Agreement
by and among
CKS Group, Inc. ("Parent"),
CKS Group (Europe) GmbH ("Sub"),
CKS Holding Deutschland GmbH (the "Company"), and
Messrs. Xxxxxxx Xxxxxx, Xxxxxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxxx Xxxxxxx,
Xxxxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxxx Xxxxxxxxxx, Hannover Finanz GmbH
Beteiligungen und Kapitalanlagen and Commerz Unternehmensbeteiligungs-AG
(such individuals and entities being hereinafter referred to collectively as
the "Company Shareholders", and each of them individually, as a
"Company Shareholder")
Preamble
The above parties hereto are parties to a certain Share Acquisition
agreement dated January 8, 1997 as amended by a further agreement
captioned "Amendment No. 1 to the Share Acquisition Agreement" of
March 10, 1997, such Share Acquisition Agreement so amended
hereinafter being referred to as the "Original Agreement". The
parties now agree to modify their legal relationships as established
by the Original Agreement as follows:
Contractual Agreements
1. Termination of Obligations Under Original Agreement.
Any obligations of the parties under the Original Agreement
shall lapse to the extent such obligations have not been
fulfilled prior to the execution hereof (hereinafter the
"Amendment Date") and except as set forth in Clauses 2 et seqq.
below. The termination of obligations hereunder shall be
effective as of the Amendment Date and shall include any and all
covenants and guarantees undertaken by the parties in the
Original Agreement.
2. Non-compete to Continue.
The obligations of the Company Shareholders under Section 5.2 of
the Original Agreement (Covenant Not to Compete or Solicit)
shall continue to be effective beyond the Amendment Date
pursuant to the terms of such Section 5.2.
2a. Guarantees as to Taxes and Social Security Dues.
The guarantees of the Company Shareholders as to taxes and
social security dues as provided in the Original Agreement shall
continue to be effective beyond the Amendment Date pursuant to
the terms of Section 7.1 of the Original Agreement.
2b. Confidentiality.
Section 5.4 of the Original Agreement shall continue to be in effect.
3. Fixed Payment of DM11,109,600.
Sub shall pay to the Company Shareholders DM 11,109,600 in cash
by transfer to a bank account to be indicated to Sub by Xx.
Xxxxx Xxxxxxxxxx (hereinafter the "Versteegen Account"), such
payment to be received on the Versteegen Account no later than
on the third business day following the execution hereof.
4. Contingent Payment of DM 540,000.
In addition, Sub shall, on September 20, 1998, pay to the
Versteegen Account in cash another DM 540,000 less the amount by
which the total Pretax Income for the period starting March 1,
1998 and ending August 31, 1998 shall be less than DM2,132,000,
provided that
(i) Pretax Income shall have the meaning ascribed to such
term in the Original Agreement,
(ii) Pretax Income, absent agreement between Parent and Xxxx
Xxxxxxx Xxxxxxxxxx as to the amount of Pretax Income
before September 16, 1998, shall be determined under the
procedure set forth in Section 1.8(b) of the Original
Agreement provided that Xxxx Xxxxxxx Munchmeyer shall be
deemed the Shareholder Representative as such term is used
in such section.
5. Details as to Payments.
Any payments to be made hereunder shall be made net of any fees
or any other charges by any bank involved in such payments. Any
payments to be made hereunder shall bear interest from the date
on which such payments are supposed to be received at a rate of
8% on the amount outstanding from time to time.
6. Agreement Contingent on Aspri Sale.
The parties shall cause Prisma Holding GmbH and CKS Holding
Deutschland GmbH to enter into a notarized agreement as to the
sale by Prisma Holding GmbH to CKS Holding Deutschland GmbH of
all of the shares in Aspri Trading GmbH at a purchase price of
DM 540,000 in cash, which agreement shall substantially be in
the form of Exhibit 1.
7. Purchase of Aspri Services.
The parties shall cause Prisma Holding GmbH and Aspri Trading
GmbH to enter into a contract under which Prisma Holding GmbH
shall agree to purchase (and/or cause its subsidiaries to
purchase) MIS and database services from Aspri Trading GmbH for
a period running two years from the Assignment Date as in the
sale agreement as in clause 6 above provided that (i) the value
of the services so to be purchased by Prisma Holding GmbH (or
caused to be purchased by its subsidiaries) shall be at least
DM 1,300,000 in the first year thereafter and at least
DM 1,000,000 in the second year thereafter and (ii) such
contract to be entered into between Prisma Holding GmbH and
Aspri Trading GmbH shall substantially be in the form set forth
in Exhibit 2.
8. Restatement of Solo Agreement.
The parties shall cause the Service Agreement dated March 10,
1997 between CKS Realtime Sales- and Marketing-Services GmbH
(formerly "UpToDate Service- und Vertriebsgesellschaft mbH") and
x.xxx Trade Services GmbH (formerly "UTD Software-Logistics
GmbH") to be amended to read as set forth in Exhibit 3 hereto.
9. Loan to Solo.
The Company Shareholders shall cause Prisma Holding GmbH to
grant a credit facility to x.xxx Trade Services GmbH pursuant to
the terms of the Loan Agreement attached hereto as Exhibit 4 and
not to amend or terminate such without the consent of the
Company (subject to the automatic expiry of the Loan Agreement
under its clause 4).
10. Guarantee by Parent to Continue.
The Company herewith guarantees all obligations of Sub pursuant
to this Agreement provided that the Company Shareholders shall
not be required to take legal action against Sub before
enforcing their claim under this guarantee.
11. General Provisions of Original Agreement to Continue.
Article IX of the Original Agreement (General Provisions) shall
apply to this Agreement provided that
(i) communications directed to the Company Shareholders shall
be sent to Xxxx Xxxxxxx Xxxxxxxxxx, Xxxxxxxxxx 0, 00000
Xxxxxxx, Xxxxxxx, telephone no. 370354-0, facsimile no.
370354-10 with a copy to Bruckhaus Xxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxxxx 00, 00000 Xxxxxxx, Xxxxxxx, Attention: Xx.
Xxxxx Xxxxxxxxxx, telephone no. 00 00 0-000, facsimile no.
36 90 6-155, and
(ii) this Agreement has been executed in two originals and each
party shall receive a simple copy thereof.
12. Prisma Successors.
This Agreement shall be binding on all successors of Prisma
including any entity which purchases all or a majority of
Prisma's assets, including the shares or assets of any of
Prisma's subsidiaries.
Hamburg, this 27th day of April 1998
Read, approved and signed:
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxx Xxxxxxxxxx
