EXHIBIT 2.2
APPENDIX TO
SALES AGREEMENT CONCERNING SHARES
Dated January 16, 1998, as amended
BETWEEN
XXXXXX XXXXXXX, XXXXXXX XXXXX AND XXXX XXXXXXXXXX
as the Seller
AND
ERSTE CINCO VERMOGENSVERWALTUNGS GMBH
as the Buyer
AND
QUADRANT INTERNATIONAL, INC.,
as QUADRANT
DATED: AS OF JANUARY 16, 1998
TABLE OF CONTENTS
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Page
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Section 1. Consideration and Delivery......................................... 3
1.1 Payment of Consideration........................................... 3
1.2 Initial Payment Closing Date Deliveries............................ 3
Section 2. Representations and Warranties of the Shareholders................. 3
2.1 XXXXX.............................................................. 4
2.2 Subsidiaries, Partnerships, Joint Ventures......................... 4
2.3 Authority Relative to Sales Agreement and Appendix................. 4
2.4 Capitalization..................................................... 5
2.5 Officers and Directors............................................. 5
2.6 Financial Statements............................................... 5
2.7 Borrowings and Guarantees.......................................... 5
2.8 Real Property...................................................... 6
2.9 Personal Property.................................................. 6
2.10 Leaseholds......................................................... 6
2.11 Insurance.......................................................... 6
2.12 Intellectual Property.............................................. 6
2.13 Labor Matters...................................................... 7
2.14 Employee Benefits.................................................. 7
2.15 Material Contracts................................................. 7
2.16 Compliance with Laws............................................... 8
2.17 Tax Matters........................................................ 8
2.18 Conduct of Business................................................ 9
2.19 Bank Accounts...................................................... 10
2.20 Powers of Attorney................................................. 10
2.21 Books of Account; Returns and Reports.............................. 10
2.22 Raw Materials...................................................... 10
2.23 Diligence Investigation............................................ 10
Section 3. Representations of QUADRANT and CINCO.............................. 11
3.1 Organization and Qualification..................................... 12
3.2 QUADRANT Stock to be Delivered..................................... 12
3.3 Financial Statements............................................... 12
Section 4. Additional Agreements of the Parties............................... 12
4.1 Consents........................................................... 12
4.2 Maintain Subject Business as a Going Concern....................... 12
4.3 Consent to Jurisdiction in Connection with Appendix................ 13
4.4 Stock Options and Capital Contributions............................ 14
4.5 Exchange Rate Guarantee............................................ 14
Section 5. Right to Investigate............................................... 14
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Section 6. Conditions to the Obligations of All Parties....................... 14
Section 7. Conditions to the Obligations of QUADRANT and CINCO................ 15
7.1 Representations and Warranties..................................... 15
7.2 Absence of Changes................................................. 15
7.3 Consents........................................................... 15
7.4 Approval of Legal Matters by Xxxxxxxxxx, Xxxxxxxxx & Xxxxxx LLP.... 16
7.5 Legality; Litigation Affecting Initial Payment Closing............. 16
7.6 Employment Agreements.............................................. 16
Section 8. Conditions to the Obligations of the Shareholders.................. 16
8.1 Corporate Authorization............................................ 16
8.2 Representations and Warranties..................................... 16
8.3 Consents........................................................... 17
8.4 Approval of Legal Matters by Counsel to the Shareholders and XXXXX. 17
8.5 Legality; Litigation Affecting Initial Payment Closing............. 17
Section 9. Indemnification.................................................... 17
9.1 Indemnification by the Parties..................................... 17
Section 10. Certain Covenants of the Parties................................... 18
10.1 Separate Existence of XXXXX........................................ 18
10.2 Location of XXXXX Entity Office.................................... 18
10.3 Shareholders' Right to Co-Own the Intellectual Property............ 18
10.4 Full Time Effort by the Shareholders............................... 18
Section 11. Termination, Amendment and Waiver.................................. 19
11.1 Termination........................................................ 19
11.2 Effect of Termination.............................................. 19
11.3 Amendment.......................................................... 19
11.4 Extension; Waiver.................................................. 19
11.5 Prior Agreement.................................................... 19
Section 12. Broker's and Finder's Fees......................................... 19
Section 13. No Public Announcement............................................. 20
Section 14. Notices............................................................ 20
Section 15. Interpretation..................................................... 20
Section 16. Cooperation........................................................ 21
Section 17. Waiver, Discharge, Etc............................................. 21
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Section 18. Non-Competition.................................................... 21
Section 19. Miscellaneous...................................................... 22
ANNEXES and EXHIBITS to APPENDIX
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DATED JANUARY 16, 1998
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ANNEXES
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A Required Consents and Approvals
B List of Directors, Officers and Employees of XXXXX
C List of Borrowings and Guarantees
D List of all Leases of Real Property and Personal Property
E Description of Insurance Coverage
F Intellectual Property
G List of all Material Contracts, etc.
H Bank Accounts
EXHIBITS
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1. Form of Investment Representation Letter
2. Form of Shareholders' Employment Agreement
3. Form of Joinder to Shareholders Agreement
4. Form of Stock Option Agreement
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APPENDIX TO SALES AGREEMENT
DATED AS OF JANUARY 16, 1998
THIS APPENDIX TO SALES AGREEMENT made and entered into as of January
16, 1998 (to be effective as of December 31, 1997) (the "Appendix"), between
QUADRANT INTERNATIONAL, INC., a corporation organized under the laws of the
Commonwealth of Pennsylvania ("QUADRANT"), ERSTE CINCO VERMOGENSVERWALTUNGS
GmbH, a GmbH organized under the laws of the Federal Republic of Germany and a
wholly-owned subsidiary of QUADRANT ("CINCO"), and Xxxxxxx Xxxxx, Xxxx
Xxxxxxxxxx and Xxxxxx Xxxxxxx, being the holders of all of the share capital
(the "Shareholders" ) of XXXXX DEVELOPMENT HARD & SOFTWARE ENGINEERING GmbH, a
GmbH organized under the laws of the Federal Republic of Germany ("XXXXX").
W I T N E S S E T H :
WHEREAS, pursuant to a Sales Agreement Concerning Shares entered into
and consummated on the date hereof (to be effective as of December 31, 1997)
between the Shareholders, CINCO and QUADRANT and as amended March 23, 1998 (the
"Sales Agreement"), CINCO acquired from the Shareholders all of the share
capital (the "Shares") of XXXXX on January 16, 1998 (the "Acquisition"); and
WHEREAS, the Shareholders, CINCO and QUADRANT desire to set forth
additional representations, warranties, agreements and conditions to the Sales
Agreement and related Acquisition as set forth in, and required by, Section 9.2
of the Sales Agreement; and
WHEREAS, the parties agree that this Appendix shall be attached to and
become a part of the Sales Agreement but it is not intended to and shall not
change any of the provisions of the Sales Agreement but rather serve to clarify
and complement the Sales Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements,
representations and warranties hereinafter set forth in this Appendix and the
Annexes and Exhibits hereto, and other valuable consideration the receipt of
which is hereby acknowledged, QUADRANT, CINCO and the Shareholders hereby
further agree as follows:
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Section 1. Consideration and Delivery.
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1.1 Payment of Consideration. The payment of the consideration for
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the Acquisition shall be made on the dates and in the amounts as set forth in
Schedule A to the Sales Agreement (the "Initial Payment Closing") which will be
consummated no later than ten (10) days after the closing of a private
placement, but in no event later than April 30, 1998. The date and time of the
Initial Payment Closing is hereinafter called the "Initial Payment Closing
Date". QUADRANT, CINCO and the Shareholders agree to use their best efforts to
satisfy promptly all conditions to the respective obligations of the parties
under this Appendix in order to consummate the Acquisition and the additional
transactions required by this Appendix and the Annexes and Exhibits attached
hereto on the date aforesaid, or, if the parties are unable after using such
best efforts to close on such date, to close as soon thereafter as is reasonably
practicable.
1.2 Initial Payment Closing Date Deliveries. (a) On the Initial
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Payment Closing Date, the Shareholders shall deliver (i) to CINCO evidence of
the transfer of title to the Shares to CINCO effective the date hereof,
accompanied by any requisite transfer tax stamps; (ii) to QUADRANT an Investment
Representation Letter from each of the Shareholders substantially in the form of
Exhibit 1 hereto; (iii) to QUADRANT executed Employment Agreements between each
of the Shareholders and XXXXX in the form of Exhibit 2 hereto and evidence that
Xxxxxx Xxxx and Xxxxxxx Xxxxxxxx have entered into employment agreements with
XXXXX in form satisfactory to QUADRANT; (iv) an executed copy of a Joinder to
Shareholders' Agreement among the QUADRANT Shareholders from each of the
Shareholders substantially in the form of Exhibit 3 hereto; and (v) QUADRANT and
the recipients of the stock options pursuant to Section 4.4 shall execute and
deliver Stock Option Agreements in substantially the form of Exhibit 4 hereto.
(b) On the Initial Payment Closing Date, CINCO shall deliver or
transfer the Cash Payment and Stock Payment as set forth on Schedule A to the
Sales Agreement.
Section 2. Representations and Warranties of the Shareholders.
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The Shareholders, jointly and severally, represent and warrant to,
and agree with QUADRANT and CINCO as follows:
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2.1 XXXXX. XXXXX is a GmbH duly organized, validly existing and in
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good standing under the laws of the Federal Republic of Germany, has the power
to own and lease its properties and to carry on its business as now being
conducted and is not required to qualify to do business in any other
jurisdiction. The Shareholders have caused to be delivered to QUADRANT, true and
complete copies of the charter documents and by-laws, or other constituent
documents of XXXXX as in effect on the date hereof which instruments will not be
amended except as contemplated by the Sales Agreement or this Appendix, or
required by law.
2.2 Subsidiaries, Partnerships, Joint Ventures. XXXXX does not have
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any equity or other proprietary interest in any corporation, partnership, joint
venture or other business entity.
2.3 Authority Relative to Sales Agreement and Appendix. Each
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Shareholder has the capacity, full legal right, power and authority to enter
into the Sales Agreement and this Appendix, and each of the Sales Agreement and
this Appendix is binding upon, and enforceable against, each of the Shareholders
in accordance with its terms, and no further action by the Shareholders, except
for the appearance before a German Notary on the date hereof to approve the
Sales Agreement, is required in order to consummate the within transactions. The
transfer to CINCO of the Shares contemplated by the Sales Agreement shall vest
in CINCO legal title to the Shares free and clear from all mortgages, liens,
claims and other encumbrances whatsoever. None of the execution and delivery of
the Sales Agreement and this Appendix by the Shareholders, consummation by the
Shareholders of the transactions contemplated hereby, or compliance by the
Shareholders with the terms and provisions of the Sales Agreement and this
Appendix, will conflict with, violate or result in a breach of any of the terms,
conditions or provisions of VIONA's Articles of Association or by-laws, or of
any statute, judgment, order, injunction, decree, regulation or ruling of any
court or governmental authority to which XXXXX is subject. The consummation of
the transactions contemplated by the Sales Agreement and this Appendix will not
result in the breach of any agreement, contract or commitment of XXXXX, or
constitute a material default thereunder, or give to others any rights of
termination, cancellation or acceleration thereunder, other than as set forth on
Annex A, nor will any indenture, instrument, agreement, contract or commitment
to which XXXXX is a party be violated or breached so as to prevent such
consummation. No authorization, consent or approval of, or
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filing with, any public body or authority is or will be necessary for the
execution, delivery or performance of the Sales Agreement or this Appendix by
the Shareholders or the consummation by the Shareholders of the transactions
contemplated by the Sales Agreement or this Appendix, except as may be set forth
on Annex A.
2.4 Capitalization. The total authorized share capital of XXXXX
--------------
consists solely of DM 52,500, and all of such share capital is validly issued
and outstanding, fully paid and nonassessable. There are not any subscriptions,
options, calls or other agreements, commitments or demands of any character,
obligating XXXXX to issue any share capital or securities convertible into share
capital of XXXXX or which restrict the transfer of the share capital currently
held by the Shareholders.
2.5 Officers and Directors. Annex B contains a list of the
----------------------
directors, officers and employees of XXXXX. XXXXX has heretofore furnished to
QUADRANT a list setting forth the rates of compensation being paid by XXXXX to
each such director, officer and employee, and the term of office of each if not
terminable at will by VIONA's Board of Directors.
2.6 Financial Statements. Since the date of the financial statements
--------------------
referred to in Section 5.1 of the Sales Agreement, there has not been any
materially adverse change in the financial condition, assets or properties,
operations or business including any damage or destruction of property by fire
or other casualty, whether or not covered by insurance, or any conduct of
business other than in ordinary course, with respect to XXXXX.
2.7 Borrowings and Guarantees. Annex C lists all notes, mortgages,
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indentures and other obligations and agreements and other instruments for or
relating to any lending or borrowing (including assumed debt) in excess of
$10,000 effected by XXXXX or to which XXXXX is a party or to which any of its
properties or assets is subject. Except as disclosed in Annex C, XXXXX is not
directly or indirectly liable upon or with respect to any other debt or
obligation relating to any lending or borrowing, except (i) as made in the
ordinary course of business or (ii) as does not exceed $25,000 in the aggregate.
The Shareholders have furnished QUADRANT true and complete copies of each
document referred to in Annex C.
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2.8 Real Property. XXXXX does not own any real property.
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2.9 Personal Property. The personal property of XXXXX is not subject
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to any liens, encumbrances or imperfections of title (except for liens for
current taxes not yet payable) which either have not been reflected or reserved
for on the books and records of XXXXX or which would reduce the book value of
such properties to less than that reflected on such books and records.
2.10 Leaseholds. Annex D lists all leases or agreements under which
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XXXXX is lessee of or holds any real property, or is the lessee of or holds any
personal property, where the annual rental payable is in excess of $25,000 per
year, or where, in the case of real property, the term extends beyond one year.
Except as set forth on Annex D, each of the leases listed on Annex D is, to the
best knowledge of XXXXX, valid and enforceable, XXXXX has not received any
notice of default by it under the terms of any such instrument, which default
remains uncured as of the date hereof, and XXXXX is not in material default
under the terms of any such instrument.
2.11 Insurance. Annex E lists all policies of insurance covering
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XXXXX, any of VIONA's properties and the directors and officers of XXXXX,
(specifying the insurer, amount of coverage, type of insurance, policy number).
Any pending claims against or by XXXXX which are material to XXXXX are listed in
Annex E. True copies of all such policies have been delivered to QUADRANT. Such
policies are in amounts which are deemed to be adequate by the Shareholders,
provide coverage in accordance with industry norms, and will be maintained in
effect through the Initial Payment Closing Date. All of the policies listed on
Annex E are currently in effect and there has not been any failure to give any
notice or to present any claim under any insurance policy in due and timely
fashion which claim is material to XXXXX.
2.12 Intellectual Property. Annex F lists all patent, trademark and
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copyright registrations (registered or common law) and applications owned by
XXXXX, and all of the products and technology produced by XXXXX (the
"intellectual property").
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The Shareholders represent and warrant that: (i) all of the
intellectual property listed on Annex F is presently existing and has not been
abandoned; (ii) all of the intellectual property created by or for XXXXX as set
forth on Annex F was developed and executed by XXXXX employees as consultants
bound by written work made for hire agreements and assignment agreements
providing for VIONA's proprietary ownership of the respective intellectual
property set forth; (iii) no other firm, corporation, association or person has
(a) the right to use any such intellectual property in commerce on the products
on which they are now being used either in identical form thereof or in such
near resemblance thereof as to be likely, when applied to the goods of any such
person, to cause confusion or to cause mistake or to deceive, (b) claimed any
ownership or right to use such intellectual property; or (c) is infringing upon
any such intellectual property in any material way; and (iv) XXXXX has not
received any form of notice that any such intellectual property is alleged to be
invalid or to infringe upon the rights of any other person. Notwithstanding the
provisions of Section 2.12(i) through (iv), the Shareholders acknowledge and
agree that XXXXX and QUADRANT have been sharing the right to use, develop,
license and sell the intellectual property (ownership right) and shall continue
to share this right to the intellectual property as listed on Annex F.
2.13 Labor Matters. XXXXX is not a member of an association of
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employers. The Shareholders are not aware of any notice having been received by
XXXXX of any unresolved violation or alleged violation of any law or regulation
relating to civil or human rights or employment laws generally.
2.14 Employee Benefits. XXXXX does not have any employee benefits
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other than optional Christmas and holiday payments, the benefits listed on Annex
E for Messrs. Xxxxxxx, Xxxxx and Xxxxxxxxxx (a copy of these contracts have been
delivered to QUADRANT) and those benefits required by German law.
2.15 Material Contracts. Except as set forth in Annex G or elsewhere
------------------
in this Appendix or any Annex hereto, XXXXX is not a party to any (a) contract
with any director, officer or employee of XXXXX, or any member of his or her
family or any entity affiliated with any such person; (b) consulting agreement
(requiring payments in excess of $10,000 per year or aggregate payments in
excess of $25,000); (c) agreement (requiring total payments in excess of
6
$50,000) for the construction of plants or facilities or associated
architectural, engineering or other related services; (d) distributor, dealer,
manufacturer's representative, sales agency or advertising agency contract which
is not terminable on 90 days' (or less) notice without premium or penalty; (e)
joint venture contracts or any other agreement involving the sharing of profits;
(f) license or distributor agreements; (g) material permits, licenses or
approvals (other than qualification to do business) issued by any governmental
authority or agency; (h) material contracts terminable by the other party
thereto upon a change of control of XXXXX; or (i) other contracts, agreements or
arrangements, entered into other than in the ordinary course of business,
involving an estimated total payment or payments in excess of $50,000. True and
correct copies of each contract or agreement listed on Annex G have been
delivered to QUADRANT.
Except as set forth in Annex G, all contracts, agreements, plans and
arrangements listed on Annex G are in full force and effect and, to the best
knowledge of the Shareholders, are without any default by any party thereto.
2.16 Compliance with Laws. References is made to Section 5.6 of the
--------------------
Sales Agreement. In addition, XXXXX has not been notified by any regulatory
authority that it is in violation of any statute, ordinance, regulation or order
which have application to its business, and the Shareholders are not aware of
any violation of any such law, ordinance, regulation or order which would result
in any loss or expense which would be material to XXXXX. All material licenses
and permits necessary for the conduct of the business of XXXXX consistent with
past practices are in force and effect. No unresolved violations are or have
been recorded in respect of any such license or permit of XXXXX and no
proceeding is pending or threatened to revoke or limit any such license or
permit. There are no inspection reports or similar communications issued or
released by any governmental authority relating to the business or properties of
XXXXX, and which asserts a deficiency not yet corrected or a matter still in
dispute, which deficiency or matter is material to XXXXX.
2.17 Tax Matters. All taxes assessed by any governmental authority
-----------
have been fairly reflected on the books of XXXXX in accordance with generally
accepted accounting practices consistently applied, and the required tax returns
have been filed or legal extensions of
7
time for filing have been obtained. No taxing authorities have asserted any
unresolved deficiencies with respect to tax liabilities.
2.18 Conduct of Business. Since January 1, 1997, XXXXX has not done
-------------------
or agreed to do any of the following, other than as set forth in the Annexes
hereto or as permitted or contemplated by the Sales Agreement or this Appendix:
(a) issue any share capital, notes, or other corporate securities or debt
instruments, or grant any options, warrants or other rights calling for the
issue thereof; (b) incur, assume, guarantee, or become subject to, or surety on,
any indebtedness or obligation relating to any lending or borrowing or any other
liability or commitment except current liabilities and commitments incurred in
the ordinary course of business; (c) pay any obligation or liability other than,
in the ordinary course of business; (d) declare or make any payment of dividends
or distributions of any assets of any kind whatsoever to shareholders or
purchase or redeem any of its share capital; (e) purchase or lease any real
property; (f) mortgage, pledge or subject to lien, charge or any other
encumbrance any of its assets, tangible or intangible; (g) enter into any
transaction other than in the ordinary course of business; (h) increase the rate
of regular or special compensation payable to or to become payable by it to any
of its officers, employees, consultants, or agents over the rate being paid them
at January 1, 1997, other than normal merit increases, or pay any severance or
termination pay to any officer, employee or consultant other than pursuant to
its normal business practice; (i) make any increase in any bonus, insurance,
pension or other employee benefit plan payments or arrangements made to, for or
with any officers or employees; (j) introduce any new or materially changed
method of management, operation or accounting in respect of its business or any
of the assets, properties or rights applicable thereto; (k) conduct its business
other than in the ordinary course consistent with past practice; or (1) enter
into any contract, agreement or other instrument (including amendments) of the
type specified in Section 2.15 hereof; (m) merge or consolidate with any other
corporation or similar entity or sell all or substantially all of its assets and
business or acquire all or substantially all of the stock or business or assets
of any other person, firm, association, corporation or business organization, or
agree to do any of the foregoing; (n) sell, assign or transfer any patents,
trademarks, trade names, copyrights, or other material intangible assets; (o)
waive any right of material value; or (p) make any change in its Articles of
Association or other governing instruments.
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Except as contemplated by the Sales Agreement and this Appendix,
between the date hereof and the Initial Payment Closing Date, XXXXX will not,
without prior disclosure to and written consent of QUADRANT, do any of the
things listed in the preceding paragraph. Notwithstanding the provisions of this
Section 2.18, the Shareholders have informed QUADRANT that in 1997 partnership
interests in XXXXX of one percent (1%) were bought back by XXXXX for DM 500.00
and with respect to a capital appreciation the partnership interests in XXXXX
were each increased to DM 17,500.00, for a total capital contribution of DM
52,500.00. In addition, the power of attorney held by Xx. Xxxxxx Xxxxxxxx, who
resigned as fully authorized officer getting a severance payment of DM
95,000.00, was withdrawn. Furthermore, notwithstanding the provisions of this
Section 2.18, the Shareholders have informed QUADRANT that they have passed a
Shareholders' Agreement concerning declaration of dividends for the year 1996
and concerning establishing of accruals.
2.19 Bank Accounts. Annex H contains a complete list of all bank
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accounts maintained by XXXXX and all persons entitled to draw thereon. The
Shareholders have delivered to QUADRANT a complete list of safe deposit boxes
listing all persons with access thereto.
2.20 Powers of Attorney. The Shareholders have delivered to QUADRANT
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a complete list of all persons holding powers of attorney from XXXXX, together
with copies of such powers of attorney, including the Power of Attorney held by
Xxxxxxxx Xxxx of the law firm of Xxxxxx & Partner to legally represent XXXXX.
2.21 Books of Account; Returns and Reports. The books of account of
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XXXXX reflect its significant items of income and expense, and its significant
assets, liabilities and accruals.
2.22 Raw Materials. XXXXX is not experiencing any interruption in
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the supply of raw materials which has had or threatens to have any material
adverse effect on the business of XXXXX.
2.23 Diligence Investigation. The Shareholders have made a diligent
-----------------------
effort in the Annexes to this Appendix and in meetings with representatives of
QUADRANT and in other
9
materials delivered to QUADRANT to communicate to QUADRANT all information
(other than information generally known in the industry) which the Shareholders
believe would materially adversely affect the business of XXXXX. No annex,
exhibit or other information furnished by the Shareholders to QUADRANT in
connection with the Sales Agreement or this Appendix contains any untrue
statement of a material fact or omits a material fact which thereby in light of
the circumstances in which it was made, or omitted, could mislead QUADRANT or
its representatives.
Section 3. Representations of QUADRANT and CINCO.
-------------------------------------
QUADRANT and CINCO represent and warrant to, and agree with, the
Shareholders as follows:
3.1 Organization and Qualification. QUADRANT is a corporation duly
------------------------------
organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania and CINCO is a GmbH duly organized, validly
existing and in good standing under the laws of the Federal Republic of Germany,
and each has all requisite corporate power and authority to enter into and carry
out its obligations under the Sales Agreement and this Appendix and the Sales
Agreement and this Appendix constitute binding obligations of each of QUADRANT
and CINCO enforceable against them according to its terms, except as may be
limited by laws of general application. The execution and delivery of the Sales
Agreement and this Appendix and the consummation of the transactions
contemplated thereby and hereby have been duly authorized by the Board of
Directors of QUADRANT and all necessary corporate action on behalf of CINCO has
been taken and no other corporate proceedings on the part of either QUADRANT or
CINCO (including shareholder action) are necessary to authorize the Sales
Agreement and this Appendix and the transactions contemplated thereby and
hereby. None of the execution and delivery of the Sales Agreement and this
Appendix by QUADRANT and CINCO, consummation by QUADRANT and CINCO of the
transactions contemplated thereby and hereby or compliance by QUADRANT and CINCO
with the terms and provisions thereof and hereof, will conflict with or result
in the breach of any of the terms, conditions or provisions of the Certificate
of Incorporation or By-Laws of QUADRANT, or the Article of Association and other
corporate documents of CINCO, or of any statute, judgment, order, injunction,
decree, regulation or ruling of any court or governmental authority to which
QUADRANT or CINCO is subject or of any agreement, contract or commitment which
is
10
material to the business or properties of QUADRANT or CINCO, or constitute a
material default thereunder, or give to others any material rights of
termination, cancellation or acceleration thereunder. No authorization, consent
or approval of, or filing with, any public body or authority is necessary for
the consummation by CINCO and QUADRANT of the transactions contemplated by the
Sales Agreement and this Appendix, except as may be set forth on Annex A.
3.2 QUADRANT Stock to be Delivered. The shares of QUADRANT Common
------------------------------
Stock which are to be delivered by CINCO pursuant to Schedule A of the Sales
Agreement will be, when so delivered, validly authorized, duly issued, fully
paid and nonassessable.
3.3 Financial Statements. QUADRANT has furnished to the Shareholders
--------------------
audited financial statements for the years ended December 31, 1995 and 1996 and
unaudited monthly financial statements for the period January 1, 1997 through
November 30, 1997. Such financial statements fairly present the financial
condition at the dates of the Balance Sheets and the results of operations of
QUADRANT for the periods indicated. Since November 30, 1997 there has been no
material adverse change in the business or financial condition of QUADRANT.
Section 4. Additional Agreements of the Parties.
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4.1 Consents. The Shareholders agree to use their best efforts to
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obtain, prior to the Initial Payment Closing Date, any required consents to the
consummation of the transactions contemplated by the Sales Agreement or this
Appendix, in form and substance satisfactory to QUADRANT, CINCO and their
counsel.
4.2 Maintain Subject Business as a Going Concern. Prior to the
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Initial Payment Closing Date, the Shareholders, working with QUADRANT and CINCO,
shall use their best efforts to cause XXXXX to maintain its assets, properties
and business in accordance with past practices and sound business judgment and
to preserve the goodwill of the suppliers, employees, customers and others
having business relations with XXXXX.
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4.3 Consent to Jurisdiction in Connection with Appendix. (a) To the
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extent that German law does not imperatively govern the Sales Agreement and this
Appendix, each of the Shareholders hereby irrevocably submits to the
jurisdiction of any state or federal court sitting in the Borough of Manhattan,
City and State of New York for purposes of any suit, action or proceeding
arising out of or related to the provisions of this Appendix and the Annexes and
Exhibits hereto. Nothing contained in this Section 4.3 shall conflict with or
supersede the provisions of Section 10.4 of the Sales Agreement which shall be
applicable to the terms of the Sales Agreement as well as those terms of the
Appendix repeating and/or explaining and/or detailing and/or executing terms and
conditions of the Sales Agreement. Each of the Shareholders hereby irrevocably
waives, to the fullest extent permitted by law, any objection which he may have
to the laying of the venue of any such suit, action or proceeding brought in
such a court and any claim that any such suit, action or proceeding brought in
such a court has been brought in an inconvenient forum as it relates to issues
arising under this Appendix. Each of the Shareholders also agrees that final
judgment in any such suit, action or proceeding brought in such court shall be
conclusive and binding upon him and may be enforced in any court, to the
jurisdiction of which he is subject, by a suit upon such judgment; provided,
however, that service of process is effected upon him in the manner specified
herein.
(b) Each of the Shareholders agree that service of all writs, claims,
process and summonses in any suit, action or proceeding described above against
him in the State of New York may be made upon Corporation Service Company, 00
Xxxxx Xxxxxx, Xxxxxx, XX 00000-0000 (the "Process Agent"), and each of the
Shareholders irrevocably appoints the Process Agent as his agent and true and
lawful attorney-in-fact in his name, place and xxxxx to accept such service of
any and all such writs, claims, process and summonses, and agrees that the
failure of the Process Agent to give any notice to him of any such service of
process shall not impair or affect the validity of such service or of any
judgment based thereon. Each of the Shareholders agrees to maintain for a
period of three (3) years after the Initial Payment Date an agent with offices
in New York to act as his Process Agent. According to Section 10.1 of the Sales
Agreement, the costs of the Process Agent shall be borne by QUADRANT. Nothing
herein shall in any way be deemed to limit the ability to serve any such writs,
process or summonses in any other manner permitted by applicable law.
12
4.4 Stock Options and Capital Contributions. QUADRANT agrees to issue
---------------------------------------
to employees of XXXXX, as agreed to between QUADRANT and the Shareholders,
options to purchase 4,700,000 shares of QUADRANT's Common Stock (all such
options to be at an exercise price of $.25 per share), to be evidenced by Stock
Option Agreements in the form of Exhibit 4. QUADRANT further agrees to make a
capital contribution to XXXXX to the total amount of $1,000,000.00, payable in
two installments to the amount of $500,000.00 each no later than April 30, 1998
and September 30, 1998. Such capital contributions will be applied to the
benefit plan established on behalf of the XXXXX employees.
4.5 Exchange Rate Guarantee. Quadrant guarantees that the cash
-----------------------
payment in the amount of $ 850,000.00 according to Schedule A of the Sales
Agreement will be at an exchange rate of DEM 2.00 per USD $1.00.
Section 5. Right to Investigate. After the date hereof, and at all
--------------------
times prior to the Initial Payment Closing Date, the Shareholders shall afford
to representatives of QUADRANT and CINCO, reasonable access to the offices,
plants, properties, books, contracts and records of XXXXX during normal business
hours, in order that QUADRANT may have full opportunity to make such
investigations as it desires of the affairs and assets of XXXXX. In the event of
termination of the Sales Agreement and this Appendix QUADRANT shall, at the
request of the Shareholders, deliver to XXXXX all documents, work papers and
other material obtained by QUADRANT and CINCO, or on their behalf, from XXXXX
and all copies thereof, whether so obtained before or after the execution of the
Sales Agreement and this Appendix, and shall not themselves use directly or
indirectly or through any subsidiary, any confidential information so obtained,
or otherwise obtained from XXXXX hereunder or in connection herewith (unless
such information is generally known in the industry or was acquired by QUADRANT
or CINCO prior to receipt thereof from XXXXX or was acquired after the date
hereof from a third party having a bona fide right to provide the same to
QUADRANT or CINCO), and shall endeavor to have all such information kept
confidential and not used in any manner.
Section 6. Conditions to the Obligations of All Parties. The
--------------------------------------------
obligations of each of the parties hereto are subject to the conditions that:
13
(a) At the Initial Payment Closing Date, no bona fide suit, action,
investigation or other proceeding will have been instituted (or will be
threatened) by any governmental agency of the United States or Germany in which
it is sought to restrain, prohibit, invalidate or set aside the transactions
contemplated by the Sales Agreement and this Appendix; and
(b) QUADRANT shall have raised additional equity of at least $
15,000,000.00 through a private placement being managed by Xxxxxx Brothers (the
"Private Placement").
Section 7. Conditions to the Obligations of QUADRANT and CINCO.
---------------------------------------------------
The obligations of QUADRANT and CINCO are subject to the conditions that:
7.1 Representations and Warranties. The representations and
------------------------------
warranties of the Shareholders contained in the Sales Agreement and this
Appendix will have been true and correct in all material respects when made and,
in addition, will be true and correct in all material respects at and as of the
Initial Payment Closing Date, except for representations and warranties which
refer to a specific date or dates other than the Initial Payment Closing Date
(which will be true and correct in all material respects at such date or dates)
and except for changes contemplated and permitted by this Appendix with the same
force and effect as if made at and as of the Initial Payment Closing Date, and
the Shareholders will have performed or complied in all material respect with
all terms, agreements, covenants and conditions required by this Appendix to be
performed by them on or prior to the Initial Payment Closing Date. QUADRANT and
CINCO will have received a certificate, dated the Initial Payment Closing Date
and executed by the Shareholders, to the effect that the foregoing conditions
have been satisfied.
7.2 Absence of Changes. During the period from December 31, 1997 to
------------------
the Initial Payment Closing Date, there will not have been any material adverse
loss of or damage to the properties, financial condition, results of operations
or assets of XXXXX. Prior to the Initial Payment Closing Date, the Shareholders
agree to advise QUADRANT of any such loss or damage which has such a material
adverse effect.
7.3 Consents. On or prior to the Initial Payment Closing Date, the
--------
consents on Annex A will have been obtained in a manner satisfactory in form and
substance to QUADRANT and CINCO and their counsel.
14
7.4 Approval of Legal Matters by Xxxxxxxxxx, Xxxxxxxxx & Xxxxxx LLP.
---------------------------------------------------------------
All legal matters relating to the transactions contemplated by this Appendix and
the Initial Payment Closing shall be approved on behalf of QUADRANT and CINCO by
Xxxxxxxxxx, Xxxxxxxxx & Xxxxxx LLP, which approval shall not be unreasonably
withheld, and there shall have been furnished to such counsel by XXXXX such
information and certificates as they may reasonably have requested for such
purpose.
7.5 Legality; Litigation Affecting Initial Payment Closing. There
------------------------------------------------------
shall exist no applicable law, rule, regulation, order, judgment or injunction
the effect of which is to prohibit consummation of the transaction contemplated
by the Sales Agreement or this Appendix. No suit, action, or other proceeding
shall be pending or actually threatened before any court or governmental agency
in which any United States or German governmental authority seeks to restrain or
prohibit the consummation of the transactions contemplated thereby or hereby,
and no investigation that might eventuate in any such suit, action or proceeding
shall be pending or threatened.
7.6 Employment Agreements. The Employment Agreements required by
---------------------
Section 1.2(a) will have been executed and delivered by the Shareholders and
other employees.
Section 8. Conditions to the Obligations of the Shareholders. The
-------------------------------------------------
obligations of the Shareholders are subject to the conditions that:
8.1 Corporate Authorization. On or before the Initial Payment Closing
-----------------------
Date, QUADRANT and CINCO will have furnished to the Shareholders a copy
certified by their respective Secretaries of resolutions duly adopted by the
Board of Directors or Shareholders of QUADRANT and CINCO that constitutes all
necessary corporate authorization for the consummation by CINCO and QUADRANT of
the transactions contemplated by the Sales Agreement and this Appendix.
8.2 Representations and Warranties. The representations and
------------------------------
warranties of QUADRANT and CINCO contained in the Sales Agreement and this
Appendix will have been true and correct in all material respects when made and,
in addition, will be true and correct in all material respects at and as of the
Initial Payment Closing Date, except for representations and warranties which
refer to a specified date or dates other than the Initial Payment Closing Date
15
(which will be true and correct in all material respects at such date or dates)
and except for changes expressly permitted by the Sales Agreement and this
Appendix or otherwise occurring in the ordinary course of business (except to
the extent expressly limited in this Appendix), with the same force and effect
as if made at and as of the Initial Payment Closing Date and QUADRANT and CINCO
will have performed or complied in all material respects with all terms,
agreements and covenants and conditions required by this Appendix to be
performed by them on or prior to the Initial Payment Closing Date. The
Shareholders will have received a certificate, dated the Initial Payment Closing
Date and executed on behalf of each of QUADRANT and CINCO, to the effect that
the foregoing conditions have been satisfied.
8.3 Consents. On or prior to the Initial Payment Closing Date, the
--------
Shareholders shall have obtained the consents, in form and substance
satisfactory to their counsel, which are listed on Annex A.
8.4 Approval of Legal Matters by Counsel to the Shareholders and
------------------------------------------------------------
XXXXX. All legal matters relating to the transactions contemplated by the Sales
-----
Agreement and this Appendix and the Initial Payment Closing shall be approved on
behalf of the Shareholders by Rae. Xxxxxx & Partner which approval shall not be
unreasonably withheld, and there shall have been furnished to such counsel by
QUADRANT and CINCO such information and certificates as they may reasonably have
requested for such purpose.
8.5 Legality; Litigation Affecting Initial Payment Closing. There
------------------------------------------------------
shall exist no applicable law, rule, regulation, order, judgment or injunction
the effect of which is to prohibit consummation of the transactions contemplated
by the Sales Agreement and this Appendix. No suit, action, or other proceeding
shall be pending or actually threatened before any court or governmental agency
in which any United States or German governmental authority seeks to restrain or
prohibit the consummation of the transactions contemplated thereby or hereby,
and no investigation that might eventuate in any such suit, action or proceeding
shall be pending or threatened.
Section 9. Indemnification.
---------------
9.1 Indemnification by the Parties. Reference is made to Section 6 of
------------------------------
the Sales Agreement. In addition the Shareholders and QUADRANT (including CINCO)
each
16
hereby agree to indemnify the other and their respective directors, officers,
agents and employees, and to hold each of them harmless from and against any
losses, claims, damages or liabilities, joint or several, to which they, or any
of them, may become subject insofar as such losses, claims, damages or
liabilities arise out of or are based upon the Shareholders' or QUADRANT's
breach of or failure to perform any representation, warranty, covenant, term or
condition of the Sales Agreement or this Appendix; provided, however, the
indemnification provided for in this Section 9.1 shall terminate three (3) years
after the Initial Payment Closing Date except for the representation by the
Shareholders contained in Section 2.3 of this Appendix, which shall continue
without time limitation. This Section 9.1 is explicitly agreed to be subject to
German Law.
Section 10. Certain Covenants of the Parties.
--------------------------------
10.1 Separate Existence of XXXXX. QUADRANT covenants and agrees with
---------------------------
the Shareholders that so long as none of the Shareholders has voluntarily
terminated his employment with XXXXX prior to the third anniversary of the
Initial Payment Closing Date (except due to death or disability), it will cause
XXXXX to be maintained as a separate, wholly-owned affiliated entity of
QUADRANT, or any successor to QUADRANT, (the "XXXXX Entity") from and after the
Initial Payment Closing Date for a minimum of three (3) years. During such three
(3) year period QUADRANT agrees to provide funds to the XXXXX Entity of at least
$90,000 per month to cover salaries of the Shareholders and the employees
assigned to the XXXXX Entity and the costs associated with the continuing
development of all PC-Convergence products for QUADRANT as the Shareholders,
through XXXXX, have been doing.
10.2 Location of XXXXX Entity Office. For at least a three (3) year
-------------------------------
period after the Initial Payment Closing Date, QUADRANT covenants and agrees
that the XXXXX Entity's office shall not be moved from its present location in
Karlsruhe, Germany, without the written consent of the Shareholders.
10.3 Full Time Effort by the Shareholders. From and after the Initial
------------------------------------
Payment Closing Date, the Shareholders covenant and agree with QUADRANT that
they will diligently devote their full time attention and efforts toward
maintaining and improving the XXXXX Business as being run through the XXXXX
Entity. The Shareholders agree to keep the Board of
17
Directors and management of QUADRANT fully informed on a regular basis as to
the XXXXX Business as continued to be managed and run by them.
Section 11. Termination, Amendment and Waiver.
---------------------------------
11.1 Termination. This Appendix may be terminated at any time prior
-----------
to the Initial Payment Closing Date:
(a) by mutual consent of the Shareholders, QUADRANT and CINCO; or
(b) by QUADRANT and CINCO if the Private Placement has not been
consummated by April 30, 1998.
11.2 Effect of Termination. In the event of any termination of this
---------------------
Appendix pursuant to the terms hereof, none of the parties to this Appendix will
have any liability to the others except for any willful breach of any of the
provisions of this Appendix.
11.3 Amendment. This Appendix may not be amended except by an
---------
instrument in writing signed on behalf of each of the parties hereto.
11.4 Extension; Waiver. The parties hereto may (i) extend the time
-----------------
for the performance of any of the obligations or other acts of the other parties
hereto, or (ii) waive any inaccuracies in the representations and warranties.
11.5 Prior Agreement. QUADRANT and the Shareholders acknowledge that
---------------
they had previously entered into an agreement pursuant to which QUADRANT inter
alia was to acquire part of the share capital of XXXXX and XXXXX was to acquire
shares of Common Stock of QUADRANT (stock-swap). QUADRANT and the Shareholders
acknowledge that the foregoing stock-swap was never consummated and that the
Sales Agreement and this Appendix and the transactions contemplated thereby or
hereby are in full and complete satisfaction of all prior agreements relating to
this matter.
Section 12. Broker's and Finder's Fees. The Shareholders represent
--------------------------
and warrant that no broker or finder is entitled to any brokerage or finder's
fee or other commission or fee from the Shareholders based upon arrangements
made by or on behalf of the Shareholders
18
with respect to the transactions contemplated by the Sales Agreement and this
Appendix. QUADRANT and CINCO represent and warrant that no broker or finder is
entitled to any brokerage or finder's fee or other commission or fee from
QUADRANT or CINCO based upon arrangements made by or on behalf of QUADRANT or
CINCO with respect to the transactions contemplated by the Sales Agreement and
this Appendix.
Section 13. No Public Announcement. Neither the Shareholders,
----------------------
QUADRANT nor CINCO shall, without the approval of the other parties, make any
press release or other public announcement concerning the transactions
contemplated by this Appendix, except as and to the extent that either party
shall be so obligated by law, in which case the other party shall be advised and
the parties shall use their best efforts to cause a mutually agreeable release
or announcement to be issued.
Section 14. Notices. All notices and other communications hereunder
-------
will be in writing and will be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses, or at such other address for a party as may be specified by
like notice:
(a) if to the Shareholders, to Xxxxx Development Hard & Software
Engineering, GmbH, Xxxxxxx. 00, X-00000, Xxxxxxxxx, Xxxxxxx, Attention Xxxx
Xxxxxxxxxx, Principal, with a copy to Rae. Xxxxxx & partner, Xx. Xxxxxxxx Xxxx,
Xxxxxxxx 00 00 00, X-00000 Xxxxxxxxx; and
(b) if to QUADRANT and CINCO, to Quadrant International, Inc., 000
Xxxxx Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000, Attention Xxxxxxx X. Xxxxx, President,
with a copy to Xxxxxxxxxx, Xxxxxxxxx & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000, Attention Xxxxxx X. Xxxxxxx, Esq.
Section 15. Interpretation. Unless otherwise specified, all
--------------
references to Articles, Sections, Exhibits or Annexes herein are references to
Articles, Sections, Exhibits or Annexes hereof or hereto. The headings contained
in this Appendix are for reference purposes only and will not affect in any way
the meaning or interpretation of this Appendix.
19
Section 16. Cooperation. Each of the parties hereto shall cooperate
-----------
with the others in every way in carrying out the transactions contemplated
herein, and delivering instruments to perfect the conveyances, assignments and
transfers contemplated herein, and in delivering all documents and instruments
deemed reasonably necessary or useful by counsel for any party hereto. The
parties hereto agree with each other that subsequent to the Initial Payment
Closing Date they will grant to each other and their agents access during normal
business hours, upon reasonable notice, to any books and records relating to the
operation of XXXXX prior to the Initial Payment Closing Date by the Shareholders
or after the Initial Payment Closing Date by QUADRANT, CINCO or their
affiliates, and such access is shown to be needed for tax, accounting or other
reasonable purposes.
Section 17. Waiver, Discharge, Etc. This Appendix may not be
----------------------
released, discharged, abandoned, changed or modified in any manner, except by an
instrument in writing signed on behalf of each of the parties hereto or by their
duly authorized officers or representatives. The failure of any party hereto to
enforce at any time any of the provisions of this Appendix shall in no way be
construed to be a waiver of any such provision, nor in any way to affect the
validity of this Appendix or any part hereof or the right of any party
thereafter to enforce each and every such provision. No waiver of any breach of
this Appendix shall be held to be a waiver of any other or subsequent breach.
The illegality or partial illegality of any provision of this Appendix in any
country shall not affect the validity of this Appendix or any provision hereof
in any other country.
Section 18. Non-Competition. Except as may otherwise be agreed by
---------------
the parties, especially in any employment agreement, and except as contemplated
by the Sales Agreement and this Appendix, the Shareholders agree that until
January 31, 2001, neither they nor any business entity controlled by them, will
directly or indirectly, in the United States or Germany engage in the business
of manufacturing or marketing the products based on the intellectual property
described on Annex F or any products substantially similar thereto so long as
XXXXX, QUADRANT or CINCO or any successor to QUADRANT's business shall engage in
such activity in such location.
20
Section 19. Miscellaneous. The Sales Agreement and this Appendix
-------------
(including the Exhibits, Schedules, Annexes, documents and instruments referred
to herein) (a) constitute the entire agreement and supersede all other prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof; (b) are not intended to
confer upon any other person any rights or remedies hereunder; (c) shall not be
assigned by operation of law or otherwise; and (d) except as provided in Section
10.4 of the Sales Agreement and Section 4.3 of this Appendix, and except as
explicitly set forth in any Section of this Appendix, shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of New York.
This Appendix exists in both an English and a German version. For the
purposes of interpreting this Appendix, the English version takes precedence.
This Appendix may be executed in two or more counterparts which
together will constitute a single agreement.
21
IN WITNESS WHEREOF, the parties hereto have executed this Appendix to
Sales Agreement as of the day and year first above written.
THE SHAREHOLDERS ERSTE CINCO VERMOGENSVERWALTUNGS GmbH
/s/ Xxxxxxx Xxxxx By /s/ Xxxxx Xxx
------------------------------ ------------------------------------
Xxxxxxx Xxxxx Xxxxx Xxx, Managing Director
/s/ Xxxx Xxxxxxxxxx QUADRANT INTERNATIONAL, INC.
------------------------------
Xxxx Xxxxxxxxxx
/s/ Xxxxxx Xxxxxxx By /s/ Xxxxxxx X. Xxxxx
------------------------------ ------------------------------------
Xxxxxx Xxxxxxx Xxxxxxx X. Xxxxx, President
22
