EXHIBIT B
CONDITIONAL PURCHASE OF SHARES
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IN
BAAN COMPANY N.V.
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BETWEEN
CERTAIN MEMBERS OF THE FAMILY BAAN
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AND
INVENSYS B.V. I.O.
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AND
INVENSYS PLC
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CONDITIONAL PURCHASE OF SHARES
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IN
BAAN COMPANY N.V.
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THE UNDERSIGNED:
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1. Xxx Xxxx, residing at Barneveld, the Netherlands, acting in his
capacity as attorney - in - fact and representative of certain
members of his family (the "SELLERS"),
and
2. Invensys B.V. i.o., a private company with limited liability in
the process of being incorporated, which will have its corporate
seat in Amsterdam, the Netherlands, (the "PURCHASER"),
and
3. Invensys Plc, a public limited company organized under the law of
England and Wales (the "PARENT"),
WHEREAS:
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a. The Sellers are the legal and beneficial holder of 256,410
ordinary shares (as further defined below, the "SHARES") in the
capital of Baan Company N.V., with its corporate seat in
Barneveld, the Netherlands and its address at 0000 XX Xxxxxxxxx,
at Baron van Xxxxxxxxxxxx 00, (the "COMPANY");
b. On 31 May 2000 the Purchaser and the Company intend to announce
the terms of a firm offer by the Purchaser for all the issued and
outstanding ordinary shares in the Company (the "FIRM OFFER");
c. The Purchaser's intention to make the Firm Offer is conditional
upon Sellers tendering all of its Shares to the Purchaser;
d. The Parent is the indirect owner of all the shares in the capital
of the Purchaser.
XXXXXX AGREE AS FOLLOWS:
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SUBJECT
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CLAUSE 1
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1.1. Sellers hereby sell 256,410 (two hundred fifty six thousand four
hundred and ten) ordinary shares in the Company's capital, each
share with a par value of NLG 0.06, to be transferred at Closing
to the Purchaser and the Purchaser hereby purchases the Shares
from the Sellers conditional only upon the announcement of the
Firm Offer prior to 3 June 2000 and upon evidence satisfactory to
Purchaser and Purchaser's counsel ("EVIDENCE") that the Shares
are held by members of the Baan family and that Xxx Xxxx is
authorised to enter into this agreement on their behalf, such
Evidence to be submitted within two days following the date of
this agreement.
1.2. The purchase price per Share (the "PURCHASE PRICE") shall be the
same price per Share as will be offered by the Purchaser for all
ordinary shares of the Company pursuant to the Purchaser's Firm
Offer, i.e. EUR 2.85 (two Euro and eighty-five cents) per Share
(the "OFFER PRICE"), therefore EUR 730,768,50 (seven hundred
thirty thousand seven hundred sixty eight Euro and fifty Euro
cents) for all Shares, however subject to any adjustment in the
Offer Price to be announced after the Closing, as referred to in
article 2, which may lead to a higher price to be paid to the
shareholders tendering their shares to the Purchaser. Immediately
after the announcement of the adjustment of the Offer Price, such
difference in price shall be transferred by the Purchaser to the
bank account no. 446079073 with ABN AMRO Bank in the name of
Vanenburg Group B.V., which shall receive this amount on behalf
the Sellers.
CLOSING
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CLAUSE 2
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2.1. The closing shall take place no later than 3 June 2000, or at a
later day and time to be determined by the Purchaser in case of
technical and/or administrative reasons as a result of which
parties, using their best efforts, cannot perform their
obligations timely, but in any event not later than 15 June 2000
(the "CLOSING").
2.2. At the Closing, the following actions shall be performed:
a. Sellers shall instruct their banks to transfer the Shares to
the (securities) account of the Purchaser as indicated by
the Purchaser.
b. The Purchaser shall pay the Purchase Price for the Shares to
the Sellers in accordance with the provisions of article
2.3.
2.3. The Purchaser shall transfer the Purchase Price for the Shares to
account 00.00.00.000 at ABN AMRO Bank, one of the escrow accounts
of De Brauw Blackstone Westbroek N.V., notarissen (civil law
notaries), and immediately after the transfer of the Shares (such
transfer to be confirmed in writing by ABN AMRO bank to Purchaser
and with a copy to De Brauw Blackstone Westbroek N.V.) De Brauw
Blackstone Westbroek N.V. shall procure the transfer of the
amount received to bank account no. 446079073 at ABN AMRO Bank in
the name of Vanenburg Group B.V., which shall receive the
Purchase Price on behalf of Sellers. The amount to be paid by the
Purchaser must be credited to the escrow account of De Brauw
Blackstone Westbroek N.V., notarissen (civil law notaries), not
later than on the Closing with same day value. The cost of making
both payments shall be for the account of the Purchaser.
2.4. If one of the parties (the Purchaser and Parent being considered
as one party for the interpretation of this clause) fails to
perform any action required from it under sub clause 2, the other
party, at its option and without prejudice to any of its other
rights and claims (including, also if this agreement is
terminated, any right to payment of damages):
a. demand that the defaulting party performs the relevant
actions on a day and at a time to be determined by the other
party; or
b. terminate this agreement.
2.5. After the Closing, this agreement may not be rescinded in whole
or in part.
SELLER'S WARRANTIES
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CLAUSE 3
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3.1. Sellers warrant to the Purchaser that at the time of the Closing
the following statements (the "WARRANTIES") are true and not
misleading:
- Sellers are the undisputed legal and beneficial owner of the
Shares;
- Sellers own neither legally or economically any other shares
in the capital of the Company than the Shares and all the
Shares are in bearer form;
- the Shares are fully paid up;
- the Shares are not subject to any right of pledge or any
other security right or any right of usufruct
(vruchtgebruik);
- the Shares have not been attached;
- no person other than the Sellers has any claim, whatsoever,
in respect of any of the Shares;
3.2. Sellers shall have no right to rely on the argument that, at the
time that this agreement was made or at the time of the Closing,
the Purchaser knew or should have known that a Breach of the
Warranties existed.
RIGHT TO REPURCHASE
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CLAUSE 4
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Purchaser herewith grants to Sellers the right to collectively repurchase
all but not less than all of the Shares if by 1 August 2000 the Firm Offer
will not have been consummated. Such right can be exercised during a period
of three months following 1 August 2000. Repurchase of the Shares shall be
at the same price as the price paid by Purchaser to Sellers under this
Agreement. In case Sellers wish to exercise their rights granted in this
clause 4, Sellers shall give notice in writing to Purchaser and the sale
and transfer of the Shares to be repurchased shall take place within 10
business days following the date of the notice.
LIABILITY FOR WARRANTIES
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CLAUSE 5
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5.1. If a breach of the Warranties becomes apparent after the Closing,
the Purchaser may demand that Sellers pay to the Purchaser the
difference between the market value of the Shares had there been
no breach of the Warranties and the actual market value of the
Shares. The damages to be paid shall, from the day of the Closing
respectively and without any notice, be subject to the statutory
interest.
5.2. If any person has any claim against the Purchaser which he would
not have had there been no breach of the Warranties, the
Purchaser shall also be entitled to be compensated for any damage
suffered by him as a result thereof. The damages to be paid
shall, from the day on which the damage was suffered, be subject
to the interest referred to in sub clause 1.
CONFIDENTIAL INFORMATION
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CLAUSE 6
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6.1. Sellers undertake not to use, reproduce or disclose to any third
party any confidential information (being all information about
this agreement (including the existence thereof), the Company,
its directors or any other person employed with or acting for the
Company, the Purchaser, its directors or any other person
employed with or acting for the Purchaser, the Company's and
Purchaser's customers and other relations, except for information
which can be obtained from publicly available sources;
"CONFIDENTIAL INFORMATION"). Sellers guarantee that any of their
affiliated parties (including their advisors) shall comply with
the provisions of the preceding sentence.
6.2. Sub clause 1 shall not apply to:
a. the disclosure of Confidential Information to the advisors
of the Sellers or any of their affiliated parties to the
extent that this is necessary for the preparation,
conclusion, performance or enforcement of this agreement and
after the person in question has committed himself in
writing to use or disclose to a third party the Confidential
Information only in accordance with this clause, and the
disclosure of Confidential Information to the courts in
proceedings between the parties in connection with this
agreement or other related agreements;
b. the use or disclosure of Confidential Information to which
the Sellers or any of their affiliated Parties is obliged
pursuant to the law, any regulation of any officially
recognised exchange or any other competent government
authority.
NO FORFEITURE OF RIGHTS
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CLAUSE 7
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Unless this agreement provides otherwise, any entitlement of the parties to
any right derived from this agreement shall be without prejudice to any
other rights and claims under this agreement and all rights and claims at
law. No right of a party under this agreement or by law shall be affected
by a failure to invoke that right or to protest against the other party's
failure to perform an obligation.
BINDING EFFECT AND ENTIRE AGREEMENT; AMENDMENT
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CLAUSE 8
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8.1. This agreement shall not have any legal effect until each party
has validly executed this agreement.
8.2. If part of this agreement is or becomes invalid or non-binding,
the parties shall remain bound to the remaining part. The parties
shall replace the invalid or non-binding part by provisions which
are valid and binding and the legal effect of which, given the
contents and purpose of this agreement, is, to the greatest
extent possible, similar to that of the invalid or non-binding
part.
8.3. After this agreement ends, for whatever reason, clauses 5, 6 and
9 shall remain effective.
8.4. This agreement contains the entire agreement of the parties in
relation to its subject matter.
8.5. This agreement contains no stipulations for the benefit of a
third party which could be invoked by a third party against a
party to this agreement.
8.6. This agreement may only be amended or supplemented in writing.
8.7. With reference to the Guidelines adopted by the Royal Notarial
Professional Organisation ("Koninklijke Notariele
Beroepsorganisatie") and concerning forms of cooperation between
civil law notaries among themselves or with attorneys, the Seller
expressly agrees that De Brauw Blackstone Westbroek N.V. shall
advise the Purchaser in connection with, and shall act on behalf
of or for the Purchaser in any dispute concerning, this
agreement.
8.8. Sub clauses 1 to 7 (inclusive) shall apply mutatis mutandis to
agreements which are connected with this agreement, if any,
unless the relevant agreement expressly provides otherwise.
ASSIGNMENT OF RIGHTS AND OBLIGATIONS
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CLAUSE 9
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A party may assign or procure the assumption of, as the case may be, rights
and obligations under this agreement to or by a third party only with the
prior consent of the other party.
JOINT AND SEVERAL LIABILITY
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CLAUSE 10
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The Parent irrevocably and unconditionally agrees to be jointly and
severally liable for the payment obligations of the Purchaser towards the
Sellers under this agreement.
GOVERNING LAW; COMPETENT COURT
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CLAUSE 11
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11.1. This agreement shall be governed exclusively by Dutch law.
11.2. Disputes arising in connection with this agreement, including
disputes concerning the existence and validity thereof, shall be
resolved exclusively by the competent courts in Amsterdam, the
Netherlands.
11.3. Sub clauses 1 and 2 shall also apply to disputes arising in
connection with agreements which are connected with this
agreement, unless the relevant agreement expressly provides
otherwise.
IN EVIDENCE WHEREOF:
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this agreement was signed in triplicate on 31 may 2000 at 2.30 hours a.m.
(UK time) in the manner set out below.
1. XXX XXXX, ON BEHALF OF CERTAIN MEMBERS OF HIS FAMILY
FOR AND ON BEHALF OF XXX XXXX
/s/ X.X. Xxxxxxxx
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/s/ X. Xxxxxxxxxxx
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and
2. INVENSYS B.V. I.O.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Attorney in Fact
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and
3. INVENSYS PLC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Attorney in Fact
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