Exhibit 4.13
DATED 17th April 2003
(1) XXXXXXXXX X. XXXXXXXXX and
XXXXXX XXXXXXXXXXX
and
(2) FUTUREMEDIA PLC
AGREEMENT
RELATING TO THE SALE OF
THE WHOLE OF THE ISSUED SHARE CAPITAL
OF AKTIVNA OBJECTS LIMITED
The Corn Exchange
Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxx Xxxxxx
XX00 0XX
Tel: 00000 000000
Fax: 00000 000000
Ref: NJR/JRC
xxx.xxxxxxxxxxx.xxx
THIS AGREEMENT is made the 17 day of April 2003
BETWEEN:
(1) XXXXXXXXX X. XXXXXXXXX of 000 xxx Xxxxxxx, X-0000 Xxxxxxxx, Xxxxxxx and
XXXXXX XXXXXXXXXXX of rue de la Brasserie, X-0000 Xxxxxxxx, Xxxxxxx
(together, the "Vendors"); and
(2) FUTUREMEDIA PLC (registered in England no. 01616681) whose registered
office is at Xxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx, Xxxx Xxxxxx
XX00 0XX (the "Purchaser")
WHEREAS:
Aktivna Objects Limited is a private company limited by shares and registered in
England and Wales under company number 4722961 whose registered office is at The
Corn Exchange, Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx Xxxxxx XX00 0XX and has at the
date of this Agreement an authorized share capital of GBP1,000 divided into
Ordinary Shares of GBP1 each, of which 100 are in issue and are fully paid.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION:
1.1. In this Agreement the following words
"Agreement" means this Agreement and includes the Recital;
"Business Day" a day (other than a Saturday or Sunday) when banks
are open for business in London;
"Company" means Aktivna Objects Limited;
"Completion" means completion of the sale and purchase of the
shares;
"Consideration" means the total purchase price payable by the
Purchaser to the Vendors in respect of the Shares pursuant to Clause;
"Consideration Shares" means ordinary shares of 1 1/9 xxxxx each of
the Purchaser credited as fully paid;
"Encumbrance" means any mortgage, charge, security, interest, lien,
pledge, hypothecation, assignment by way of security, equity, claims, right of
pre-emption, option, charge, covenant, restriction, reservation, lease, trust,
order, decree, judgment, title deficit (including retention of title clauses),
conflicting claim of ownership or any third party's rights or encumbrance of any
`nature whatsoever (whether or not perfected);
"Intellectual Property Rights" means design rights, trade marks and
service marks (in each case whether registered or not), patents, registered
designs, copyright, rights in databases, utility models and all similar property
rights, whether registrable or not, including those subsisting (in any part of
the world) in inventions, designs, drawings, performances, computer programs,
semiconductor topographies, confidential information, business or brand names,
domain names, metatags, goodwill or style of presentation of goods or services,
including applications for protection of any such rights, related to the
Software only;
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"Loan" means the sum of US$ 100,000 due from the Company to the
Vendors by way of interest-free loan as consideration for their assignment to
the Company of the Software;
"Shares" means the 100 ordinary shares of GBP1 each in the Company
to be sold fully paid and purchased pursuant to Clause SALE OF;
"Software" means the software owned by Company and as more
specifically identified by an assignment dated April 17, 2003 between the
Vendors and the Company, a copy of which is attached as Annex 1 to this
Agreement.
1.2. Any reference to an enactment or a statutory instrument is a
reference to it or them as amended, re-enacted or replaced (before or after the
date of this Agreement) and any subordinate legislation made under it.
1.3. The headings used in this Agreement are inserted for convenience only
and shall not affect its construction or interpretation.
1.4. Words and expressions used herein importing the singular number shall
include the plural number and vice versa and importing one gender shall include
any other.
1.5. Any references to a Clause shall be to a clause of this Agreement.
1.6. Reference to persons includes individuals, firms, bodies corporate,
unincorporated associations and partnerships.
1.7. The Recitals form part of this Agreement and shall have the same
force and effect as if expressly set out in the body of this Agreement.
1.8. General words introduced by the word "other" shall not be given a
restrictive meaning because they are preceded by words indicating a particular
class of acts, matters or things and shall not be given a restrictive meaning
because they are followed by particular examples intended to be embraced by the
general words.
1.9. References to individual persons shall be deemed to include his or
her respective heirs, estates, successors in title, personal representatives and
assigns.
2. SALE OF COMPANY
2.1. The Vendors as legal and beneficial owners of the Shares and with
full title guarantee shall sell and the Purchaser shall purchase the Shares on
and with effect from Completion.
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2.2. The Shares shall be sold free from all Encumbrances and together with
all rights which now are or at any time may become attached to them and all
dividends and distributions declared, made or paid thereon after Completion.
2.3. The Vendors waive any pre-emption rights which they may have relating
to the Shares whether conferred by the Articles of Association of the Company or
otherwise.
3. CONSIDERATION
3.1. The Consideration for the sale of the Shares shall be the sum of
US$350,000 to be satisfied as follows: the sum of US$ 350,000 to be satisfied by
the allotment and issue credited as fully paid to the Vendors on Completion of
3,500,000 Consideration Shares.
3.2. As between themselves the Vendors shall be entitled to the
Consideration in the proportions of 65 % to Xxxxxxxxx X. Xxxxxxxxx and 35 % to
Xxxxxx Xxxxxxxxxxx.
4. COMPLETION
4.1. Completion shall take place forthwith on execution of this Agreement
at the offices of Xxxxxx Xxxxx, Xxx Xxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx,
X000 0XX.
4.2. On Completion, the Vendors shall irrevocably waive and release the
Company from the Loan.
4.3. On Completion the Vendors shall deliver to the Purchaser:
4.3.1 the duly executed transfers in favour of the Purchaser of the
Shares;
4.3.2 the share certificates representing the Shares; and
4.3.3 letters of resignation of the Vendors as directors of the
Company in the agreed form.
4.4. Upon completion of all the matters referred to in Clauses the CD-ROM
containing source code, documentation and other computer data as stipulated in
Software description in Annex 1, and the Purchaser shall pay the Consideration
for the Shares payable under Clause shall as soon as is reasonably practicable
after Completion procure the issue to the Vendors of American Depositary
Receipts in respect of the Consideration Shares.
4.5. Subject to Completion and compliance by the Purchaser with its
obligations under Clause , the Vendors hereby appoint the Purchaser as their
attorney in respect of the Shares registered in the Vendors' names pending
registration thereof in the name of the Purchaser (or such name as it shall
direct) to exercise all voting and other rights attaching to the Shares and to
receive all dividends or other distributions in respect thereof.
5. WARRANTIES
5.1. The Vendors jointly and severally warrant to the Purchaser that:
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5.1.1 they have the right to sell and transfer the full legal and
beneficial interest in the Shares to the Purchaser on the terms set out in this
Agreement;
5.1.2 the Company is the owner of the full equitable and legal title
to the Software free from any Encumbrances;
5.1.3 the Company has no assets other than the Software and no
liabilities other than the Loan;
5.1.4 the Intellectual Property Rights in the Software are valid and
subsisting and the Vendors do not know of, or of any basis for, any claim for
revocation, amendment, opposition or rectification or any challenge to ownership
or entitlement in respect of the Software, or the Intellectual Property Rights
in it;
5.1.5 neither the Software nor its use or licensing infringes
directly, or indirectly, the Intellectual Property Rights of any third party,
and no third party has alleged any such infringement;
5.1.6 the source code of, and all programmers' notes, documentation
and drafts relating to, all the Software are in the possession of the Company or
under its control, are kept in a secure environment and have not been disclosed
to any third party; and
5.1.7 the Company has not entered into any agreement or arrangement
other than the assignment of the Software dated April 17, 2003 with the Vendors.
6. WAIVER
6.1. The Purchaser acknowledges that it has been made aware of and accepts
the fact that while the Software has been created with a particular purpose in
mind, as described in Annex 1, it is nevertheless not guaranteed by the Vendors
to fit any particular purpose, neither to be free of errors or malfunctions. The
Vendors have assigned the Software on as-is basis, and therefore can not be held
responsible for correcting possible errors or malfunctions, or in case the
Purchaser decides that the Software is not fit for its business.
6.2. The Purchaser agrees to assign irrevocable, royalty free,
non-transferable, unlimited right to use the Software in binary form only to the
specified existing customers of the Vendors, as stipulated in Annex 2.
7. GENERAL
7.1. This Agreement may be executed in any number of counterparts all of
which when taken together shall constitute one agreement.
7.2. Save for Clause (which shall be enforceable by the Company), any
person who is not a party to this Agreement may not enforce any of its terms
under The Contracts (Rights of Third Parties) Xxx 0000. Notwithstanding that any
term of this Agreement may be or become enforceable by a person who is not a
party to it, the terms of this Agreement to any of them may be varied, amended
or modified or this Agreement may be suspended, cancelled or terminated by
agreement in writing between the parties or this Agreement may be rescinded (in
each case), without the consent of any such third party.
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7.3. The Vendors agree that they will do or procure the doing of all such
acts and things and execute or procure the execution of all such documents as
may be required on or subsequent to Completion to vest in the Purchaser legal
and beneficial ownership of the Shares in accordance with this Agreement and
otherwise to give effect to its terms.
7.4. The liability of the Vendors under this Agreement shall be joint and
several.
7.5. Failure to meet conditions stipulated under COMPLETION,
CONSIDERATION, WARRANTIES or WAIVER sections of this Agreement by either party
will terminate this Agreement, without any indemnity.
7.6. This Agreement shall be governed by and construed in accordance with
the law of England and Wales.
7.7. The parties irrevocably agree to submit to the exclusive jurisdiction
of the courts of England and Wales over any claim or matter arising under or in
connection with this Agreement.
7.8. Any demand, notice or other communication given or made under or in
connection with this Agreement will be in writing.
7.9. Any such demand, notice or other communication will be addressed as
provided in clause and if so addressed will be deemed to have been duly given or
made as follows:
7.9.1 if sent by prepaid first class post, on the second business
day after the date of posting; or
7.9.2 if delivered by hand, upon delivery at the address provided
for in this clause , unless such delivery occurs on a day which is not a
business day or after 4 pin on a business day, in which case it will be deemed
to have been given or made at 9 am on the next business day.
7.10. Any demand, notice or other communication will be addressed (subject
as provided in this clause) to the recipient at the recipient's address stated
in this Agreement or at such other address as may from time to time be notified
in writing by the recipient to the sender as being the recipient's address for
service, provided however that in the case of a company it may instead (at the
option of the sender) be addressed to its registered office for the time being.
IN WITNESS whereof this Agreement was signed on the date appearing on page 1.
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SIGNED by XXXXXXXXX X. XXXXXXXXX
in the presence of:
Witness Signature: /s/ Xxxxxxxxx X. Xxxxxxxxx
Name: X. Xxxxxxxxx
Address: 000 xxx Xxxxxx, 0000 Xxxxxxxx, Xxxxxxx
Occupation: IT Consultant
SIGNED by XXXXXX XXXXXXXXXXX
in the presence of:
Witness Signature: /s/ Xxxxxxx Xxxxxxxxxxx
Name: Xxxxxxx Xxxxxxxxxxx
Address: xxx xx xx Xxxxxxxxx, X-0000, Xxxxxxxx, Xxxxxxx
Occupation: Designer
Signed for and behalf of
FUTUREMEDIA PLC
By /s/ Xxx Xxxxxxxx
Chairman
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ANNEX 1
Description of the Software
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Aktivna (the software) has been conceived as an integrated Internet solution for
rapid web site development and deployment with remote content management
facilities.
A typical web site based on Aktivna (the software) technology is assembled from
a set of pre-build or custom designed modules handling the content of the site
and corresponding style sheets (graphic templates) which handle the presentation
(the look) of the content. Aktivna (the software) aims to solve typical content
integration and maintenance problems by allowing to easily add and remove
content handling modules. As the application look is separated from the
application code, it increases code re-usability, lowers maintenance efforts and
offers an easy path for application white labelling. Part of Aktivna (the
software) is designed to allow easy manipulation of data residing on different
storage media, as such as LDAP directories, SQL databases, XML files. This part
of the software takes care of data input, type validation and interfacing to the
underlying storage system.
Aktivna (the software) is essentially an API (Application Programming
Interface), its reference implementation in Java programming language, with a
set of sample graphic templates and modules.
Aktivna (the software) is available in the following form:
1. Aktivna API documentation in Javadoc format, which includes Aktivna Framelet
API (part of the whole Aktivna API designed for on-fly XML DOM document
assembly) and Aktivna Databinding API (part of the whole Aktivna API designed to
perform storage tasks)
2. Aktivna Framelet and Aktivna Databinding API reference implementations in
Java programming language, which includes source and compiled Java code
3. Aktivna sample module implementations based on Aktivna Framelet and
Databinding API, which include source and compiled Java code for the following
modules:
- Object Browser module (retrieve, update, and remove object's
properties from the storage)
- File system browser module (list, navigate, upload files to a file
system's directory)
- XML Document module (integrate arbitrary XML file based content)
4. Sample XSLT style sheets which can be used with above mentioned modules
5. Sample configuration files and a demo implementation showing functionality of
the above modules
6. Java Servlet/Filter component to integrate Framelet API implementation with
standard Java Servlet engines
Aktivna (the software) relies on industry standard technologies such as XML and
XSLT and has been developed in recent Java JDK environment (Sun JDK 1.3/1.4).
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The Aktivna Framelet API has been developed, tested and deployed using
third-party implementation of DOM and SAX parsers and XSLT processors (such as
Xerces and Xalan implementations from Apache, xxxx://xxx.xxxxxx.xxx, or built-in
XML parsers and XSLT processors from Resin servlet engine,
httn://xxx.xxxxxx.xxx), recent version of Java2 API (Sun JDK 1.4) incorporates
such basic XML processing facilities in its JAXP API as a standard, which is
expected to work with Aktivna API, though it has not been tested.
Other third-party API and tools used by the software reference implementation
provide with non-critical functionality, such as free Apache LOW package from
Apache Group (xxxx://xxxxxxx.xxxxxx.xxx-/xxx0x) used for logging and debugging,
and free Castor XML Mapping package from Exolab
(htta://xxx.xxxxxx.xxx/xxx-xxxxxxxxx.xxxx) for XML configuration file processing
(parts of the system has been updated to work with own SAX parser based
configuration file processing facilities to eliminate the need of the Castor
package).
The software requires third party software to run, such as Java2 run-time
environment (Sun JRE or Sun JDK versions 1.3 or 1.4, or equivalent) and a Java
Servlet engine (Caucho Resin or equivalent).
Aktivna (the software) is provided on as-is basis and the Vendors do not
guarantee it is fit for any particular purpose, or it is free of any errors or
malfunctions.
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ANNEX 2
Assignment of rights to use the Software to the third parties
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The Purchaser assigns irrevocable, non-transferable, royalty-free unlimited
right to use the Software in binary form only to the existing clients of the
Vendors which have obtained, purchased, have been offered or are in the process
of negotiations to obtain or purchase products or services based on the
Software. Such assignment of rights shall only be applied to the following
clients, whether they are legal entities, physical persons, concepts, web sites
or trademarks:
Palais de Beaux Art de Bruxelles (xxxxxxxxxxxxxxxxxxxxx.xx)
Systole (xxxxxxx.xx, xxxxxxxxx.xx)
Pcm-Group (xxx-xxxxx.xxx)
Training Decisions (xxxxxxxx-xxxxxxxxx.xxx, xxxxxx.xxx)
Mi-Fleurs Mi Passion (xxxxxxx.xx)
ArtyCash (xxxxxxxx.xx)
CAS (xxxxxxxxx.xxx)
Business Management Consultants (xxx-xxxxxx.xxx)
MindWorks (xxxxxxxxx.xx)
Xpresseo (xxxxxxxx.xx)
Chili Con Came (xxxxx.xx)
Machiavelli (xxxxxxxxxxx.xxx)
Krio (xxxx.xxx)
Piccaya (xxxxxxx.xxx, xxxxxxxxxxxxx.xxx, xx-xxxx.xxx, xxxx-xxxxxx.xxx,
xxxx-xxxx.xxx, xxxxxxxxx-xxxxxx.xxx)
Algoexpress (xxxxxxxxxxx.xx)
Son et Lumiere (xxx-xxxxxxx.xx)
Usage Externe (xxxxx-xxxxxxx.xx)
Imprim'sport (xxxxxxxxxxx.xx)
Treasury International (xxxxxxxxxxxxxxxxxxxxx.xxx, xxxxxxxxxx.xxx)
Adages (xxxxxx.xx)
An artist Xxxxxx Xxxxx (xxxxx.xx)
An artist Xxxxxxxxxx Xxxxxxxxx (0000000000.xx)
An artist Sebastien Reuze (xxx-xxxxx.xx)
An artist Xxxxxxx Xxxxxx (xxxxxxxxxxxxxx.xxx)
An artist Zini Tchelidze (xxxxx.xxx)
An artist Xxxxxx Xxxxxxx (xxxxxx.xxx)
An artist Xxxxxx Xxxxxx (xxxxxx.xxx)
Xxxxxx.xxx (xxxxxx.xxx, xxxxxx.xxx...)
Sonic Partners (xxxxxxxxxxxxx.xxx)
TheTicket (xxxxxxxxx.xx)
The Internet addresses mentioned in parenthesis are for the reference purpose
only, as their respective owners may decide to change commercial, artistic names
or trademarks without Vendor's knowledge. The Vendors will undertake the
necessary steps to update copyright notices which might have been mentioned
within the services or products delivered or to be delivered to the above
clients, upon the request of the Company.
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