Exhibit 2.1
BUSINESS PURCHASE AGREEMENT
among
1. AdLINK Internet Media AG, a stock corporation incorporated under the
laws of the Federal Republic of Germany with corporate seat in
Montabaur, registered in the commercial register of the local court of
Montabaur under HRB 5432,
- hereinafter referred to as the "Purchaser 1" -
and
2. AdLINK Internet Media AS, a company incorporated under the laws of
Norway with corporate seat in Oslo, registered in Bronnoysund under No.
979344929.
- hereinafter referred to as the "Purchaser 2" -
and
3. AdLINK Internet Media SA, a company incorporated under the laws of
France with corporate seat in Paris, registered in Paris under R.C.S.
Paris No. B 404 433 534.
- hereinafter referred to as the "Purchaser 3" -
and
4. AdLINK Internet Media AB, a company incorporated under the laws of
Sweden with corporate seat in Stockholm, registered in Stockholm under
No. 556537-3460.
- hereinafter referred to as the "Purchaser 4" -
and
5. AdLINK Internet Media S.L.U., a company incorporated under the laws of
Spain, with corporate seat in Madrid, registered in Madrid under No. B
822296 18.
- hereinafter referred to as the "Purchaser 5" -
and
6. United Internet AG, a stock corporation incorporated under the laws of
the Federal Republic of Germany with corporate seat in Montabaur,
registered in the register of the local commercial court of Montabaur
under HR B 5762
- hereinafter referred to as the "Purchaser's Parent" -
- Purchaser 1, ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ 4
and Purchaser 5 are hereinafter together referred to
as the "Purchasers" -
and
7. Channon Management Limited, a company incorporated under the laws of
the British Virgin Islands with corporate seat in Tortola, British
Virgin Islands, registered in the company register of the British
Virgin Islands, under No. 466516,
- hereinafter referred to as the "Seller 1" -
and
8. DoubleClick Norway AS, a company incorporated under the laws of Norway,
with corporate seat in Oslo, Norway, registered in the company register
in Norway under No. 979980116,
- hereinafter referred to as the "Seller 2" -
and
9. DoubleClick France SARL, a company incorporated under the laws of
France, with corporate seat in Nanterre, France, registered in the
company register in France under No. B 418633947,
- hereinafter referred to as the "Seller 3 " -
and
10. DoubleClick Sweden AB, a company incorporated under the laws of Sweden,
with corporate seat in Stockholm, Sweden, registered in the company
register in Sweden under No. 556575 - 3943 C,
- hereinafter referred to as the "Seller 4" -
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and
11. DoubleClick Espana SL, a company incorporated under the laws of Spain,
with corporate seat in Madrid, Spain, registered in the company
register in Spain under No. B 81857732,
- hereinafter referred to as the "Seller 5" -
and
12. DoubleClick Scandinavia AB, a company incorporated under the laws of
Sweden, with corporate seat in Stockholm, Sweden, registered in the
company register in Sweden under No. 556418 - 4413,
- hereinafter referred to as the "Seller 6" -
and
13. DoubleClick Inc., a corporation incorporated under the laws of the
State of Delaware, United States with corporate seat in New York, NY,
- hereinafter referred to as the "Guarantor" -
- Seller 1, Seller 2, Seller 3, Seller 4,
Seller 5 and Seller 6 are hereinafter together
referred to as the "Sellers" -
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TABLE OF CONTENTS
DEFINITIONS..........................................................................................6
RECITALS:...........................................................................................10
ARTICLE 1 - SALE OF SHARES, MAJORITY INTERESTS AND ASSETS...........................................11
ARTICLE 2 - CONDITIONS PRECEDENT....................................................................12
ARTICLE 3 - PURCHASE PRICE..........................................................................13
ARTICLE 4 - CONTRACT ACCOUNTS.......................................................................15
ARTICLE 5 - SPECIFIC PROVISION ON THE TRANSFER OF ASSETS AND EMPLOYEES..............................17
ARTICLE 6 - LEGAL RELATIONS BETWEEN SELLER AND THE COMPANIES AND PURCHASER AND GUARANTOR............22
ARTICLE 7 - CLOSING.................................................................................22
ARTICLE 8 - TAXES...................................................................................25
ARTICLE 9 - REPRESENTATIONS AND WARRANTIES OF SELLERS...............................................26
9.1 ENFORCEABILITY, NO CONFLICT.......................................................26
9.2 CORPORATE.........................................................................27
9.3 OWNERSHIP.........................................................................28
9.4 FINANCIAL STATEMENTS..............................................................29
9.5 EMPLOYEES AND EMPLOYEE BENEFITS...................................................29
9.6 LITIGATION........................................................................30
9.7 SURETIES..........................................................................30
9.8 BUSINESS INFORMATION..............................................................31
9.9 INSURANCE.........................................................................31
9.10 APPROVALS AND LICENSES............................................................31
9.11 REAL PROPERTY.....................................................................31
9.12 MATERIAL AGREEMENTS...............................................................31
9.13 CUSTOMERS/SUPPLIERS...............................................................33
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9.14 PUBLIC GRANTS.....................................................................33
9.15 TRANSACTION FEES..................................................................33
9.16 IP/IT.............................................................................33
9.17 MATERIAL ADVERSE EFFECT...........................................................34
ARTICLE 10 - BREACH OF REPRESENTATIONS OR WARRANTIES OF SELLERS AND LIMITATION OF
CLAIMS OF PURCHASER ...................................................................34
ARTICLE 11 - GUARANTEE (SELBSTANDIGES GARANTIEVERSPRECHEN)..........................................35
ARTICLE 12 - IMPLEMENTATION, COOPERATION............................................................35
ARTICLE 13 - ADVISORS COST..........................................................................36
ARTICLE 14 - RESTRUCTURING COSTS....................................................................36
ARTICLE 15 - CONDUCT OF BUSINESS/FURTHER COVENANTS..................................................38
ARTICLE 16 - NON-COMPETITION COVENANTS..............................................................39
ARTICLE 17 - LIMITATION OF LIABILITY/EXCLUSION OF RESCISSION........................................40
ARTICLE 18 - COSTS AND TAXES........................................................................40
ARTICLE 19 - MISCELLANEOUS..........................................................................40
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DEFINITIONS
"Accounting Date" shall mean the date prior to Closing, 24:00 hours.
"Ad Network" shall mean an advertising network operated by a party consisting
of (i) advertising inventory whether owned by a Party or any of its
Affiliates or a third party in any digital medium (e.g., Web site on the
Internet or mobile Web, digital television), and (ii) advertising inventory
available on email newsletters.
"Adjusted Purchase Price" shall have the meaning defined in Article 3.2.
"Advisors Costs" shall have the meaning defined in Article 13.1.
"Affiliate" shall mean, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with
such other Person.
"Agreement" shall mean this agreement and its Annexes.
"Assets" shall have the meaning defined in Recital B.
"Audited Financial Statements" shall have the meaning defined in Article 9.4.1.
"Best Knowledge of the Sellers" shall mean the actual knowledge of (i) the
managing directors of the Sellers and (ii) the officers of the
Guarantor significantly involved in the evaluation and negotiation of
this Agreement, and the knowledge these persons would have had after
reasonable inquiry and investigation.
"Business" shall have the meaning defined in Recital F.
"Business Information" shall have the meaning set forth in Article 5.1.
"Cash" shall mean cash and cash equivalents as defined under U.S. GAAP.
"Closing" shall have the meaning defined in Article 7.1.
"Company" shall have the meaning defined in Recital B.
"Contract Accounts" shall have the meaning set forth in Article 4.1.
"Date of Signing" shall mean November 12, 2001.
"Effective Date" shall mean the day following the Accounting Date, 00:00 hours.
"EMEA Media Business" shall have the meaning defined in Article 16.1.
"Employee Benefit Plan" shall mean any employer benefit plan entitling any
Employee to pension payments.
"Employees" shall have the meaning defined in Article 9.5.4.
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"Estimated Purchase Price" shall have the meaning set forth in Article 3.4.
"European Media Business" shall have the meaning defined in Recital A.
"Financial Debt" shall mean debenture loans, liabilities due to banks and
financial institutions, other indebtedness for monies borrowed
including shareholder loans (including financing leases to the extent
they have to be treated as indebtedness under U.S. GAAP) and any
payment obligations towards the Guarantor and its Affiliates other than
the Company, the Subsidiaries and the Partially Owned Companies, all as
determined in accordance with U.S. GAAP.
"Financial Statements" shall have the meaning defined in Article 9.4.1.
"German Banking Day" means any day on which banks are open for public business
in the German state of Hesse.
"Majority Interests" shall have the meaning defined in Recital D.
"Material Adverse Effect" shall have the meaning defined in Article 9.17.
"Material Agreements" shall have the meaning defined in Article 9.12.1.
"Net Asset Value" shall mean (1) the sum of (i) gross accounts receivable
(except for reimbursement of Taxes) minus reserves for accounts
receivable where reserves are set equal to 10% of the gross accounts
receivable, (ii) prepaid assets, (iii) other current assets (including
deposits under lease agreements), and (iv) net property, plant and
equipment which shall be deemed to be zero for those parts of the
Business that are sold hereunder in an asset transaction and those
parts of the Business that are held by the Company, minus (2) the sum
of (i) accounts payable and (ii) accrued expenses and other current
liabilities (except Taxes). For the avoidance of doubt, net intangible
assets, other long-term assets, accrued non-cash compensation, deferred
revenues and Financial Debt shall be deemed zero for purposes of the
determination of the Net Asset Value. All of the above terms shall be
interpreted in accordance with U.S. GAAP.
"Partially Owned Companies" shall have the meaning defined in Recital D.
"Permitted Liens" shall have the meaning defined in Article 9.3.1.
"Person" means an individual, corporation, partnership, association, trust or
other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Purchase Price" shall have the meaning defined in Article 3.2.
"Purchaser's Contract Accounts" shall have the meaning defined in Article 4.6.
"Purchaser Prohibited Advertiser" shall mean an advertiser for which the primary
decision maker with respect to a given online advertising campaign is
based in the advertiser's office in the Purchaser Prohibited Territory;
provided, however,
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that if an advertiser is represented by an advertising agency with
respect to a given online advertising campaign, the primary decision
maker shall be deemed to be the agency's primary decision maker for
that campaign.
"Purchaser Prohibited Network" shall mean an advertising network consisting of
(i) advertising inventory whether owned by a third party or by the
Purchaser or any of its Affiliates in any digital medium (e.g., Web
site on the Internet or mobile Web, digital television) that is
comprised of content primarily for users in the Purchaser Prohibited
Territory, and (ii) advertising inventory available on email
newsletters that are primarily managed by the newsletter owner from an
office in the Purchaser Prohibited Territory.
"Purchaser Prohibited Territory" shall mean all countries and territories other
than those located in Europe, the Middle East and Africa.
"Restructuring Costs" shall have the meaning defined in Article 14.2.
"Seller Prohibited Advertiser" shall mean an advertiser for which the primary
decision maker with respect to a given online advertising campaign is
based in the advertiser's office in the Seller Prohibited Territory;
provided, however, that if an advertiser is represented by an
advertising agency with respect to a given online advertising campaign,
the primary decision maker shall be deemed to be the agency's primary
decision maker for that campaign.
"Seller Prohibited Network" shall mean an advertising network consisting of (i)
advertising inventory whether owned by a third party or by the Seller
or any of its Affiliates in any digital medium (e.g., Web site on the
Internet or mobile Web, digital television) that is comprised of
content intended primarily for users in the Seller Prohibited
Territory, and (ii) advertising inventory available on email
newsletters that are primarily managed by the newsletter owner from an
office in the Seller Prohibited Territory.
"Seller Prohibited Territory" shall mean the countries and territories located
in Europe, the Middle East and Africa.
"Seller's Contract Account" shall have the meaning defined in Article 4.3.
"Seller's Price Computation" shall have the meaning defined in Article 4.4.
"Shares" have the meaning defined in Recital B.
"Subsidiaries" shall have the meaning defined in Recital E.
"Taxes" shall mean all kinds of taxes, including direct taxes (regarding
income, profit and capital (gains)), surcharges, ancillary charges and
indirect taxes, as well as any interests, fines and levies owed as a
result of or in connection with such taxes.
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"Transaction" shall refer to the sale and transfer contemplated in this
Agreement as well as all other agreements, undertakings and
declarations entered into and given in connection thereto in this
Agreement.
"Unadjusted Purchase Price" shall have the meaning defined in Article 3.1.
"U.S. GAAP" shall have the meaning defined in Article 9.4.1.
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RECITALS:
(A) The Guarantor, through directly and indirectly wholly owned
subsidiaries or companies in which it holds majority participations,
operates in Europe a "media business," which is active in the sale to
advertisers of Internet advertising inventory on unaffiliated third
party Web sites organized in an advertising network managed by
Guarantor or its Affiliates (the "European Media Business"), and a
"tech business," which provides technological services, such as
Internet ad delivery, targeting technology services, and email ad
delivery services to customers.
(B) Seller 1 is a company, indirectly wholly owned by the Guarantor, which
(beneficially) holds 100% of the shares in DoubleClick International
Internet Sales Ltd., Ireland (hereinafter referred to as the
"Company"). Legal title in this interest belongs to Seller 1's parent.
The Company has the following issued and outstanding share capital,
which is divided in the following shares (hereinafter referred to as
the "Shares"):
25,989,616 ordinary shares.
Further, certain assets, contracts and liabilities of the Guarantor's
European Media Business are held by DoubleClick France SARL,
DoubleClick Norway AS, DoubleClick Sweden AB, and DoubleClick Espana
SL. These assets, contracts, liabilities, and additional liabilities of
DoubleClick GmbH Deutschland, DoubleClick Europe Ltd. and DoubleClick
International TechSolutions Ltd., also forming part of the European
Media Business are listed in Annex B hereto (hereinafter collectively
referred to as the "Assets"). The individual assets, contracts and
liabilities that are subject to the sale and purchase hereunder will be
mutually individualized, where necessary, at Closing in accordance with
the categories named in Annex B.
(C) Seller 1 (beneficially) holds majority interests in the following
entities:
DoubleClick Benelux Ltd. (share capital held by Seller 1: 73.1%)
DoubleClick Italy Ltd. (share capital held by Seller 1: 88%)
Legal title to these interests belongs to Seller 1's parent.
(D) Seller 6 holds a majority interest (together with the majority
interests in DoubleClick Benelux Ltd. and DoubleClick Italy Ltd.
hereinafter referred to as the "Majority Interests") in the following
entity:
DoubleClick Danmark A/S (share capital held by Seller 6: 70%)
(together with DoubleClick Benelux Ltd. and DoubleClick Italy Ltd.
hereinafter referred to as the "Partially Owned Companies")
(E) DoubleClick Benelux Ltd. is the sole shareholder of DoubleClick Benelux
BV, and is an Irish limited liability company with corporate seat in
Dublin, Ireland and an issued and outstanding share capital of 10,000
ordinary shares. DoubleClick Italy Ltd. is the sole shareholder of
DoubleClick Italy Srl, and is
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an Irish limited liability company with corporate seat in Dublin,
Ireland and an issued and outstanding share capital of 1,000 ordinary
shares. The Company is the sole shareholder of DoubleClick
International Internet Purchasing Ltd., an Irish limited liability
company with corporate seat in Dublin, Ireland and an issued and an
outstanding share capital of two ordinary shares. (DoubleClick Benelux
B.V., DoubleClick Italy Srl and DoubleClick International Internet
Purchasing Ltd. are hereinafter collectively referred to as the
"Subsidiaries.")
(F) The Sellers are interested in selling the Shares, the Majority
Interests, the Subsidiaries and the Assets to the Purchasers, who are
interested in acquiring such Shares, Majority Interests and the Assets
from the Sellers, both as set out in more detail herein. The Shares,
the Subsidiaries, the Majority Interests and the Assets are together
referred to as the "Business."
This being premised, the contracting parties agree as follows:
ARTICLE 1 - SALE OF SHARES, MAJORITY INTERESTS AND ASSETS
1.1 Seller 1 hereby sells to Purchaser 1, who accepts such sale, the legal
and beneficial ownership in the Shares and the Majority Interests in
DoubleClick Benelux Ltd. and DoubleClick Italy Ltd. with effect as of
the Effective Date. Seller 6 hereby sells to Purchaser 1, who accepts
such sale, the Majority Interest in DoubleClick Danmark A/S with effect
as of the Effective Date. The parties will cooperate to comply with any
local law requirements that relate to the sale of the Shares and the
Majority Interests.
1.2 Together with the title to the Shares and the Majority Interests all
ancillary rights, including any rights to profits of the Companies and
Partially Owned Companies not yet distributed prior to the Effective
Date that relate to the Shares or the Majority Interests, are sold to
Purchaser 1.
1.3 Seller 1 and Seller 6 or an Affiliate of either of them may purchase
all or part of the minority interests in the respective Partially Owned
Companies prior to the Effective Date. The purchase and sale under this
Agreement shall extend to such participations owned by the Sellers in
the Partially Owned Companies on the Effective Date. Purchaser 1 shall
reimburse Seller 1 and Seller 6 or an Affiliate of either of them for
purchase price payments under any such purchase agreements up to an
amount of EURO 2.3 million in the aggregate. Such reimbursement shall
be payable at Closing. If and to the extent Seller 1, Seller 6 or an
Affiliate of either have paid less than EURO 2.3 million in the
aggregate for the acquisition of all of the minority participations,
Purchaser 1 shall in addition to the reimbursement under the preceding
sentence pay 50% of the amount saved to Seller 1 and/or Seller 6 or an
Affiliate of either of them, as the case may be. Should such Sellers or
their Affiliates not have acquired all of the minority interests in the
Partially Owned Companies prior to the Effective Date, Seller 1 shall
be obliged to reimburse Purchaser 1 for all purchase price payments
made for the acquisition of the remaining minority interests within a
time period of five years after the Effective Date, if and to the
extent that such purchase price payments together with the
reimbursements under this Article 1.3 exceed an amount of EURO 2.3
million in the aggregate.
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Purchaser 1 shall take all appropriate and reasonable actions to keep
the purchase prices low. For a period of one year after Closing,
Purchaser 1 shall grant to Seller 1 and Seller 6 or an Affiliate
designated by any of them, as the case may be, a power of attorney to
represent and act on behalf of Purchaser in the purchase and
acquisition of such minority interests for a purchase price of up to
one times sales of the respective Partially Owned Company in the
business year 2001 multiplied by the percentage of minority interests
acquired in such Partially Owned Company of the total interests
therein. For a period of one year after Closing, neither the Purchasers
nor any of their Affiliates shall purchase the minority interests other
than by Seller 1 or Seller 6 or the respective Affiliate exercising the
power of attorney set forth in the preceding sentence. Seller 1 and
Seller 6 or the respective Affiliate shall only be entitled to sign a
purchase agreement or acquisition agreement on Purchaser 1's behalf if
the purchase agreements and the acquisition agreements contain no
obligations other than the obligation to pay the purchase price, the
necessary implementation obligations or, with the consent of Purchaser
1 (such consent not to be unreasonably withheld or delayed), other
obligations.
1.4 Seller 2, Seller 3, Seller 4, Seller 5, respectively, hereby sell and
transfer to ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ 4 and Purchaser 5,
respectively, who accept such sale, the Assets with effect as of the
Effective Date whereby each of Seller 2, Seller 3, Seller 4 and Seller
5 only sells and transfers those of the Assets that are indicated as
its Assets in Annex B and each of ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ 4
and Purchaser 5 only purchases those of the Assets that are sold by
that Seller which is incorporated in the respective same jurisdiction
as the respective Purchaser. If there are further requirements for the
transfer of Assets, the Parties shall cooperate to effectuate such
transfers on or without undue delay after Closing provided, however,
that the respective Purchaser shall be considered beneficial owner of
the respective Assets as from the Effective Date.
ARTICLE 2 - CONDITIONS PRECEDENT
2.1 This Agreement is subject to the condition precedent that in a General
Assembly (Hauptversammlung) of Purchaser 1 at least 75% of the votes
cast are cast in favour of this Agreement, that an auditor's opinion
(Bericht des Grundungsprufers bei der Nachgrundung) has been obtained
confirming the adequacy of the Adjusted Purchase Price and that this
Agreement is entered into the commercial register of Purchaser 1, each
in accordance with the provisions contained in Section 52 of the German
Stock Corporation Act. Purchaser 1 shall convene and hold a General
Assembly without undue delay after the signing hereof. The Purchaser's
Parent undertakes to take all appropriate actions available to it to
ensure that the General Assembly validly and effectively approves this
Agreement.
2.2 This Agreement is subject to the condition precedent that (i) the
Minister for Enterprise, Trade and Employment of the Republic of
Ireland, or the Department of Enterprises, Trade and Employment stating
in writing that she or it does not intend to make an order under
Section 9 of the Mergers, Take-
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overs and Monopolies (Control) Act, 1978 (as amended) (the "Mergers
Act") in relation to the proposed purchase of the Business, or (ii) if
no such order is made and the Minister or the Department does not state
in writing that she or it does not intend to make such an order, that
the relevant period within the meaning of Section 6 of the Mergers Act
elapses, or (iii) the Department of Enterprises, Trade and Employment
having confirmed in writing that a merger filing is not required under
Irish laws.
If other filings with, or clearances by, antitrust or merger control
authorities are necessary for the implementation of the Transaction,
the parties will cooperate to meet these requirements whereby the
Purchasers shall prepare the relevant filings and documentation. The
Transaction shall not be completed until these requirements are met if
any of the Parties would be in breach of applicable antitrust or merger
control laws by proceeding without meeting these requirements.
The Purchaser shall prepare all filings required under the Mergers Act
or any other national or international applicable merger control laws.
The Sellers shall assist the Purchasers in such filings and shall
provide any and all information reasonably required for such filings.
Any filings shall require the consent of Seller 1 prior to their
submission to the respective authorities, such consent not to be
unreasonably withheld.
2.3 Should the conditions precedent described in Articles 2.1 or 2.2 hereof
not be fulfilled by February 28, 2002, Purchaser 1, on behalf of the
Purchasers and the Purchaser's Parent, and Seller 1, on behalf of the
Sellers and the Guarantor, are entitled to rescind this Agreement by
written declaration to Seller 1 or Purchaser 1, as the case may be,
with immediate effect. Notwithstanding the preceding sentence, should
the auditor's opinion not have been issued by January 15, 2002,
Purchaser 1, on behalf of the Purchasers and the Purchaser's Parent,
and Seller 1, on behalf of the Sellers and the Guarantor, are entitled
to rescind this Agreement by written declaration to Seller 1 or
Purchaser 1, as the case may be, with immediate effect.
2.4 The parties are entitled to waive the condition precedent contained in
Article 2.1 hereof at any time by mutual agreement, as they consider
such condition precedent as a mere precautionary measure. However, none
of the parties will be obliged to express such waiver.
ARTICLE 3 - PURCHASE PRICE
3.1 The Purchaser shall pay as a purchase price for the Business a base
purchase price (the "Unadjusted Purchase Price") of
EURO 30.5 mio.
(in words: EURO thirty million five hundred thousand)
that shall be adjusted in accordance with Article 3.2.
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3.2 The Unadjusted Purchase Price shall be
- increased by the amount of Cash of the Business on the Accounting
Date; and
- reduced by the amount of any Financial Debt of the Business on the
Accounting Date in excess of a total amount of EURO 5 million owed
to the Guarantor or any of its Affiliates (other than the Company,
the Partially Owned Companies and the Subsidiaries); if and to the
extent Financial Debt owed by the Business to the Guarantor or any
of its Affiliates (other than the Company, the Partially Owned
Companies and the Subsidiaries) falls short of EURO 5 million on
the Accounting Date, the Adjusted Purchase Price shall be
increased by the amount of such shortfall; and
- reduced by the amount, if any, that the Net Asset Value of the
Business (including all liabilities and accruals set forth in
Annex B) as a whole falls short on the Accounting Date of EURO 0.
The results of this computation shall be referred to as the "Adjusted
Purchase Price" and together with the Unadjusted Purchase Price, the
"Purchase Price."
3.3 Any amounts relating to Partially Owned Companies shall be accounted
for in full, regardless of the fact that only Majority Interests in the
total capital of the respective Partially Owned Company may be
transferred. Cash, Financial Debt and Net Asset Value shall be
determined on the basis of the Contract Accounts as established in
accordance with Article 4.
3.4 The Purchase Price for the Business shall be paid by Purchaser 1 for
all Purchasers, to Seller 1 for all Sellers. The Purchase Price shall
be paid as follows: 97% of the Unadjusted Purchase Price shall be paid
at Closing (the "Estimated Purchase Price"). Additionally, Purchaser 1
shall pay on account of the Company, the Partially Owned Company and
the Subsidiaries to Seller 1 or as designated by Seller 1 at Closing an
amount of EURO 5 million in settlement of the Financial Debt owed by
the Business to the Guarantor or any of its Affiliates (other than the
Company, the Partially Owned Companies and the Subsidiaries), which
amount will be adjusted later in accordance with the following
paragraph.
Within seven German Banking Days after final determination of the
Adjusted Purchase Price in accordance with Article 4, any amount by
which the Adjusted Purchase Price (increased in accordance with the
second hyphen of Article 3.2) exceeds the Estimated Purchase Price
shall be paid by Purchaser 1 to Seller 1 and any amount by which the
Estimated Purchase Price exceeds the Adjusted Purchase Price (increased
in accordance with the second hyphen of Article 3.2) shall be
reimbursed by Seller 1 to Purchaser 1. Furthermore, within seven German
Banking Days after the final determination of the Financial Debt owed
to the Guarantor or any of its Affiliates (other than the Companies,
the Partially Owned Companies and the Subsidiaries) in
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accordance with Article 4, any amount by which such Financial Debt
falls short of the amount of EURO 5 million paid by Purchaser 1 at
Closing shall be reimbursed by Seller 1 to Purchaser 1. Such additional
payments or reimbursements, as the case may be, shall be increased by
interest at the rate of 5% p.a. for the period from the Effective Date
to the date of actual payment of such additional amount or
reimbursement, as the case may be. The interest is due and payable
together with the principal amount. Different payment obligations
payable at the same time under this Article 3.4 shall be netted.
3.5 Should the Purchase Price not be paid when due and payable under this
Agreement, Purchaser 1 shall be (in derogation of section 284 para 3 of
the German Civil Code) immediately in default without any further
notice from Seller 1. In such case, Purchaser 1 shall be obliged to pay
default interest in an amount of 5% p.a.
3.6 The Unadjusted Purchase Price is allocated to the Company, the
Partially Owned Companies and to the Assets sold by Seller 2, Seller 3,
Seller 4 and Seller 5 as follows:
- DoubleClick International Internet Sales Ltd. shares EURO 25,729,000
- DoubleClick Danmark A/S shares EURO 2,840,000
- DoubleClick Italy Srl shares EURO 489,000
- DoubleClick Benelux BV shares EURO 953,000
- DoubleClick Sweden AB assets EURO 104,000
- DoubleClick Espana SL assets EURO 64,000
- DoubleClick Norway AS assets EURO 103,000
- DoubleClick France SARL assets EURO 218,000
3.7 The Parties to this Agreement assume that no value added or turnover
tax is payable on the Unadjusted, the Estimated and the Adjusted
Purchase Price. However, should it turn out that this Agreement or its
implementation is -- contrary to the view of the parties -- subject to
value added or turnover tax, Purchaser 1 shall pay the value added or
turnover tax in addition to the Purchase Price under the Transaction.
The value added or turnover tax is due and payable upon invoicing by
any of the Sellers.
ARTICLE 4 - CONTRACT ACCOUNTS
4.1 A set of financial statements for the purposes of calculating the
amount of Cash, Financial Debt and Net Asset Value as of the Accounting
Date shall be drawn up for the Company, the Subsidiaries, the Partially
Owned Companies and the Assets (the "Contract Accounts"). These
Contract Accounts shall consist only of a pro forma consolidated
statement of assets and liabilities of
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the Company, the Subsidiaries, the Partially Owned Companies and the
Assets.
4.2 The Contract Accounts shall not reflect any of the amounts payable by
the Companies, the Subsidiaries or the Partially Owned Companies to the
Guarantor or its Affiliates (but excluding the Companies, the
Subsidiaries and the Partially Owned Companies) other than Financial
Debt of up to EURO 5 million.
4.3 Seller 1 shall prepare the Contract Accounts as soon as practicable
after the Effective Date and in accordance with U.S. GAAP standards;
any discretion shall be exercised in accordance with the same
principles applied in the preparation of the respective consolidated
annual accounts as of December 31, 2000 (the "Seller's Contract
Accounts"). Seller 1 shall apply the care of a conscientious
businessman in preparing the Seller's Contract Accounts, in particular
with regard to including the liabilities of the Business in the
Seller's Contract Accounts.
4.4 On the basis of the Seller's Contract Accounts, Seller 1 shall
calculate the Purchase Price (including the respective amounts of Cash,
Financial Debt, Net Asset Value) (the "Seller's Price Computation").
4.5 Seller's Price Computation together with the Seller's Contract Accounts
shall be delivered to Purchaser 1 and Purchasers' Accountant
immediately after they have been finalized, but in no case later than
four weeks after the Effective Date.
4.6 Within four weeks after receipt of the Seller's Price Computation and
the Seller's Contract Accounts, Purchaser 1 may object to such
computation or accounts on the grounds that they do not correspond with
U.S. GAAP standards or the provisions of Article 3 or Article 4 hereof,
as the case may be; such objections may also be based on the grounds
that judgement or discretion (to the extent available under U.S. GAAP
standards) should have been exercised differently and shall address
individual balance sheet line items or other positions indicating the
amount by which the item or position objected to or the computation of
the Adjusted Purchase Price should be changed in the view of Purchaser
1, and Purchaser 1 shall state the reasons or facts on which such
objections are based. If appropriate, objections need to be raised by
making changes to the Seller's Contract Accounts and by submitting such
revised accounts (the "Purchaser's Contract Accounts") to Seller 1. In
any event, Purchaser 1 shall issue a letter explaining in reasonable
detail the changes made and the objections raised.
4.7 If and to the extent Purchaser 1 has not raised any objections pursuant
to Article 4.6 above in the manner specified therein, the Seller's
Price Computation and the Seller's Contract Accounts shall be deemed to
be approved and shall be binding on all parties for the purposes of
this Agreement.
Page 16
4.8 If and to the extent Purchaser 1 objects pursuant to Article 4.6 above,
Purchaser 1 and Seller 1, or, if so designated by Purchaser 1 or Seller
1, as the case may be, their accountants, shall endeavour to reach
agreement on the points in dispute. If within two weeks after
presentation of the objections, Purchaser 1 and Seller 1, or their
accountants, do not agree, the points in dispute shall be referred to
the KPMG office in Dublin as expert arbitrator (Schiedsgutachter) who
shall then decide on the issues with binding effect for all parties.
The expert arbitrator shall be bound by those items to which either
Purchaser 1 has not objected or on which Seller 1 and Purchaser 1 have
agreed; in its decision on each point in dispute, the expert arbitrator
shall not go beyond the range of difference of opinions of Seller 1 and
Purchaser 1. To the extent the dispute concerns the exercise of
judgement or discretion, the expert arbitrator shall exercise such
judgement or discretion himself as if he had had to prepare the
Contract Accounts initially.
4.9 The parties hereto shall jointly instruct the expert arbitrator to
decide on the points of dispute within four weeks of his appointment.
The expert arbitrator shall give both Seller 1 and Purchaser 1 the
opportunity to present their positions within one week of his
appointment. The expert arbitrator shall then amend the Contract
Accounts to reflect the adjustments, if any, on which Seller 1 and
Purchaser 1 have agreed and those adjustments, if any, which the expert
arbitrator has decided in the absence of such an agreement as being
necessary or appropriate to comply with U.S. GAAP standards. The
accounts so amended by the expert arbitrator shall then be the Contract
Accounts for all purposes of this Agreement. The expert arbitrator
shall compute the Adjusted Purchase Price on the basis of the Contract
Accounts in their final form.
4.10 The fees of the expert arbitrator shall be borne by Seller 1 and
Purchaser 1 in accordance with Section 91 of the German Civil
Procedural Act (ZPO), i.e., in proportion to the amounts in which the
position taken by their respective accountants is rejected by the
expert arbitrator, such amounts to be calculated with reference to the
impact on the Purchase Price.
ARTICLE 5 - SPECIFIC PROVISION ON THE TRANSFER OF ASSETS AND
EMPLOYEES
5.1 The parties agree and shall ensure that together with the Business all
information stored in any form and relating to the operation of the
European Media Business and in particular to all of its publisher
customers and advertiser customers (the "Business Information") shall
be transferred to the Purchasers at Closing, if and to the extent
reasonably practicable. Further contracts and assets (other than those
concluded or owned by the Company, the Subsidiaries and the Partially
Owned Companies) shall only be transferred, if and to the extent they
form part of the Assets.
5.2 The parties shall endeavour to obtain the consent of the respective
creditors of the liabilities of Seller 2, Seller 3, Seller 4 or Seller
5 that are described in Annex B (including liabilities relating to
accruals set forth in Annex B) to the assumption of such liabilities by
the respective Purchaser. In any event the
Page 17
respective Purchaser 2, 3, 4 and 5, respectively, shall at Closing
assume the liabilities as of Closing (including liabilities relating to
accruals set forth in Annex B) of Seller 2, 3, 4 and 5, respectively,
set out in Annex B hereto. The liabilities as of Closing of DoubleClick
GmbH Deutschland, DoubleClick Europe Ltd. and DoubleClick International
TechSolutions Ltd. set forth in Annex B hereto (including liabilities
relating to accruals set forth in Annex B) shall be assumed by
Purchaser 1. The Purchasers shall pay directly to the creditors of the
liabilities described in Annex B hereto and assumed by the respective
Purchaser at Closing. Purchaser 1 shall indemnify Seller 2, Seller 3,
Seller 4 and Seller 5 against any amounts any of them pay on account of
liabilities described in Annex B hereto and any other settlement
(Erfullung) of these liabilities that is effected at their cost.
Purchaser 1 shall reimburse Seller 1 for the account of DoubleClick
GmbH Deutschland, DoubleClick Europe Ltd. and DoubleClick International
TechSolutions Ltd. for payments by these entities of their liabilities
as of Closing described in Annex B or any other settlement (Erfullung)
of these liabilities that is effected at their cost. To the extent any
obligations or liabilities not contained in a category Annex B transfer
to the Purchasers by operation of law due to the acquisition of the
Assets, Seller 1 will indemnify and hold harmless the Purchasers from
any such obligations or liabilities.
5.3 The parties are aware that the transfer of contracts at Closing, which
form part of the Assets (the "Contracts"), might require the consent of
the respective third parties. Within a time period of three months
after Closing the parties shall use reasonable efforts (bemuhen) to
obtain such consent. If such consent cannot be obtained or can be
obtained only under conditions which are materially disadvantageous for
the respective Purchaser, the respective Seller shall, at its option,
either (i) if possible, enter into a sub-rental or sublease agreement
with the respective Purchaser, (ii) continue to act for the account of
such Purchaser as a party to such agreement, or (iii) enter into any
other reasonable agreement which ensures that the substantive
commercial benefit and burden of such contract will be vested in such
Purchaser. The obligation to support the Purchasers pursuant to this
Article 5.3 by proceeding in accordance with one of the referenced
options terminates one year after the Effective Date. Any liabilities
arising out of or in connection with the Contracts shall, to the extent
they are not assumed by the Purchasers under Article 5.2 hereof, be
borne by the Parties on a pro rata temporis basis, i.e., by the
respective Seller in as far as they relate to the time period before
the Effective Date and by the respective Purchaser in as far as they
relate to time periods after and including the Effective Date.
5.4 The Parties acknowledge that, on the Effective Date, the employees of
Seller 2, Seller 3, Seller 4 and Seller 5 (each, a "Seller Employer";
each employee, an "Asset Employee") transfer by operation of law to
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ 4 and Purchaser 5, respectively
(each, a "Purchaser Employer" of the relevant Asset Employee). The
total number of Asset Employees of the Seller Employers on the
Effective Date shall not exceed 41. The workforce of each Purchaser
Employer will then be comprised of Asset Employees, and
Page 18
personnel hired by Purchaser Employer before the Effective Date (the
"Workforce").
If following the Closing, any Purchaser Employer concludes that the
circumstances of the combined business require a reduction in Workforce
and, in compliance with applicable law, determines that Asset Employees
are included among those to be severed, then Purchaser Employer shall
have the sole responsibility to sever such Asset Employees, subject
only to the reimbursement obligations of Seller 1 set forth below. The
Purchaser Employer shall undertake such actions in a manner designed to
minimize potential liability and cost of the Purchaser Employers an the
Seller Employers.
Seller 1 shall reimburse Purchaser Employers for severance costs
relating to a maximum number of members of the Workforce, whether or
not they are Asset Employees. The maximum number of members of the
Workforce for which Severance Expenses, as defined below, are
reimbursed, is the number by which the total number of Asset Employees
on the Effective Date exceeds 24. In the event that a Purchaser
Employer ▇▇▇▇▇▇ a member of the Workforce on or prior to August 31,
2002, Seller 1 agrees to reimburse the respective Purchaser Employer
for any liabilities, obligations, external costs and expenses related
to severing such member of the Workforce, including without limitation
the following: compensation paid during the notice period; severance
payments paid (whether voluntarily or in compliance with court order);
vacation payments; social benefit plan payments; payments in connection
with the extension of mass termination rules; social security
contributions and any outside counsel fees and court expenses incurred
in connection with such individual's severance ("Severance Expense").
The obligation of Seller 1 to reimburse a Purchaser Employer under this
Article 5.4 is limited to a maximum amount of EURO 31,000
("Reimbursement Cap") per member of the Workforce severed by a
Purchaser Employer hereunder. The reimbursements paid by Seller 1 under
this paragraph shall constitute Restructuring Costs, that will in turn
be reimbursed to Seller 1 under Article 14 and shall be credited
against the maximum amount of EURO 3 million for such reimbursements.
To seek reimbursement for a Severance Expense that has been paid for a
member of the Workforce, the respective Purchaser Employer shall submit
to Seller 1, acting on behalf of the Seller Employers, a request for
reimbursement that identifies the relevant member of the Workforce and
explains in reasonable detail the nature and amount of the expense
paid, providing reasonable written evidence thereof ("Reimbursement
Request"). Seller 1 shall review such Reimbursement Request. and shall
within ten (10) German Banking Days either (i) reimburse the relevant
Severance Expense to such Purchaser Employer, or (ii) inform the
Purchaser Employer in detailed form of its basis for denying the
Reimbursement Request (the "Approval Procedure").
Page 19
The parties agree that in the event that the employment relationship of
less than 24 Asset Employees have been transferred to the Purchaser
Employers on the Effective Date, Purchaser 1 shall reimburse the
respective Seller Employer for all liabilities, obligations, external
costs and expenses relating to such Asset Employees including the items
defined as Severance Expenses above for an amount of up to EURO 31,000
for each such Asset Employee. Such Seller Employer shall be entitled to
submit a Reimbursement Request to Purchaser 1. Purchaser 1 shall act in
accordance with the Approval Procedure.
The parties shall take all appropriate and reasonable actions to ensure
that the Asset Employees transfer by operation of law on the Effective
Date. The parties shall cooperate to resolve any dispute in a timely
fashion. The undisputed portion of a Reimbursement Request shall in any
event be paid promptly. Neither Seller 1 nor Purchaser 1 shall be
required to reimburse for any Reimbursement Requests submitted after
December 31, 2002.
5.5 Purchasers shall offer to six employees currently employed by
DoubleClick GmbH Deutschland, DoubleClick Europe Ltd. or DoubleClick
International TechSolutions Ltd. (to the extent they are part of the
European Media Business) (the "D/UK Employers") the opportunity to
continue to be employed in the European Media Business or any other
business of any of the Purchasers at the terms and conditions customary
for such employment at such Purchaser as of the Effective Date. The
Purchaser shall ensure that as a result of the offers and their
acceptance, the employment relationships with the respective current
employer terminate by notice of the employees and without severance
payment. The Parties shall agree on the names of the individual
employees, to whom such offers shall be extended within one month after
signing.
Should employees in addition to these six employees referred to above
transfer by operation of law from any of the "D/UK Employers" to any of
the Purchasers, Seller 1 shall pay to the respective Purchaser for each
such additional employee an amount of EURO 27,000 as a lump sum
compensation for all costs and expenses that the Purchaser might incur
or have to bear in respect of these employees. These amounts will be
taken into account in connection with the accounting of the
Restructuring Cost. Purchaser 1 shall indemnify D/UK Employers for any
costs, expenses or obligations that relate to time periods starting on
the Effective Date. With respect to those employees that have accepted
the offer of the Purchaser, the Purchaser shall have no further claim
against the Sellers and Purchaser 1 shall indemnify D/UK Employers for
any costs, expenses or obligations that relate to time periods starting
on the Effective Date. The Purchaser shall take appropriate and
reasonable actions to mitigate such costs.
Should less than these six employees accept the employment offered to
them by the respective Purchaser, Purchaser 1 shall pay to Seller 1 for
such shortfall an amount of EURO 27,000 for each such employee.
Page 20
The Parties shall cooperate in good faith and take all reasonable
actions in order to keep the costs involved in the termination of any
employees as low as possible.
Page 21
ARTICLE 6 - LEGAL RELATIONS BETWEEN SELLER AND THE COMPANIES AND
PURCHASER AND GUARANTOR
6.1 Except for Financial Debt of up to EURO 5 million, all obligations,
liabilities and contracts between the Guarantor and its Affiliates
(other than the Company, the Partially Owned Companies and the
Subsidiaries) on the one hand and the Company, the Partially Owned
Companies and the Subsidiaries on the other hand, which have not been
completely fulfilled are listed in Annex 6.1 and shall terminate as of
the Accounting Date, and Seller 1 shall procure that no other
obligation or liability for the Company, the Subsidiaries and the
Partially Owned Companies exists on the Accounting Date or arises
thereafter with regard to the obligations, liabilities and contracts
listed in Annex 6.1 other than those shown in the Contract Accounts.
6.2 Except for Financial Debt of up to EURO 5 million, all amounts payable
by the Company, the Partially Owned Companies and the Subsidiaries to
the Guarantor and its Affiliates (other than the Company, the Partially
Owned Companies and Subsidiaries) shall be settled prior to the
Accounting Date or waived at Closing.
6.3 Except with respect to Partially Owned Companies with regard to which
Seller 1 or Seller 6 is unable to transfer title to the Majority
Interests, Seller 1 shall procure that all members of supervisory
boards and advisory boards and other similar bodies, nominated or
elected by Seller 1 or any of its Affiliates (other than the Company,
the Partially Owned Companies or the Subsidiaries) will resign from
their respective positions with effect as from Closing and that no
obligation or liability whatsoever will arise for the Company, the
Subsidiaries or the Partially Owned Companies from such resignations,
which is not shown in the Contract Accounts or has not been settled on
or before the Accounting Date.
6.4 Purchaser 1 and DoubleClick International TechSolutions Ltd
("TechSolutions") shall, as of the Effective Date, enter into an
agreement relating to the provision of DART Services to Purchaser 1
with the terms set out in the term sheet attached hereto as Annex 6.4
(the "DART Agreement"). This term sheet shall be binding.
ARTICLE 7 - CLOSING
7.1 The closing of the transaction (the "Closing") shall take place within
five German Banking Days after the Conditions Precedent set out in
Article 2 have been fulfilled or waived.
7.2 At the Closing,
(a) Purchaser 1 shall pay the Estimated Purchase Price to Seller 1.
Page 22
(b) In addition, Purchaser 1 shall pay to Seller 1 or, such entity
as it may so designate, an amount of EURO 3 million as an
advance payment of the Sellers' claims for reimbursement of
the Restructuring Costs.
(c) Moreover, Purchaser 1 shall procure that at Closing an amount
of EURO 5 million is paid to Seller 1 on account of the
Company, the Partially Owned Companies or the Subsidiaries, as
the case may be, in settlement of Financial Debt of the
Business owed to the Guarantor or any of its Affiliates (other
than the Company, the Subsidiaries and the Partially Owned
Companies) (such amount to be adjusted in accordance with
Article 3.4 hereof).
(d) Further, Purchaser 1 will pay the reimbursement and other
payments under Article 1.3 to Seller 1 (including for the
account of Seller 6 and any of their Affiliates).
The Estimated Purchase Price shall be paid by wire transfer in
immediately available funds to the bank account that Seller 1 will
specify in accordance with the requirements of the bank guarantee to be
provided by Seller 1 to Purchaser's Parent under the terms of the
option agreement between the Guarantor, Seller 1 and Purchaser's Parent
of even date. The amount of EURO 5 million shall be paid at Closing to
the parties and in the amounts designated by Seller 1. The amount of
EURO 3 million and the reimbursement and other payments, if any, under
Article 1.3 shall be paid by wire transfer in immediately available
funds to the bank accounts that Seller 1 will specify for this purpose.
Any retention rights or rights to set-off with respect to the Purchase
Price, regardless of their legal basis, shall be excluded. Section 454
of the German Civil Code shall not apply.
7.3 At Closing, Seller 1 shall ensure
(a) the transfer to Purchaser 1 of legal and beneficial title to the
Shares and its Majority Interests in DoubleClick Benelux Ltd. and
DoubleClick Italy Ltd., as well as any relevant minority
interests in these entities acquired under Article 1.3,
(b) if issued, the delivery to Purchaser 1 of the duly endorsed share
certificates for the Shares and its Majority Interests in
DoubleClick Benelux Ltd. and DoubleClick Italy Ltd. as well as
any relevant minority interests in these entities acquired under
Article 1.3, and any available declarations of consent of the
respective minority shareholders in these entities, expressing
their consent to the transfer of the Majority Interests in
DoubleClick Benelux Ltd. and DoubleClick Italy Ltd. to Purchaser
1 and to the accession of Purchaser 1 to any shareholder
agreements,
(c) the delivery to Purchaser 1 of validly executed declarations of
resignation of the persons named in Article 6.3 (subject to
Article 7.4),
Page 23
(d) the delivery to Purchaser 1 of documents evidencing the waiver
of any outstanding payment obligations of the Companies, the
Partially Owned Companies and the Subsidiaries to the
Guarantor and its Affiliates (except to the Company, the
Partially Owned Companies and the Subsidiaries) and
(e) the delivery to Purchaser 1 of termination documents relating
to all pre-existing contracts in accordance with Article 6.1
hereof.
At Closing, Seller 6 shall ensure
(f) the transfer to Purchaser 1 of legal and beneficial title to
the Majority Interests in DoubleClick Danmark A/S as well as
any minority interest in this entity acquired under Article
1.3, and
(g) if issued, the delivery to Purchaser 1 of the duly endorsed
share certificates for the Majority Interests in DoubleClick
Danmark A/S as well as any relevant minority interest in this
entity acquired under Article 1.3, as well as any available
declarations of consent of the respective minority
shareholders in the entity, expressing their consent to the
transfer of the Majority Interests in DoubleClick Danmark A/S
to Purchaser 1 and to the accession of Purchaser 1 to any
shareholder agreements.
Moreover:
(h) At Closing, Seller 1 and Purchaser 1 shall issue a letter to
an escrow agent selected by Seller 1 and reasonably acceptable
to Purchaser 1 informing such agent that Closing has occurred.
(i) At Closing and with effect as of the Effective Date, Purchaser
1 and TechSolutions shall enter into the DART Agreement. The
Guarantor will use its influence over TechSolutions to ensure,
to the extent permissible, that TechSolutions enters into the
aforementioned agreement.
(j) Seller 2, Seller 3, Seller 4 and Seller 5 shall take all
necessary steps applicable under local law to transfer to
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ 4 and Purchaser 5,
respectively, title to the assets mutually individualized,
where necessary, by the parties on the basis of Annex B.
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ 4 and
Purchaser 5, respectively, shall assume, as set out in Article
5.2, the liabilities as of Closing described as categories in
Annex B. Direct or indirect possession to the assets
determined on the basis of Annex B shall be transferred to the
respective Purchaser on the Effective Date. Seller 1 on behalf
of all Sellers, shall give Purchaser 1, on behalf of all
Purchasers, five German Banking Days advance written notice to
cooperate in determining the identity of the individual assets
to the extent these are not unambiguously identified in Annex
B. If
Page 24
Purchaser 1 fails to cooperate in that respect, Seller 1 shall
use its reasonable discretion to identify the assets.
7.4 Should Seller 1 and/or Seller 6 be unable to transfer title to the
Majority Interests and hand over any issued duly endorsed share
certificates therefor at Closing, the respective Seller shall be
entitled to transfer title and to hand over any issued share
certificates within a time period of six weeks after the Closing. If
title is transferred and any issued share certificates are handed over
during such time period of six weeks, or with the consent of Purchaser
1, thereafter, such Partially Owned Company shall be excluded from the
purchase price adjustment process described in Articles 3 and 4 and an
additional purchase price adjustment shall take place with regard to
such Partially Owned Company, whereby the day prior to the transfer of
such Majority Interest shall be deemed the Accounting Date and the day
of transfer the Effective Date. The Net Asset Values determined in the
various purchase price adjustments described in the foregoing sentence
shall be netted to achieve such Net Asset Value as would have been
determined if only one purchase price adjustment had taken place. With
regard to Articles 3 (with the exception of Article 3.1), 4, 6, 8, 9
and 14 through 16 hereof, and only to the extent these Articles apply
to such Partially Owned Company, the date prior to the transfer of
title to these shares shall be deemed the Accounting Date and the day
of transfer the Effective Date, as the case may be, for the respective
Partially Owned Company and any determination shall be made, and any
time period shall start, separately.
Should Seller 1 and/or Seller 6 not have ensured the transfer of title
to the Majority Interests and handed over any issued duly endorsed
share certificates within such additional time period, Purchaser 1 is
entitled to exclude the respective Partially Owned Company from this
Agreement. The Purchase Price shall then be reduced by the amount
specified in Annex 7.4.
ARTICLE 8 - TAXES
8.1 Tax matters of the Company, the Partially Owned Company and the
Subsidiaries concerning the period through Closing shall be handled by
the Company, the Partially Owned Companies, the Subsidiaries and
Purchaser 1 in agreement with Seller 1 and Purchaser 1 shall ensure
that the interests of the Sellers and their Affiliates are taken into
account and no tax returns shall be filed without the prior written
consent of Seller 1, such consent not to be unreasonably withheld.
Purchaser 1 shall procure that Seller 1 is given the opportunity to
take part in all tax audits and all meetings with the tax authorities
in the context of tax audits and tax assessments relating to the period
until Closing, and to present their position to the tax authorities in
writing. Upon the request of Seller 1 and at the cost of Seller 1,
Purchaser 1 shall procure that all available remedies are used against
tax assessments assessing Taxes for the period until Closing. Court
proceedings for this period shall be conducted jointly by Purchaser 1
and Seller 1, and sentences 2 and 3 of this Article 8.1 shall apply
mutatis mutandis. Purchaser 1 shall procure that a settlement, waiver
or acknowledgement not be entered into or declared
Page 25
except with the consent of Seller 1, which shall not be unreasonably
withheld. The same applies to binding declarations to the tax
authorities.
8.2 Purchaser 1 undertakes to pay to Seller 1 an amount equal to all Taxes
being reimbursed after the Accounting Date, if and to the extent that
such reimbursements concern time periods or portions thereof prior to
the Accounting Date.
8.3 Seller 1 undertakes to pay to Purchaser 1 an amount equal to all Taxes
of the Business if and to the extent such Taxes relate to time periods
or portions thereof ending on or before the Accounting Date and have
not been paid in full by such date.
8.4 The amount payable under Article 8.2 is due and payable within two
weeks after receipt of the reimbursement. The amount repayable under
Article 8.3, if any, is due and payable within two weeks after the
pertaining tax demand has become due and has been paid. Repayments
received that relate to such tax demands by any of the Purchasers shall
be passed on without undue delay to Seller 1.
8.5 Claims under Article 8.3 are subject to a limitation period of six
months commencing on the date on which the pertaining tax demand has
become non-appealable, however, in case of subsequent tax assessments
and modification of previous tax assessments the limitation period
commences on the day on which such subsequent or modified tax
assessment becomes final and binding.
ARTICLE 9 - REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby represent and warrant as an independent guarantee
(Section 305 of the German Civil Code) that the following
representations and warranties are correct as of the Date of Signing,
unless indicated otherwise herein, subject to the exceptions disclosed
in writing in the Annexes, all such exceptions to be referenced to a
specific Article of this Agreement to which the exception relates or to
otherwise be reasonably apparent that such disclosure relates to
representations hereof not specifically referenced.
9.1 Enforceability, No Conflict
Assuming due authorization, execution and delivery by the other parties
to this Agreement and the conditions set forth therein being met, this
Agreement constitutes a legal, valid and binding obligation of the
Sellers and the Guarantor as of the Date of Signing and as of Closing,
enforceable against the Sellers and the Guarantor in accordance with
its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar
laws relating to or affecting the rights of creditors generally and
except that the remedy of specific performance and injunctive relief
and other forms of equitable relief may be subject to equitable
defences and to the discretion of the court before which any proceeding
therefore may be brought. The Sellers and the Guarantor have all
necessary corporate power, authority and capacity to execute this
Page 26
Agreement and to perform their obligations under this Agreement, which
actions have been duly authorized and approved by all necessary
corporate action of the Sellers and the Guarantor. Neither the
execution of this Agreement nor the consummation or performance of any
of the transactions contemplated thereby will contravene, in any
material respect, any governmental authorization or order to which
Sellers or Guarantor are bound or subject, any provision of Sellers' or
the Guarantor's organizational documents, or any resolution adopted by
the respective boards of directors or shareholders of any the Sellers
or the Guarantor.
9.2 Corporate
9.2.1 On the Date of Signing and the Closing, the European Media Business is
organized as set forth in Annex 9.2.1a. Annex 9.2.1b sets forth a true,
correct and complete list of (a) the issued and outstanding share
capital of each of the Company, the Partially Owned Companies and the
Subsidiaries and (b) the direct or indirect participations of Seller 1
and Seller 6 in the Company, the Subsidiaries and the Partially Owned
Companies. Direct or indirect participations of Seller 1 in the
Company, the Partially Owned Companies and the Subsidiaries are validly
created, are fully paid in and have not been repaid, neither openly nor
concealed, are non-assessable, and are, other than the restrictions
contained in the Articles of Association and the agreements listed in
Annex 9.2.1c or other restrictions arising from statutory law, freely
transferable and free of secondary or other obligations or
restrictions. Any acquisition of minority interests in the Partially
Owned Companies prior to Closing, as provided for in Article 1.3
hereof, shall not constitute a breach hereof.
9.2.2 Other than as set forth in Annex 9.2.2a, as of the Date of Signing and
the Closing, no persons or companies hold any direct or indirect equity
interest of any type whatsoever (including but not limited to
sub-participations and silent partnerships) in the Company, the
Subsidiaries or the Partially Owned Companies, and there are no claims
for the granting of any such interest. All direct or indirect
participations of the Sellers in the Company, the Subsidiaries and the
Partially Owned Companies are free from any encumbrances and rights of
third parties of any type whatsoever and there are no claims for the
granting of such rights or the transfer of such participations. Other
than as set forth in Annex 9.2.2b, with respect to the transfers
envisaged by this Agreement, the shares in the Company, the
Subsidiaries and the Partially Owned Companies are not affected by any
change of control provisions, pre-emptive rights or rights of first
refusal in the Articles of Association of the respective company, in
any shareholder agreement or otherwise.
9.2.3 Except for (i) the Articles of Association of the Company and the
Subsidiaries, or (ii) as set forth in Annex 9.2.3, or (iii) agreements
or resolutions which Purchasers have caused to be binding after the
Closing or contemplated by this Agreement, as of the Date of Signing
and the Closing, there are no agreements or resolutions that will be
binding upon the Purchasers following the Closing concerning (a) the
corporate relationship between the Company, the
Page 27
Subsidiaries or the Partially Owned Companies and their shareholders
(e.g., shareholders' agreements) or (b) the appointment of members of
any board of the Company, the Subsidiaries or the Partially Owned
Companies, nor are there any obligations to enter into such agreements
or resolutions.
9.2.4 Annex 9.2.4 hereto contains a correct and complete list of (a) all
managing directors of the Company, the Subsidiaries and the Partially
Owned Companies, (b) all members of any supervisory or advisory board
or similar bodies, if any, of the Company, the Subsidiaries and the
Partially Owned Companies and (c) all general Powers of Attorney or
similar grants of authorizations granted by the Company, the
Subsidiaries and the Partially Owned Companies.
9.2.5 As of the Date of Signing, no bankruptcy, composition or insolvency
proceedings have been commenced with regard to the Company, the
Subsidiaries or the Partially Owned Companies, nor has a petition been
filed for the commencement of bankruptcy, composition or insolvency
proceedings.
9.3 Ownership
9.3.1 To the Best Knowledge of the Sellers and as of the Date of Signing, all
tangible property material to the business of the Company, the
Partially Owned Companies and the Subsidiaries and all tangible Assets
set forth in Annex B are in good working condition, subject to normal
wear and tear, and have been adequately maintained and serviced. The
Company, the Partially Owned Companies and the Subsidiaries have title
to all such tangible property and tangible Assets (that are material to
their respective business), free and clear of any liens or
encumbrances, except for those assets that are leased or licensed on
normal market terms or which are subject to usual reservations of title
by suppliers pending payment or other restriction or encumbrance in the
ordinary course of business (collectively, the "Permitted Liens").
9.3.2 As of the Date of Signing and as of Closing, and except as set forth in
Annex 9.3.2, the Company, the Partially Owned Companies and the
Subsidiaries do not hold any interest in any enterprises other than the
Subsidiaries and are under no obligation, contingent or otherwise, to
acquire such interest.
9.3.3 With the consummation of the sale and transfer of the Shares, the
Majority Interests, and the Assets, the Sellers will, except for any
liens and encumbrances that the Purchaser or any of its Affiliates
might have arranged for, have effected transfer of full, unrestricted
and unencumbered title to the Shares, the Majority Interests, and,
except for Permitted Liens, the Assets (excluding the Contracts and the
liabilities thereof).
9.3.4 The Guarantor and its Affiliated Companies other than the Company, the
Subsidiaries and the Partially Owned Companies do not hold any material
participations in any enterprise other than the Company, the
Subsidiaries and the Partially Owned Companies, which are engaged to a
material extent in the EMEA Media Business, other than the companies
listed in Annex 9.3.4.
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9.4 Financial Statements
9.4.1 The pro forma consolidated statements of assets and liabilities of the
Company, the Partially Owned Companies, and the Subsidiaries as of
September 30, 2001 (collectively the "Financial Statements"), have been
prepared with the care of a diligent business person and give a true
and fair view, in all material respects, of the financial position of
the Company, the Partially Owned Companies and the Subsidiaries as of
the dates specified. The audited consolidated financial statements
(balance sheets, profit and loss accounts and notes) of the Guarantor
as of December 31, 1999 and 2000 as filed with the U.S. Securities and
Exchange Commission (the "Audited Financial Statements") have been
prepared in accordance with generally accepted accounting principles in
the United States ("U.S. GAAP") applied on a consistent basis
throughout the periods covered thereby (except as may be indicated in
the notes thereto). The Financial Statements are attached hereto as
Annex 9.4.1.
9.4.2 The Audited Financial Statements give a true and fair view, in all
material respects, of the consolidated financial position, result of
operations and cash flows of the Guarantor and its Subsidiaries, as
applicable, as of the respective dates thereof.
9.4.3 Subject to any reserves set forth in the Contract Accounts, the
accounts receivable shown in the Contract Accounts represent bona fide
claims against creditors for sales and other charges and are not
subject to discount, except for normal cash and immaterial trade
discounts the amount carried for doubtful accounts and allowances
disclosed in the Contract Accounts or in the Financial Statements. The
amount carried for doubtful accounts and allowances was calculated in
accordance with U.S. GAAP standards.
9.4.4 Except for liabilities (a) set forth, or reserved against, in the
Financial Statements, or the Audited Financial Statements (b) set forth
in Annex 9.4.4, (c) disclosed pursuant to the provisions of this
Article 9 or any annex modifying any representation and warranty set
forth in this Article 9, or (d) incurred in the ordinary course of
business consistent with past practice, none of the Company, the
Partially Owned Companies or the Subsidiaries is subject to any
liability (whether final or contingent) that a diligent business person
would have been required to set forth in the Financial Statements and
that would have a Material Adverse Effect.
9.5 Employees and Employee Benefits
9.5.1 Annex 9.5.1 lists each Employee Benefit Plan according to which the
Employees (as defined below) are entitled to pension benefits as of the
Date of Signing and the Closing.
9.5.2 As of the Date of Signing each such Employee Benefit Plan (and each
related trust, insurance contract, or fund) has been maintained, funded
and administered in all material respects in accordance with the terms
of such
Page 29
Employee Benefit Plan and complies in form and in operation in all
material respects with the applicable statutory requirements.
9.5.3 Except as provided for in the Contract Accounts, as of Closing all
material contributions (including all employer contributions and
employee salary reduction contributions) which are due have been made
to each such Employee Benefit Plan and all material premiums or other
payments which are due have been paid with respect to each such
Employee Benefit Plan.
9.5.4 Annex 9.5.4.a hereto contains a complete and correct list as of the
Date of Signing of all employees of the European Media Business (the
"Employees"), showing the aggregate amount of annual salaries, the
aggregate amount of bonuses paid for the first five months in 2001, and
the number of Employees that are granted company cars. Annex 9.5.4.b
lists the collective labor agreements (including shop agreements)
applicable to the employees of the Company, the Partially Owned
Companies and the Subsidiaries and all other existing agreements
concluded between the Company, the Partially Owned Companies or the
Subsidiaries and trade unions or works councils as of the Date of
Signing.
9.5.5 Annex 9.5.5 sets forth the total number and the strike price of the
stock options to the shares of the Guarantor that have been granted to
the Employees and that are outstanding as of the Date of Signing. All
of the stock options referenced in Annex 9.5.5 (i) to the extent they
have not vested at the time the employer of the respective Employees
ceases to be an Affiliate of the Guarantor will terminate at such time,
and (ii) to the extent they are vested at such time, they will
terminate no later than three (3) months following such time.
9.5.6 As of the Closing, all compulsory social security contributions and
compulsory employment related social welfare, with regard to the
employees of the Company, the Partially Owned Companies and the
Subsidiaries have been paid by the respective employers when due and in
full other than as disclosed in Annex 9.5.6..
9.6 Litigation
Except as set forth in Annex 9.6, as of the Date of Signing, the
Company, the Subsidiaries and the Partially Owned Companies are not a
party to, nor to the Best Knowledge of the Sellers, have they been
threatened with, any litigation, arbitration proceedings,
administrative proceedings or investigations with a value individually
of (i) more than EURO 50,000 with respect to debt collection matters or
(ii) more than EURO 100,000 with respect to all other matters. As of
the Date of Signing, the Company, the Subsidiaries and the Partially
Owned Companies are not subject to any judgment, decree or settlement
in any legal or administrative proceedings that restricts them in any
material way in their regular current business activity as conducted on
the Date of Signing.
9.7 Sureties
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Except as set forth on Annex 9.7, the Company, the Subsidiaries and the
Partially Owned Companies have neither issued any guarantees,
suretyships or any other similar securities for any other person's
debenture loans, liabilities due to banks and financial institutions or
the indebtedness for monies borrowed -with the exception of the
Company, the Partially Owned Companies or the Subsidiaries, that has
not terminated or expired, nor are they jointly and severally liable
for obligations, for which any other person (including the Guarantor
and its Affiliates, other than the Company, the Subsidiaries and the
Partially Owned Companies) is primarily responsible.
9.8 Business Information
With the consummation of this Agreement, the Purchasers will acquire
ownership or access to any Business information that are necessary for
the continuation of the European Media Business.
9.9 Insurance
Annex 9.9 hereto sets forth a complete list of all material insurance
coverage of the Company, the Subsidiaries and the Partially Owned
Companies. As of the Date of Signing, the insurance contracts are in
full force and effect, and have not been terminated and all premiums
due have been paid.
9.10 Approvals and Licenses
Except where the failure to do so would not have a Material Adverse
Effect, the Company, the Subsidiaries and the Partially Owned Companies
have obtained all administrative approvals, permits and licenses, which
they require for the conduct of their business as it is conducted on
the Date of Signing. As of the Date of Signing to the Best Knowledge of
the Sellers no circumstances exist which would result in a revocation
or limitation of the approvals, permits and licenses as a consequence
of the consummation of this Agreement or which would lead to the
imposition of conditions to the approvals, permits and licenses which,
in each case, would cause a Material Adverse Effect as a consequence of
the consummation of this Agreement.
9.11 Real Property
9.11.1 None of the Company, the Subsidiaries or the Partially Owned Companies
owns any real property or has any interests in real property, other
than set forth on Annex 9.11.2.
9.11.2 Annex 9.11.2 contains a true and complete list of all leases for real
property to which the Company, the Subsidiaries and the Partially Owned
Companies are a party as lessee.
9.12 Material Agreements
9.12.1 None of the Company, the Subsidiaries or the Partially Owned Companies
are party to any one of the following agreements and commitments which
have
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not yet been completely fulfilled (herein collectively "Material
Agreements"):
(i) loan and credit agreements, or other agreements or instruments
evidencing indebtedness of any of the Company, the Subsidiaries
or the Partially Owned Companies in excess of EURO 50,000.00 or
securing such indebtedness such as pledges, guarantees,
securities or letters of comfort and that will continue in
effect or with respect to which any of the Company, the
Subsidiaries or the Partially Owned Companies will have any
liabilities after Closing;
(ii) non-compete agreements that restrict any of the Company, the
Partially Owned Companies or the Subsidiaries from operating the
European Media Business as conducted on the Date of Signing;
(iii) research and development agreements involving an amount in
excess of EURO 20,000.00 per annum;
(iv) trademark and know how license agreements which involve an
amount in excess of EURO 20,000.00 per annum;
(v) agreements relating to the acquisition or sale of interests in
other companies or businesses (other than the Company, the
Subsidiaries or the Partially Owned Companies);
(vi) lease agreements other than car leases and the leases set forth
in Annex 9.12.2, which, individually, provide for annual
payments of EURO 30,000.00 or more;
(vii) contracts or other agreements relating to construction or
acquisition of fixed assets or other capital expenditures
involving an amount in excess of EURO 50,000.00 per annum;
(viii) contracts and other agreements to sell, lease or otherwise
dispose of any assets owned by the Company, Subsidiaries or the
Partially Owned Companies other than in the ordinary course of
business or involving an amount in excess of EURO 50,000.00; and
(ix) contracts providing for a payment obligation for or to the
Company, the Partially Owned Companies or the Subsidiaries in
excess of EURO 30,000.00 per annum that contain a provision that
would entitle the other contracting party to terminate the
contract as a result of the consummation of the transaction
contemplated under this Agreement;
except for the agreements and commitments listed or disclosed in Annex
9.12.1 with an express reference to the individual subparagraph above.
9.12.2 Except as set forth in Annex 9.12.2, the Company, the Subsidiaries and
the Partially Owned Companies have, as of the Date of Signing, complied
with their obligations under the Material Agreements in all material
respects. To
Page 32
the Best Knowledge of Sellers, the Material Agreements are valid and in
full force. The transactions contemplated by this Agreement will not
trigger any contractually agreed termination or similar rights for the
other contracting party under any Material Agreement, except as set
forth in Annex 9.12.2.
9.13 Customers/Suppliers
Annex 9.13 contains a complete and correct list showing the names of
the respective other parties of (a) the publisher customers, which made
up 60% of the turnover of the European Media Business during the
quarter ended September 30, 2001 (the "Top Publisher Contracts") (b)
the 20 largest advertising customers (based on revenues of the European
Media Business) for the year 2001 through September 30, 2001 and (c)
the 20 largest vendors of the European Media Business for the year 2001
through September 30, 2001 and (d) all vendors of the Business which,
for goods and services of any kind that are material to the operation
of the business of the Business, are the sole source of supply (i.e.,
for which there is no alternative source at comparable conditions), for
the year 2001 through September 30, 2001. The non-weighted average
revenue split of the Top Publisher Contracts for the quarter ended
September 30, 2001 was 65 % of revenues received for advertising on the
respective web site payable to the Web Publisher. No guarantees with
regard to payments to Web Publishers have been given in any of the Top
Publisher Contracts. For the Top Publisher Contracts, no termination
notice has been received as of September 30, 2001.
9.14 Public Grants
The Company, the Subsidiaries and the Partially Owned Companies have
not received any grants or subsidies from any governmental, state,
municipal or EU authority.
9.15 Transaction Fees
Other than as provided for in this Agreement, the Sellers, the
Guarantor, the Company, the Subsidiaries, and the Partially Owned
Companies do not have any obligation or liability to pay bonuses or
other incentive payments to the directors and/or employees of the
Company, Subsidiaries or Partially Owned Companies solely as a result
of the consummation of the transaction contemplated hereunder for which
the Purchasers, the Company, the Subsidiaries and/or the Partially
Owned Companies would become liable.
9.16 IP/IT
None of the Company, the Partially Owned Companies or the Subsidiaries
has received notice from any person of any claims (i) challenging the
validity, effectiveness or ownership by the Company, the Partially
Owned Companies or the Subsidiaries of any of such person's
intellectual property rights, or (ii) to the effect that the use or any
other exercise of rights in such person's intellectual property rights
by the Company, the Partially Owned Companies
Page 33
or the Subsidiaries through the Business or their agents or use by
their customers infringes on any intellectual property right of any
third party.
9.17 Material Adverse Effect
For the purpose of this Article 9, "Material Adverse Effect" means any
change or effect that is materially adverse to the financial condition,
business operations or assets of the Business, taken as a whole.
ARTICLE 10 - BREACH OF REPRESENTATIONS OR WARRANTIES OF SELLERS AND
LIMITATION OF CLAIMS OF PURCHASER
10.1 If a representation or warranty contained in Article 9 of this
Agreement is untrue or not complied with, Seller 1 shall, subject to
the following provisions, compensate Purchaser 1 or -- at the choice of
Purchaser 1 -- one of the other Purchasers or the affected Company,
Partially Owned Companies or Subsidiaries for the damages suffered by
Purchaser 1 or one of the other Purchasers or the affected Company,
Partially Owned Companies or Subsidiaries as a result thereof.
10.2 Purchaser 1 shall inform Seller 1 of any alleged breach of a
representation or warranty under Article 9 and shall set a deadline of
at least one month to enable Sellers to restore conformity with this
Agreement. No such request shall be required in case the Sellers are
unable to restore conformity or finally refuse to do so.
10.3 Should Sellers fail, refuse or be unable to restore conformity pursuant
to Article 10.2 above, Seller 1 shall pay such amount of money to
Purchaser 1 or, at the choice of Purchaser 1, the respective Purchaser,
Company, Partially Owned Companies or Subsidiaries, that is required to
compensate the respective Purchaser, Company, Partially Owned Company
or Subsidiary for the damage suffered as a result of the breach. With
regard to representations and warranties that relate to Partially Owned
Companies, the obligation to compensate for damages shall exist in the
full amount of such damages. The legal principle of
"Vorteilsausgleichung" shall apply even across the different
beneficiaries named in the first sentence of this Article 10.3.
10.4 The Purchasers and the other beneficiaries shall take all appropriate
and reasonable actions to mitigate the damages of Purchasers, the
Companies, the Partially Owned Entities and the Subsidiaries.
10.5 Purchasers shall have claims based upon a breach of a representation or
warranty only if the individual claim or a series of connected claims
exceeds an amount of EURO 100,000 or the equivalent thereof in a
foreign currency at the then current exchange rate, and, in addition,
only if the aggregate amount of such claims exceeds EURO 500,000.
10.6 Unless provided otherwise herein, the claims of the Purchasers based
upon a breach of a representation or warranty shall be time-barred on
June 30, 2003,
Page 34
except for claims of Purchaser 1 arising out of Articles 9.2.1, 9.2.2
and 9.3.3 of this Agreement, which shall be time barred 5 years after
Closing.
10.7 Claims of the Purchasers against the Sellers arising out of or in
connection with a breach of a representation and warranty contained in
Article 9, with the exception of claims arising out of a breach of
Articles 9.2.1 second sentence or 9.3.3 (which shall be limited to the
Adjusted Purchase Price), may not in their aggregate exceed the amount
of EURO 5 Million. Except as expressly provided for in this Agreement,
any and all claims of the Purchasers or Purchaser's Parent based on a
breach of a representation and warranty contained in Article 9 hereof
for specific performance, reduction (Minderung) of the purchase price,
rescission, whether on the basis of the law of sales (Wandelung) or
general principles (Anfechtung) and damages based on the violation of
any pre-contractual obligations (culpa in contrahendo), positive breach
of contract (positive Vertragsverletzung), tort (unerlaubte Handlung) or
loss of the contractual basis (Wegfall der Geschaftsgrundlage) are
excluded, to the extent permissible under mandatory statutory law.
ARTICLE 11 - GUARANTEE (SELBSTANDIGES GARANTIEVERSPRECHEN)
The Guarantor hereby unconditionally and irrevocably guarantees to the
Purchasers the due and punctual performance of all obligations of the Sellers
hereunder and shall cause its Affiliates to take all actions necessary to
fulfill the obligations of the Sellers contained herein. The guarantee shall be
limited to those obligations that are explicitly set out herein. The Guarantor
hereby waives any rights which it may have to require the Purchasers to proceed
first against or claim payment from the Sellers.
ARTICLE 12 - IMPLEMENTATION, COOPERATION
12.1 The parties undertake, upon the request of any party, at any time after
today and until six months after Closing and without further
compensation to execute all reasonable documents in proper form and to
take all reasonable measures which may still be necessary in order to
consummate this Agreement.
12.2 Purchaser 1 and Guarantor shall ensure that all communications, oral or
written, with their respective shareholders, customers, and employees
regarding the Transaction or the General Assembly (together,
"Transaction Communications") comply in all material respects with all
applicable laws, and Purchaser 1 and Guarantor shall provide each other
all information, reasonably requested by the respective other party
and, without limiting the generality of the foregoing, Purchaser 1 and
Guarantor shall ensure that none of the Transaction Communications
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements contained therein not misleading in light of the
circumstances in which they are made.
Subject to the other paragraphs of this Article 12.2, neither Purchaser
1 nor Guarantor shall include in the written Transaction Communications
any information with respect to the respective other party or its
Affiliates or
Page 35
associates, the form and substance of which information shall not have
been approved by the respective other party prior to such inclusion,
such approval not to be unreasonably withheld or delayed.
The parties shall apply procedures that allow the respective other
party appropriate time to review the Transaction Communications whereby
the legal requirements and circumstances shall be taken into account.
With regard to the invitation to the General Assembly of Purchaser 1
that will decide on the Agreement, Purchaser 1 will submit the draft
invitation to Seller 1 and the Guarantor, and enable Seller 1 and
Guarantor to participate in the internal coordination and approval
process of Purchaser 1. Should Purchaser 1 on the one hand and Seller 1
and Guarantor on the other hand not agree on the final invitation
within the timeframe envisaged for the internal review by the
Purchaser, Purchaser 1 shall have the right to decide which version of
the invitation will finally be published.
With regard to any other publication or communication, the parties
shall consult with each other prior to making such publication or
communication.
12.3 Purchaser 3, that will assume a lease agreement, will offer to and
agree with an Affiliate of Seller 1 on the sub-lease of those parts of
the leased space that are currently used by Seller 3 for its "tech
business" and Guarantor will ensure that one of its Affiliates enters
into a sublease agreement with regard to such space on a back-to-back
basis.
ARTICLE 13 - ADVISORS COST
13.1 Purchaser 1 shall reimburse to Seller 1 all costs that any of the
Sellers or the Guarantor might incur or have incurred for their
external legal, tax or financial advisers (including investment banks)
in connection with the preparation, negotiation and implementation of
the Transaction and other costs or expenses incurred in this context up
to a maximum amount of EURO 750,000 (the "Advisors Costs"), which shall
include any fees, expenses, internal costs and applicable and payable
taxes.
13.2 Seller 1 shall evidence such Advisors Costs by submitting to Purchaser
1 lists of such Advisors Costs including reasonable evidence thereof.
Reimbursement payments are to be made by Purchaser 1 within one week
after receipt of any list with such reasonable evidence.
13.3 Neither the Company, the Partially Owned Companies nor the Subsidiaries
will have at Closing any obligation or liability to pay any fees or
commissions to any investment banker, broker, finder or other
intermediary as a result of the consummation of the transaction
contemplated hereunder. Seller 1 shall reimburse the respective payor
for payments made, if and to the extent such payment obligations are
not reflected in the Contract Accounts.
ARTICLE 14 - RESTRUCTURING COSTS
Page 36
14.1 The Sellers may following the execution of this Agreement restructure
and terminate their business operations, in particular by terminating
employment relationships or other agreements. The Sellers shall inform
Purchaser 1 of any such actions in advance and Purchaser 1 shall have
the right to consent to such actions, such consent not to be
unreasonably withheld or delayed. Any negative effects that such
restructurings or terminations might have on the Business shall not
give rise to rights of the Purchasers or Purchaser's Parent, provided
the Sellers have acted reasonably and taken the interests of the
Purchasers and the Business reasonably into account.
The Sellers, the Guarantor or any of their Affiliates might make
payments to third parties in the restructuring of (i) their "tech
business" in Europe as a direct result of the implementation of this
Agreement or (ii) the closure of those parts of the European Media
Business that are not sold under this Agreement or (iii) those parts of
the European Media Business that are sold under this Agreement in
accordance with Article 14.1 hereof (the "Restructuring Costs"). A list
of potential Restructuring Costs is attached hereto as Annex 14.2a. In
addition, the payments made by Seller 1 under Articles 5.4 and 5.5
hereof shall be deemed Restructuring Costs for the purposes of this
Article 14. Restructuring Costs shall be costs, obligations and
liabilities that relate to Seller 1, the Guarantor and the Affiliates
of Seller 1 and the Guarantor only in Germany, Sweden, Norway, Spain,
France, Ireland, the United Kingdom and the United States of America.
An estimate of the Restructuring Costs, showing the expected severance
payments for the individual employees as well as other expected costs,
is attached hereto as Annex 14.2b. Restructuring Costs may include
payments made by the Sellers, the Guarantor or any of their Affiliates
prior to the Effective Date provided, however, that Closing occurs.
14.2 The Sellers shall take all reasonable actions to mitigate such
Restructuring Costs. Purchaser 1 shall reimburse to the Sellers, the
Guarantor and any of their Affiliates the Restructuring Costs up to a
maximum amount of EURO 3 million. The reimbursement obligation of
Purchaser 1 is limited to Restructuring Costs which the Guarantor and
its Affiliates were obliged to pay out, or actually paid out, to the
respective third parties by August 31, 2002 or, with regard to lease
related expenses, by December 31, 2002. No reimbursement is granted
with regard to payments effectuated after such date.
14.3 The parties understand that 17 employees of DoubleClick International
Internet Advertising Ltd. will transfer by operation of law to
Purchaser 1. Costs related to these employees will be borne by
Purchaser 1 as of Closing. Should contrary to the understanding of the
parties, these employees not transfer to Purchaser 1 and DoubleClick
International Internet Advertising Ltd. incur Restructuring Costs in
connection with or for these employees, or should DoubleClick
International Internet Advertising Ltd. incur Restructuring Costs in
respect to them prior to Closing, Purchaser 1 will pay DoubleClick
International Internet Advertising Ltd. an amount of EURO 27,000 per
employee as a lump sum payment. These costs will not account
Page 37
against the maximum amount of EURO 3 million and be paid by Purchaser 1
in addition thereto.
14.4 Purchaser 1 shall provide security for its obligation to indemnify and
reimburse under this Article 14 by payment of an advance in the amount
of EURO 3 million to Seller 1 at Closing. Any interest earned on such
advance shall be for the benefit of Seller 1 in addition to the maximum
amount. Seller 1 shall evidence the Restructuring Costs by submission
to Purchaser 1 of one or more lists of all Restructuring Costs,
including reasonable evidence. The Purchaser is entitled to have any
payments by the beneficiaries under this Article 14, for which they
request reimbursement hereunder, and any related documentation reviewed
by an accountant of its choice. Seller 1 shall provide such accountant
with all documents and information reasonably requested by him. The
balance, if any, remaining on the EURO 3 million, following accounting
by Seller 1 of all Restructuring Costs, shall be due to Purchaser 1 on
December 31, 2002.
ARTICLE 15 - CONDUCT OF BUSINESS/FURTHER COVENANTS
15.1 Subject to Articles 14.1 and 14.2 and the acquisition of minority
interests in the Partially Owned Companies as provided for in Article
1.3 hereof, as from the date hereof until Closing, Seller 1 shall
procure that the Companies, the Partially Owned Companies and the
Subsidiaries shall
- conduct their business in the ordinary course of business
consistent with past practices;
- to the best of their ability maintain, keep and preserve their
assets and their employee, customer and supplier relations;
- not declare any dividend or dividend distributions except for
dividends relating to the period up to and including the Effective
Date;
- not carry out or effect any capital expenditures or other
investments.
15.2 After the Closing and upon the reasonable request of the Purchasers,
the Sellers shall assist for a transitional period of six months the
Purchasers in any matters relating to the continuation of the Business
after Closing and its transfer from the Sellers to the Purchasers.
Purchasers shall reimburse Sellers for any costs and expenses incurred
in such assistance on a cost basis.
15.3 To the extent the Sellers and its Affiliates should still hold any
customer contracts or related information, which were accidentally
omitted by both parties in this transaction and which are primarily
related to the European Media Business after the Closing hereof, Seller
1 hereby undertakes to ensure that such contracts or information are
transferred upon the request of Purchaser 1, to Purchaser 1 or any of
its direct or indirect majority owned subsidiaries, within one year
after Closing without any further consideration or compensation.
Page 38
ARTICLE 16 - NON-COMPETITION COVENANTS
16.1 For a period of two (2) years from the Closing Date, neither Seller 1
nor Guarantor nor any of their majority owned subsidiaries shall,
directly or indirectly, engage in any of the following activities: (i)
operating a Seller Prohibited Network; (ii) selling advertising
inventory on an Ad Network to a Seller Prohibited Advertiser; (iii)
providing (whether brokering, renting or otherwise) to a Seller
Prohibited Advertiser for the purpose of sending such advertiser's
marketing offers via email, lists of email names, whether these names
are owned by Seller, Guarantor, any Affiliate, or an unaffiliated third
party (subsections (i) through (iii), collectively, "EMEA Media
Business"). Notwithstanding the foregoing, it shall not be deemed a
breach of this Article 16.1 for Seller 1 or Guarantor, or any of their
Affiliates, to acquire a company or business that engages in EMEA Media
Business activities, so long as Seller 1 or Guarantor, or the relevant
Affiliate, gives Purchaser 1 the opportunity to purchase on
arm's-length terms that portion of the company or business engaged in
the EMEA Media Business. Should Seller 1, the Guarantor, or the
respective Affiliate on the one hand, and Purchaser 1 on the other hand
not agree on an arm's-length price or any other terms of such purchase
agreement, the price shall be determined by an independent arbitrator
(Schiedsgutachter). The independent arbitrator shall be a major
international accounting firm ("Big Five Firm") jointly agreed upon by
the respective parties to such purchase agreement, or if they cannot
agree on the person of the independent arbitrator, be appointed by the
competent court of law. The independent arbitrator's decision shall be
final and binding upon the respective parties of such purchase
agreement. For the avoidance of doubt, this Article 16.1 shall not
restrict the activities of any future parent of Guarantor, but shall
continue to bind Guarantor, its majority owned subsidiaries, and those
entities to which Guarantor transfers its Media Business, that are not
active in the Media Business in Europe on the date of the transfer, and
in which Guarantor holds at least a ten percent (10 %) interest.
Nothing in this Agreement shall be deemed to restrict Seller 1 or
Guarantor or their Affiliates from conducting anywhere in the world
their respective "tech businesses," including their respective Internet
ad delivery, targeting technology and email ad delivery services
businesses. The obligations under this Article 16.1 shall not apply to
the Affiliates of any third party that merges into the Guarantor or
into which the Guarantor is merged or that acquires control over the
Guarantor.
16.2 For a period of eighteen (18) months from the Effective Date, neither
Purchaser nor any of its majority owned Subsidiaries shall, directly or
indirectly, engage in any of the following activities: (i) operating a
Purchaser Prohibited Network; (ii) selling advertising inventory on an
Ad Network to a Purchaser Prohibited Advertiser; (iii) providing
(whether, brokering, renting or otherwise) to a Purchaser Prohibited
Advertiser for the purpose of sending such advertiser's marketing
offers via email, lists of email names, whether these names are owned
by Purchaser, any Affiliate, or an unaffiliated third party; or (iv)
performing Internet advertising delivery services or email advertising
delivery services on behalf of third parties (other than the delivery
of e-mail newsletters as a de minimis part of Purchaser 1's business).
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Notwithstanding the foregoing, it shall not be deemed a breach of this
Article 16.2 for Purchaser to continue to engage in those cross-selling
arrangements provided for in its agreements with the parties for the
territories listed in Annex 16.2, in the form in effect as of the Date
of Signing; provided that, such agreements may not be amended in any
significant respect or renewed without Seller's consent, which shall
not be unreasonably withheld or delayed.
ARTICLE 17 - LIMITATION OF LIABILITY/EXCLUSION OF RESCISSION
17.1 Damage claims of the Purchasers and Purchaser's Parent against Sellers
under this Agreement are limited to an aggregate maximum amount of EURO
7 Million. Payments made by the Sellers under Article 10 hereof, with
the exception of claims based on a breach of Articles 9.2.1, second
sentence, or 9.3.3, shall reduce such maximum amount. No such cap shall
apply to any claims for specific performance.
17.2 To the extent legally permissible, except as expressly provided for in
this Agreement, any and all claims of the Parties for a rescission,
termination or other reversal of this Agreement shall be excluded.
ARTICLE 18 - COSTS AND TAXES
Any transfer taxes, fees and charges including those incurred in connection with
the General Assembly meeting, the auditor's opinion, the antitrust clearances,
governmental approvals, filings and the like payable in connection with the
signing and implementation of this Agreement shall be borne by Purchaser 1. Any
Irish stamp duties are to be borne by Seller 1.
ARTICLE 19 - MISCELLANEOUS
19.1 This Agreement is governed by the laws of the Federal Republic of
Germany except for the Uniform Code on the International Sale of Goods.
19.2 Changes and amendments to this Agreement as well as declarations to be
made hereunder shall be valid only if made in writing unless a notarial
deed is legally required. This shall also apply to any change of this
provision.
19.3 Except as otherwise provided in this Agreement, no party hereto shall
assign this Agreement or any rights or obligations hereunder without
the prior written consent of the other.
19.4 All disputes arising under or in connection with this Agreement or any
other agreement executed in connection herewith or in consummation
hereof shall be finally settled by the courts of Frankfurt am Main.
19.5 The headings in this Agreement shall not affect the interpretation
thereof. Unless explicitly noted otherwise, references to Articles and
Annexes shall be to Articles and Annexes of this Agreement.
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19.6 All notices, requests, consents, approvals or other communications
hereunder shall be delivered by hand or by courier or by facsimile
transmission addressed as follows (or to such other person or
destination as a party may indicate by notice to the other parties):
To Seller 1, on behalf of the Sellers:
Channon Management Limited
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
P.O. Box 71
Road Town
Tortola
British Virgin Islands
Attention: Director and ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
With a copy to:
Channon Management Limited
c/o DoubleClick Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
Attention: General Counsel
And a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Frankfurter Welle
▇▇ ▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
To Guarantor:
DoubleClick Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
Attention: Chief Executive Officer
With a copy to:
DoubleClick Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ U.S.A.
Attention: General Counsel
And a copy to:
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Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Frankfurter Welle
▇▇ ▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
To Purchaser 1, on behalf of the Purchasers:
AdLINK Investment Media AG
Attn: Chief Financial Officer/Finanzvorstand
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
D-56410 Montabaur
Germany
To Purchaser's Parent:
United Internet AG
Attn: Chief Financial Officer/Finanzvorstand
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
D-56410 Montabaur
Germany
19.7 Should any provision of this Agreement be or become invalid or
unenforceable, the validity of the remainder of this Agreement shall
not be affected thereby. In lieu of the invalid or unenforceable
provision, a fair provision shall apply which, to the extent legally
permissible, comes as close as possible to what the parties had
intended or would have intended according to the spirit and purpose of
this Agreement if they had considered the matter at the time this
Agreement was executed. The same applies if the provision is invalid
because of the stipulated scope or time period.
19.8 This Article 19 shall apply to all Annexes to this Agreement
accordingly, except as provided otherwise.
November 12, 2001, Frankfurt am Main
ADLINK INTERNET MEDIA AG:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- --------------------------
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ADLINK INTERNET MEDIA AS:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
ADLINK INTERNET MEDIA SA:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
ADLINK INTERNET MEDIA AB:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
ADLINK INTERNET MEDIA S.L.U.:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
UNITED INTERNET AG:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
CHANNON MANAGEMENT LIMITED:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
DOUBLECLICK NORWAY AS:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
DOUBLECLICK FRANCE SARL:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
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DOUBLECLICK SWEDEN AB:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
DOUBLECLICK ESPANA SL:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
DOUBLECLICK SCANDINAVIA AB:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
DOUBLECLICK INC.:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
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