EXHIBIT 99.1
SALE AND PURCHASE AGREEMENT
OF
THE SHARES OF
STOCKDATA AMSTERDAM B.V.
BY AND BETWEEN
FIRSTQUOTE INC.
AND
MEDIA INVESTERINGS- EN MANAGEMENTMAATSCHAPPIJ B.V.
AND
HORIZON INVESTMENTS B.V.
AND
C.V. STOCKDATA
DATED 24 December 1999
AGREEMENT
This sale and purchase agreement is made on 24 December 1999 by and between:
1. FirstQuote Inc., a company organised under the laws of the state of
Delaware (United States of America), having its seat in Geneva, Switzerland
("Purchaser");
2.a Media Investerings- en Managementmaatschappij B.V., a limited liability
company organized under the laws of The Netherlands, having its statutory
seat in Amsterdam, The Netherlands ("X.X.X.X.");
2.b Horizon Investments B.V., a limited liability company organized under the
laws of The Netherlands, having its statutory seat in Delft, The
Netherlands ("Horizon");
2.c CV Stockdata, a limited partnership organized under the laws of The
Netherlands, seated in Leiden, The Netherlands ("CV");
X.X.X.X. and Horizon and CV hereinafter also jointly referred to as
Sellers;
and
3. Stockdata Amsterdam B.V., a limited liability company organized under the
laws of The Netherlands, having its statutory seat in Amsterdam, The
Netherlands ("Company");
Considerations
(a) Sellers hold all issued and outstanding shares in the capital of the
Company, consisting of 58,364 shares with a nominal value of NLG 1 each.
(b) Sellers are desirous to sell and transfer the Shares to Purchaser and
Purchaser is desirous to purchase and to accept the Shares from Sellers.
(c) Sellers and Purchaser reached agreement upon the valuation of Company, i.e.
a multiple of 1.43 times Revenue (as defined hereinafter) and assuming Net
Earnings equal to 8% of Revenue over the year ending 31 December 1999.
(d) Sellers and Purchaser have reached agreement on the sale and purchase of
the Shares on the terms and conditions set forth hereinafter.
NOW, THEREFORE, for and in consideration of the premises, the mutual covenants
warranties and representations contained herein and other good and valuable
consideration, Sellers, Purchaser and Company agree as follows:
1. Definitions
1.1 Certain Defined Terms
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As used herein, the following terms shall have the following meanings
ascribed to them, unless the context requires otherwise. The plural of such
terms shall include the singular, the singular shall include the plural.
Agreement means this sale and purchase Agreement, dated on the first date
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written above, by and between Sellers, Purchaser and Company, as it may be
amended from time to time.
Closing means the ceremony on the Closing Date, at which the Deed of
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Transfer shall be executed and the Shares shall be transferred.
Closing Date means 24 December 1999 or such other date agreed upon by
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Sellers and Purchaser.
Company Articles of Association means the Articles of Association of
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Company as in effect at the date hereof, attached hereto as Exhibit 1.1.
Deed of Transfer means the Deed of Transfer by which Sellers transfer the
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Shares to Purchaser on the Closing Date, substantially in the form attached
hereto as Exhibit 1.2, to be executed before civil law notary Mr.
M.A.J.C.M. van Agt in Rotterdam.
Financial Statements means the statutory annual accounts of Company, for
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the years 1997 and 1998 and the interim financial statements dated 30
September 1999, audited and certified with a non-qualified audit statement
("samenstellingsverklaring") by the Company Accountant, to be provided to
Purchaser prior to the Closing Date and to be attached hereto as Exhibit
1.3 and 1.4 and 1.5 respectively.
Intercompany Receivables means all receivables due to Company by X.X.X.X.,
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and/or former subsidiaries and/or by Company's (former) shareholders on the
Closing Date.
Net Earnings means earnings of Company before interest, depreciation,
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amortization and tax for 1999.
Ordinary Shares means ordinary shares in the capital of Purchaser.
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Personal Property means all material items of equipment and other material,
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tangible personal property and assets in the possession of or owned or used
by Company in connection with its business, as listed in Exhibit 1.6, to
be provided to Purchaser prior to the Closing Date.
Preferred Shares means the Series D Convertible Preferred Shares of
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Purchaser containing the rights, preferences and privileges set forth in
the Third Amended Certificate of Designations attached hereto as Exhibit
1.6 a.
Pro Forma Closing Balance Sheet means the provisional balance sheet of
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Company, dated 30 November 1999, in accordance with general accepted
accounting principles in The Netherlands, to be provided to Purchaser prior
to Closing Date, attached hereto as Exhibit 1.7.
Purchase Price means an amount of USD 3,750.000.
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Real Estate means the real estate in which Company has any right, title or
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interest and all related lands, buildings.
Revenue means gross operational revenue of Company over the year 1999.
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SEC Reports means Purchaser's annual report on Form 10-KSB for the fiscal
-----------
year ended December 31, 1998 and all quarterly reports on Form 10-QSB
subsequently filed with the U.S. Securities and Exchange Commission.
Shares means the shares, numbered 1 up to and including 58,364, with a
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nominal value of NLG 1 in the issued share capital of Company.
Year 2000 Compliant software/hardware, meaning that the software/hardware
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can be used prior to, during and after the year 2000 without error relating
to date data, specifically including any error which relates to, or is the
product of, date data which represents or references different centuries
and, more specifically, (a) correctly manages and manipulates data
involving dates, including single-century formulas and multi-century
formulas, (b) includes indication of the century in all date-related user
interface functionalities and data fields; and (c) includes indication of
the century in all date-related functions.
1.2 Accounting terms
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For the purposes of the Agreement, all accounting terms not otherwise
defined herein shall have the meanings assigned to them in conformity with
generally accepted accounting principles in The Netherlands.
1.3 Other Defined Provisions
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References to "Articles" and "subsections" shall be to Articles and
subsections, respectively, of the Agreement unless otherwise specifically
provided.
1.4 Interpretation
--------------
Notwithstanding Article 22 of the Agreement, Article 6 and Article 11.23
hereinafter shall be governed by and interpreted in accordance with
applicable US law.
2. Sale and Purchase of the Shares
2.1 Upon and subject to the terms and conditions set forth in the Agreement,
Sellers sell at the Closing Date full and unencumbered ownership of the
Shares to Purchaser and Purchaser purchases and accepts full and
unencumbered ownership of the Shares from Sellers and Sellers shall
transfer the Shares at the Closing Date by executing the Deed of Transfer.
2.2 Sellers and Purchaser agree that the business of Company shall be for the
risk and account of Purchaser as of the day following the Closing Date.
2.3 Sellers acknowledge that the Deed of Transfer by which Sellers transfer the
Shares to Purchaser on the Closing Date, substantially in the form attached
hereto as Exhibit 1.2, shall be executed before civil law notary Mr.
M.A.J.C.M. van Agt in Rotterdam.
2.4 The transfer of the Shares shall be effected at the offices of Steins
Bisschop Meijburg & Co N.V. in Rotterdam by means of a notarial deed
executed by Mr M.A.J.C.M. van Agt, civil law notary. The civil law notary
shall execute the Deed of Transfer upon confirmation of deposit of the
amount referred to in Article 3 (i), confirmation of the issue of 178,451
Ordinary Shares and 197,815 Preferred Shares by Purchaser to Sellers and
confirmation by the parties hereto that the conditions precedent - as
referred to in Article 9 - have been satisfied or waived. Sellers hereby
acknowledge that they are aware of the provisions of Articles 8, 9, 10 and
14.2 of the "Guidelines regarding co-operation between civil law notaries
and between civil law notaries and solicitors ("Richtlijnen met betrekking
tot vormen van samenwerking van notarissen onderling en met advocaten")
established by the board of the Royal Notarial Society ("Koninklijke
Notariele Beroepsorganisatie "). Sellers acknowledge that Mr M.A.J.C.M. van
Agt is a civil law notary of Steins Bisschop Meijburg & Co N.V. and that
any information between the civil law notary and the legal advisors of
Steins Bisschop Meijburg & Co N.V. and the tax advisors of KPMG Meijburg &
Co will interchange in the event of any disputes resulting from the
Agreement.
3. Purchase Price
The Purchase Price for the Shares shall be paid by Purchaser as follows:
(i) by way of transfer prior to or on the Closing Date of an amount of
USD 245,031 (in words: twohundred fourtyfive thousand thirtyone US
dollars) to the account number 00.00.00.000 (ABN Amro Bank) in the
name of "Steins Bisschop Meijburg & Co, notarissen, inzake
derdengelden, ref. 30000751. Upon execution of the Deed of Transfer
the civil law notary shall pay this amount to Sellers in accordance
with Schedule A.
(ii) by way of transfer and assignment of Intercompany Receivables in an
aggregate amount of USD 1,059,239 (in words: onemillion ninetyfive
thousand two hundered thirtynine US dollars in accordance with
Schedule B attached hereto, to the legal entity stated therein, on
the Closing Date; and
(iii) for the remaining balance of the Purchase Price by way of issue of
197,815 Preferred Shares and 178,451 Ordinary Shares in accordance
with Schedule C attached hereto, to the persons stated therein, on
the Closing Date.
4. Escrow Shares
Purchaser shall retain 30,000 of the Ordinary Shares as referred to in
Article 3 (iii) according to Schedule C (Escrow Shares), as security for
the full performance of Sellers of their obligations under and pursuant to
the Agreement. The Escrow Shares shall be issued subsequent to the Closing
Date in accordance with Article 5 hereof.
5. Release of Escrow Shares
In the event no written demand as referred to in Article 13 is made by
Purchaser and/or Company against Sellers within a period of 18 months after
the Closing Date, then and in such event Purchaser shall release the Escrow
Shares to Sellers within 30 days of the expiration of 18 months after the
Closing Date.
If, within the period of 18 months referred to above, a demand has been
made in writing by Purchaser or Company against Sellers pursuant to Article
13, Purchaser shall release a portion of the Escrow Shares referred to in
this subsection equal to the amount not subject to demand divided by 6,50
to Sellers within 30 days of the expiration of 18 months after the Closing
Date.
The remaining balance of Escrow Shares referred to in this subsection shall
be released to Sellers provided that the value of the remaining balance of
Escrow Shares will be adjusted for the total amounts, costs and damages of
Purchaser and/or Company arising out of or involved or in connection with
any such demand (in the event the demand is
found to be bona fide and the costs incurred are reasonable in relation to
the amount of the demand), said balance to be released at the time the
demands have been finally resolved.
6. Registration Rights
(a) Demand Registration Rights
At any time during the sixty (60) days period commencing on the
Closing Date, Sellers may make a written request for registration of
the Ordinary Shares issuable upon conversion of the Preferred Shares
(the "Conversion Stock") under the U.S. Securities Act of 1933, as
amended (the "Act") (a "Demand Registration"); provided, Purchaser
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shall not be required to effect more than one Demand Registration at
the request of Sellers. The request for a Demand Registration shall
specify the number of shares of Conversion Stock proposed to be sold,
the intended method of disposition thereof and the jurisdictions in
which registration is desired. Upon a request for a Demand
Registration, Purchaser shall promptly take such steps as are
necessary or appropriate to prepare for the registration of the
Conversion Stock to be registered. A registration shall not constitute
a Demand Registration until it has become effective and remains
continuously effective for not less than 90 days. Purchaser shall use
its best efforts to cause any such Demand Registration to become
effective not later than 90 days after it receives such a request
under this section 6 a.. In any registration initiated as a Demand
Registration, Purchaser shall pay all expenses in connection
therewith, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel for
Purchaser, accountants' expenses (including, without limitation, any
special audits or "comfort" letters incidental to or required by any
such registration), other than any fees or disbursements of
underwriters customarily paid by issuers or sellers of securities
(including underwriting discounts and commissions).
(b) Indemnification
(i) Indemnification by Sellers
In connection with any registration statement in which Sellers
are participating pursuant to Section (a) hereof, Sellers shall
furnish to Purchaser in writing such information with respect to
Sellers as Purchaser may reasonably request or as may be required
by law for use in connection with any such registration statement
or prospectus and Sellers agree to indemnify, to the fullest
extent permitted by law, Purchaser, any underwriter retained by
Purchaser and their respective directors, officers, employees and
each person who controls Purchaser or such underwriter (within
the meaning of the Act and the U.S.
Securities Exchange Act of 1934, as amended) to the same extent
as the foregoing indemnity from Purchaser to Sellers, but only
with respect to any such information furnished in writing by
Sellers; provided, however, that the total amount to be
indemnified by Sellers pursuant to this Section (b)(i) shall be
limited to the net proceeds received by Sellers in the offering
to which the registration statement or prospectus relates. For
purposes of the subparagraph (b)(i), any information provided by
Sellers to Purchaser under this Agreement which is disclosed or
relied upon in preparing the registration statement, including
without limitation the Financial Statements of Company, shall be
deemed to have been provided by the Sellers to Purchaser in
connection with any registration statement in which Sellers are
participating pursuant to Section (a) hereof
(ii) Contribution.
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If the indemnification provided for in this Section (b) from the
Sellers is unavailable to Purchaser hereunder in respect of any
losses, claims, damages, liabilities or expenses referred to
therein, then Sellers, in lieu of indemnifying Purchaser, shall
contribute to the amount paid or payable by Purchaser as a result
of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the
Sellers and Purchaser in connection with the actions which
resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations.
The relative faults of Sellers and Purchaser shall be determined
by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by,
Sellers or Purchaser, and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the
limitations set forth in Section (b)(i), any legal or other fees,
charges or expenses reasonably incurred by such party in
connection with any investigation or proceeding. The parties
hereto agree that it would not be just and equitable if
contribution pursuant to this Section (b)(ii) were determined by
pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to
in the immediately preceding paragraph. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to Contribution from any person.
7. Blocking Provision
Sellers declare that the provisions of Article 12 of the Articles of
Association of Company have been complied with.
8. Acknowledgement of Transfer on the Closing Date
On the Closing Date, Company shall acknowledge the transfer of the Shares
and undertakes to record the transfer at once in the shareholders register
of Company.
9. Conditions precedent to obligations of Purchaser
Unless each of the following conditions have been satisfied by Company
and/or Sellers on the Closing Date, or waived in writing by Purchaser,
Purchaser shall not be obligated to consummate or effect the transactions
contemplated by the Agreement:
(a) the board of managing directors and/or the supervisory board of both
Company and Purchaser shall have resolved to approve the acquisition of
the Shares by Purchaser;
(b) Sellers shall have executed, or cause to have executed, on the Closing
Date, the Agreement and such corollary documents as may be necessary or
appropriate to carry out the transactions contemplated by the Agreement
and to comply with the terms thereof;
(c) no injunction, temporary restraining order, judgement or other order of
any Court or governmental agency or instrumentality shall have been
issued or been entered which would be violated by the consummation of
the transactions contemplated hereby; and no suit, action or other
proceeding shall be pending, (nor shall any such bona fide suit or bona
fide action be threatened) in which it is sought to restrain or
prohibit, or to obtain damages in connection with, the Agreement or
with the consummation of the transactions contemplated hereby, or which
may adversely effect Purchaser's title to the Shares or the Real Estate
or the right of Purchaser to operate the business of Company;
(d) there shall have been received any consent, license, permit, approval,
waiver or authorisation of any government agency or entity or of any
non-governmental person or entity whose consent, license, permit,
approval, waiver or authorisation is required with respect to the
consummation of the transactions contemplated herein;
(e) all members of the supervisory board of Company shall have resigned;
(g) approval of the board of directors of Purchaser shall have been
obtained;
(h) Company shall have sold and transferred all the shares in the capital
of its subsidiary HPU Dataservices B.V. at book value prior to Closing
(Exhibit 9 h);
(i) the present managing director of Company and Purchaser shall have
agreed upon the terms and conditions of the management agreement the
former and
Company shall enter into after the Closing, which terms and conditions
are attached hereto as Exhibit 9 i;
(j) HPU Dataservices B.V. shall have transferred all its customer contracts
and supplier contracts as listed in Exhibit 9 j hereto to Company -
without any costs incurred for Company in connection with this
transfer - and waived all its rights with respect to these contracts;
(k) all obligations of Company pursuant to the draft notarial deed
attached hereto as Exhibit 9 k have been fulfilled;
(l) Company shall provide Purchaser with all current contracts - properly
executed and legally binding - with stock exchanges and/or data
suppliers and/or news sources prior to Closing and such contracts shall
be to the satisfaction of Purchaser;
(m) The contract in connection with the current ING bank facility shall
either be transferred and assumed by Company pursuant to Article 6:159
Dutch Civil Code or Company shall provide sufficient evidence that ING
Bank discharged Company from joint and several liability pursuant to
the aforementioned facility, such evidence attached hereto as Exhibit 9
m;
(n) The statutory director of Company shall have resigned prior to Closing
in accordance with the letter of resignation attached hereto as Exhibit
9 n;
10. Representations by Purchaser
Purchaser represents and warrants as of the Closing Date the following:
(a) Purchaser is duly organized, validly existing and in good standing, as
a corporation under the laws of the State of Delaware (United States of
America) and is duly authorised to transact business. Purchaser has all
requisite corporate power to enter into the Agreement and all related
documents.
(b) The Agreement and all related documents have been duly and validly
executed by or on behalf of Purchaser and constitute binding
obligations of, and are enforceable against, Purchaser in accordance
with their terms.
(c) The current management of Purchaser remains committed to the
development and sustainability of its company and believes that the
current business model remains viable for at least 24 months as from
the Closing Date.
(d) Purchaser warrants that the Demand Registration as referred to
Article 6 (a) shall become effective not later than 15 January 2000.
11. Representations and Warranties by Sellers
Sellers, jointly and severally, represent and warrant to Purchaser on the
Closing Date the following:
11.1 Sellers
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Sellers are duly organized and validly existing as a corporation under the
laws of The Netherlands. Sellers have all required corporate power to
enter into the Agreement and each other document and instrument delivered
concurrently therewith or pursuant thereto and to perform the obligations
set forth in the Agreement and each other document and instrument.
11.2 Due execution by Sellers
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The Agreement and each other document or instrument delivered concurrently
therewith or pursuant thereto by or on behalf of Sellers have been duly
and validly executed and constitute valid and binding obligations of, and
are enforceable against, Sellers in accordance with their terms.
11.3. Company
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Company is a corporation duly incorporated and validly existing under the
laws of The Netherlands. The Articles of Association are the articles of
association of Company in effect at the time of execution of the
Agreement. No steps have been taken or decisions have been made by either
Sellers, Company or third parties which could lead to dissolution or
bankruptcy of Company. Company has no other participations in other
companies or subsidiaries and is not involved in any way in any
enterprise, business or company.
11.4 Shares
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Sellers are the sole shareholders of Company and have full authority and
legal capacity to sell the Shares. The Shares constitute all of the issued
capital of Company, are valid and have been issued and fully paid-up in
accordance with all legal requirements. None of the Shares are subject to
any right of usufruct ("vruchtgebruik"), are pledged as security or are
subject to any other limitation or encumbrance on ownership or right of
transfer, except such limitations on transfer as are directly stated in
the Articles of
Association. Company is under no obligations of any kind to issue
additional shares and no decisions to that effect have been made.
11.5 Dividends, Distribution of Profits
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Company has not declared any dividend or other distribution which has not
been fully paid nor do any rights to distribution from reserves or from
profits, including but not limited to bonuses, (any claims on the bases of
tantiemes included) exist, other than stated in Exhibit 11.5.
11.6 Claims by Sellers
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Sellers, directly or indirectly, do not have any claim of any kind - apart
form Intercompany Receivables - against Company.
11.7 Shareholder's Decisions
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There are no decisions of the general meeting of shareholders of Company,
the meeting of holders of priority shares or of any other corporate body
thereof, which have not been fully carried out.
11.8 Bank accounts
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Exhibit 11.8 attached hereto states all bank accounts held by Company, the
bank at which these accounts are kept, and each and every proxy holder and
the extent of such proxy with respect to these bank accounts.
11.9 The Financial Statements
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The Financial Statements are the true and correct Financial Statements of
Company as of 31 December 1997 and 31 December 1998 and 30 September 1999
respectively.
(a) The Financial Statements have been prepared in accordance with the
provisions of Title 9 of Book 2 of the Dutch Civil Code. The
Financial Statements show a true and fair view of the financial
position of Company as of 31 December 1997 and 31 December 1998 and
30 September 1999 respectively.
(b) The Financial Statements enables a sound judgement concerning the
assets and liabilities and results of Company, and, to the extent
possible, of Company's solvency and liquidity.
(c) The profit and loss accounts and the notes thereon, included in the
Financial Statements, fairly, clearly and systematically reflect the
result and the items of income and expenses upon which it is based.
(d) The Pro Forma Closing Balance Sheet is prepared in accordance with
the accounting principles applied to the Financial Statements 1998
and the interim financial statement dated 30 September 1999and shall
be true and correct as of Closing Date.
(e) In addition to the foregoing, Company does not have, nor is bound by,
on Closing Date:
(i) any obligations, commitments or liabilities, liquidated or not
liquidated, contingent or otherwise, arising out of events
occurring after the date of the Pro Forma Closing Balance
Sheet, except obligations, commitments and liabilities arising
in the ordinary and usual course of Company's business, which
should have been included in the Financial Statements in order
to give a prospective purchaser the information necessary to
make an adequate evaluation of the financial situation of
Company;
(ii) any shortages existing in any inventory, equipment or other
items of Personal Property owned by Company;
(iii) any waiver of any rights of substantial value which singly or
in the aggregate are material to the financial condition or
the operations of the business of Company, other than as
provided for in the Financial Statements, which should have
been included in the Financial Statements in order to give a
prospective purchaser the information necessary to make an
adequate evaluation of the financial situation of Company;
(iv) any obligation, commitment or liabilities in connection with
the transfer of shares in the capital of HPU Dataservices B.V.
as referred to in article 9. sub h;
(v) any obligation, commitment or liabilities in connection with
the draft notarial deed referred to in article 9. sub k.
11.10 Tax matters
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(a) Filings
Company has filed, been included in or sent all returns, declarations
and reports and all information returns and statements (collectively
"Returns") required to be filed or sent with respect to all Dutch or
foreign, national, state, county, local and other taxes of every kind
and however measured, including income, corporate income, gross
receipts, excise, franchise, property, value added import duties,
employment, payroll, sales and use taxes and any additions to tax and
any interest or penalties thereon (collectively "Taxes") for any
period ending on or before the
Closing Date. As of the time of filing, the Returns correctly
reflected the income, business, assets, operations, activities and
status of Company and any other information required to be shown
thereon. Company has timely paid or made provision for all Taxes
shown as due and payable on its Returns required to be filed or sent
prior to the date hereof and has timely paid or made, or shall make,
adequate provisions in its Financial Statements over 1999 and 1998
for Taxes which are payable according to tax laws in The Netherlands
and foreign jurisdictions. All required Tax estimates, deposits,
prepayments and similar reports or payments for current periods have
been properly made. Company is not delinquent in the filing of any
Return or the payment of any Tax or has requested any extension of
time within which to file any Return.
(b) Compliance
Company has withheld amounts from employees and others working in or
for the benefit of Company, as required under applicable law, and has
filed all Returns and made timely and adequate payments to the
appropriate governmental authorities with respect to employee income
Tax withholding and social security, unemployment or any other Taxes,
in compliance with the tax withholding provisions of applicable law
through the Closing Date. Company has complied with all requirements
under applicable Value Added Taxes laws, and has filed all returns
and paid all amounts due thereunder.
(c) Disputes
There are no Tax liens on any assets of Company and no basis exists
for the imposition of any such liens. No adjustment of or deficiency
for any Tax or claim for additional Taxes has been proposed,
threatened, asserted or assessed against Company or any member of any
affiliated or combined group of which Company was member for which
Company could be liable. Company has no dispute with any tax
authority as to Taxes of any nature. There are no audit examinations
being conducted or threatened and there is no deficiency or refund,
litigation or controversy in progress or threatened, with respect to
any Taxes previously paid by Company or with respect to any Returns
previously filed by or on behalf of Company. Company has no extension
or waiver of any statute of limitations relating to the assessment or
collection of Taxes. There are in effect no powers of attorney or
other authorisations to any persons to represent Company with respect
to any Tax.
(d) No Further Tax Liabilities
Neither Sellers nor Company have entered into transactions that could
trigger the application of Article 16 of the Standard Conditions for
Fiscal Unities under the Dutch Corporate Income Tax Act (as published
in the Staatscourant no. 189 of 1991), or the equivalent of such
Article under predecessors of these Standard
Conditions. There are no circumstances that could result in Company
being held liable for the payment of Value Added Taxes, Corporate
Income Tax, Wage Tax (including social security premiums) or any
other taxes due by either Sellers or third parties, including, but
not limited to, the event where such liability arises as a result of
termination of the fiscal unity to which Company belonged apart from
those properly recorded in the Financial Statements and the Pro Forma
Closing Balance Sheet.
11.11 Insurances
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All assets of Company of an insurable nature have been and are adequately
insured against fire, accident, third party and all other risks normally
insured against by persons carrying on the same kind of business as
Company in The Netherlands. Company is in compliance with all material
terms and conditions contained in the insurance policies. Exhibit 1111
contains a list of all insurance policies of Company.
11.12 Real Estate
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(a) All of the Real Estate is occupied and used solely by Company and
Company has the exclusive right of use of all Real Estate, free and
clear of any restrictions or other encumbrances of any kind.
(b) Exhibit 11.12(b) hereto includes the true and complete copies, (as
recorded where applicable) of all deeds, leases, agreements and title
policies to which Company is party or which have been issued to
Company (including all amendments and modifications thereof)
regarding the Real Estate or any part thereof.
11.13 Receivables
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Exhibit 11.13 sets forth a complete and accurate overview of the Company's
receivables on Closing Date, including but not limited to the Intercompany
Receivables, which shall all be fully collected by Company before 30 July
2000.
11.14 Litigation
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Except as set forth in Exhibit 11.14 hereto, to be provided to Purchaser
prior to the Closing Date, there are no material legal, administrative, or
other proceedings or investigations - including any attachments - pending,
or, to the best knowledge of sellers, Company and its statutory director,
threatened against or affecting the Shares, the Agreement, Company or its
businesses, assets or financial condition in any court or before any
governmental or non-governmental authority.
11.15 Company records
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All resolutions by the shareholder's meetings of Company over the
preceding three years and resolutions of the board of directors of Company
since its incorporation, if any, are attached hereto as Exhibit 11.15 and
are fully and accurately recorded. Complete and accurate records with
respect to the issuance, transfer and any consolidation of shares of
Company are contained in the shareholders' register. The shareholders'
register shall be present on the Closing Date.
11.16 Compliance with Laws
--------------------
Company has complied with, and Company is currently complying with, all
laws, regulations and orders applicable to it, including but not limited
to, all laws with respect to employment and employment practices, all tax
laws and all environmental laws and Company is in possession of all
licenses and permits, including but not limited to, a license to operate
its business.
The conduct of Company's business does not violate any provisions of any
applicable laws, orders, regulations or requirements of any governmental
agency having jurisdiction thereof.
11.17 Trademarks and Related Matters
------------------------------
Company is the owner or rightful user of all right, title and interest in
and to each of the patents, trade names, trademarks, software, copyrights
and registrations thereof, all as set forth in Exhibit 11.17, attached
hereto or to be attached hereto prior to Closing. None of the patents,
trade names, trademarks, software, copyrights or registrations thereof, or
any rights therein, have been assigned or transferred by Company or its
predecessors in right in whole or in part to any other party, and none is
subject to any liens or encumbrances nor has any right been granted by
Company to any other party to use any such patents, trade names,
trademarks, software or copyrights. To the extent they are currently
utilised in the operation of Company's usual business, all requisite
renewals and affidavits of use have been filed with respect to each of the
registrations set forth in Exhibit 11.17 and each is presently in full
force and effect and each of the patents, trade names, trademarks,
software and copyrights set forth in Exhibit 11.17 is valid, and is in
good standing and active use and none has been abandoned or terminated, or
shall be terminated as a result of the execution of this Agreement. No
rights under any other patents, trade names, trademarks, software,
copyrights or registrations are required by Company for the proper
operation of its business.
11.18 Contracts and Defaults
----------------------
Exhibit 11.18.a, attached hereto, sets forth a complete and accurate list
of all customer contracts, to which Company is party, which cannot be
terminated with a notice period
of less than three month and which have a sales value of at least 5% of
the total turn over of Company over the year 1999.
Exhibit 11.18.b, attached hereto, sets forth a complete and accurate list
of all supplier contracts , to which Company is party, which cannot be
terminated with a notice period of less than three month and which have a
spending value of at least 5% of the total costs of Company over the year
1999.
Each agreement or contract set forth in Exhibits 11.18.a and 11.18.b and
the factoring arrangement with Xxxxxx - attached hereto as Exhibit 11.18
c -is in full force and effect and there is no default by anyone obligated
thereunder and cannot be terminated by Company's counter party pursuant
to -inter alia - a change of control clause.
Company has not materially breached or is in default under any contract or
agreement to which it is or was a party or by which it is or was bound,
nor has any event occurred which, after the giving of notice or the
passage of time or both, would constitute default under any such contract
or agreement.
Company is not party to or bound by any contract, agreement, order,
judgement or decree under which the execution of the Agreement would
constitute a violation or default or a ground for termination on the basis
of change of control or which would prohibit the consummation of any of
the transactions provided for in the Agreement.
11.19 Employees
---------
(a) The employees of Company are as set forth in Exhibit 11.19 attached
hereto, along with their aggregate direct annual compensation by
Company and all their other benefits.
(b) Vacation rights, bonus rights and other extra legal benefits built-up
by the employees of Company prior to the Closing Date shall have been
fully provided for in the Pro Forma Closing Balance Sheet.
(c) Company does not have any other employees other than the ones listed
on Exhibit 1119.a and no person has filed or, to the best of
knowledge of Sellers, has threatened to file any claim against
Company resulting from or related to performed employment services.
No person, nor any trade union or any other entity on behalf of such
person, has filed or has threatened to file any claim against Company
arising out of his/her pervious employment by Company.
(d) Company does not have (nor has maintained at any time during the last
five years) any employee benefit plans (including, without
limitation, any pension, retirement and profit sharing plans). There
is (other than the resulting from mandatory provisions of Dutch law)
not a deferred compensation, bonus, retainer, consulting,
welfare, or incentive compensation plan or arrangement or any
contract, or any fringe or other benefits or arrangement, with or for
any director, employee or any other person which cannot be terminated
within a period of thirty days without payment of any amount as a
penalty, bonus, premium or other compensation for such termination.
11.20 Personal Property
-----------------
Company has full title ("eigendom") or good and marketable title ("bezit")
to all Personal Property, and none of its Personal Property is subject to
a contract of sale, security interest, joint ownership, mortgage,
encumbrance, lien or any charge of any kind (other than for taxes not
delinquent). All Personal Property is in good operating condition and
repair, ordinary wear and tear excepted, for use in Company's businesses,
and is used in material compliance with all applicable laws and
regulations. A list of Personal Property is attached to this Agreement as
Exhibit 1.6.
11.21 Computerisation
---------------
The computerisation of Company, including hardware, financial and
production software, is adequate for conducting the business of Company
and all software and hardware currently in use by Company is Year 2000
Compliant.
11.22 Full Disclosure
---------------
Sellers did not fail to disclose any statement or fact to, or fail to
bring any matter to the attention of, Purchaser which would be material to
a prospective purchaser of the Shares in a similar position as Purchaser.
11.23 Investment and Related Representations.
--------------------------------------
(a) Purchaser's Shares as "Restricted" Securities
The Sellers are aware that neither the Purchaser's Ordinary or Preferred
Shares (collectively referred to herein as ("Purchaser Shares") nor the
offer or sale thereof to the Sellers has been registered under the Act, or
under any state securities law. The Sellers further understand that no
registration statement has been filed with the U.S. Securities and
Exchange Commission ("SEC"), nor with any other state regulatory authority
and that, as a result, any benefit which might normally accrue to an
investor such as the Sellers by an impartial review of such a registration
statement by the SEC or other regulatory commission will not be
forthcoming. The Sellers acknowledge that the Purchaser Shares will be
characterised as "restricted" securities under U.S. federal securities
laws inasmuch as they are being acquired in a transaction not involving a
public offering and that under such laws and applicable regulations such
securities may be resold without registration under the Act only in
certain limited circumstances. The Sellers represent that the Sellers are
familiar in general with Rule 144 under the Act (which provides generally
for a one year holding period and limitations on the amount of
"restricted" securities that can be publicly resold in compliance with the
rule upon completion of the holding period), and understands the resale
limitations imposed thereby and by the Act. The Sellers agree that they
will not sell any portion of Purchaser Shares except in accordance with an
available exemption from registration under the Act. The Sellers
understand that each certificate for the Purchaser Shares issued to the
Sellers or to any subsequent transferee shall be stamped or otherwise
imprinted with an appropriate legend summarising the restrictions
described in this Section 11.23 (a) and that Purchaser shall refuse to
transfer the Purchaser Shares except in accordance with such restrictions,
such legend to be substantially as follows:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE ACT"), AND SUCH SECURITY
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION,
IN EACH CASE AS CONFIRMED IN AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY AND IN EACH CASE IN ACCORDANCE WITH ANY OTHER
APPLICABLE LAW.
(b) Investment Representation
This Agreement is made with the Sellers in reliance upon the Sellers'
representation, which by the Sellers' execution of this Agreement the
Sellers hereby confirm, that the Purchaser Shares to be received by the
Sellers are being acquired pursuant to this
Agreement for investment and not with a view to the public resale or
distribution thereof unless pursuant to an effective registration
statement or exemption under the Act.
(c) No Public Solicitation
The Sellers are acquiring the Purchaser Shares after private negotiation
and has not been attracted to the acquisition of the Purchaser Shares by
any press release, advertising or publication.
(d) Access to Information
The Sellers acknowledge that they have received and reviewed the Company's
SEC Reports and believes that they have otherwise received all of the
information they considers necessary or appropriate for deciding whether
to acquire the Purchaser Shares. The Sellers further represents that they
have had an opportunity to ask questions of, and to receive answers from,
Purchaser regarding Purchaser, its business and prospects, and the
Purchaser Shares.
(e) Investor Sophistication and Ability to Bear Risk of Loss
The Sellers acknowledge that they are able to protect their interests in
connection with the acquisition of the Purchaser Shares and can bear the
economic risk of investment in such securities without producing a
material adverse change in the Sellers' financial condition. The Sellers
otherwise have such knowledge and experience in financial or business
matters that the Sellers are capable of evaluating the merits and risks of
the investment in the Purchaser Shares.
11.24 No Misrepresentation
--------------------
No representation or warranty by Sellers in the Agreement, or in any
Exhibit thereto or any other document furnished by Sellers pursuant
hereto, contains any statement or any material fact or omits to state a
material fact either necessary to make the statements contained therein
not misleading or material for disclosure to a prospective purchaser of
the Shares._.
12. Covenant not to compete
12.1 Sellers, nor any affiliated company thereof, shall, and Sellers shall
cause that their directors, as in office on the date hereof, shall not,
for a period of two years after the Closing Date, directly or indirectly,
own, manage, operate, or be employed or otherwise have an interest in any
manner with, any business which directly or indirectly competes
with the business of Company and Sellers shall not in any other manner
directly or indirectly compete with or become interested in any competitor
of Company.
12.2 In the context of the two years period referred to in Article 12.1 the
business of Company shall mean the business of Company as at the Closing
Date and during the two years period after the Closing Date.
12.3 In the event of a breach or threatened breach hereunder, apart from
appropriate injunctive relief, Purchaser shall be entitled to a penalty of
USD 50,000 (in words: fifty thousand US dollars) and shall further be
entitled to a penalty of USD 5,000 (in words: five thousand US dollars)
per breach per day in addition to any damages suffered, and without
prejudice to any other right under this Agreement or by operation of law.
13. Indemnification by Sellers
13.1 General
-------
Sellers hereby severally and jointly agree to indemnify Purchaser and/or
Company for, to hold Purchaser and/or Company harmless against and to
reimburse Purchaser and/or Company on demand by Purchaser or Company for
any damages or expenses (including attorney's fees and costs of
investigation incurred in defending against or settling any claim and any
amounts paid in settlement thereof) incurred by Purchaser and/or Company
in respect of any misrepresentation, breach of warranty, failure to
perform or violation of any agreement or covenant on the part of Sellers
under the Agreement.
13.2 Taxes
-----
In addition to Article 13.1, Sellers hereby agree to indemnify and hold
harmless Purchaser and/or Company from and against (i) the inadequacy of
provisions on the Financial Statements, all with respect to the years 1997
and 1998 and on the Pro Forma Closing Balance Sheet and for any Taxes
payable for any period ending on or before the Closing Date and ending
after the Closing Date in respect of the portion of such period up to the
Closing Date, and (ii) any liability for out-of-pocket fees, costs and
expenses (including without limitation reasonable attorney fees) arising
out of or incident to any tax indemnified thereunder. Any payment required
under this section shall be due in all events within 30 days of a final
determination as defined under applicable law; provided, however, that
payments under clause (ii) shall be due 30 days after the date on which
Sellers receive notice from Purchaser or Company that such cost, fee or
expense was incurred, and in the case of any payment of Taxes in
connection with the filing of any protest or conduct of any controversy or
proceedings including by way of suit for refund, payment shall be due when
such Taxes are required to be paid under the law governing the protest,
controversy or proceeding; any such payment not made when due shall bear
interest at the greater of the stipulated rate or the rate applicable to
the deficiencies in such class of taxes from the date such Taxes were paid
to the date indemnification for such Taxes shall have been received by
Purchaser or Company.
13.3 Survival Period
---------------
Except for any representations and warranties of Sellers made with respect
to liabilities for Taxes (as defined in Article 11.10(a)) which shall
survive the Closing Date for a period equal to the period that the tax
authorities may impose additional assessments the representations,
warranties and undertakings of Sellers and the indemnification herein
shall survive the Closing Date for a period of 18 months, unless:
(a) within such period a demand pursuant to this Article has been made by
Purchaser and/or Company against Sellers and proceedings have been
instituted within six months upon making such demand in which case the
indemnification therefor shall survive beyond the period ending 30
months after Closing Date until a final agreement is reached or full
payment has been made in accordance with a final judgement, as the
case may be; or
(b) Sellers have indemnified Purchaser or Company in accordance with the
provisions of this Article.
13.4 Purchaser or Company shall give written notice to Sellers of any claim
against Sellers based on this Article, stating the nature and basis of
such claim and the amount thereof to the extent known.
13.5 The indemnifications in the Agreement shall not be deemed to preclude or
otherwise limit in any way the exercise of any other non-monetary rights
or pursuit of other non-monetary remedies for the breach of the Agreement
or with respect to any misrepresentations or breaches of warranties by
Sellers.
13.6 Sellers shall hold harmless Purchaser in the event Company shall be
ordered to compensate Insight Options in connection with the proceedings
referred to in Exhibit 11.16 and this compensation exceeds NLG 50,000 (in
words: fiftythousand Netherlands Guilders, in which event Sellers shall
indemnify Purchaser for the full amount.
14. Confidentiality, Publicity
14.1 All parties hereto agree to keep completely confidential the contents of
the Agreement and all Exhibits, attached hereto, and agree not to make any
statements and/or release any press bulletins to any third party with
respect to the subject matter hereof, without the prior written consent of
the other, unless required to do so by law, regulation or applicable stock
exchange rule.
14.2 In the event of a breach or threatened breach hereunder, apart from
appropriate injunctive relief, Purchaser shall be entitled to a penalty of
USD 50,000 (in words: fifty thousand US dollars) and shall further be
entitled to a penalty of USD 5,000 (in words: five thousand US dollars)
per breach per day in addition to any damages suffered, and without
prejudice to any other right under this agreement or by operation of law.
15. Notices
All notices, requests, demands and other communications to be delivered
hereunder shall be in writing and shall be delivered by hand, e-mail,
telecopy with the original by registered or certified mail or mailed, by
registered or certified mail, postage prepaid, at or to the following
addresses:
Sellers
-------
MIMMAttn: Xx. X. xxx Xxxxxxx
Xxxxxxx 00
0000 XX XXXXXX
Xxx Xxxxxxxxxxx
Tel: 0000 00 000 00 00
Fax: 0000 00 000 00 00
e-mail: xxxxxxxxxxx@xxxxxxxxx.xx
Horizon
Attn: Mr.B. Xxxx
Xxxxx-Xxxxxxxxxxx 0
0000 XXXXXXXXX
Xxxxxxx
Tel: 0000 0 000 00 00
Fax: 0000 0 000 00 00
e-mail: xxxx.xxxx@xxxxxx.xx
CV Stockdata
Attn: Xx. X. xxx Xxxxxxx
Xxxxxxx 00
0000 XX XXXXXX
Xxx Xxxxxxxxxxx
Tel: 0000 00 000 00 00
Fax: 0000 00 000 00 00
e-mail: xxxxxxxxxxx@xxxxxxxxx.xx
Purchaser
---------
Attn: Xx. Xxxx Xxxx
Morgines Business Center
00 xxxxxx xxx Xxxxxxxx
0000 Xxxxx-Xxxxx
Xxxxxx
Xxxxxxxxxxx
Telephone: + 00 00 000 0 000
Fax: + 00 00 000 0 000
E-mail: xxxx.xxxx@xxxx.xxx
or to such other address or to such other person as either party shall have last
designated by written notice to the other party. Notices, etc., so delivered
shall be deemed given upon receipt when given by telex or telecopy or five days
after posting in the mail.
16. Waiver
Any waiver of a provision of the Agreement must be in writing signed by the
party waiving its rights.
No failure of Purchaser or Company to take any action in the event of
breach of any of the provisions of the Agreement or in the event of any of
the representations and warranties thereunder not being realized shall be
considered to constitute a waiver by Purchaser or Company.
17. Partial invalidity
If any term or provision of the Agreement or any application thereof shall
be invalid or unenforceable, the remainder of the Agreement and any other
application of such term or provision shall not be affected thereby. To the
maximum extent permitted by law, the parties hereto waive any and all
provisions of applicable law to the end that the Agreement shall be
enforceable in accordance with its terms.
18. Assignment
The Agreement may not be assigned by either party without the express
written consent of the other party and in the absence of such consent any
attempted assignment shall be null and void, except that Purchaser may
assign the Agreement to any legal entity which is owned or controlled by
Purchaser.
19. Costs
Sellers and Purchaser will each bear their own fees and expenses, including
but not limited to legal fees and expenses, incurred in connection with the
negotiation, preparation and execution of the Agreement and the transaction
contemplated therein. The costs related to the drafting and execution of
the Deed of Transfer shall be borne by Purchaser.
20. No dissolution
Sellers and Purchaser hereby waive their rights to rescind the Agreement in
accordance with Article 6:265 et seq. Dutch Civil Code.
21. Miscellaneous
21.1 The Agreement is for the benefit of, and may be enforced only by Sellers,
Purchaser and Company and their respective successors permitted,
transferees and assignees, and is not for the benefit of, and may not be
enforced by, any third party.
21.2 The Agreement may be executed and delivered in counterparts, each of which
shall be deemed an original but all of which together shall constitute one
and the same instrument.
21.3 Sellers and Purchaser each warrant and represent to the other that no
broker or finder has acted for it in connection with the proposed
acquisition and no broker or finder is entitled to any brokerage or
finders fee or other commission in connection with the proposed
acquisition.
21.4 The considerations in, and all Exhibits and Schedules to the Agreement ()
are an integral part of the Agreement. References to the Agreement include
references to said Exhibits.
21.5 The headings of the Agreement are for convenience only and shall not
be deemed to alter or affect any provision of the Agreement.
21.6 The Agreement, including all Exhibits and Schedules supersedes any and all
other agreements, oral or written, between the parties thereto with
respect to the subject matter hereof, and contains the entire agreement
between such parties with respect to the transaction contemplated
thereunder.
21.7 The Agreement shall not be modified or amended except by an instrument
in writing executed by the parties hereto.
22. Applicable law/disputes
22.1 Any dispute, controversy or claim arising out of or related to the
agreement, including but not limited to, any dispute concerning the
existence, validity, breach or termination hereof, shall be brought
exclusively before the Amsterdam District Court. Prior to initiating a
procedure as referred to in the first sentence, such dispute, controversy
or claim shall be submitted for mediation without involvement of the
courts, notwithstanding the right of each party, however, to initiate a
procedure for injunctive relief or a temporary restraining order before
the Amsterdam District Court.
22.2 The Agreement shall be governed by, and construed and enforced in
accordance with, the laws of The Netherlands.
Executed in twofold on the date first written above.
------------------------------ ----------------------------------
FirstQuote Inc Media Investerings-en
Managementmaatschappij B.V.,
By:. /s/ XXXX XXXXXXX By: /s/ unreadable
-------------------------- -------------------------------
Its: President Its:
/s/ unreadable
------------------------------ ----------------------------------
Stockdata Amsterdam B.V. Horizon Investments B.V.
C.V. Stockdata
By: /s/ unreadable
-------------------------------
Its:
