentiary material that has been presented in this case, Lazard today acknowledges that:
Anders Jahre, himself or on behalf of Norwegian companies he controlled and/or managed, had exclusive and total control over the company CTC and its assets when he, through Bjørn Bettum in 1976, instructed Lazard to assist in the establishment of Continental Foundation, and that, unknown to Lazard at the time, part of Anders Jahre's and Bjørn Bettum's intention with respect to the establishment of Continental Foundation was to conceal the ownership of CTC from the public. While Lazard believed at the time that the Continental Foundation had been validly established, Lazard accepts that, as a result of the judgment of the Privy Council, the Continental Foundation was not a valid charitable foundation, and accordingly that its establishment did not affect the ownership of CTC.
Thorleif Monsen had no beneficial interest in CTC or its assets, when he acted as the formal settlor of Continental Foundation. Lazard accepts the Estate's contention that Thorleif Monsen acted as the formal settlor pursuant to instructions given by Bjørn Bettum on behalf of Anders Jahre or companies the latter controlled and/or managed.
The formal transfer of 65 shares of Bulls Tankrederi AS in 1975/76 from Anders Jahre Rederi AS to Lazard was intended to facilitate the use of further foreign assets for the partial financing of the Town Hall gift.
Lazard, Lord Kindersley and the Anders Jahre Estate have entered into a judicial settlement:
Lazard and Lord Kindersley have paid to the Anders Jahre Estate MUSD 41.5 in cash as settlement of for that part of the Estate's claim, which it makes jointly against Lazard, Lord Kindersley and Bettum, which is referable to Lazard and Lord Kindersley. This settlement does not encompass Bjørn Bettum's part of such claim which the Estate alleges that it has been caused by Lazard, Lord Kindersley and Bettum acting jointly, nor does it encompass damages which the Estate alleges that Bjørn Bettum has himself caused the Estate through the diversion of assets and/or the use of the foreign fortune to hinder the Estate.
Lazard has re-transferred the shares of BTAS to Anders Jahres Rederi AS by issuing a notification of transfer to Bulls Tankrederi, and simultaneously has destroyed the share certificates which are in the bank's possession.
Lazard and Lord Kindersley have refunded to the Anders Jahre Estate the counter value of GBP 170,000 in cash. This sum constitutes the case costs paid by the Anders Jahre Estate in connection with the withdrawal of the lawsuit in Great Britain in the fall of 1995.
The Estate as plaintiff and Lazard as the first defendant together with Lord Kindersley as the second defendant request that the case be withdrawn as settled, each side to bear its own case costs. The case shall continue between the Estate and the third defendant, Bjørn Bettum.
Schedule 4
Norwegian Proceedings
Plaintiff:
Estate of Anders Jahre, deceased, under probate in solemn form in the Sandefjord Probate Court
Defendants:
Lazard Brothers & Co. Limited
Robert Hugh Molesworth Kindersley
Bjørn Bettum
Cayman Proceedings
Plaintiff:
Bridge Trust Co. Ltd
Defendants:
The Attorney General of the Cayman Islands
Even Wahr-Hansen
Compass Trust Company Limited
Transworld Trustcompany
Aall Trust & Banking Corporation Ltd
Aall Group Inc.
Aall & Co Ltd. Inc.
Meriken Nominees Ltd.
Aall Investment Management (Cayman) Ltd.
Frank Flanagan
Mads Erik Monsen
Thomas John Monsen
Tove Brown
Chester Portfolio Ltd.
Lord Tryon
Forrester Holdings Ltd.
Guri McKinnell
Anchor Trust Co. Ltd.
Forrester Maritime Corporation Ltd.
Lazard Brothers & Co. Ltd.
Lord Kindersley
Arthur Hardman
Oriental Maritime Corporation Ltd
Fraser Matthews Fell
Robert Murray Sutherland
Ronald Neil Robertson
Alexander Desmond Thomas Givens
Roger David Wilson
Robert Burton Tuer
Ronald Joseph Rolls
Robert Kindsey Shirriff
Jack Warnica Huckle
William Anthony Kelly
Karl John Clayton Harries
Donald Scott Affleck
John Harrison Hough
John Michael Robinson
Richard Bann Potter
Alan Martin Schwartz
Ward R Passi
George Charles Glover Jr.
Robert Ward Mc Dowell
Allan M. Rock
Douglas R. Scott
Rudolph W. Gardner
Stephen T. Risk
Peter E. Brent
J. A. Campion
Robert W. Cosman
Robert S. Harrison
S. Bruce Blain
Jonathan A. Levin
William J. Bies
Peter L. Roy
John R. Varley
Douglas C. New
Eleanore C. Cronk
Rand A. Lomas
David G. Stinson
Esther L Lenkinski
David N. Corbett
Constance L. Sugiyama
Lorri Kushnir
Craig R. Carter
David Doubilet
Peter R. Greene
Maria Elena Hoffstein
Barbara Miller
Donald E. Milner
David W. Salomon
J. D. Vincent
Anthony F. Baldanza
Douglas A. Cannon
Eikland AS
English Proceedings
Plaintiff:
Even Wahr-Hansen, the personal representative of the estate of Anders August Jahre (deceased)
Defendants:
Aall Trust & Banking Corporation Ltd
Mads Erik Monsen
Thomas John Monsen
Tove Brown
Hurford Holdings Ltd
Compass Trust Co Ltd
Thorand (Cayman) Ltd
Robert N Slatter
Lazard Brothers & Co Ltd
The Right Honourable Robert Hugh Molesworth, Baron Kindersley
John A Worsley
Arthur James Hardman
Roberto R Aleman (senior)
The Right Honourable Anthony George Merrik, Baron Tryon of Durnford
Frank O Flanagan
The personal representative of Franklin Douglas Gibson deceased
Ian Cucknell
Forrester Holdings Ltd
Blue Range Corporation
Aall Group Inc
Aall & Co Ltd Inc
Aall Investment Management (Cayman) Ltd
Icaza Gonzales-Ruiz & Aleman
City Holdings Ltd
Village Holdings Ltd
Sterling Properties Ltd
Bank of Butterfield International (Cayman) Ltd
Meriken Nominees Ltd
Guri McKinnell
Oriental Maritime Corporation Ltd
Dennis Hunter
Cambridge Holdings Ltd
Fraser Matthews Fell
Robert Murray Sutherland
Ronald Neil Robertson
Alexander Desmond Thomas Givens
Roger David Wilson
Robert Burton Tuer
Ronald Joseph Rolls
Robert Lindsey Shirriff
Jack Warnica Huckle
William Anthony Kelly
Karl John Clayton Harries
Donald Scott Affleck
John Harrison Hough
John Michael Robinson
Richard Bann Potter
Alan Martin Schwartz
Ward R Passi
George Clarles Glover Jr
Robert Ward McDowell
Allan M Rock
Douglas R Scott
Rudolph W Gardner
Stephen T Risk
Peter E Brent
J A Campion
Robert W Cosman
Robert S Harrison
S Bruce Blain
Jonathan A Levin
William J Bies
Peter L Roy
John R Varley
Douglas C New
Eleanore A Cronk
Rand A Lomas
David G Stinson
Esther L Lenkinski
David N Corbett
Constance L Sugiyama
Lorri Kushnir
Craig R Carter
David Doubilet
Peter R Greene
Maria Elena Hoffstein
Barbara Miller
Donald E Milner
David W Salomon
J D Vincent
Anthony F Baldanza
Douglas A Cannon
Schedule 5
THIS GUARANTEE is entered into [ ] 2001
BETWEEN
The Norwegian Ministry of Justice on behalf of the Kingdom of Norway whose address is Oslo-dep, Oslo, Norway;
Lazard LLC whose registered office is situated at 1209 Orange Street, Wilmington, Delaware, USA, acting on its own behalf and as agent and on trust for each of its subsidiaries, controlling, associated and affiliated undertakings as of the date of this agreement, and any new entities formed in the future to manage all or part of Lazard LLC's existing business under a genuine corporate reconstruction («the Lazard Group»); and
The Right Honourable Robert Hugh Molesworth Baron Kindersley of West Green Farm, Shipbourne Road, Shipbourne, Kent, TN11 9PU («Lord Kindersley»).
WHEREAS:
The Kingdom of Norway, represented by the Ministry of Justice, is acquainted with the terms and conditions of the Settlement Agreement entered into on 3 October 2001 by the Estate of Anders Jahre («the Estate»), Even Wahr-Hansen, the Lazard Group and Lord Kindersley («the Settlement Agreement»);
Now the parties agree as follows:
The Ministry of Justice on behalf of the Kingdom of Norway hereby guarantees to the Lazard Group the full and faithful performance by the Estate of its obligations towards the Lazard Group in accordance with Clause 7.1 and 8.3 of the Settlement Agreement, and will on the Lazard Group's first written demand pay to the Lazard Group any sum that may be payable in consequence of the non-performance of the Estate. The protection for the Lazard Group shall also apply to its Insurers in accordance with the provisions of Clause 10.2 of the Settlement Agreement and the Insurers of Lazard Group may themselves make demands under this Guarantee. This Guarantee shall also have effect after the Estate has been concluded.
The Ministry of Justice on behalf of the Kingdom of Norway hereby guarantees to Lord Kindersley the full and faithful performance by the Estate of its obligations towards Lord Kindersley in accordance with Clause 7.2 and 8.3 of the Settlement Agreement, and will on Lord Kindersley's first written demand pay to Lord Kindersley any sum that may be payable in consequence of the non-performance of the Estate. This Guarantee shall also have effect after the Estate has been concluded.
All payments under this Guarantee shall be made without any set-off or counterclaim howsoever arising and shall be free and clear of and without deduction of, or withholding for or on account of, any amount which is then due and payable by way of taxes or for any other reason to the Kingdom of Norway.
This Guarantee shall be governed by and construed in accordance with Norwegian law. The courts of Norway shall have exclusive jurisdiction to determine any dispute which may arise out of or in connection with this Guarantee.
Schedule 6
Translation from Norwegian
REVISED STATEMENT OF CLAIM:
On behalf of Anders Jahre's estate we submit the following
STATEMENT OF CLAIM:
That Bjørn Bettum is to pay to Anders Jahre's estate under public administration at Sandefjord Probate Court his share of the joint and several liability with Lazard Bank Limited and Hugo Kindersley, determined taking into account the provisions of section 2 second paragraph of the Act on Debt Instruments and section 5-3 no 2 of the Act relating to Compensation in Certain Circumstances, for the following losses:
the value in Norwegian krone of USD 127,973,292 with the addition of compensation for loss of interest corresponding to the average interest on bank overdraft facilities from 7 February 1985 until payment is effected;
NOK 394,700,405 with the addition of interest pursuant to the Act on Interest on Overdue Payments from 1 January 2000 until payment is effected; and
NOK 54,500,000 with the addition of interest pursuant to the Act on Interest on Overdue Payments from 30 May 1996/the due date until payment is effected.
That Bjørn Bettum is to pay the costs of the case to Anders Jahre's estate under public administration at Sandefjord Probate Court with the addition of interest pursuant to the Act on Interest on Overdue Payments from the due date until payment is effected.
Appendix
I Letter of 26 October 2001 from Lazard's lawyer to the Estate's English lawyer
«We refer to the above Settlement Agreement and our meeting of 24 October 2001 at the offices of Jones Day. We write to set out formally our agreement to the matters discussed. We have spoken to Travers Smith Braithwaite and are writing this letter on behalf of both the Lazard Group and Lord Kindersley.
1. Confidentiality and Schedule 3
The Lazard Group and Lord Kindersley waive their rights under Clause 13.1(ii) of the Settlement Agreement to have the contents of Schedule 3 kept confidential between the parties to the extent that they will permit you to disclose it to the Norwegian Parliament in order to obtain Parliament's consent to the State Guarantee. The Lazard Group and Lord Kindersley reserves all their other rights as to the consequences of such disclosure, including as to its effect on any trial in Norway should the Settlement Agreement not complete.
2. Clause 6.4
While we recognise the usefulness of a mutual release, due to the uncertainties surrounding the future progress of this litigation, we are unable to bind Lazard/Lord Kindersley at this stage. However, we will be happy to discuss this at a later date should the need arise.
3. Schedules 2 and 3
We refer to your proposed amendments and confirm on behalf of the Lazard Group and Lord Kindersley that Schedules 2 and 3 of the Settlement Agreement are to be substituted with the initialled drafts attached hereto.»
[Remark: Schedules 2 and 3 above are in accordance with the drafts attached to this letter.]
II Fax of 30 October 2001 from Lazard's lawyer to the Estate's English lawyer
«We are writing to respond to the e-mail sent yesterday from Robert Thomson to Matthew Weiniger requesting an extension to the period within which the Norwegian Ministry must provide a letter confirming that it will present the State Guarantee to Parliament pursuant to clause 2.1 (a) of the Settlement Agreement. The parties currently contemplate that this letter must be supplied by 31 October 2001.
We hereby confirm that the period may be extended to 14 November. However, this is on the basis that during the period 1 to 14 November inclusive, interest on the settlement moneys under clause 2.1(c) shall be payable at the rate that would be earned on money in the escrow account (Courts account no. 10211601) rather than at the 4% rate set out in the Agreement for the period from 1 August to the date the settlement money is paid into escrow.»
III Fax of 31 October 2001 from Lazard's lawyer to the Estate's English lawyer
«We refer to the conversation earlier today between Robert Thomson and Matthew Weinigar.
For the avoidance of doubt, we are writing to confirm that it is agreed between the parties that the agreed extension of the time limit in relation to clause 2.1(a) of the Settlement Agreement until 14 November includes a like extension of the time within which Lazard must obtain its Insurers' approval of the Settlement Agreement pursuant to clause 2.1(b) and pay the settlement funds into the escrow account pursuant to clause 2.1(c). As you are aware, we will require 2 working days from the date of receipt of the Minister's letter of confirmation to pay the money into escrow. Accordingly, if the money is to be paid by 14 November, we will need to receive the letter of confirmation by Monday, 12 November.»