Exhibit 10
SHARE EXCHANGE AGREEMENT
This AGREEMENT, dated as of November 17, 2000, by and among
New Generation Holdings, Inc. ("NGH"), a Delaware Corporation, with offices
at 000 Xxxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, New Generation Partners, Inc.
("NGP"), a Delaware Corporation, with offices at 000 Xxxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (NGH, NGP and any of their affiliates are referred to
collectively herein as the "Company"), on one hand, and Xxx Xxxxxxxx ("BJ"),
a Belgian individual, BJ's wholly owned management company, Icare BVBA
("Icare"), a Belgian Corporation, with offices at Xxxxxxxxxxxxxx 0, Xxxxxxx,
Xxxxxxx, Xxxx De Vleeschauwer ("RDV"), a Belgian individual, RDV's wholly
owned management company Rapide BVBA ("Rapide"), a Belgian Corporation, with
offices at Xxxxxxxxxxxxxx 00, Xxxxx-Xxxxxxx, Xxxxxxx, BJ, Icare, RDV and
Rapide collectively herein referred to as the "Xxxxxxx Shareholders", on the
other.
RECITALS
WHEREAS, Xxxxxxx SoftCare NV ("Xxxxxxx"), a Belgian
Corporation, Case Belgie NV ("Case Be"), a Belgian Corporation, Case Nederland
BV ("Case Nl"), a Dutch Corporation and Case France SA ("Case Fr"), a French
Societe Anonyme (Xxxxxxx, Case Be, Case Nl and Case Fr are referred to
collectively herein as the "Xxxxxxx Group") are in the business of writing and
marketing software, as well as providing consulting services to the users of
their software; and
WHEREAS, NGH through its wholly owned subsidiary, NGP is
engaged in the business of providing emerging ventures with capital and
consulting services to assist in the development and expansion of their
businesses; and
WHEREAS, Icare and Rapide equally own one hundred percent
(100%) of the outstanding equity of Xxxxxxx; and
WHEREAS, RDV and BJ equally own sixty percent (60%) of Case Be
and its wholly owned subsidiary, Case Nl and eighty percent (80%) of Case Fr;
and
WHEREAS, RDV, BJ, Icare and Rapide desire to transfer an
aggregate of twenty five percent (25%) of the equity of the Xxxxxxx Group, with
the exception of the QiD participation, to the Company in exchange for certain
shares common stock of NGH on terms and conditions as set forth herein.
NOW THEREFORE, the parties hereby agree as follows:
1. SHARE EXCHANGE AND RELATED MATTERS.
a. CONDITIONS PRECEDENT
a.1 Reorganization of the Xxxxxxx Group. As a condition to the Closing of
the transactions contemplated by this Agreement, the Xxxxxxx Group shall
complete a reorganization of its ownership structure with the aid and assistance
of the Company. The purpose and intent of the reorganization is to consolidate
the relative ownership interests of the Xxxxxxx Shareholders in each of Xxxxxxx,
Case Be, Case Nl and Case Fr, so that the Company can acquire a twenty five
percent (25%) equity interest in the Xxxxxxx Group under the terms of this
Agreement. The reorganization shall include, without limitation, the acquisition
by the Xxxxxxx Shareholders of the forty percent (40%) and twenty percent (20%)
outstanding minority equity interests in Case Be and Case Fr, respectively.
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a.2 Shareholders Agreement. As a second condition to the Closing of the
transactions contemplated by this Agreement, a shareholder agreement between the
Xxxxxxx Shareholders will be developed which details the intentions and
responsibilities (based on the first meeting report)of both parties involved.
Further this agreement shall contain provisions for the eventual sale of the
Xxxxxxx Group Shares and for certain non-competition situations, applicable to
both parties.
a.3 Management Contracts. As a third condition to the Closing of the
transactions contemplated by this Agreement, the Xxxxxxx Shareholders and the
Company will agree terms and conditions for new management contracts between the
Directors of the Xxxxxxx Group and the Xxxxxxx Group.
b. CLOSING
At the Closing (as defined herein) the Xxxxxxx Shareholders shall deliver shares
of the entity that results from the reorganization in Section 1(a) above (the
"Xxxxxxx Group Shares") representing twenty five percent (25%) of the
outstanding equity of the Xxxxxxx Group.The Parties have agreed a value of
US$6,750,000 for the Xxxxxxx Group. The compensation (the "Xxxxxxx Agreed
Value") shall be delivered in exchange (the "Share Exchange") for an amount of
shares (the "Exchange Shares") of the Common Stock of NGH that is equal to the
quotient of the Xxxxxxx Agreed Value divided by the Agreed Stock Value (as
defined herein).
c. EXCHANGE SHARES
For purposes of this Agreement, the Agreed Stock Value shall mean US$3.00 per
share.The Exchange Shares is hence calculated at 2'250'000 shares.
d. RESTRICTION
The Exchange Shares shall be restricted shares issued pursuant to Regulation S.
The recipients of the Exchange Shares shall be granted customary registration
rights pursuant to a Registration Rights Agreement to be executed among the
parties on or before the Closing, that will provide, among other things, that
the Exchange Shares will become subject to a demand registration right six (6)
months after the date of issuance.
e. BOARD OF XXXXXXX GROUP
The Company shall have the right to nominate one (1) member of the Board(s) of
Directors of the company or companies that will consolidate the equity interests
of the Xxxxxxx Group and the Xxxxxxx Shareholders agree to vote for the election
of such member(s).
f. RELARED PARTY TRANSACTIONS
The parties agree that all arrangements and agreements that the Company and the
Xxxxxxx Group and any party that is related to the either of the Company or the
Xxxxxxx Group shall be concluded at arms length.
2. REPRESENTATIONS AND WARRANTIES OF THE XXXXXXX GROUP AND THE XXXXXXX
SHAREHOLDERS. The Xxxxxxx Group and the Xxxxxxx Shareholders hereby make the
following representations and warranties to the Company.
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a. ORGANIZATION
Each entity of the Xxxxxxx Group is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and is duly authorized to carry on the business presently conducted
by it. Icare and Rapide equally own one hundred percent (100%) of the
outstanding equity of Xxxxxxx, RDV and BJ equally own sixty percent (60%) of
Case Be and its wholly owned subsidiary, Case Nl and eighty percent (80%) of
Case Fr. All of the foregoing issued and outstanding shares (the "Shares") of
capital stock are owned by the Xxxxxxx Shareholders free and clear of all liens
and encumbrances of any kind. Except for the existing minority interests in Case
Be and Case Fr, the Shares represent all of the issued and outstanding shares,
of all types or classes, of the Xxxxxxx Group and there are no outstanding
options, warrants, convertible or exchangeable securities or other rights to
purchase shares of capital stock of any entity in the Xxxxxxx Group.
b. PENDING CLAIMS
Except as disclosed in Schedule 2(b), there is no litigation, suit, action,
claim, arbitration, administrative or legal or other proceeding, or governmental
investigation pending or, to the Xxxxxxx Group's or the Xxxxxxx Shareholders'
knowledge threatened, against any member of the Xxxxxxx Group and there are no
unasserted claims possible of assertion involving the business of the Xxxxxxx
Group which the Xxxxxxx Group has notice or knowledge; there are no audits by a
governmental authority, claims for unpaid taxes of any kind, or other similar
actions, proceedings or disputes pending or, to the Xxxxxxx Group's knowledge,
threatened against or affecting the business of the Xxxxxxx Group; there are no
unpaid judgments of any kind against the Xxxxxxx Group or the Xxxxxxx
Shareholders relating to the business; and neither the Xxxxxxx Group nor the
Xxxxxxx Shareholders are charged with or, to either the Xxxxxxx Group's or the
Xxxxxxx Shareholders' knowledge threatened, with a charge or violation or, to
either the Xxxxxxx Group's or the Xxxxxxx Shareholders' knowledge, is it under
investigation with respect to any alleged violation of any provision of any
federal, state, local or foreign law or administrative ruling or regulation
relating to any aspect of the business. To the best knowledge of the Xxxxxxx
Group and the Xxxxxxx Shareholders, there are no liabilities or potential
liabilities of the Xxxxxxx Group which in the aggregate exceed Fifty Thousand
Dollars ($50,000).
c. TITLE TO ASSETS
Each member of the Xxxxxxx Group is the sole and exclusive owner of, and has
good and marketable title to, all of its assets, rights, properties, claims,
contracts and business of every kind, nature, character and description,
tangible and intangible, personal, real or mixed, wherever located, free and
clear of all liens, mortgages, pledges, claims, encumbrances, security
interests, covenants, easements, rights of way, equities, options, rights of
first refusal, assessments, defects in title, encroachments, charges or any
other burden of restriction of any kind or nature (collectively, "Liens"); and
(b) no other person, firm or corporation has or will have on the Closing Date
any interest whatsoever in any of such assets.
d. NO BREACH OR VIOLATION
The execution, delivery and performance of this Agreement and any other
agreements contemplated hereby between the parties hereto by the Xxxxxxx Group
and the consummation of the transactions contemplated by this Agreement or any
other agreements contemplated hereby will not (a) result in or constitute a
breach or an event that, with notice or lapse of time or both, would be a
default, breach or other violation of the articles of organization of any member
of the Xxxxxxx Group; (b) violate (with or without the giving of notice or the
lapse of time or both), or
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require any consent, approval, filing or notice under, any provision of any law,
rule or regulation, court or administrative order, writ, judgment or decree
applicable to the Xxxxxxx Group, the business or any of the assets of the
Xxxxxxx Group, and (c) with or without the giving of notice or the lapse of time
or both (i) violate or conflict with, or result in the breach, suspension or
termination of any provision of, or constitute a default under, or result in the
acceleration of the performance of the obligations of any of the Xxxxxxx Group
under, or (ii) result in the creation of any Liens upon all or any portion of
the properties, assets or the business of the Xxxxxxx Group pursuant to, the
articles of organization of any member of the Xxxxxxx Group, or any indenture,
mortgage, deed of trust, lease, agreement, contract or instrument to which a
member of the Xxxxxxx Group is a party or by which any member of the Xxxxxxx
Group, its assets or business is bound.
e. CORPORATE DOCUMENTS
The Xxxxxxx Group have furnished to the Company for its examination true and
correct copies of the articles of organization, bylaws and minute books of each
member of the Xxxxxxx Group.
f. CONDUCT OF BUSINESS
From the date of this Agreement until the Closing, the Xxxxxxx Group shall
operate its business in the ordinary course and in a commercially reasonable
manner and will make all reasonably necessary efforts to preserve intact its
business, its relationships with third parties, all memberships, if any, that it
presently holds, the goodwill it has accrued and the services, to the extent
practicable, of its existing officers, employees, and directors
3. THE COMPANY'S REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Xxxxxxx Group and the Xxxxxxx Shareholders, their respective
successors and assigns, that:
a. ORGANIZATION
The Company is a corporation duly organized, existing and in good standing under
the laws of the State of Delaware, and is not presently and has not since its
incorporation been the subject of any governmental or quasi-governmental inquiry
or review which would materially adversely effect its business or operations,
nor to the knowledge of the Company, is any such inquiry or review pending or
threatened.
b. AUTHORITY
The Company has taken all necessary corporate action on its part as may be
required under the laws of the jurisdiction of organization and under its
charter documents to authorize the execution, delivery and carrying out of this
Agreement on behalf of the Company.
c. ENFORCEABILITY
The Company has the full right, power, legal capacity and authority to enter
into and perform its respective obligations under this Agreement. The execution,
delivery and performance by the Company of this Agreement and any other
agreements contemplated hereby and the consummation by them of the transactions
contemplated hereby and thereby have been duly authorized by the by the Board of
Directors of the Company. No other corporate or stockholder action is necessary
for the authorization, execution, delivery and performance by the Company of
this Agreement and any other agreements between the parties contemplated hereby
and the consummation by the Company of the transactions contemplated hereby or
thereby. This
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Agreement has been duly executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company, enforceable against each of
them in accordance with the terms hereof.
d. NO BREACH OR VIOLATION
The execution, delivery and performance of this Agreement and any other
agreements contemplated hereby between the parties hereto by the Company and the
consummation of the transactions contemplated by this Agreement or any other
agreements contemplated hereby will not (a) result in or constitute a breach or
an event that, with notice or lapse of time or both, would be a default, breach
or other violation of the articles of incorporation or bylaws of the Company;
(b) violate (with or without the giving of notice or the lapse of time or both),
or require any consent, approval, filing or notice under, any provision of any
law, rule or regulation, court or administrative order, writ, judgment or decree
applicable to the Company; and (c) with or without the giving of notice or the
lapse of time or both violate or conflict with, or result in the breach,
suspension or termination of any provision of, or constitute a default under, or
result in the acceleration of the performance of any obligations of the Company.
e. SEC FILINGS
Each of the documents filed by the Company with the SEC (including all financial
statements included therein) (the "SEC Filings") at the time of filing thereof
conformed with the requirements of the Securities Act of 1933, as amended and
the Rules and Regulations promulgated thereto, and none of the SEC Filings at
the time of filing thereof contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein and necessary to
make the statements therein in light of the circumstances under which they were
made, not misleading.
4. THE CLOSING. The closing ("Closing") of the Share Exchange and any
other transactions contemplated by this Agreement shall take place at the
offices of the Company at 9:00 a.m., on November 23, 2000, or at such other
place and time and on such other date, as the parties may agree upon in writing
("Closing Date").
5. OBLIGATIONS OF THE XXXXXXX SHAREHOLDERS. At the Closing, the Xxxxxxx
Shareholders shall deliver or cause to be delivered to the Company the Xxxxxxx
Group Shares, a Registration Rights Agreement and a Stockholders' Agreement in
form and substance reasonably satisfactory to the Company.
6. OBLIGATIONS OF THE COMPANY. At the Closing, the Company shall deliver
or cause to be delivered to the Xxxxxxx Shareholders the Exchange Shares, a
Registration Rights Agreement and a Stockholders' Agreement in form and
substance reasonably satisfactory to the Xxxxxxx Shareholders.
7. MISCELLANEOUS
a. ASSIGNMENT
This Agreement may not be assigned by any party without the prior written
consent of the other parties.
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b. WAIVERS
Any delay or forbearance by either party in exercising any right hereunder shall
not be deemed a waiver of that right.
c. SEVERABILITY
If any provision of this Agreement shall be held to be invalid or unenforceable
in any jurisdiction in which this Agreement is being performed, then the meaning
of such provision shall be construed so as to render it enforceable, to the
extent feasible; and if no feasible interpretation would save such provision, it
shall be severed from this Agreement and the remainder shall remain in full
force and effect. However, in the event such provision is considered an
essential element of this Agreement, the parties shall promptly negotiate a
replacement thereof.
d. PARTIAL INVALIDITY
If any provision in this Agreement is held by a court of competent jurisdiction
to be invalid, void, or unenforceable, the remaining provisions will
nevertheless continue in full force without being impaired or invalidated in any
way.
e. GOVERNING LAW
This Agreement will be governed by and construed in accordance with the laws of
Belgium, without regard to conflicts of law principles.
f. BINDING EFFECT
This Agreement shall be binding upon and shall inure to the benefit of the
parties, their successors, and permitted assigns.
g. NEGOTIATED AGREEMENT
This Agreement is the result of negotiations between the parties. Accordingly,
no party to this Agreement shall be deemed to be the author of this Agreement
and there shall be no presumption that this Agreement is to be construed for or
against any party to this Agreement on the basis of the authorship of this
Agreement.
h. HEADINGS
The headings in this Agreement are inserted merely for the purpose of
convenience and shall not affect the meaning or interpretation of this
Agreement.
i. COUNTERPARTS
This Agreement may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original and all of which together shall constitute
but one and the same instrument. This Agreement may be executed by facsimile
signatures.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
NEW GENERATION HOLDINGS, INC. ICARE BVBA
By: By:
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Name: Jacques Mot Name: Xxx Xxxxxxxx
Title: Chairman Title:
NEW GENERATION PARTNERS, INC. RAPIDE BVBA
By: By:
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Name: Xxxx Hokfelt Name: Xxxx De Vleeschauwer
Title: Chief Executive Officer Title:
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Xxx Xxxxxxxx
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Xxxx De Vleeschauwer
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