SHARE PURCHASE AGREEMENT between ADB Systems International Ltd. as Seller and ADB Systemer Holding AS (SUS) as Buyer
EXHIBIT
99.6
between
as
Seller
and
ADB
Systemer Holding AS (SUS)
as
Buyer
THIS
SHARE PURCHASE AGREEMENT
(hereinafter referred to as the “Agreement”) is entered into on this
18th
day of May, 2006, by and between:
(I) ADB
Systems International Ltd. a corporation incorporated under the laws of the
province of Ontario, with the registered address:
000,
Xxx Xxxx Xxxx,
Xxxxx 000
Xxxxxxx,
Xxxxxxx, X0X
0X0.
(hereinafter
referred to as “Seller”),
and
(II) ADB
Systemer Holding as (SUS)
Address:
Vingveien 2,
N-4050 Sola
(hereinafter
referred
to as “Buyer”)
(the
Seller and the Buyer may individually be referred to as “Party” and collectively
to as “Parties”)
regarding
the sale and purchase of 12.653.529 shares in ADB Systemer AS, Business Register
Number 000 000 000, (hereinafter referred to as the “Company”).
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1.
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RECITALS
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WHEREAS,
The Company is a private limited company incorporated under the laws of Norway,
having a share capital of NOK 12.732.000, divided into 12.732.000 shares of
NOK
1,- each;
WHEREAS,
the Company currently has its business within development and simplification
of
business procedures related to procurement, materials management, equipment
maintenance and storage and servicing of technological information (hereinafter
referred to as the “Business”);
WHEREAS,
the Buyer is a newly established Norwegian private limited company, where some
of the members of the management of the Company are shareholders, and whereas
the intention is to acquire the shares in the Company to secure a further
profitable conduct of the Business;
WHEREAS,
the Seller desires to sell all his shares in the Company; and
WHEREAS,
the Buyer desires to acquire all Seller`s shares in the Company.
2
NOW
THEREFORE,
the Buyer and the Seller hereby agree as follows:
2. DEFINITIONS
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“Agreement”
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means
this share purchase agreement and the schedules attached hereto.
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“Business”
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shall
have the meaning ascribed to such term in the recitals.
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“Business
Day”
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means
any day Monday to Friday except public holidays in Norway and/or
Canada.
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“Buyer”
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shall
have the meaning ascribed to such term above.
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“Closing”
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means
completion of the transaction contemplated by this Agreement.
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“Closing
Date”
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means
the date and time ascribed in Article 5.1.
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“Company”
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shall
have the meaning ascribed to such term above.
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“Confidential
Information”
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Means
all information concerning the Company or each of the Parties -
including
the companies business, activities, customers and suppliers - which
have
not lawfully been made publicly known and which cannot be legally
acquired
from publicly available sources.
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“Effective
Date”
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shall
mean the date when this Agreement has been signed by the Buyer
and the
Seller.
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“Financial
Statements”
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means
the audited financial statements for 2005 for the Company.
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“Purchase
Price”
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shall
have the meaning ascribed to such term in Article 3.2.
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“Intellectual
Property”
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Except
as described in Article 12, “Intellectual Property” means all intellectual
property in any part of the world, used, or required to be used
by the
Company in, or in connection with, its Business, including but
not limited
to the exclusive ownership to all products within the “Workmate &
ProcureMate” Suites and to “SupportMate”, the names “ADB Systemer” and
“ADB Systems”, URL xxx.xxxxxx.xx and xxx.xxxxxx.xxx, trade
marks, logos, names, service marks, patents, registered design
rights,
trade
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3
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secrets,
designs, drawings, computer files, computer software, copyrights,
and
applications for any of the foregoing rights.
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“Lien”
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means
any lien, pledge, claim, charge, security interest or other encumbrance,
option, defect or other rights of any third Person of any nature
whatsoever.
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“Loss
“ / “Losses”
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means
any direct and indirect loss, liability, claim, damage, cost or
expenses,
including consequential losses.
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“NOK”
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means
Norwegian kroner.
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“Parties”
/ “Party”
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shall
have the meaning ascribed to such term above
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“Person”
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means
any individual, Governmental Body or legal entity.
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“Seller”
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shall
have the meaning ascribed to such term above.
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“Sellers
Knowledge”
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means
the actual knowledge of the Seller, or such knowledge such Persons
should
have had based on their current and former positions in the Company.
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“Shares”
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means
all Seller`s 12.653.529 shares in the Company, representing 99,4%
of all
the 12.732.000 outstanding and issued shares in the Company as
of the
Closing Date
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3.
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SALE
AND PURCHASE
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3.1
Sale
and purchase
Upon
the terms and subject to the conditions herein set forth, at the Closing Date,
the Seller will sell, transfer and deliver the Shares free from any and all
Liens and together with all rights attaching to them to the Buyer, and the
Buyer
will purchase and acquire all rights and title to such Shares.
3.2 The
Purchase Price
The
purchase price shall be NOK 15.000.000. The Purchase Price shall be paid by
the
Buyer, with full release, at the Closing Date as further set forth in Article
5.3 hereto.
4
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4.
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CLOSING
CONDITIONS
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4.1 Conditions
of the
Buyer
The
Buyer’s obligation to purchase the Shares and to take the other actions required
to be taken at Closing, is subject to the satisfaction of each of the following
conditions (any of which may be waived by the Buyer, in whole or in part) on
or
before the Closing Date:
4.1.1 Approvals
The
Board of Directors of the Buyer shall, in its sole discretion, have approved
this Agreement and the transactions contemplated hereby. Such approval shall
be
deemed to be given if the Seller have not within thirty (30) Business Days
after
the Effective Date received notice in writing from the Buyer stating that the
Board of Directors of the Buyer has decided not to complete the Agreement.
The
Norwegian Anti-trust authorities shall either (i) have received a simplified
notification and not found reason to require a complete notifications within
the
fifteen (15) Business Days period set forth in the Norwegian Competition Act
Section 18, or (ii) have required a complete notification and upon receipt
of
such notification have approved the transaction on such conditions acceptable
to
the Buyer in its sole discretion acting reasonably.
4.1.2 Changes
in the Board of Directors
The
Seller shall have prepared and be ready to carry through on the Closing Date,
election of new members to the Board of Directors of the Company. The Buyer
shall not later than five (5) Business Days prior to Closing Date notify the
Seller of how the Board of Directors shall be composed.
4.1.3
Outstanding accounts
The
Parties, the Company and ADB Systems International Ltd Ireland shall -
consistent with the settlement regulations attached hereto as Schedule
1 - have agreed in writing on the total amount of outstanding accounts
between the Company on the one hand and the Seller and ADB Systems International
Ltd in Ireland on the other hand, including any claims for Company provided
services, after which the amount owing to the Company is to be set off against
Seller`s claim for the Purchase Price according to Article 5.
4.1.4
Transfer of contracts
The
Parties shall have entered into the agreement on transfer of contracts as
attached hereto as Schedule 2.
5
4.1.5
Value
Added Reseller Agreement
The
Parties shall have entered into a non-exclusive long term Value Added Reseller
Agreement (VAR) for a period of not less than 10 years to enable the Seller
to
continue to sell the suite of lifecycle asset management technology by the
Company for a share of revenues generated by future new business by the Seller.
4.2
Conditions
of the
Seller
The
Seller’s obligation to sell, transfer and deliver the Shares, and to take the
other actions required to be taken at Closing, is subject to the satisfaction
of
each of the following conditions (any of which may be waived by the Seller,
in
whole or in part) on or before the Closing Date:
4.2.1 The
Board of Directors as
well as the General Meeting of the Seller shall, in its sole discretion, have
approved this Agreement and the transactions contemplated hereby. Such approval
shall be deemed to be given if the Buyer has not within forty-five (45) Business
Days after the Effective Date received notice in writing from the Seller stating
that either the Board of Directors or the General Meeting of the Seller has
decided not to complete the Agreement.
4.2.2 Outstanding
accounts
The
Parties shall have agreed in writing on the total amount of outstanding accounts
between the Company on the one hand and the Seller and ADB Systems International
Ltd. In Ireland on the other hand, including any claims for Company provided
services, after which the amount owing to the Company is to be set off against
Sellers claim for the Purchase Price according to Article 5.
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5.
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CLOSING
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5.1
Closing
shall
take place in the offices of XXXXX Advokatfirma DA, Stavanger, (10) Business
Days after the completion (or waiver) of all the conditions precedent set forth
in Article 4 above, or at such other date as the Parties agree in writing
(hereinafter referred to as the “Closing Date”).
5.2
Not
later than
five (5) Business Days prior to Closing Date, XXXXX Advokatfirma DA shall
confirm in writing to the Buyer that no part of the Purchase Price will be
paid
to the Seller before the Buyer, following the fulfillment of all conditions
to
close set forth herein, has been registered as owner of all the Shares in the
Company and that all these Shares are free of any Liens, and that the new Board
of Directors have been elected in accordance with instructions en writing from
the Buyer.
5.3
At
Closing,
and after having received such confirmation as further described in Article
5.2
above and having agreed on the outstanding accounts in accordance with Article
4.1.3 above, the Buyer shall pay the total sum of the Purchase Price to the
Seller by way of electronic bank transfer to the XXXXX Advokatfirma DA’s client
account number 8396 04 51476 with Handelsbanken,
Lars
Hertevigsgt. 5, XX 000, X-0000 XXXXXXXXX, SWIFT: HANDNOKK.
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| 5.4 |
Immediately
after having received confirmation of the payment of the Purchase
Price,
the Seller shall deliver to the Buyer documentation showing that
the Buyer
has been registered as owner of all Shares in the Company and that
all
Shares are free of any Lien.
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5.5 By
the signing of
this Agreement Seller gives XXXXX Advokatfirma DA an irrevocable authority
- as
of Closing - to set off:
- the
amount owing to
the Company according to the Article 4.1.3 and 4.2.2 above, as well as
- the
amount of CAD
60.000 owing to Mr. Jan Xxxxx Xxxxxxxx in the form of repayment of a convertible
loan to Seller of CAD 60.000 + 7% interests thereon paid in shares of the
Seller, valued at the average TSX quoted last daily trading price for the 4
business days prior to Closing, issued in accordance with TSX guidelines.
- against
Seller`s
claim for the Purchase Price, and to transfer the agreed outstanding account
to
the Company`s bank account, and the amount of CAD 60.000 + interests to Xx.
Xxxxxxxx`s bank account, after which the Purchase Price, less a sum equal to
the
agreed outstanding account plus the CAD 60.000 , shall be transferred to
Seller`s bank account. Such account information to be provided on or before
Closing.
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6.
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WARRANTIES
OF THE SELLER
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The
Seller hereby warrants to the Buyer as of the Effective Date and as of the
Closing Date, as
follows:
6.1
The
Company and the
Shares
6.1.1 The
Company is a Norwegian
corporation duly organized and validly existing under the laws of Norway, with
all requisite corporate power and authority to own, operate and lease its
properties and to carry on its businesses as it is now being conducted.
6.1.2 The
Company’s issued and
outstanding share capital is NOK 12.732.000 divided into 12.732.000 shares
of
par value NOK 1,-. The Shares represent 100% of the authorized, issued and
outstanding Shares and other equity interests in the Company. The Seller is
the
owner of 12.653.529 shares in the Company. The Company has not made any
decisions to increase the share capital or to issue shares, and has not entered
into any agreements, issued any option- or other rights or made any other
decisions or given any powers or proxies to make any decisions that can give
any
rights to shares or other security interests in the Company. Upon acquiring
the
Shares on the Closing Date the Buyer will be the owner of the 12.653.529 shares,
representing 99,4% of all outstanding shares and ownership rights in the
Company, free and clear of any Liens or other limitations.
6.1.3 The
assignment of the
Shares to the Buyer does not require the consent or approval of any third
Person, other than as set forth in Article 4 above.
6.1.4 The
Company will during the
period as from the Effective Date and until Closing Date, only conduct normal
business operations, and will as of the Effective Date
7
refrain from making any decisions of material importance or extraordinary
character to the Company without Buyer’s written advance approval.
| 6.2 |
Ownership
to assets
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| 6.2.1 |
The
Company has good and marketable title to, or valid and subsisting
leasehold interests in, all of the tangible assets reflected on the
Financial Statements or used in the Business free and clear of all
Liens.
The Company has not sold, transferred or otherwise conveyed any material
tangible assets reflected in the Financial Statements or used in
the
Business, except for inventory sold, consumed or otherwise disposed
of in
the ordinary course of Business. All of such tangible assets are
in the
Company`s possession and control and are in good working order and
condition when taking into consideration the normal wear and tear
to which
they have been subject.
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| 6.2.2 |
The
Company owns and has good and marketable title to, or is licensing
or
otherwise has the right to use, all Intellectual Property, that is
used in
the Business.
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| 6.2.3 |
The
Company owns all of its respective Intellectual Property free and
clear of
all Liens. All current and former employees of the Company have
relinquished, or have been otherwise fully satisfied, as regards
to any
right to ownership or license fees or other rights based on the Norwegian
Employees Invention Act of 1970 (“Arbeidstakeroppfinnelsesloven”) or
similar applicable foreign law. All and any inventions or other
Intellectual Property made by any employee, currently or formerly
employed
by the Company, whether comprised by the Norwegian Employees Invention
Act
or not, has been transferred - through transfer of ownership - to
the
Company.
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| 6.3 |
Litigation
etc.
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| 6.3.1 |
There
is no claim, charge, arbitration, grievance, action, suit, investigation
or proceeding by or before any court, arbiter, administrative agency
or
other Governmental Body now pending or threatened against the Company
or
which involves any of the Business, or the properties or assets of
the
Company.
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| 6.3.2 |
There
is no claim of any nature from the Seller - and Seller`s affiliated
companies - towards the Company.
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| 6.3.3 |
The
Financial Statements are true, correct and complete. The Financial
Statements (a) fairly present the financial position of the Company,
(b)
have been prepared in accordance with applicable law, and (c) have
not
been rendered untrue, incomplete or unfair as representations of
the
financial conditions of the Company. As of the Effective Date and
Closing
Date the Company has no liability of any kind or matter, direct,
accrued,
absolute or otherwise, that should have been reflected or disclosed
in the
Financial Statements.
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8
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7.
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WARRANTIES
OF THE BUYER
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The
Buyer hereby warrants to the Seller as follows:
| 7.1 |
Organisation
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The
Buyer (a) is a private limited liability company, duly organised and validly
existing under the laws of Norway and (b) has all requisite power and authority
to own its assets and to conduct its business in the manner in which it is
now
being conducted.
| 7.2 |
Power
and Authority
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The
Buyer has sufficient corporate power and authority to sign and deliver this
Agreement and to perform its obligations hereunder. This Agreement has been
duly
authorised, executed and delivered by the Buyer and, assuming the due
authorisation, execution and delivery hereof by the Seller, constitutes the
legal, valid and binding obligation of the Buyer enforceable against the Buyer
in accordance with its terms.
| 7.3 |
Financing
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The
Buyer will as of the Closing Date have sufficient funds available to satisfy,
among other things, the obligation to pay the Purchase Price.
| 7.4 |
No
Violation or Conflict
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Neither
the entry into this Agreement nor the consummation or performance of the
transactions contemplated hereunder will result in a violation of (a) any
provisions of the organisational documents of the Buyer; or (b) any agreement
or
other instrument to which the Buyer is a party or by which the Buyer or any
of
its assets are bound.
| 7.5 |
No
Other Warranties
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Except
for the warranties set forth above in this Article 7, the Buyer does not make
any express or implied warranty in respect of the sale and purchase of the
Shares pursuant to this Agreement.
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8.
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BREACH
OF REPRESENTATIONS AND WARRANTIES AND OTHER AGREEMENTS - INDEMNIFICATION
-
LIMITATIONS
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| 8.1 |
If
any of the forgoing warranties, or any other covenant or agreement
undertaken by the Seller set forth herein, is breached, the Buyer
shall
have the right to be indemnified, defended and held harmless by the
Seller
for any Losses transpiring from any such breach.
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| 8.2 |
The
liability of the Seller shall be subject to the following limitations:
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| (i) |
The
Seller shall not have any liability with respect to Losses until
the
amount of all Losses exceeds NOK100.000, however, if this threshold
is
exceeded, for all Losses.
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9
| (ii) |
The
Sellers shall not have any liability with respect to Losses in excess
of
50% of the Purchase Price as set forth in Article 3.1.2 hereof.
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| 8.3 |
The
limitations on liability contained in this Article 8 shall not apply
to
liability caused by gross negligence or willful acts on the hand
of the
responsible part.
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9.
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TERMINATION
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| 9.1 |
The
obligation of the Parties to effect Closing of the transactions
contemplated by this Agreement may be terminated by:
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| (i) |
mutual
agreement of the Buyer and the Seller; or
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| (ii) |
the
Buyer, if a material default shall be made by the Seller in the observance
or in the due and timely performance by the Seller of any covenants
of the
Sellers herein contained, or if there shall have been a breach by
the
Seller of any of the warranties and representations of the Seller
herein
contained, and such default or breach has not been cured or has not
been
waived; or
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| (iii) |
the
Buyer if an event that, in the Buyer’s sole discretion acting reasonably,
will have a material adverse effect on the Shares or the Business
of the
Company arises or is threatening between the Effective Date and on
or
before the Closing Date; or
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| (iv) |
the
Seller, if a material default shall be made by the Buyer, and such
default
or breach has not been cured or has not been waived; or
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| (v) |
either
the Buyer or the Sellers (jointly), if the fulfilment of the conditions
precedent for Closing of the Agreement have not occurred on or before
the
30 June 2006.
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| 9.2 |
If
the obligation to effect Closing of the transactions contemplated
by this
Agreement is terminated pursuant to any provision of this Article
9, then
this Agreement shall forthwith become void and there shall not be
any
liability or obligation with respect to the terminated provisions
of this
Agreement on the part of the Seller or the Buyer, except and to the
extent
such termination results from the willful breach by a Party of any
of its
representations, warranties or agreements hereunder.
The termination of this Agreement shall not relieve any Party of
its
obligations under this Article 9 nor from the obligations set forth
in the
Articles 13 and 14.
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| 9.3 |
The
Parties hereto may exercise their respective rights of termination
under
this Article 9 only by delivering written notice to that effect to
the
other Party, and such notice is received on or before the Closing
Date.
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| 10. |
THE
BUSINESS DURING THE PERIOD AS FROM THE EFFECTIVE
DATE UNTIL CLOSING DATE
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| 10.1 |
During
the period until Closing Date, the Seller shall inform the Buyer
of any
material actions, events or similar being of material importance
to the
Company and the Business, even if such actions, events or similar
do not
represent a breach of warranty.
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10
| 10.2 |
During
the period until Closing Date, the Seller shall not make or participate
or
assist in making any decisions or dispositions in the Company that
could
be opposed to Buyer’s interests as future sole shareholder in the Company.
In the event of any doubt about what will be in Buyer’s interest, the
Seller shall consult the Buyer.
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| 11. |
THE
BUSINESS AS FROM CLOSING DATE - PROVIDING OF SERVICES
TO SELLER
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| 11.1 |
For
a period of 12 months as from Closing Date, Buyer hereby undertakes
to
exercise his shareholders rights in such way that the Company shall
provide the following services to Seller:
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|
-
|
Training:
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|
§
|
Nils
Xxxxxx Xxxxxxx 00 hours (one week in Toronto).
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|
§
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Kjell
Xxxxx Xxxxx 20 hours (2 days in Toronto).
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|
-
|
Support:
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|
§
|
Nils
Xxxxxx Xxxxxxx 00 hours a month in 6 months, and 10 hours a month
the next
6 months.
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|
§
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Kjell
Xxxxx Xxxxx 5 hours a month in 6 months
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Traveling
expenses for the training in Toronto must be covered be Seller. Rates for the
Training and Support described above shall be 150 CAD/hr.
| 12. |
IP
- Ownership
|
| 12.1 |
The
Parties shall have common ownership to:
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|
-
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WDA
Framework
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|
-
|
Dynamic
Buyer
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| 12.2 |
The
Seller shall have the exclusive ownership to:
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|
-
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GE
Asset Tracker
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|
-
|
GE
Asset Appraiser
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|
-
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GE
Dynamic Seller
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| 12.3 |
The
Buyer shall have the exclusive ownership to all products within the:
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|
-
|
WorkMate
& ProcureMate Suites
|
|
-
|
SupportMate
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| 12.4 |
Source
Codes shall be divided according to IP ownership.
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| 12.5 |
The
Seller shall have the right of using SupportMate for Seller’s company
internal use only, hereunder Seller shall neither be entitled to
sell or
license SupportMate (in any version) to any third party, nor integrate
SupportMate (in any version) in any other products being sold or
licensed
to any third party.
|
| The Seller shall not pay any compensation for the right of use according to this Article 12.5. |
11
| 12.6 |
Ownership
of the below listed issued and pending patents relating to IP shall
remain
with the Seller:
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|
Patent
Type
|
Serial
Number
|
Title
|
|
Canadian
Patent
|
2,180,995
|
Computer
Auction System
|
|
US
Patent
|
5,890,138
|
Computer
Auction System
|
|
US
Patent
|
6,266,652
B1
|
Computer
Auction System
|
| 12.7 |
For
the remainder of 2006, the Seller shall retain the right to use the
URL
xxx.xxxxxx.xxx, and during the interim period between Closing and
December
31, 2006, the Parties agree to construct a splash page at
xxx.xxxxxx.xxx that redirects to the respective websites of both
Seller and the Buyer.
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| 13. |
OTHER
AGREEMENTS
|
| 13.1 |
Costs
and Taxes
|
Except
in case of breach of the Agreement, each Party shall carry his own costs related
to the preparations and completion of the Agreement, including but not limited
to all costs related to financial, legal and other counsel, but excluding third
party valuation, which shall be for the account of ADB Systemer AS. Each Party
to this Agreement shall be liable for and carry all payments of his own Taxes
accruing from the transactions contemplated hereby.
| 13.2 |
Notices
|
All
notices, requests, consents, directions and other instruments and communications
required or permitted to be given under this Agreement shall be in writing
and
shall be deemed to have been duly given if delivered in person, by courier,
by
overnight delivery service with proof of delivery or by prepaid registered
or
certified first-class mail, return receipt requested, addressed to the
respective Party at the address set forth below, or if sent by facsimile or
other similar form of communication (with receipt confirmed) to the designated
representative.
Sellers
representative shall be: T. Xxxxxxxxxxx Xxxxxx, Chairman of ADB Systems
International Ltd., 000 Xxx Xxxx xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, Xxxxxx
X0X
0X0, telephone: 000-000-0000 xxx 000, telefax: 000-000-0000, e-mail:
xxxxxxx@xxxxxx.xxx
Buyer’s
representative shall be: Jan Xxxxx Xxxxxxxx, General Manager of ADB Systemer
AS,
Xxxxxxxxx 0, 0000 Xxxx, telephone: 00 00 00 00, fax: 00 00 00 00, email:
xx@xxxxxx.xx.
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| 14. |
CONFIDENTIALITY
|
| 14.1 |
The
Parties undertake not to disclose, unless required to do so according
to
mandatory law or stock exchange rules, to any third party Confidential
Information or information of a similar confidential nature concerning
the
other Party, including information relating to the other Party’s products,
hereunder Intellectual Property, suppliers or costumers. Each Party
undertakes not to use such information for any purpose other than
to
fulfil its obligations under this Agreement and to take appropriate
steps
to secure its obligation according to this Clause 14.
|
| 14.2 |
If
the transaction is not Closed, each Party shall promptly return to
the
other Party any documents, compilations of technical data, specifications,
samples, prototypes or other records or materials of any nature obtained,
including reproductions. The Parties shall furthermore confirm in
writing
to the other Party that all such information has been returned.
|
| 14.3 |
The
provisions of this Article 14 shall survive for a period of 3 years
following the expiration of and any termination of this Agreement
and,
further, shall apply even if this Agreement fails to become effective.
|
13
| 15. |
GOVERNING
LAW
|
| 15.1 |
This
Agreement shall be governed by the laws of Norway, and Stavanger
city
Court shall be the legal venue in respect of all disputes arising
from
this Agreement.
|
***
Stavanger,
18.05 2006
|
On
behalf of
|
On
behalf of
|
|
|
ADB
Systemer Holding AS:
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||
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/s/
Xxxx Xxxxxxxxx
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/s/
Jan Xxxxx Xxxxxxxx
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name:
Xxxx Xxxxxxxxx
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name:
Jan Xxxxx Xxxxxxxx
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title:
CEO
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title:
MAN. DIR
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signing
date: 18/5/06
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signing
date: 18/5/2006
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name:
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name:
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title:
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title:
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signing
date:
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signing
date:
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14
Schedule
1 - Agreement Outstanding Accounts
"On
the 18th
day of May 2006, ADB Systems International Ltd. (the Seller), ADB Systemer
Holding AS (the Buyer), ADB Systemer as (the Company) and ADB Systems
International Ltd. in Ireland (ADB Ireland), have entered into this agreement
on
the total amount of outstanding accounts between the Company on the one hand
and
the Seller and ADB Ireland on the other hand, including any claims for Company
provided services, after which the amount owing to the Company is to be set
off
against Seller`s claim for the Purchase Price according to Article 5 i the
Share
Purchase Agreement between ADB Systems International Ltd and ADB Systemer
Holding AS (SUS)
|
1)
|
The
intercompany balance with ADB Systems International Ltd in Canada
is 0 by
the 31st
of December 2005.
|
|
2)
|
The
intercompany balance with ADB Systems International Limited in Ireland
(ADB Ireland) is 1.992.603 NOK in favour of ADB Systemer AS by the
31st
of December 2005.
|
| 3) | Changes in intercompany balance with ADB Systems International Ltd. in Canada is 79 824 NOK in favour of ADB Systemer AS by the 30th of April 2006. |
|
4)
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Changes
in intercompany balance with ADB Ireland is 234.802 NOK in favour
of ADB
Systemer AS by the 30th
of April 2006.
|
|
5)
|
ADB
Systems International Ltd in Canada shall provide a Credit note on
Invoice
no. NORWAY 2006-Q1, Corporate Overhead charges - Q1 2006 of 52.920
CAD
equivalent of 297.706 NOK. Further Corporate Overhead charges shall
not be
claimed.
|
|
6)
|
Invoiced
and recognized License & Maintenance royalty for WorkMate and
ProcureMate products in 2006 up till Closing date, shall invoke 30%
license royalty and 70% maintenance royalty to ADB Systemer AS.
|
|
7)
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Services
in the period from 1st
of May to Closing date shall be charged at agreed rate of 115 CAD
per hour
unless otherwise agreed upon.
|
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8)
|
ADB
Ireland has invoiced and received pre-payment for Services, Development,
Licenses and Maintenance in 2006. Outstanding commitments after
Closing
date shall be fulfilled by ADB Systemer AS. As compensation for
these
services, ADB Systemer AS shall invoice ADB Ireland the gross value
of the
remaining commitments less 10% royalty. This amount will be included
in
the intercompany balance between ADB Systemer AS and ADB
Ireland.
|
Stavanger,
18.05 2006
|
On
behalf of
|
On
behalf of
|
|
|
ADB
Systems International Ltd
|
ADB
Systemer Holding AS:
|
|
|
in
Canada:
|
||
|
/s/
Xxxx Xxxxxxxxx
|
/s/
Jan Xxxxx Xxxxxxxx
|
|
|
name:
Xxxx Xxxxxxxxx
|
name:
Jan Xxxxx Xxxxxxxx
|
|
|
title:
CEO
|
title:
MAN. DIR
|
|
|
signing
date: 18/5/06
|
signing
date: 18/5/2006
|
|
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On
behalf of
|
On
behalf of
|
|
|
ADB
Systems International Ltd
|
ADB
Systemer AS:
|
|
|
in
Ireland:
|
||
|
/s/
Xxxx Xxxxxxxxx
|
/s/
Jan Xxxxx Xxxxxxxx
|
|
|
name:
Xxxx Xxxxxxxxx
|
name:
Jan Xxxxx Xxxxxxxx
|
|
|
title:
Director
|
title:
MAN. DIR
|
|
|
signing
date: 18/5/06
|
signing
date: 18/5/2006
|
|
Schedule
2
AGREEMENT
between
ADB
Systems International Ltd
and
ADB
Systemer AS
THIS
AGREEMENT
(hereinafter referred to as the “Agreement”) is entered into on this
18th
day of May, 2006, by and between:
| (I) |
ADB
Systems International Ltd. a corporation incorporated under the laws
of
the province of Ontario, with the registered address:
000,
Xxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx, X0X 0X0.
|
(hereinafter
referred to as “Seller”),
and
| (II) |
ADB
Systemer Holding as (SUS)
Address:
Vingveien 2, N-4050 Sola
|
(hereinafter
referred to as “Buyer”)
(the
Seller and the Buyer may individually be referred to as “Party” and collectively
to as “Parties”)
regarding
transfer of contracts entered into between ADB Systems International Ltd. and
the National Health Service/Healthcare Purchasing Consortium (HPC) and Star
Energy HG Gas Storage Limited (the Customers).
|
1.
|
Transfer
of Contracts
|
| 1.1 |
By
the signing of this Agreement, ADB Systems International Ltd. agrees
to
transfer, and ADB Systemer AS agrees to accede to the following contracts,
each one defined herein as a Contract an taken together the Contracts.
|
|
-
|
Entered
into by and between ADB Systems International Ltd. and the National
Health
Service/Healthcare Purchasing Consortium dated March 31, 2003.
|
|
-
|
Entered
into by and between ADB Systems International Ltd. and Star Energy
HG Gas
Storage Limited, dated August 24, 2005
|
| 1.2 |
The
Contracts are being transferred - with all their rights and obligations
-
as from the Closing Date of the Share Purchase Agreement entered
into
between ADB Systems International Ltd in Canada and ADB Systemer
Holding
as for the purchase of shares in ADB Systemer AS (hereinafter referred
to
as the “SPA”).
|
| 1.3 |
After
the Closing Date the Company will provide to the Seller copies of
all
invoices issued pursuant to the Contracts for the period of time
determined in accordance to Section 2.1.
|
|
2.
|
Royalty
|
| 2.1 |
As
compensation for the transfer of contracts described above, ADB Systemer
AS shall, in a period of 4 years as from the Closing Date of the
SPA, pay
to ADB Systems International Ltd a royalty of 10% of net annual
sales/turnover from the Contracts as described in Article 1.1 above.
|
| 2.2 |
Any
royalty falls due for payment after the General Assembly of ADB Systemer
AS has approved the revised Financial Statements for ADB Systemer
AS
|
|
3.
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Conditions
|
| 3.1 |
The
parties` obligations according to this Agreement shall be conditional
upon
all National Health Service/ Healthcare Purchasing Consortium and
Star
Energy giving their unconditionally consent to the transfer of the
contract described in Article 1.1 above.
|
| 4. |
Governing
Law
|
| 4.1 |
This
Agreement shall be governed by the laws of Norway, and Stavanger
city
Court shall be the legal venue in respect of all disputes arising
from
this Agreement.
|
***
Stavanger,
18.05 2006
|
On
behalf of
|
On
behalf of
|
|
|
ADB
Systems International Ltd:
|
ADB
Systemer AS:
|
|
|
/s/
Xxxx Xxxxxxxxx
|
/s/
Jan Xxxxx Xxxxxxxx
|
|
|
name:
Xxxx Xxxxxxxxx
|
name:
Jan Xxxxx Xxxxxxxx
|
|
|
title:
CEO
|
title:
MAN. DIR
|
|
|
signing
date: 18/5/06
|
signing
date: 18/5/2006
|
|
|
name:
|
name:
|
|
|
title:
|
title:
|
|
|
signing
date:
|
signing
date:
|
