Exhibit 10.22
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STOCK EXCHANGE AGREEMENT
by and between
XXXXXX.XXX LTD.
and
VISIONIK HOLDING ApS
ASSOCIATED MANAGEMENT SERVICES A/S
(Shareholders of Visionik A/S)
and
J0RGEN XXXXXX
S0REN XXXXXXXX-XXXXXX
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Dated November 3, 1999
STOCK EXCHANGE AGREEMENT
STOCK EXCHANGE AGREEMENT (the "Agreement") dated November 3, 1999 by and
between XXXXXX.XXX LTD., a corporation organized under the laws of the State of
Delaware (the "Purchaser"); VISIONIK HOLDING ApS, a corporation organized under
the laws of Denmark ("VH") and its sole shareholder J0RGEN XXXXXX ("Xxxxxx"),
ASSOCIATED MANAGEMENT SERVICES A/S, a corporation organized under the laws of
Denmark ("AMS") and S0REN XXXXXXXX-XXXXXX ("Hougaard") who is a shareholder of
AMS. VH, Xxxxxx, AMS and Hougaard are hereinafter collectively referred to as
the "Stockholders" and each as a "Stockholder").
W I T N E S S E T H :
WHEREAS, the Stockholders are the owners of all of the outstanding shares
(the "Shares") of VISIONIK A/S, a corporation organized under the laws of
Denmark (the "Company");
WHEREAS, the Stockholders desires to sell, and the Purchaser desires to
purchase 100% of the Shares, pursuant to the provisions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
ARTICLE Error! Unknown switch argument.
SALE OF STOCK
Section Error! Unknown switch argument..Error! Unknown switch argument.
Sale of the Shares. Subject to the terms and conditions herein stated, each of
VH and AMS agrees to sell, assign, transfer and deliver to the Purchaser on the
Closing Date (as defined in Section 2.2), and the Purchaser agrees to purchase
from such Stockholder on the Closing Date, the number of Shares set forth
opposite such Stockholder's name on Exhibit A hereto. Share certificates have
not been issued by Visionik A/S, and therefore the transfer of all shares from
the Stockholders to the Purchaser shall be notified to Visionik A /S in the form
set out on Exhibit A-1 hereto, which shall be accepted by Visionik A/S at
closing.
ARTICLE Error! Unknown switch argument.
PURCHASE PRICE AND CLOSING
Section Error! Unknown switch argument..Error! Unknown switch argument.
Purchase Price. In full consideration for the purchase by the Purchaser of
the Shares,
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the purchase price (the "Purchase Price") shall be paid by the Purchaser to VH
and AMS as follows, in each case allocated between VH and AMS as set forth on
Exhibit A hereto:
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Closing Payment. At closing, certificates, registered
in the name of the respective Stockholders representing an aggregate of 572,000
shares of Purchaser's Common Stock, par value $0.001 per share (the "Purchaser
Stock") will be delivered by the Purchaser to VH and AMS.
Section Error! Unknown switch argument..2 Closing. The Closing under this
Agreement (the "Closing") is taking place simultaneously with the execution and
delivery of this Agreement, at the offices of Plesner & Gronborg, 34 Xxxxxxxxxx,
0000 Xxxxxxxxxx X, XXXXXXX. Such date is herein referred to as the "Closing
Date".
ARTICLE Error! Unknown switch argument.
REPRESENTATIONS OF THE STOCKHOLDERS
The Stockholders, jointly and severally, hereby represent, warrant and
agree to and with the Purchaser as follows:
Section Error! Unknown switch argument..Error! Unknown switch argument.
Execution and Validity of Agreements; Restrictive Documents.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Execution and Validity. Each Stockholder has the full
power and capacity, or the full corporate power and authority, as the case may
be, to enter into this Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement and the performance of the transactions
contemplated hereby have been duly authorized by all required corporate action
on the part of the corporate Stockholders. This Agreement has been duly and
validly executed and delivered by each Stockholder and, assuming due
authorization, execution and delivery by the Purchaser, constitutes a legal,
valid and binding obligation of each of the Stockholders, enforceable against
each of them in accordance with its terms.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Stock Ownership. VH and AMS are the true and lawful
owner of all of the Shares and all of such Shares have been duly and validly
authorized and issued and are fully paid, nonassessable and free of preemptive
rights, with no personal liability attaching to the ownership thereof, and such
ownership is free and clear of all mortgages, liens, security interests,
encumbrances, claims, charges and restrictions of any kind or character
(collectively, "Liens").
Error! Unknown switch argument..Error! Unknown switch argument..Error!
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Unknown switch argument. No Options. Except as set forth on Schedule 3.1.3
hereto, there are no outstanding subscriptions, options, rights, warrants,
calls, commitments or arrangements of any kind to acquire any Shares owned by
the Stockholders and there are no agreements or understandings with respect to
the sale or transfer of such Shares.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. No Restrictions. There is no suit, action, claim,
investigation or inquiry by any administrative agency or governmental body, and
no legal, administrative or arbitration proceeding pending or, to the knowledge
of the Stockholders, threatened against the Stockholders or any of the Shares,
with respect to the execution, delivery and performance of this Agreement or the
transactions contemplated hereby or any other agreement entered into by the
Stockholders in connection with the transactions contemplated hereby.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Non-Contravention. The execution, delivery and
performance by the Stockholders of their respective obligations hereunder and
the consummation of the transactions contemplated hereby, will not (a) result in
the violation by any Stockholder of any statute, law, rule, regulation or
ordinance (collectively, "Laws"), or any judgment, decree, order, writ, permit
or license (collectively, "Orders"), of any court, tribunal, arbitrator,
authority, agency, commission, official or other instrumentality of the United
States or Denmark, any foreign country or any domestic or foreign state, county,
city or other political subdivision (a "Governmental or Regulatory Authority"),
applicable to the Stockholders or any of the Shares, or (b) if the consents and
notices set forth in Schedule 3.1.6 are obtained or given, conflict with, result
in a violation or breach of, constitute (with or without notice or lapse of time
or both) a default under, or (except as set forth in Schedule 3.1.6) require the
Stockholders to obtain any consent, approval or action of, make any filing with
or give any notice to, or result in or give to any Person any right of payment
or reimbursement, termination, cancellation, modification or acceleration of, or
result in the creation or imposition of any lien upon any of the Shares, under
any of the terms, conditions or provisions of any note, bond, mortgage, security
agreement, indenture, license, franchise, permit, concession, contract, lease or
other instrument, obligation or agreement of any kind (collectively,
"Instruments") to which any Stockholder is a party or by which any Stockholder
or any of the Shares is bound.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Approvals and Consents. Except as disclosed on Schedule
3.1.6, no consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority or other public or private third party is
necessary or required under any of the terms, conditions or provisions of any
Law or Order of any Governmental or Regulatory Authority or any Instrument to
which any Stockholder is a party or by which any of the Shares is bound for the
execution and delivery of this Agreement by the Stockholders, the performance by
the Stockholders of their obligations hereunder or the consummation of the
transactions contemplated hereby.
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Section Error! Unknown switch argument..Error! Unknown switch argument.
Existence and Good Standing. The Company is duly organized, validly
existing and in good standing under the laws of Denmark, with the full corporate
power and authority to own its property and to carry on its business all as and
in the places where such properties are now owned or operated or such business
is now being conducted. The Company is duly qualified, licensed or admitted to
do business and is in good standing in those jurisdictions set forth on Schedule
3.2, which are the only jurisdictions in which the ownership, use or leasing of
its assets and properties, or the conduct or nature of its business, makes such
qualification, licensing or admission necessary, except for those jurisdictions
in which a failure by the Company to be qualified, licensed or admitted and in
good standing can in the aggregate be corrected without material cost or expense
by the Company.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Subsidiaries and Investments; Capital Stock.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Subsidiaries and Investments. The term "Subsidiary" as
used in this Agreement in the case of the Company, shall mean any Person in
which the Company, directly or indirectly through subsidiaries or otherwise,
beneficially owns or controls fifty percent or more of either the equity
interests in, or the voting control of, such Person. Schedule 3.3 contains a
true and complete list of all of the Company's Subsidiaries. Except as set forth
in Schedule 3.3, neither the Company nor any Subsidiary owns any capital stock
or other equity or ownership or proprietary interest in any Person (other than
investments of publicly traded debt and equity securities held for investment).
Schedule 3.3 also sets forth the name, jurisdiction of organization and number
of outstanding shares of each of the Subsidiaries, and a list of all of the
shareholders of each Subsidiary (indicating the number of shares owned by each
such shareholder). The Company owns of record and beneficially and has valid
title to that percentage of the issued and outstanding shares of capital stock
of each Subsidiary as set forth on Schedule 3.3, free and clear of any Liens.
Each Subsidiary is a corporation and is duly incorporated or formed and
organized, validly existing and in good corporate and tax standing under the
laws of its jurisdiction of organization, with the full corporate power and
authority to own its properties and to carry on its business all as and in the
places where such properties are now owned or operated or such business is now
being conducted. Schedule 3.3 sets forth the jurisdictions in which each
Subsidiary is duly qualified, licensed or admitted to do business, which are the
only jurisdictions in which the ownership, use or leasing of its assets or
properties, or the conduct or nature of its business, makes such qualification,
licensing or admission necessary. Each Subsidiary is in good standing in each
state, or other jurisdiction, in which it is qualified to do business as a
foreign corporation or foreign branch as set forth on Schedule 3.3. Except as
set forth on Schedule 3.3, neither the Company nor any Subsidiary has a branch,
agency, place of business or permanent establishment outside of Denmark. All of
the outstanding shares of capital stock of or equity interest in each Subsidiary
have been duly authorized and validly issued and are fully paid and
non-assessable, and have not been issued in violation of any preemptive rights
of shareholders or other equity interest holders. Except as set forth on
Schedule 3.3.1, there are no (a) outstanding Options obligating the Company or
any
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Subsidiary to purchase, issue or sell any shares of the capital stock of any
Subsidiary or other entity in which the Company or one of its Subsidiaries owns
an equity interest or outstanding agreement or commitment to grant, extend or
enter into any Option with respect thereto or (b) voting trusts, proxies or
other commitments, understandings, restrictions or arrangements in favor of any
Person other than the Company or a Subsidiary with respect to the voting of or
the right to participate in dividends or other earnings on any capital stock of,
or any other equity interest in, any Subsidiary.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Capital Stock. The Company has an authorized capital of
500,000 Danish kroner consisting of 500 shares in the amount of 1,000 Danish
kroner or multiples hereof, of which all shares (the "Shares") have been issued
and are outstanding and owned by the Stockholders. All of the Shares which are
issued and outstanding have been validly issued and have not been issued in
violation of any preemptive rights of stockholders. All issued and outstanding
Ordinary Shares are fully paid up and no other class of capital stock of the
Company is authorized or outstanding. Except as set forth on Schedule 3.3.1,
there are no outstanding options, warrants, rights, calls, commitments,
conversion rights, rights of exchange, plans or other agreements of any
character (collectively "Options") providing for the purchase, issuance or sale
of any shares of the capital stock of the Company or the Subsidiaries. All
repurchases or redemptions of shares of capital stock of the Company or the
Subsidiaries were properly completed in compliance with all applicable
regulations and corporate requirements; and no further monies or other
obligations will be due by the Company, the Subsidiaries or the Stockholders in
respect thereof.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Financial Statement and No Material Changes. Schedule 3.4 sets forth (a)
audited balance sheets of the Company and its Subsidiaries as at December 31,
1997 and December 31, 1998 and the related consolidated and consolidating
audited statements of income, retained earnings and cash flow for the calendar
year then ended according to GAAP, as reported on by Xxxxx Xxxxxxxx Danmark,
certified public accountants, and (b) a reviewed balance sheet of the Company
and its Subsidiaries as at September 30, 1999 (the "Balance Sheet") and the
related unaudited consolidated and consolidating statements of income, retained
earnings and cash flow for the 9 months then ended, according to GAAP, and (c)
audited balance sheets of the Company and its subsidiaries as at June 30, 1999
and the related consolidated and consolidating audited statements of income,
retained earnings and cash flow for the fiscal year then ended, as reported on
by Xxxxx Xxxxxxxx Danmark, certified public accountants, in accordance with
generally accepted accounting principles consistently applied and as applied in
Denmark ("Danish GAAP") throughout the periods indicated. The Balance Sheet
fairly presents the financial condition of the Company and its Subsidiaries at
the date thereof and fairly presents all claims against and all debts and
liabilities of the Company and its Subsidiaries, fixed or contingent, as at the
date thereof, required to be shown thereon under GAAP, and the related
statements of income, retained earnings and cash flow accurately present the
results of operations of the Company and its Subsidiaries, retained earnings and
the cash flow for the period indicated. Except as set forth on Schedule 3.23,
since September 30, 1999 (the "Balance Sheet Date"), there has been no material
adverse change in the properties,
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financial condition, business or results of operation of the Company and its
Subsidiaries taken as a whole.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Books and Records. All accounts, books, ledgers and official and other records
material to the business of the Company and its Subsidiaries have been properly
and accurately kept and completed in all material respects, and there are no
material inaccuracies or discrepancies of any kind contained or reflected
therein. Except as set forth on Schedule 3.5, neither the Company nor any of its
Subsidiaries has any of its records, systems, controls, data or information
recorded, stored, maintained, operated or otherwise wholly or partly dependent
on or held by any means (including any electronic, mechanical or photographic
process, whether computerized or not) which (including all means of access
thereto and therefrom) are not under the exclusive ownership and possession of
the Company or such Subsidiary. The Stockholders have delivered to the Purchaser
complete and correct copies of the Articles of Incorporation and By-Laws of the
Company and each Subsidiary, with all amendments thereto, currently in effect,
and its minute book and stock transfer records.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Tangible Personal Property; Encumbrances. Except as set forth on Schedule
3.6, the Company and each of its Subsidiaries has good and valid title to, or
enforceable leasehold interests in or valid rights under contract to use all the
properties and assets owned or used by it (real and personal, tangible and
intangible), including, without limitation (a) all the properties and assets
reflected in the Balance Sheet, and (b) all the properties and assets purchased
or otherwise contracted for by the Company and such Subsidiary since the Balance
Sheet Date (except for properties and assets reflected in the Balance Sheet or
acquired or otherwise contracted for since the Balance Sheet Date that have been
sold or otherwise disposed of in the ordinary course of business), except for
those properties and assets which, individually and in the aggregate, are not
material to the business of the Company and its Subsidiaries, in each case free
and clear of all Liens, except for Liens set forth on Schedule 3.6. The
property, plant and equipment owned or otherwise contracted for by the Company
and each of its Subsidiaries are in a state of good maintenance and repair
(ordinary wear and tear excepted) and are adequate and suitable in all material
respects for the purposes for which they are presently being used.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Real Property.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Owned Real Property. Neither the Company nor any of its
Subsidiaries owns any real property or any option or right of first refusal or
first offer to acquire real property, and neither the Company nor any of its
Subsidiaries is obligated by contract or otherwise to purchase any real
property.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Leased Real Property. Schedule 3.7.2 contains an
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accurate and complete list of all real property leases to which the Company or
any of its Subsidiaries is a party (as lessee, lessor, sublessee or sublessor),
including, without limitation, leases which the Company has subleased or
assigned to a third party and as to which the Company remains liable. Each real
property lease set forth on Schedule 3.7.2 (or required to be set forth on
Schedule 3.7.2) (a) is valid, binding and in full force and effect; (b) all
rents and additional rents and other sums, expenses and charges due on each such
lease have been paid; (c) the lessee has been in peaceable possession since the
commencement of its original possession under such lease; (d) no waiver,
indulgence or postponement of the lessee's obligations thereunder has been
granted by or is required from the lessor; (e) there exists no default or event
of default by the Company or any of its Subsidiaries or, to the knowledge of the
Stockholders, by any other party; (f) there exists no occurrence, condition or
act (including the purchase of the Shares hereunder) which, with the giving of
notice, the lapse of time or the happening of any further event or condition,
would become a default or event of default by the Company or any of its
Subsidiaries; and (g) there are no outstanding claims of breach or
indemnification or notice of default or termination. Except as set forth on
Schedule 3.7.2, (h) the Company or its Subsidiary, as the case may be, holds the
leasehold estate in all the real property leases free and clear of all Liens,
(i) the Company or such Subsidiary is in physical possession and actual and
exclusive occupation of the whole of each of its leased properties. Except as
clearly set forth on Schedule 3.7.2, the Company or its Subsidiary(ies) utilizes
all real property leases in full compliance with law, including building
permits, fire protection legislation, planning law and workers environment
legislation. Neither the Company nor any of its Subsidiaries owes any brokerage
commission with respect to any such real property leases.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Contracts. Schedule 3.8 hereto contains an accurate and complete list of
the following agreements to which the Company or any of its Subsidiaries is a
party or by or to which the Company is bound: (a) all employee benefit plans;
(b) any personal property lease with a fixed annual rental of $20,000 or more;
(c) any contract relating to capital expenditures which involve payments of
$30,000 or more in any single transaction or series of related transactions; (d)
any contract relating to the making of a loan or advance to, or investment in,
any other Person in an amount exceeding $10,000; (e) any contract evidencing or
relating in any way to indebtedness for money borrowed or to be borrowed,
whether directly or indirectly, by way of loan, purchase money obligation,
guarantee (other than the endorsement of negotiable instruments for collection
in the ordinary course of business), conditional sale, purchase or otherwise,
which in any case involves $10,000 or more; (f) any management service,
employment, consulting or any other similar type of contract which is not
cancelable by the Company or such Subsidiary without penalty or other financial
obligation within 30 days, (g) any contract limiting its freedom to engage in
any line of business or to compete with any other Person, including agreements
limiting the ability of the Company, its Subsidiaries or any of its affiliates
to take on competitive accounts during or after the term thereof; (h) any
collective bargaining or union agreement, (i) any contract with any of its
officers or directors (including indemnification agreements), provided that
provisions contained in the Company's or such Subsidiary's charter documents or
by-laws do not need to be set forth on Schedule 3.8, (j) any secrecy or
confidentiality agreement (other than standard confidentiality agreements in
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computer software license agreements or agreements with clients entered into in
the ordinary course of business), (k) any contract or license with respect to
Intellectual Property (as defined in Section 3.14 below), other than "shrink
wrap" and similar end-user licenses; (l) any agreement with a client which
generates annual revenues of $20,000 or more; and (m) any joint venture
agreement involving a sharing of profits not covered by (a) through (l) above;
and (n) any contract (not covered by another subsection of this Section 3.8)
which is material to the business of the Company or its Subsidiaries or which
involves $20,000 or more over the unexpired term thereof and is not cancelable
by the Company or such Subsidiary without penalty or other financial obligation
within 30 days. Notwithstanding the foregoing, (x) commitments to media and
production expenses which are fully reimbursable from clients, and (y) estimates
or purchase orders given in the ordinary course of business relating to the
execution of projects, do not have to be set forth on Schedule 3.8. Each
contract set forth on Schedule 3.8 (or required to be set forth on Schedule 3.8)
is in full force and effect, and there exists no default or event of default by
the Company or its Subsidiary, as the case may be, or to the knowledge of the
Stockholders, by any other party, or occurrence, condition, or act (including
the purchase and/or transfer of the Shares hereunder) which, with the giving of
notice, the lapse of time or the happening of any other event or condition,
would become a default or event of default thereunder by the Company or its
Subsidiary, as the case may be, or would be a cause for premature termination,
and there are no outstanding claims of breach or indemnification or notice of
default or termination of any such contracts.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Non-Contravention; Approvals and Consents.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Non-Contravention. The execution, delivery and
performance by the Stockholders of its obligations hereunder and the
consummation of the transactions contemplated hereby, will not (a) violate,
conflict with or result in the breach of any provision of the Articles of
Incorporation or By-Laws (or other comparable corporate charter documents) of
the Company or any Subsidiary, or (b) result in the violation by the Company or
any Subsidiary of any Laws, or Orders, of any Governmental or Regulatory
Authority, applicable to the Company or such Subsidiary or any of its assets or
properties, or (c) if the consents and notices set forth in Schedule 3.9.2 are
obtained or given, conflict with, result in a violation or breach of, constitute
(with or without notice or lapse of time or both) a default under, or (except as
set forth in Schedule 3.9.2) require the Company or any Subsidiary to obtain any
consent, approval or action of, make any filing with or give any notice to, or
result in or give to any Person any right of payment or reimbursement,
termination, cancellation, modification or acceleration of, or result in the
creation or imposition of any lien upon any of the assets or properties of the
Company or any of its Subsidiaries, under any of the terms, conditions or
provisions of any Instruments to which the Company is a party or by which the
Company or any of Subsidiaries or any of its/their assets or properties is
bound.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Approvals and Consents. Except as disclosed on
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Schedule 3.9.2, no consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority or other Person is required under any of
the terms, conditions or provisions of any Law or Order of any Governmental or
Regulatory Authority or any Instrument to which the Company or any of its
Subsidiaries is a party or its assets or properties are bound for the execution
and delivery of this Agreement by the Stockholders, the performance by the
Stockholders of their obligations hereunder or the consummation of the
transactions contemplated hereby.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Litigation. Except as set forth on Schedule 3.10, there is no action,
suit, proceeding at law or in equity by any Person, or any arbitration or any
administrative or other proceeding by or before (or to the knowledge of the
Stockholders, any investigation by) any governmental or other instrumentality or
agency, pending or, to the knowledge of the Stockholders, threatened, against
the Company or any of its Subsidiaries with respect to this Agreement or the
transactions contemplated hereby, or against or affecting the Company or any of
its Subsidiaries or its/their properties or rights; and no acts, facts,
circumstances, events or conditions occurred or exist which are a basis for any
such action, proceeding or investigation. Neither the Company nor any of its
Subsidiaries is subject to any Order entered in any lawsuit or proceeding.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Taxes. The Company and its Subsidiaries have timely filed, or caused to be
filed, taking into account any valid extensions of due dates, completely and
accurately, all federal, state, local and foreign tax or information returns
(including estimated tax returns) required under the statutes, rules or
regulations of such jurisdictions to be filed by the Company and/or such
Subsidiaries. The term "Taxes" means taxes, duties, charges or levies of any
nature imposed by any Governmental or Regulatory Authority, including without
limitation income, gains, capital gains, surtax, capital, franchise, capital
stock, value-added taxes, taxes required to be deducted from payments made by
the payor and accounted for to any tax authority, employees' income withholding,
back-up withholding, withholding on payments to foreign Persons, social
security, national insurance, unemployment, worker's compensation, payroll,
disability, real property, personal property, sales, use, goods and services or
other commodity taxes, business, occupancy, excise, customs and import duties,
transfer, stamp and other taxes (including interest, penalties or additions to
tax in respect of the foregoing), and includes all taxes payable by the Company
and/or its Subsidiaries pursuant to joint taxation arrangements or any similar
provisions of state, local or foreign law. All Taxes shown on said returns to be
due and all additional assessments received prior to the date hereof have been
paid or are being contested in good faith, in which case, such contested
assessments are set forth on Schedule 3.11. The Company and its Subsidiaries
have collected all sales, use, goods and services or other commodity Taxes
required to be collected, and have withheld all amounts required to be withheld
on account of Taxes for amounts paid to employees, directors, officers and
residents and non-residents; and in each case has remitted or will remit the
same to the appropriate taxing authority within the prescribed time periods. The
amount set up as an accrual for Taxes on the Balance Sheet is sufficient for the
payment of all unpaid Taxes of the Company and its Subsidiaries, whether or not
disputed, for all periods ended on and prior to the date thereof.
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Since the Balance Sheet Date, neither the Company nor any of its Subsidiaries
has incurred any liabilities for Taxes other than in the ordinary course of
business. The Stockholders have delivered to the Purchaser correct and complete
copies of all income tax returns filed with respect to the Company and its
Subsidiaries for all taxable periods since its inception. None of the tax
returns of the Company has ever been audited by any Governmental or Regulatory
Authority. Neither the Company nor its Subsidiaries has received notice of any
audit or examination currently in progress, or of any proposed audit or
examination. No deficiency in the payment of Taxes by the Company for any period
has been asserted in writing by any taxing authority and remains unsettled at
the date of this Agreement. Neither the Company nor any of its Subsidiaries is a
party to any tax allocation or tax sharing agreement nor does it have any
contractual obligation to indemnify any other person with respect to Taxes.
Neither the Company nor its Subsidiaries will be required as a result of a
change in accounting method for any period ending on or before the Closing Date
to include any adjustment in income for any period ending after the Closing
Date.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Liabilities. Except as set forth in the Balance Sheet or reflected in the
notes thereto, neither the Company nor any of its Subsidiaries has any
outstanding claims, liabilities or indebtedness of any nature whatsoever
(collectively in this Section 3.12, "Liabilities"), whether accrued, absolute or
contingent, determined or undetermined, asserted or unasserted, and whether due
or to become due, other than (a) Liabilities specifically disclosed in any
Schedule hereto; (b) Liabilities under contracts, purchase orders and other
agreements, arrangements and commitments of the type required to be disclosed by
the Stockholders on any Schedule but because of the dollar amount or other
qualifications are not required to be listed on such Schedule; (c) Liabilities
incurred in the ordinary course of business and consistent with past practice
since the Balance Sheet Date and (d) liabilities to the extent covered by
insurance maintained by the Company and/or its Subsidiaries. Schedule 3.8 sets
forth a list of all current arrangements of the Company and its Subsidiaries for
borrowed money and all outstanding balances as of the date hereof with respect
thereto. Except as set forth on Schedule 3.12, neither the Company nor any of
its Subsidiaries is in default in respect of the terms or conditions of any
borrowings.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Insurance. Schedule 3.13 is a schedule of all insurance policies
(including life insurance) or binders maintained by the Company and/or its
Subsidiaries. All such policies are in full force and effect and all premiums
that have become due have been currently paid. Neither the Company nor any of
its Subsidiaries has received any notice of cancellation or non-renewal of any
such policy or binder. Except as set forth on Schedule 3.13, within the last two
years neither the Company nor any of its Subsidiaries has filed for any claims
exceeding USD $15,000 against any of its insurance policies, exclusive of
automobile policies.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Intellectual Properties.
10
3.14.1. Representations. The registrations of Intellectual Property listed
on Schedule 3.14 are valid and subsisting, all necessary registration or renewal
fees in connection with such registrations have been made and all necessary
documents and certificates in connection with such registrations have been filed
with the relevant patent, copyright and trademark authorities for the purposes
of maintaining such registrations. Except as set forth on Schedule 3.14, (a) no
Person has any rights to use any Intellectual Property of the Company or any of
its Subsidiaries; (b) the Company has not granted to any Person, nor authorized
any Person to retain, any rights in any Intellectual Property of the Company or
any of its Subsidiaries. Except as set forth on Schedule 3.14 and except for
"shrink wrap" and similar commercial end-user licenses, the Company and each of
its Subsidiaries owns and has exclusive title to each item of Intellectual
Property of the Company to use or operate under, all other Intellectual Property
of the Company. To the knowledge of the Stockholders, the operation of the
business of the Company as it is currently conducted does not infringe the
Intellectual Property of any other Person and neither the Company nor any of its
Subsidiaries has received notice from any Person that the operation of its
business infringes the Intellectual Property of any Person. There are no
contracts or agreements between the Company or any of its Subsidiaries and any
other Person with respect to Intellectual Property of the Company or any of its
Subsidiaries in respect of which there is any dispute known to the Stockholders
regarding the scope of such agreement, or performance under such contract,
including with respect to any payments to be made or received by the Company or
any of its Subsidiaries. To the knowledge of the Stockholders, no Person is
infringing or misappropriating any of the Intellectual Property of the Company
or any of its Subsidiaries. Except as disclosed on Schedule 3.14, all employees,
agents, consultants or contractors who have contributed to or participated in
the creation or development of any copyrightable, patentable or trade secret
material on behalf of the Company, any Subsidiary, or any predecessor in
interest thereto, either: (i) is a party to a "work-for-hire" agreement under
which the Company or such Subsidiary (or predecessor in interest), as
applicable, is deemed to be the original owner/author of all property rights
therein; or (ii) has executed a valid assignment or agreement to assign in favor
of the Company or Subsidiary (or predecessor in interest), as applicable, all
right, title and interest in such material.
3.14.2 Definitions. For purposes of this Agreement, the term "Intellectual
Property" shall mean any or all of the following and all rights associated
therewith: (a) all patents and applications therefor and all reissues,
divisions, renewals, extensions, continuations and continuations-in-part
thereof; (b) all inventions (whether patentable or not), invention disclosures,
improvements, trade secrets proprietary information, know-how, technology,
technical data and customer lists, rights of privacy and publicity, and all
documentation relating to any of the foregoing; (c) all copyrights, copyright
registrations and applications therefor and other rights corresponding thereto;
(d) all mask works, mask work registrations and applications therefor; (e) all
industrial designs and any registrations and applications therefor; (f) all
trade names, logos, common law trademarks and service marks; trademark and
service xxxx registrations and applications therefor and all goodwill associated
therewith; and (g) all computer software including all source code, object code,
firmware, development tools, files, records and data, all media on which any of
the foregoing is recorded and all documentation related to any of the foregoing.
"Intellectual Property of the Company" shall
11
mean any Intellectual Property (h) that is owned by, or exclusively licensed to,
the Company or any of its Subsidiaries; or (i) which is necessary to the
operation of the Company or any of its Subsidiaries, including the design,
manufacture, use and sale of the products or delivery of the services of the
Company as it is currently operated or is reasonably anticipated to be operated
in the future and all Intellectual Property currently owned by the Company or
any of its Subsidiaries, but shall specifically not include any rights in or to
materials created for clients as "work-for-hire" or which are subject to an
exclusive assignment or license in favor of clients of the Company or any of its
Subsidiaries.
3.14.2 With respect to the trademark "Visionik", this trademark
belongs to the Company, and upon closing the Stockholders will cease to use this
trademark. Within 10 days after closing date, the name of VH will be changed
with the authorities.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Compliance with Laws; Licenses and Permits.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Compliance. The Company and each of its Subsidiaries
is, and its business has been conducted, in compliance with all applicable Laws
and Orders, except in each case where the failure to so comply would not
reasonably be expected to have a material adverse effect on the financial
condition, results of operations, assets, properties or business of the Company
and its Subsidiaries taken as a whole (a "Material Adverse Effect"), including
without limitation, (a) all Laws and Orders promulgated by any Governmental or
Regulatory Authority; (b) all environmental Laws and Orders; and (c) all Laws
and Orders relating to labor, civil rights, and occupational safety and health
laws, worker's compensation, employment and wages, hours and vacations, or pay
equity. Neither the Company nor any of its Subsidiaries has been charged with,
or, to the knowledge of the Stockholders threatened with or under any
investigation with respect to, any charge concerning any violation of any Laws
or Orders.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Licenses. The Company and each of its Subsidiaries has
all licenses and permits and other governmental certificates, authorizations and
approvals (collectively, "Licenses") required by a Governmental or Regulatory
Authority for the operation of its business and the use of its properties as
presently operated or used, except where the failure to have such Licenses would
not reasonably be expected to have a Material Adverse Effect. All of the
Licenses are in full force and effect and no action or claim is pending, nor to
the knowledge of the Stockholders is threatened, to revoke or terminate any of
such Licenses or declare any such License invalid in any material respect.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Client Relations. Schedule 3.16 sets forth for the Company and each of its
Subsidiaries (a) the twenty largest clients (measured by fees generated) as at
December 31, 1998 and the fees from each such client and from all clients (in
the aggregate) for the year ended December 31, 1998 and (b) the clients
projected to be the twenty largest clients (measured by fees) based on the
12
Company's and each of its Subsidiary's current 1999 profit plan for the year
ending December 31, 1999, together with the estimated fees for each such client
and all clients (in the aggregate) for such fiscal year. Except as set forth in
Schedule 3.16, no client of the Company or any of its Subsidiaries has advised
the Company, such Subsidiary or any Stockholder (a) that it is prematurely
terminating or considering the premature termination of the handling of its
business by the Company or such Subsidiary, as a whole or in respect of any
particular product, project or service or (b) that it will not use the Company's
services in the future.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Accounts Receivable; Work-in-Process; Accounts Payable. The amount of all
work-in-process, accounts receivable, unbilled invoices recorded on the books of
account of the Company or any of its Subsidiaries and reflected on the Balance
Sheet (including without limitation unbilled invoices for services and
out-of-pocket expenses) and other debts due or recorded in the records and books
of account of the Company or such Subsidiary as being due to the Company or such
Subsidiary and reflected on the Balance Sheet will be good and collectible in
full (less the amount of any provision, reserve or similar adjustment therefor
reflected on the Balance Sheet). Except as set forth on Schedule 3.17, there has
been no material adverse change since the Balance Sheet Date in the amount or
aging of the work-in-process, accounts receivable or other debts due to the
Company or any of its Subsidiaries or the reserves with respect thereto, or
accounts payable of the Company or any of its Subsidiaries.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Employment Relations. (a) Neither the Company nor any of its subsidiaries
is engaged in any unfair labor practice; (b) no unfair labor practice complaint
against the Company is pending before any Governmental or Regulatory Authority;
(c) there is no organized labor strike, dispute, slowdown or stoppage actually
pending or to the knowledge of the Stockholders threatened against or involving
the Company or any of its Subsidiaries; (d) there are no labor unions
representing or, to the knowledge of the Stockholders, attempting to represent
the employees of the Company or any of its Subsidiaries; (e) no claim or
grievance nor any arbitration proceeding arising out of or under any collective
bargaining agreement is pending and to the knowledge of the Stockholders, no
such claim or grievance has been threatened; (f) no collective bargaining
agreement is currently being negotiated by the Company or any of its
Subsidiaries; (g) neither the Company nor any of its Subsidiaries has
experienced any work stoppage or similar organized labor dispute during the last
three years; and (h) all employees of the Company and each of the Subsidiaries
is party to an employment contract or employment certificate complying with
Danish law. There is no legal action, suit, proceeding or claim pending or, to
the knowledge of the Stockholders, threatened between the Company or any of its
Subsidiaries and any of its employees, former employees, agents, former agents,
job applicants or any association or group of any of their employees, except as
set forth on Schedule 3.10.
13
Section Error! Unknown switch argument..Error! Unknown switch argument.
[Intentionally left blank]
Section Error! Unknown switch argument..Error! Unknown switch argument.
Interests in Customers, Suppliers, Etc. Except as set forth on Schedule
3.20, neither (x) the Stockholders nor (y) to the knowledge of the Stockholders
(without making any special inquiry of the Related Group, as hereinafter
defined), any officer, director, or employee of the Company or any of its
Subsidiaries (collectively, the "Related Group"),:
(Error! Unknown switch argument.) owns, directly or indirectly, any
interest in (excepting less than 1% stock holdings for investment purposes
in securities of publicly held and traded companies), or received payments
from, or is an officer, director, employee or consultant of, any Person
which is, or is engaged in business as, a competitor, lessor, lessee,
supplier, distributor, sales agent, customer or client of the Company;
(Error! Unknown switch argument.) owns, directly or indirectly (other than
through the ownership of stock or other securities of the Company), in
whole or in part, any tangible or intangible property (including, but not
limited to Intellectual Property) that the Company or any of its
Subsidiaries uses in the conduct of business; or
(Error! Unknown switch argument.) has any cause of action or other claim
whatsoever against, or owes any amount to, the Company or any of its
Subsidiaries, except for claims in the ordinary course of business such as
for accrued vacation pay, accrued benefits under employee benefit plans,
and similar matters and agreements existing on the date hereof (including
but not limited to loans and accrued interest thereon made by the
Stockholders or such Stockholders to the Company or any of its
Subsidiaries as reflected in the books and records of the Company).
Section Error! Unknown switch argument..Error! Unknown switch argument.
Bank Accounts and Powers of Attorney. Set forth in Schedule 3.21 is an accurate
and complete list showing (a) the name of each bank in which the Company or any
of its Subsidiaries has an account, credit line or safe deposit box and the
names of all Persons authorized to draw thereon or to have access thereto, and
(b) the names of all Persons, if any, holding powers of attorney from the
Company or any of its Subsidiaries and a summary statement of the terms thereof.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Compensation of Employees. Schedule 3.22 is an accurate and complete list
showing (a) the names and positions of all salaried employees of and exclusive
consultants to the Company or any of its Subsidiaries, together with a statement
of the current annual salary or fees, and the bonus and incentive compensation
paid or payable with respect to calendar years 1998 and 1999, and any material
fringe benefits of such employees or exclusive consultants; (b) the names of all
retired employees, if any, of the Company and each of its Subsidiaries who are
receiving or entitled to receive any healthcare or life insurance benefits or
any payments from the Company or any Subsidiary not covered by any pension plan
to which the
14
Company or such Subsidiary is a party, their ages and current unfunded pension
rate, if any; and (c) a description of the normal severance benefits of the
Company and each of its Subsidiaries. With respect to exclusive consultants, the
list is limited to physical persons, who have undertaken work for the Company
for more than 15 hours per week.
Section Error! Unknown switch argument..Error! Unknown switch argument. No
Changes Since the Balance Sheet Date. Since the Balance Sheet Date except as
specifically stated on Schedule 3.23 neither the Company nor any of its
Subsidiaries has (i) incurred any liability or obligation of any nature (whether
accrued, absolute, contingent or otherwise), except in the ordinary course of
business, (ii) permitted any of its assets to be subjected to any lien, (iii)
sold, transferred or otherwise disposed of any assets except in the ordinary
course of business, (iv) made any capital expenditure or commitment therefor
which individually or in the aggregate exceeded $20,000, (v) declared or paid
any dividends or made any distributions on any shares of its capital stock, or
redeemed, purchased or otherwise acquired any shares of its capital stock or any
option, warrant or other right to purchase or acquire any such shares, (vi) made
any bonus or profit sharing distribution, (vii) increased or prepaid its
indebtedness for borrowed money, except current borrowings under credit lines
listed on Schedule 3.8 from banks in the ordinary course of business or made any
loan to any Person, (viii) written down the value of any work-in-process, or
written off as uncollectible any notes or accounts receivable, except
write-downs and writeoffs in the ordinary course of business, none of which
individually or in the aggregate, is material to the Company and its
Subsidiaries, taken as a whole, (ix) except as set forth on Schedule 3.22,
granted any increase in the rate of wages, salaries, bonuses or other
remuneration of any employee who, whether as a result of such increase or prior
thereto, receives aggregate compensation from the Company or any of its
Subsidiaries at an annual rate of USD $40,000 or more, or except in the ordinary
course of business to any other employees, (x) canceled or waived any claims or
rights of material value, (xi) made any change in any method of accounting
procedures, (xii) otherwise conducted its business or entered into any
transaction, except in the usual and ordinary manner and in the ordinary course
of its business, (xiii) amended in any material respect or terminated any
agreement which is material to its business, (xiv) renewed, extended or modified
any lease of real property or except in the ordinary course of business any
lease of personal property, (xv) adopted, amended or terminated any Plan or
(xvi) agreed, whether or not in writing, to do any of the foregoing.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Corporate Controls. Neither the Company, any of its Subsidiaries, or the
Stockholders, or, to the knowledge of the Stockholders, any officer, authorized
agent, employee or any other Person while acting on behalf of the Company or any
of its Subsidiaries, has, within the period covered by any applicable statute of
limitations, directly or indirectly: used any corporate fund for unlawful
contributions, gifts, or other unlawful expenses relating to political activity;
made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; established or maintained any unlawful or unrecorded fund of
corporate monies or other assets; made any false or fictitious entry on its
books or records; made any bribe, rebate, payoff, influence payment, kickback,
or other unlawful payment, or other
15
payment of a similar or comparable nature, to any Person, private or public,
regardless of form, whether in money, property, or services, to obtain favorable
treatment in securing business or to obtain special concessions, or to pay for
favorable treatment for business secured or for special concessions already
obtained, and neither the Company nor any of its Subsidiaries has participated
in any illegal boycott or other similar illegal practices affecting any of its
actual or potential customers.
Section 3.25 Year 2000 Compliance.
3.25.1. Definition. The term "Y2K Compliant" shall mean: (a) the
functions, calculations and other computer processes of all computer hardware,
software and systems, including but not limited to internal and outsourced
management information systems and embedded computer features within other
systems of the Company or any of its Subsidiaries (collectively, "Processes"),
perform properly in a consistent manner regardless of the date in time on which
the Processes are actually performed and regardless of the date of input to the
software, whether before, on or after January 1, 2000 and whether or not the
dates are affected by leap years; (b) the computer hardware, software and
systems accept, calculate, compare, sort, extract, sequence and otherwise
process data inputs and date values, and return and display date values, in a
consistent manner regardless of the dates used, whether before, on or after
January 1, 2000; (c) the computer hardware, software and systems will function
properly without interruptions or extraordinary manual intervention caused by
the date in time on which the Processes are actually performed or by the date of
input to the software, whether before, on or after January 1, 2000; (d) the
computer hardware, software and systems accept and respond to two-digit year
data input in the Processes in a manner that resolves any ambiguities as to the
century in a defined, predetermined and appropriate manner; and (e) the computer
hardware, software and systems store and display data in the Processes in ways
that are unambiguous as to the determination of the century.
3.25.2. Computer Systems. The Company and each of its Subsidiaries has
used its reasonable commercial efforts so that, to its knowledge, the current
computer hardware, software and systems, and accompanying documentation, of the
Company and each of its Subsidiaries will be Y2K Compliant, in a full production
version, with accompanying documentation, no later than December 15, 1999. The
Company and each of its Subsidiaries has and will continue to use its reasonable
commercial efforts so that, to its knowledge, the receipt of Y2K Compliant
computer hardware, software, and systems will be provided to the Company and
each of its Subsidiaries in a timely manner under current supplier contracts or
standard maintenance and support plans without additional fee or charge of any
kind (including any installation, freight, or other costs or fees) to the
Company and each of its Subsidiaries.
3.25.3 Other Products and Services. The Company and each of its
Subsidiaries has and will continue to use its reasonable commercial efforts so
that, to its knowledge, (a) its products will be delivered and its services will
be scheduled and performed in a timely manner without material interruptions
caused by the date in time on which the product is ordered or is actually
delivered or the services are scheduled or actually performed under normal
procedures in the ordinary course, whether before, on or after January 1, 2000,
and (b) its essential
16
suppliers of products and services, including the suppliers of its
infrastructure systems, have Y2K compliance programs in place to avoid
interruptions in the supplier-customer trading relationship which could have a
Material Adverse Effect whether before, on or after January 1, 2000.
Section Error! Unknown switch argument..26 Brokers. No broker, finder,
agent or similar intermediary has acted on behalf of the Stockholders or the
Company or any of the Subsidiaries in connection with this Agreement or the
transactions contemplated hereby, and no brokerage commissions, finder's fees or
similar fees or commissions are payable by the Company, any of its Subsidiaries,
or the Stockholders in connection therewith based on any agreement, arrangement
or understanding with any of them.
Section Error! Unknown switch argument..27 Copies of Documents. The
Stockholders have caused to be made available for inspection and copying by the
Purchaser and its advisers, true, complete and correct copies of all documents
referred to in this Article III or in any Schedule. Summaries of all material
oral contracts contained in Schedule 3.8 are complete and accurate in all
material respects.
ARTICLE Error! Unknown switch argument.
REPRESENTATIONS OF THE PURCHASER
The Purchaser, represents, warrants and agrees to and with the
Stockholders as follows:
Section Error! Unknown switch argument..Error! Unknown switch argument.
Existence and Good Standing. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its property and to
carry on its business all as and in the places where such properties are now
owned or operated or such business is now being conducted.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Execution and Validity of Agreement. The Purchaser has the full corporate
power and authority to make, execute, deliver and perform this Agreement and the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Purchaser and the consummation of the transactions contemplated hereby
have been duly authorized by all required corporate action on behalf of the
Purchaser and this Agreement has been duly and validly executed and delivered by
the Purchaser and assuming due authorization, execution and delivery by the
Stockholders constitutes a legal, valid and binding obligation of the Purchaser,
enforceable against it in accordance with its terms.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Non-Contravention; Approvals and Consents.
17
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Non-Contravention. The execution, delivery and
performance by the Purchaser of its obligations hereunder and the consummation
of the transactions contemplated hereby, will not (a) violate, conflict with or
result in the breach of any provision of the certificate of incorporation or
by-laws (or other comparable corporate charter documents) of the Purchaser, or
(b) result in the violation by the Purchaser of any Laws or Orders of any
Governmental or Regulatory Authority, applicable to the Purchaser or any of its
assets or properties, except as would not reasonably be expected to have a
Material Adverse Effect, or (c) conflict with, result in a violation or breach
of, constitute (with or without notice or lapse of time or both) a default
under, or require the Purchaser to obtain any consent, approval or action of,
make any filing with or give any notice to, or result in or give to any Person
any right of payment or reimbursement, termination, cancellation, modification
or acceleration of, or result in the creation or imposition of any Lien upon any
of the assets or properties of the Purchaser, under any of the terms, conditions
or provisions of any Instruments to which the Purchaser is a party or by which
the Purchaser or any of its assets or properties are bound.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Approvals and Consents. Except as set forth on Schedule
4.3.2, no consent, approval or action of, filing with or notice to any
Governmental or Regulatory Authority or other public or private third party is
necessary or required under any of the terms, conditions or provisions of any
Law or Order of any Governmental or Regulatory Authority or any Instrument to
which the Purchaser is a party or by which the Purchaser or any of its assets or
properties is bound for the execution and delivery of this Agreement by the
Purchaser, the performance by the Purchaser of its obligations hereunder or the
consummation of the transactions contemplated hereby.
Section 4.4 Financial Statements. Schedule 4.4 sets forth (a) an audited
balance sheet of the Purchaser as at December 31, 1998 and the related audited
statements of income, retained earnings and cash flow for the year then ended,
as reported on by Xxxxxx Xxxxxxxx LLP, independent public accountants, and (b)
an unaudited balance sheet of the Purchaser as at September 30, 1999 and the
related unaudited statements of income, retained earnings and cash flow for the
three months then ended, and (c) an unaudited pro forma balance sheet of the
Purchaser as at September 30, 1999 (the "Purchaser Balance Sheet") to give
effect to the acquisitions by Purchaser of Interactive Solutions Incorporated,
Eagle River Interactive Inc. and Twinspark Interactive People B.V. as if each of
these acquisitions had occurred on January 1, 1999 and the related unaudited pro
forma statements of income, retained earnings and cash flow for the 9 months
then ended. Except as indicated on Schedule 4.4.1 hereto, such financial
statements, including (in the case of the audited statements) the footnotes
thereto, have been prepared in accordance with U.S. GAAP throughout the periods
indicated. The Purchaser Balance Sheet fairly presents in all material respects
the pro forma financial condition of the Purchaser at the date thereof and
fairly presents in all material respects all pro forma claims against and all
pro forma debts and liabilities of the Purchaser, fixed or contingent, as at the
date thereof, required to be shown thereon under U.S. GAAP, and the related pro
forma statements of income, retained earnings and cash flow fairly present in
all
18
material respects the pro forma results of operation of the Purchaser. Except as
set forth on Schedule 4.4.2, since September 30, 1999 (the "Purchaser Balance
Sheet Date") there has been no material adverse change in the properties,
financial condition, business or results of operations of the Purchaser.
Section Error! Unknown switch argument..5 Brokers. No broker, finder,
agent or similar intermediary has acted on behalf of the Purchaser or its
affiliates in connection with this Agreement or the transactions contemplated
hereby, and no brokerage commissions, finders' fees or similar fees or
commissions are payable by the Purchaser or its affiliates in connection
therewith based on any agreement, arrangement or understanding with any of them.
Section 4.6 Capitalization. As of October 30, 1999 the Purchaser has an
authorized capitalization consisting of [ ] shares of common stock, $0.001 par
value per share, of which as of the Closing Date [ ] shares are issued and
outstanding, an aggregate of [ ] shares are allocated to the 1999 Xxxxxx.Xxx
Stock Option/Stock Issuance Plan., and an aggregate of 7,400,000 shares are
subject to issuance upon the exercise of certain warrants; in addition, there
are [ ] shares subject to the issuance of options under the Interactive
Solutions and Quadris Option Plans which were assumed by the Purchaser in April
1999. No other class of capital stock or series of any class of capital stock or
securities convertible into capital stock of Purchaser is authorized or
outstanding. There are no (a) outstanding subscriptions, options, warrants,
rights (including "phantom" stock rights), calls preemptive rights, or other
contracts, commitments, understandings or arrangements, including any right of
conversion or exchange under any outstanding security, instrument, plan or
agreement (collectively, "Options"), obligating Purchaser to issue or sell any
shares of the capital stock of Purchaser, or to grant, extend or enter into any
Option with respect thereto, or (b) outstanding Options providing for settlement
in cash.
Section 4.7 Purchaser's Common Stock. The shares of Purchaser's Common
Stock, when issued and delivered to the Stockholders pursuant to the provisions
of this Agreement, will be validly issued and outstanding, fully-paid and
non-assessable, free and clear of all liens other than restrictions on resale
arising by the lock-up agreement, exhibit E, or by virtue of Federal and state
securities laws of the United States (and to the extent applicable the
provisions of the Investment Representation Certificate to be delivered by VH
and AMS at the Closing), and will not be subject to any preemptive right of
shareholders of Purchaser. The shares of Purchaser's Common Stock issued to the
Stockholders together with 68,000 additional shares of Purchaser's Common Stock
to be included in the Option Program described in Schedule 3.1.3, represent
[1.8%] of the Applicable Purchaser Shares, as calculated and defined in Schedule
4.7 hereto (the "Stockholders Closing Percentage").
ARTICLE Error! Unknown switch argument.
ACTIONS AT CLOSING BY THE STOCKHOLDERS
Simultaneously herewith:
19
Section Error! Unknown switch argument..Error! Unknown switch argument.
Required Approvals, Notices and Consents. The Stockholders have obtained
or given, at no expense to the Purchaser and there have not been withdrawn or
modified, any notices, consents, approvals or other actions listed on Schedules
3.1.6 or 3.9.2 hereof (including without limitation, obtaining all consents,
approvals and/or waivers required under the contracts listed on Schedule 3.8 in
order to permit the consummation of the transactions contemplated by this
Agreement without causing or resulting in a default, event of default,
acceleration event or termination event under any of such documents and without
entitling any party to any of such documents to exercise any other right or
remedy adverse to the interests of the Purchaser or the Company thereunder).
Each such consent or approval was in form reasonably satisfactory to counsel for
the Purchaser. The same applies to the approval required pursuant to section 7.3
herein.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Good Standing Certificates. The Stockholders delivered to the Purchaser: (a) a
copy of the Company's and the Subsidiaries' Articles of Incorporation, including
all amendments, certified by attorney Xxxx Xxxxxx; (b) a certificate from the
Erhvervs- og Selskabsstyrelsen to the effect that the Company and the
subsidiaries are in good standing.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Surrender of Certificates, Stock Records and Protocols. The Stockholders
delivered to the Purchaser such other documents and instruments, if any, as may
be necessary to permit the Purchaser to acquire the Shares free and clear of any
and all Liens or voting or other restrictions of any kind whatsoever adverse to
the Purchaser. The Stockholders further delivered the stockholder book
(Aktiebog), the General Assembly Protocol (generalforsamlingsprotokollen), the
Board Meeting Protocol (bestyrelsesprotokollen) and the Auditors Protocol
(revisionsprotokollen) of the Company and each Subsidiary. The closing is also
conditional upon the Stockholders and Visionik A/S's signing of Exhibit A-1.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Employment Agreements. Xxxxxx has entered into an Employment Agreement
with the Company, in the form and to the effect of Exhibit B-1 hereto.
Section 5.5 [Intentionally left blank]
Section Error! Unknown switch argument..Error! Unknown switch argument.
Non-Solicitation Agreements. Each of Xxxxxx and Xxxxxxxx have entered into a
Non-Solicitation Agreement with the Company, in the form and to the effect of
Exhibit C-1 and Exhibit C-2 hereto.
20
Section Error! Unknown switch argument..Error! Unknown switch argument.
Certified Resolutions. The Stockholders delivered to the Purchaser a copy
of the resolutions of the General Assembly of AMS authorizing the execution,
delivery and performance of the Agreement.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Investment Representation Certificate. Each of the Stockholders executed
and delivered to the Purchaser and Investment Representation Certificate as to
the Shares in the form and to the effect of Exhibit D hereto.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Lockup Agreement. Each of the Stockholders shall have entered into a
Lockup Agreement with Purchaser in the form of Exhibit E hereto.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Repayment of Loans. All indebtedness of the Stockholders to the Company,
together with interest thereon from the date of inception, was repaid in full,
other than routine travel expense advances in the ordinary course of business
and consistent in amount with past practice, and the Stockholders delivered to
Purchaser a certificate, dated the Closing Date, to such effect.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Proceedings. All proceedings to be taken in connection with the
transactions contemplated by this Agreement and all documents incident thereto
were reasonably satisfactory in form and substance to the Purchaser and its
counsel, and the Purchaser received copies of all such documents and other
evidences as it or its counsel may reasonably request in order to establish the
consummation of such transactions and the taking of all proceedings in
connection therewith.
ARTICLE Error! Unknown switch argument.
ACTIONS AT CLOSING BY THE PURCHASER
Simultaneously herewith:
Section Error! Unknown switch argument..Error! Unknown switch argument.
Certified Resolutions. The Purchaser delivered to the Stockholders a copy
of the resolutions of the Board of Directors of the Purchaser authorizing the
execution, delivery and performance of this Agreement and the transactions and
other agreements contemplated hereby, certified to by an officer of the
Purchaser.
Section Error! Unknown switch argument..2 Proceedings. All proceedings to
be taken in connection with the transactions contemplated by this Agreement, and
all documents incident thereto were reasonably satisfactory in form and
substance to the Stockholders, the
21
Company and their counsel and the Company received copies of all such documents
and other evidences as it or its counsel may reasonably request in order to
establish the consummation of such transaction and the taking of all proceedings
in connection therewith.
ARTICLE Error! Unknown switch argument.
OTHER AGREEMENTS
Section 7.1 Holding Period of Purchased Shares. Purchaser agrees that it
will not, prior to the third anniversary of the Closing Date, sell, assign,
transfer or otherwise dispose of the purchased Shares (a "Prohibited Transfer"),
except that a Prohibited Transfer shall not be deemed to occur upon the sale or
public offering of the capital stock of Purchaser or upon any (i) merger or
consolidation of Purchaser with or into another Company; (ii) sale, transfer or
disposition of the purchased Shares to an Affiliate; or (iii) sale or transfer
or other disposition of all or any portion of the capital stock, business or
assets of the Subsidiaries or either of them provided, however, that prior to
carrying out any of the transactions listed under (i), (ii) and (iii) above
prior to the third anniversary of the Closing, the Purchaser will in cooperation
with VH use best endeavors to obtain the approval of the Danish tax authorities,
if necessary for VH to maintain the qualifications of this Stock Exchange
Agreement as a tax-free exchange of shares, and, in this connection, the
Purchaser will favorably consider any proposals from VH to restructure or amend
any transaction then being contemplated, and further provided, that until the
first anniversary of the Closing, the Purchaser undertakes to indemnify VH for
USD 750,000 of the taxes incurred, if any, as a result of such transaction,
unless the transaction is beyond the control of the Purchaser.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Nomenclature/Branding.
Immediately after close, the company will be renamed "XXXXXX.XXX : Copenhagen,"
or such other name as shall be accepted by the Danish Commerce and Companies
register if said name is unavailable. The Company maintains all rights to the
name "Visionik".
Section Error! Unknown switch argument..Error! Unknown switch argument. IT
Plus Reorganization. The Purchaser acknowledges and agrees that the Stockholders
have acquired the shares of IT+ A/S previously held by the Company for a price
of DKK 660,000. This will result in a taxable gain of the Company in the amount
of approximately DKK 100,000. The shareholders will at closing present
documentation to the effect that the other shareholder in IT+ A/S accept this
transfer.
Section 7.4 Employee Stock Option Program. Certificates representing
options to acquire an aggregate of 68,000 shares of Purchaser's Common Stock
will issued by Purchaser pursuant to the Option Program described in Schedule
3.1.3 within two weeks after closing.
22
ARTICLE Error! Unknown switch argument.
SURVIVAL; INDEMNITY
Section Error! Unknown switch argument..Error! Unknown switch argument.
Survival. Notwithstanding any right of any party hereto fully to
investigate the affairs of any other party, and notwithstanding any knowledge of
facts determined or determinable pursuant to such investigation or right of
investigation, each party hereto shall have the right to rely fully upon the
representations, warranties, covenants and agreements of the other parties
contained in this Agreement and the Schedules, if any, furnished by any other
party pursuant to this Agreement, or in any certificate delivered at the Closing
by any other party. Subject to the limitations set forth in Section 8.5, the
respective representations, warranties, covenants and agreements of the
Stockholders and the Purchaser contained in this Agreement shall survive the
Closing.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Obligation of the Stockholders to Indemnify.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. General Indemnity. Subject to the limitations contained
in Section 8.5 the Stockholders hereby agree, jointly and severally, to
indemnify the Purchaser and its officers, directors, employees, agents and its
affiliates (individually a "Purchaser Indemnified Party" and collectively, the
"Purchaser Indemnified Parties") against, and to protect, save and keep harmless
the Purchaser Indemnified Parties from, and to assume liability for, payments of
all liabilities (including liabilities for Taxes), obligations, losses, damages,
penalties, claims, actions, suits, judgments, settlements, out-of-pocket costs,
expenses and disbursements (including reasonable costs of investigation, and
reasonable attorneys', accountants' and expert witnesses' fees) of whatever kind
and nature, net of any tax benefit actually realized by the Indemnified Party
(it being understood that any such benefit shall be paid in the first instance
by Indemnifying Parties and refunded by the Indemnified Party upon the
realization of the benefit) to the extent not covered by insurance the benefits
of which will inure to the applicable Indemnified Parties (as defined below)
(collectively, "Losses"), that may be imposed on or incurred by any Purchaser
Indemnified Party or the Company (collectively, the "Group") as a consequence of
or in connection with (i) any inaccuracy or breach of any representation or
warranty contained in Article III hereof or (ii) any breach of or failure by any
Stockholder to comply with or perform any agreement or covenant contained in
this Agreement. The term "Losses" as used herein is not limited to matters
asserted by third parties against the Group but includes Losses incurred or
sustained by the Group in the absence of third party claims.
Error! Unknown switch argument..Error! Unknown switch argument..Error!
Unknown switch argument. Special Indemnity. Prior to the Closing, the Company
will enter into an obligation to pay an amount not to exceed DKK 3,500,000 to
Xxxxxx and Xxxxxxxx in accordance with Exhibits C-1 and C-2. The amount will be
paid to Xxxxxx and Hougaard two weeks after the closing in consideration of
their covenants given pursuant
23
to their Non-Solicitation/Non-Servicing Agreements being entered into
simultaneously herewith, as well as in consideration of the untimely termination
of Xxxxxx'x employment contract. However, subject to withholding taxes, the
amount will be taxed as personal income under Danish tax law. It is the parties'
intent that the Company's obligations with respect to any third party loan
obtained to enable the Company to pay the amount, shall be limited solely to the
repayment thereof to the third-party lender, and that any additional Losses that
may be imposed or incurred by Purchaser or the Company with respect thereto,
including, without limitation, the disallowance by any tax authority of said
consideration to Xxxxxx and Hougaard as a deductible business expense of the
Company, shall be fully indemnified by the Stockholders and shall not be subject
to the limitations contained in Section 8.5 below.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Obligation of the Purchaser to Indemnify. Subject to the limitations set
forth in Section 8.5 hereof, the Purchaser hereby agrees to indemnify the
Stockholders and their respective officers, directors, employees and agents
(individually a "Stockholder Indemnified Party" and collectively the
"Stockholder Indemnified Parties"; the Purchaser Indemnified Parties and the
Stockholders Indemnified Parties are sometimes collectively referred to as the
"Indemnified Parties") against, and to protect, save and keep harmless the
Stockholder Indemnified Parties from and to assume liability for any and all
Losses that may be imposed on or incurred by the Stockholder Indemnified Parties
as a consequence of or in connection with (i) any inaccuracy or breach of any
representation or warranty contained in Article IV hereof or (ii) any breach of
or failure by the Purchaser to comply with or perform any agreement or covenant
by the Purchaser contained in this Agreement.
Section Error! Unknown switch argument..4 Indemnification Procedures.
Error! Unknown switch argument..4.Error! Unknown switch argument. Notice
of Asserted Liability. The Indemnified Party shall promptly give notice (the
"Claims Notice") to the party or parties required to pay any amount in respect
of Losses under Section 8.2 or 8.3 (collectively, the "Indemnifying Party"), of
any demand, claim or circumstances which in good faith it believes gives rise,
or with the lapse of time would or might give rise to a claim or the
commencement (or threatened commencement) of any action, proceeding or
investigation that may result in any Losses (an "Asserted Liability") without
regard to the limitations on indemnification set forth in Section 8.5 below. The
Claims Notice shall describe the Asserted Liability in reasonable detail, shall
indicate the amount (estimated, if necessary, and to the extent feasible) of the
Losses that have been or may be suffered by an Indemnified Party.
Error! Unknown switch argument..4.Error! Unknown switch argument.
Defense of Asserted Liability. The Indemnifying Party may elect to
compromise, settle or defend, at its own expense and by its own counsel (such
counsel to be reasonably satisfactory to the Indemnified Party), any Asserted
Liability. If the Indemnifying Party elects to compromise, settle or defend such
Asserted Liability, it shall within 30 days (or sooner, if the nature of the
Asserted Liability so requires) notify the Indemnified Party in writing of its
intent to do so and the Indemnified Party shall cooperate, at the request and
expense of the
24
Indemnifying Party, in the settlement or compromise of, or defense against, such
Asserted Liability. If the Indemnifying Party elects not to compromise, settle
or defend the Asserted Liability, or fails to notify the Indemnified Party of
its election as herein provided, the Indemnified Party may pay, compromise,
settle or defend such Asserted Liability at the expense of the Indemnifying
Party and the Indemnifying Party shall be bound by the results obtained by the
Indemnified Party with respect to such third party claim. Notwithstanding the
foregoing, the Indemnifying Party may not settle or compromise any claim without
the prior written consent of the Indemnified Party, if such settlement or
compromise does not include an unconditional release from all liability without
future obligation or prohibition on the part of the Indemnified Party. If an
Indemnified Party objects to a bona fide offer of settlement which provides
solely for a monetary payment and includes an unconditional release from all
liability without future obligation or prohibition on the part of the
Indemnified Party, which the Indemnifying Party wishes to accept, the
Indemnified Party may continue to pursue such matter, free of any participation
by the Indemnifying Party, at the expense of the Indemnified Party. In such
event, the obligation of the Indemnifying Party shall be limited to the amount
of the offer of settlement which the Indemnified Party refused to accept plus
the costs and expenses of the Indemnified Party incurred prior to the date the
Indemnifying Party notified the Indemnified Party of the offer of settlement.
The Indemnified Party shall have the right to employ its own counsel in any case
with respect to an Asserted Liability, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (a) the employment of
such counsel shall have been authorized in writing by the Indemnifying Party in
connection with the defense of such action, (b) such Indemnifying Party shall
not have, as provided above, promptly employed counsel reasonably satisfactory
to such Indemnified Party to take charge of the defense of such action, or (c)
such Indemnified Party shall have reasonably concluded that there may be one or
more legal defenses available to it which are different from or additional to
those available to such Indemnifying Party, in any of which events such
reasonable fees and expenses shall be borne by the Indemnifying Party and the
Indemnifying Party shall not have the right to direct the defense of such action
on behalf of the Indemnified Party in respect of such different or additional
defenses. If the Indemnifying Party chooses to defend any claim, the Indemnified
Party shall make available to the Indemnifying Party any books, records or other
documents within its control that are necessary or appropriate for such defense.
The parties hereto agree to cooperate fully with one another in the defense,
compromise or settlement of any Asserted Liability.
Error! Unknown switch argument..4.Error! Unknown switch argument.
Control by the Purchaser. All decisions and determinations to be made by
the Purchaser and/or a Purchaser Indemnified Party under this Article VIII shall
be made by the Purchaser in the name of and on behalf of the Purchaser or such
other Purchaser Indemnified Party and all such decisions and determinations
shall be binding upon the parties hereto and such Purchaser Indemnified Party.
25
Section Error! Unknown switch argument..5 Limitations on Indemnification.
Error! Unknown switch argument..5.Error! Unknown switch argument.
Indemnity Cushion. No claim, action or other Asserted Liability with
respect to Losses arising out of any of the matters referred to in clause (i) of
Section 8.2 may be asserted until such time as claims, actions or other Asserted
Liabilities with respect to Losses arising out of any of the matters referred to
in clause (i) of Section 8.2 shall exceed $40,000 in the aggregate (in which
case the Stockholders shall be liable for all Losses in excess of $40,000);
provided, however, that this Section 8.5.1 shall not apply to Losses relating to
a breach of a representation or warranty contained in Section 3.26, or pursuant
to Section 8.2.2.
Error! Unknown switch argument..5.Error! Unknown switch argument.
Termination of Indemnification Obligations of the Stockholders.
(a) The obligation of the Stockholders to indemnify under Section
8.2.1 hereof shall terminate on June 30, 2002 except (i) as to matters as to
which the Purchaser Indemnified Party has made a claim for indemnification or
given a Claims Notice under Section 8.4 hereof on or prior to such date and,
(ii) with respect to any claim for Losses pertaining to a misrepresentation or a
breach of representation or warranty under Section 3.11 or any other Section of
Article III of this Agreement relating to Taxes or pursuant to Section 8.2.2
hereof. The obligation to indemnify referred to in:
(A) the preceding clause (i) shall survive the expiration of such
period until such claims are finally resolved and any obligations with
respect thereto are fully satisfied; and
(B) the preceding clause (ii) shall terminate 60 days after the
expiration of the relevant statute of limitations, except as to matters as
to which any Indemnified Party has made a claim for indemnification or
given a Claims Notice under Section 8.4 on or prior to such date, in which
case the right to indemnification with respect thereto shall survive the
expiration of any such period until such claim is finally resolved and any
obligations with respect thereto are fully satisfied.
Error! Unknown switch argument..5.Error! Unknown switch argument.
Termination of Indemnification Obligations of the Purchaser. The
obligation of the Purchaser to indemnify under clause (i) of Section 8.3 hereof
shall terminate on June 30, 2002 except as to matters as to which any
Stockholders Indemnified Party has made a claim for indemnification or given a
Claims Notice under Section 8.4 hereof on or prior to such date, in which case
the right to indemnification with respect thereto shall survive until the
related claim for indemnification has been finally resolved and any obligations
with respect thereto are fully satisfied.
Error! Unknown switch argument..5.4 Treatment. Any indemnity payments by
an Indemnifying Party to an Indemnified Party under this Article VIII shall be
treated by the parties as an adjustment to the Purchase Price.
26
8.5.5 Cap on indemnification. The liability of each of the Stockholders
with respect to losses arising out of any of the matters in this Agreement shall
not exceed (a) 100% of the Purchaser's shares of Common Stock issued to such
Stockholder pursuant to Section 2.1.1, or (b) USD 4,500,000 with respect to VH
and Xxxxxx and USD 1,500,000 with respect to AMS and Hougaard, whichever the
lower. The Stockholders are jointly and severally liable up till the
aforementioned pro rata liability. As of June 30, 2001, the liability shall be
reduced to 50% of the shares or amounts mentioned. The Stockholders shall have
the option as to whether to satisfy its indemnification obligations in cash, in
shares of Purchaser's Common Stock, or in a combination thereof, and each share
of Purchaser's Common Stock shall be valued at its then-current value.
.ARTICLE Error! Unknown switch argument.
MISCELLANEOUS
Section Error! Unknown switch argument..Error! Unknown switch argument.
Expenses. The parties hereto shall pay all of their own expenses relating
to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel and financial
advisers.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Governing Law. The interpretation and construction of this Agreement, and
all matters relating hereto, shall be governed by the laws of Denmark without
reference to its conflict of laws provisions.
Section Error! Unknown switch argument..Error! Unknown switch argument.
"Person" Defined. "Person" shall mean and include an individual, a
company, a joint venture, a corporation, a limited liability company, a limited
liability partnership, a trust, an unincorporated organization and a government
or other department or agency thereof.
Section Error! Unknown switch argument..Error! Unknown switch argument.
"Knowledge" Defined. Where any representation and warranty contained in
this Agreement is expressly qualified by reference to the knowledge of a party,
such party confirms that it has made such due and diligent inquiry as to the
matters that are the subject of such representations and warranties as shall be
reasonable under the circumstances.
Section Error! Unknown switch argument..Error! Unknown switch argument.
"Affiliate" Defined. As used in this Agreement, an "affiliate" of any
Person, shall mean any Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with
such Person.
27
Section Error! Unknown switch argument..Error! Unknown switch argument.
Captions. The Article and Section captions used herein are for reference
purposes only, and shall not in any way affect the meaning or interpretation of
this Agreement.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Publicity. Subject to the provisions of the next sentence, no party to
this Agreement shall, and the Stockholders shall insure that no representative
of the Company shall, issue any press release or other public document or make
any public statement relating to this Agreement or the matters contained herein
without obtaining the prior approval of the Purchaser, the Company and the
Stockholders. Notwithstanding the foregoing, the foregoing provision shall not
apply to the extent that Purchaser is required to make any announcement relating
to or arising out of this Agreement by virtue of the federal securities laws of
the United States or the rules and regulations promulgated thereunder or other
rules of the National Association of Securities Dealers or other stock exchange
on which the securities of the Purchaser may then be traded, or any announcement
by any party or the Company pursuant to applicable law or regulations.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to any other
party shall be in writing and shall be deemed to have been given (a) upon
personal delivery, if delivered by hand, (b) three days after the date of
deposit in the mails, postage prepaid, if mailed by certified or registered
mail, or (c) the next business day if sent by facsimile transmission (if receipt
is electronically confirmed) or by a prepaid overnight courier service, and in
each case at the respective addresses or numbers set forth below or such other
address or number as such party may have fixed by notice:
If to the Purchaser, addressed to:
Xxxxxx.Xxx Ltd.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxx Xxxxxxx
Xxxxxx.Xxx Ltd.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
If to the Stockholders to the address set forth on Exhibit A;
28
Section Error! Unknown switch argument..Error! Unknown switch argument.
Parties in Interest. This Agreement may not be transferred, assigned, pledged or
hypothecated by any party hereto, other than by operation of law. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, successors and assigns.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Severability. In the event any provision of this Agreement is found to be void
and unenforceable by a court of competent jurisdiction, the remaining provisions
of this Agreement shall nevertheless be binding upon the parties with the same
effect as though the void or unenforceable part had been severed and deleted.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Counterparts. This Agreement may be executed in two or more counterparts, all of
which taken together shall constitute one instrument.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Entire Agreement. This Agreement, including the other documents referred to
herein and the Exhibits and Schedules hereto which form a part hereof, contains
the entire understanding of the parties hereto with respect to the subject
matter contained herein and therein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Amendments. This Agreement may not be amended, supplemented or modified orally,
but only by an agreement in writing signed by the Purchaser and the
Stockholders.
Section Error! Unknown switch argument..Error! Unknown switch argument.
Third Party Beneficiaries. Each party hereto intends that this Agreement shall
not benefit or create any right or cause of action in or on behalf of any person
other than the parties hereto and their respective successors and assigns as
permitted under Section 9.9.
Section Error! Unknown switch argument..16 Arbitration. Any controversy or
claim arising out of or relating to this Agreement, or any breach hereof, shall
be settled by arbitration in accordance with Danish law, including the Danish
Arbitration Act (Voldgiftsloven). The arbitration panel shall consist of three
arbitrators, one nominated by Purchaser, one nominated by the Stockholders and
the third to be selected by the other two. In the event the three arbitrators
shall not have been nominated within 30 days following a notice by either
Purchaser or the Stockholders to the other(s) of its intention to arbitrate, an
arbitrator for the party who has not nominated an arbitrator (if applicable) and
the third arbitrator shall be chosen by the Det Danske Voldgiftsinstitut (the
Danish Arbitration Institute) pursuant to its rules and regulations. The
determination of the arbitrators shall be not inconsistent with the terms of
this Agreement and shall be final and binding upon the parties to the
arbitration without the right of appeal. The arbitration shall be held in
Copenhagen, Denmark in the
29
English language. The costs and expenses of the arbitrators shall be paid by the
non-prevailing party or parties to the arbitration proceeding. No party to this
Agreement shall be precluded from applying to a proper court for injunctive
relief by reason of the prior or subsequent commencement of an arbitration
proceeding as herein provided.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, on
the day and year first above written.
XXXXXX.XXX LTD.
By: /s/ Xxxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Vice President
THE CORPORATE STOCKHOLDERS
VISIONIK HOLDING ApS
By: /s/ Xxxxxx Xxxxxx
------------------------------------
ASSOCIATED MANAGEMENT SERVICES A/S
In pursuance of General Assembly
resolution:
By: /s/ Xxxxx Xxxxxxxx-Xxxxxx
------------------------------------
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxxx-Xxxxxx
----------------------------------------
Xxxxx Xxxxxxxx-Xxxxxx
30
Exhibits
Exhibit A: Shares; Addresses; Allocation of Purchase Price
Exhibit A-1: Notification signed by Visionik A/S concerning share exchange
Exhibit B1-1: Employment Agreement
Exhibit C-1: Non-Solicitation Agreement with Xxxxxx
Exhibit C-2: Non-Solicitation Agreement with Hougaard
Exhibit D-1: Investment Representation Certificate with Xxxxxx
Exhibit D-2: Investment Representation Certificate with Hougaard
Exhibit E-1: Lockup Agreement with Xxxxxx
Exhibit E-2: Lockup Agreement with Hougaard
Schedules
--------------------------------------------------------------------------------
Schedule 3.1.3 Description of Employee Option Scheme
--------------------------------------------------------------------------------
Schedule 3.1.6 List of Consents and Approvals
--------------------------------------------------------------------------------
Schedule 3.2 List of Jurisdictions of business
--------------------------------------------------------------------------------
Schedule 3.3. List of the Visionik A/S's Subsidiaries
--------------------------------------------------------------------------------
Schedule 3.3.1 Description of outstanding Options etc.
--------------------------------------------------------------------------------
Schedule 3.4. Copies of Balance Sheets
--------------------------------------------------------------------------------
Schedule 3.5 List of Information not in the possession of Visionik A/S
--------------------------------------------------------------------------------
Schedule 3.6 List of Liens on Tangible Personal Property
--------------------------------------------------------------------------------
Schedule 3.7.2 List of Real Property Leases
--------------------------------------------------------------------------------
Schedule 3.8 List of Contracts, including current money arrangements etc.
--------------------------------------------------------------------------------
Schedule 3.9.2 List of Consents and approvals
--------------------------------------------------------------------------------
Schedule 3.10 List of litigation, claims and administrative proceedings
--------------------------------------------------------------------------------
Schedule 3.11 List of contested tax assessments
--------------------------------------------------------------------------------
Schedule 3.12 List of defaults in respect of borrowed money
--------------------------------------------------------------------------------
Schedule 3.13 List of insurance policies
--------------------------------------------------------------------------------
Schedule 3.14 Lists of registrations of Intellectual Property and Licenses
--------------------------------------------------------------------------------
Schedule 3.16 List of the largest clients
--------------------------------------------------------------------------------
Schedule 3.17 List of Material adverse changes after September 30, 1999
--------------------------------------------------------------------------------
Schedule 3.20 Lists of interest in Customers, suppliers etc.
--------------------------------------------------------------------------------
Schedule 3.21 List of Bank Accounts and Powers of Attorney etc.
--------------------------------------------------------------------------------
Schedule 3.22 List of Compensation of Employees and exclusive consultants
--------------------------------------------------------------------------------
Schedule 3.23 List of Material adverse changes after September 30, 1999
--------------------------------------------------------------------------------
Schedule 4.3.2 List of Consents and Approvals
--------------------------------------------------------------------------------
Schedule 4.4 Financial Statements of Purchaser
--------------------------------------------------------------------------------
Schedule 4.4.1 US GAAP
--------------------------------------------------------------------------------
Schedule 4.4.2 List of Material adverse changes with respect to Purchaser
--------------------------------------------------------------------------------
Schedule 4.7 Stockholders Closing Percentage
--------------------------------------------------------------------------------
31
EXHIBIT A
Shares; addresses; allocation of purchase price
Visionik Holding ApS (registration no. ApS 240920 -- SE no. 20483288),
Hollaendervej 17, 3. th., DK-1855 Frederiksberg C, disposes of 375 shares in the
Company of a nominal value of DKK 375,000, and receives 429,000 shares of
Purchaser Common Stock.
Associated Management Services A/S (registration no. A/S 156640 -- SE no.
73684919), Lovvaenget 3, DK-2960 Rungsted Kyst, disposes of 125 shares in the
Company at a nominal value of DKK 125,000, and receives 143,000 shares of
Purchaser Common Stock.
Error! Unknown switch argument.
EXHIBIT A-1
Notification signed by Visionik A/S concerning share exchange
In accordance with Article 25(b) of the Companies Act (Aktieselskabsloven) it is
hereby notified that the ownership to all shares issued by Visionik A/S (DKK
375,000 held by Visionik Holding ApS and DKK 125,000 held by Associated
Management Services A/S) have been transferred irrevocably to Xxxxxx.Xxx Ltd.,
000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX, as of this date.
Copenhagen, November 3, 1999
Visionik Holding ApS:
by:
----------------------------------
Xxxxxx Xxxxxx
Associated Management Services A/S:
by:
----------------------------------
Xxxxx Xxxxxxxx-Xxxxxx
Xxxxxx.Xxx Ltd.:
by:
----------------------------------
Xxxxxxxxx Xxxx
***
Visionik A/S hereby acknowledges that we have been informed of the above
transfer on November 3, 1999.
Visionik A/S:
by:
----------------------------------
Xxxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxxxx-Xxxxxx
The authenticity and authority as well as the date of the signatures above on
behalf of Visionik Holding ApS, Associated Management Services A/S and Visionik
A/S are hereby certified.
by:
----------------------------------
Xxxx Xxxxxx
Attorney of law,
Copenhagen
Error! Unknown switch argument.
2
