EXHIBIT 2.01
XXXX ET ASSOCIES
FINAL - APRIL 24, 2003
AGREEMENT FOR THE SALE OF AN ONGOING BUSINESS
BETWEEN THE UNDERSIGNED:
MARKETIC SA, a French Societe Anonyme with a share capital of Euros 50,000
having its registered office at 00 xxx Xxxxx Xxxxxxxxx, 00000 Xxxxx, Xxxxxx,
registered with the Registry of Commerce and Companies of Paris, under number
345 336 549, duly represented by Mr. Xxxx-Xxxxxx Seguret, acting by power of
attorney given by Xx. Xxxx Xxxxx Xxxxxxx, its President;
hereinafter the "SELLER",
ON THE ONE HAND,
AND:
UNICA CORPORATION, a foreign corporation having its headquarters at Reservoir
Place North, 000 Xxxxxx Xxxx, Xxxxxxx, XX 00000, XXX, represented for such
purpose by Xx. Xxxxxxx Xxxxx, its chief financial officer, acting on behalf of
UNICA, a French Societe par Actions Simplifiee to be incorporated;
hereinafter the "BUYER",
ON THE SECOND HAND,
AND:
DDB COMMUNICATION FRANCE, a French Societe Anonyme with a share capital of Euros
240,000 having its registered office at 00 xxx x'Xxxxxxxxx, 00000 Xxxxx, Xxxxxx,
registered with the Registry of Commerce and Companies of Paris, under number
348 843 533, duly represented by Mr. Xxxx-Xxxxxx Seguret, acting by power of
attorney given by Xx. Xxxxx Xxxxxxxx, its President and
XXXXXX XXXXXXX, residing at 0, xxx Xxxxxxx, 00000 Xxxxx, Xxxxxx;
Hereinafter, jointly and severally, the "GUARANTORS",
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
ON THE THIRD HAND,
The Seller, the Buyer and the Guarantor are hereinafter collectively referred to
as the "PARTIES" and individually as a "PARTY".
RECITALS
The Seller is a company which specializes in the sale of software products and
services, and which operates a business of consulting, organization, maintenance
and support of software in the area of marketing.
Pursuant to negotiations between the Seller and the Buyer it has been agreed
that the Seller will, under certain terms and conditions, sell its business
consisting of the development, sales, marketing and maintenance of various
software products, and related services, in the field of marketing and customer
relationship management.
The Seller and the Buyer have, therefore, reached agreement on the final terms
and conditions of the sale of the ongoing business and assets, which is the
subject matter of this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1 - SALE
The Seller hereby sells and transfers, effective May 1, 2003 or any other date
mutually agreed upon by the Parties (the "TRANSFER DATE"), on the terms and
conditions set forth herein and subject to normal and legal representations and
warranties in such transactions, to the Buyer, which hereby accepts:
an ongoing business and assets of consulting, organization, maintenance and
support of software publishing in the area of marketing, as set forth in Article
2 hereinafter, for which it is registered with the Registry of Commerce and
Companies of Paris under number 345 336 549, and which it carries on at its
registered office (the "BUSINESS").
ARTICLE 2 - DESCRIPTION OF THE BUSINESS
The Business sold hereby comprises all of the assets set forth herein below:
2
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
2.1 INTANGIBLE ASSETS
The following intangible assets:
- The goodwill and clientele listed in Annex 2.1.1 and all databases with
information regarding such clients,
- The portfolio of prospective clients, including but not limited to those
listed in Annex 2.1.2 hereto and all databases with information regarding
such clients,
- The trade name of "MARKETIC",
- All Intellectual Property Rights, as such term is defined in Article 9.11,
which are owned or used by the Seller and which are listed in Annex 2.1.3
(a) and Annex 2.1.3 (b),
- The software products listed on Annex 2.1.4,
- All books, records, correspondence and other documents in any and all
media used in the business.
2.2 TANGIBLE ASSETS
The fixed assets consisting of computer hardware (including servers, PCs,
printers, etc) and the office equipment, sales and marketing materials, sales
demonstration materials and other items listed in Annex 2.2.
2.3 EXCLUDED ASSETS; LIABILITIES NOT TRANSFERRED WITH THE BUSINESS
The Parties hereto expressly agree that this sale of Business does not include
the transfer of :
- any liabilities of any kind of the Seller, including but not limited to
contingent liabilities, off balance sheet commitments, and any contractual
obligations other than those related to the period after the Transfer Date
pursuant to the Transferred Contracts (as defined below),
- any insurance policies of the Seller,
- the commercial office lease agreement entered into between the Seller and
Societe Rochefort 25 SAS,
- cash,
- accounts receivable.
ARTICLE 3 - EMPLOYEES
3
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
The Buyer, as provided by Article L. 122-12 of the Labor Code, shall ensure the
uninterrupted continuation of the employment agreements, without amendment, of
the employees assigned to the operation of the Business (the "EMPLOYEES"), a
list of whom is set forth in Annex 3A hereto. Such list shall also mentioned the
amount of their fixed compensation, and employee benefits of any kind
whatsoever. Also attached as part of Annex 3A are copies of all employee bonus
arrangements. With respect to Xx. Xxxxxx Xxxxxxx, it is agreed that his
employment agreement will be amended effective the Transfer Date.
The Seller shall bear the cost of all the amounts due to the Employees as at the
Transfer Date or which shall subsequently be due to the Employee with respect to
the period up to the Transfer Date; accordingly, the Seller shall deliver to the
Buyer on such Transfer Date an amount corresponding to the accruals for paid
vacation which may be due to the Employees following the Transfer Date with
respect to rights and benefits accrued during the period up to the Transfer Date
(all of the foregoing, "VACATION ACCRUALS"); provided the Buyer shall assume
liability for Vacation Accruals up to an amount not to exceed two hundred sixty
thousand (260,000) Euros.
ARTICLE 4 - CONTRACTS
The Seller agrees to assign, and the Buyer agrees to accept, the Seller's rights
and duties arising under the contracts with customers which are listed in Annex
4 hereto (the "TRANSFERRED CONTRACTS"), subject, as the case may be, to the
consent of the other parties to the Transferred Contracts, whenever it is
required by such Transferred Contracts. Annex 4 lists each Transferred Contract
for which a notice to, or consent of, any third party is required in order to
assign such Transferred Contract to the Buyer, and the Seller and the Guarantors
hereby represent and warrant the accuracy of such list. The Seller agrees, if
necessary, to cooperate with the Buyer following the date hereof and for three
months following the Transfer Date, and to supply it with any assistance that
the Buyer may reasonably require for the assignment of such Transferred
Contracts during such period.
ARTICLE 5 - USE OF THE PREMISES; SERVICE ARRANGEMENTS
5.1 DDB Communication France ("DDB") shall cause DDB CIE, societe en nom
collectif, to sublease to the Buyer the commercial premises located at 00 xxx
Xxxxx Xxxxxxxxx, 00000 Xxxxx, under the terms and conditions set forth in a
sub-lease agreement substantially in the form attached in Annex 5 hereto, to be
entered into between DDB and the Buyer on the Transfer Date. The Guarantors
represent and warrant that these are the same terms as those provided to the
Seller prior to the Transfer Date. The Parties further agree that the Seller and
4
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
DDB shall indemnify and hold harmless the Buyer from any damages, losses,
expenses or claims or any kind resulting from the failure to obtain the consent
of the landlord to the sublease attached hereto as Annex 5.
5.2 For a period of three months beginning on the Transfer Date, DDB shall
provide the Buyer, at no charge, with the following administrative services:
finance and accounting assistance, IT systems and human resource assistance, all
in a manner consistent with practices prior to the Transfer Date between DDB and
the Seller.
5.3 In order to satisfy regulatory requirements in the United States, the
Buyer requires access to the financial accounts and records of the Seller for
all full and partial fiscal years since January 1, 2001. The Seller and the
Guarantors hereby agree to make such accounts and records available to the Buyer
at any time following the Transfer Date.
5
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
ARTICLE 6 - USE OF THE TRADENAME
The Buyer grants to the Seller the right, during a period of one year as from
the Transfer Date, to continue to use, without indemnity, the tradename of
"MARKETIC", assigned pursuant to this Agreement as its corporate name, it being
understood however that the Seller may under no circumstances use this tradename
for any other purpose, including but not limited to the sale or marketing of any
goods or services.
ARTICLE 7 - SALE PRICE AND PROCEDURE OF PAYMENT
7.1 This sale of the Business is granted and accepted in consideration for a
price calculated as follows (the "SALE PRICE"): two million one hundred and
forty thousand (2,140,000) Euros, subject to the provisions of Article 7.4
below. The Sale Price shall be paid in three installments as follows: (i) on the
Transfer Date, the Buyer shall pay one million seven hundred thousand (1,700,000
Euros) (the "FIRST INSTALLMENT"); (ii) on December 31, 2003, the Buyer shall pay
two hundred fifty thousand (250,000) Euros, and (iii) on the first anniversary
of the Transfer Date the Buyer shall pay one hundred ninety thousand (190,000)
Euros. Each of the three payments following the First Installment shall be
covered by drafts (billets a ordre) signed by the Buyer prior to the Transfer
Date.
7.2 The Sale Price is broken down as follows:
- for intangible assets: 2,045,989 Euros
- for tangible assets: 94,011 Euros
- for merchandise for sale to customers: none
- Total: 2,140,000 Euros
This above allocation of price is made to satisfy the provisions of the
Commercial Code and shall not be questioned by any of the Parties,
notwithstanding the evaluations which could be made or which could result from
the decision of any expert, the prices mentioned representing the value of the
Business in its totality.
Pursuant to instruction no. 3A-690 dated 22 February 1990 of the Tax Authorities
(Direction Generale des Impots) the Buyer agrees to submit to VAT future sales
of the equipment involved and to proceed, if necessary, with the payments set
forth in Articles 210 and 215 of Annex II of the General Tax Code that would
have been payable, if the Seller had continued to use such assets.
7.3 On the Transfer Date, the Buyer will place the First Installment of the
Sales Price in escrow pursuant to this Article 7.3 for the period of time
required
6
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
by applicable law for third-party oppositions to be notified. The escrow agent
shall be Xxxxxx Xxxx-Xxx Xxxxxx, a lawyer admitted to practice by the Paris bar,
who will deposit the funds with "CARPA". The entire First Installment shall be
deemed security for the Buyer, to be used to satisfy any pledges, oppositions or
other impediments to transfer of the Business. The Parties authorize the escrow
agent to remit the First Installment to the Seller subject to absence of any
third-party oppositions (or agreement of such third parties against payment of
their claims) and payment of all taxes as provided in Article 1684-1 of the
General Tax Code, such amounts if any to be deducted from the First Installment.
The escrow agent shall be relieved of his duties upon remittance of the First
Installment to the Seller, less amounts paid to third-party creditors, or upon
remittance of the First Installment to a third party escrow agent pursuant to an
order of the Chairman of the Commercial Court of Paris. The escrow agent's fees
shall be borne by the Seller.
7.4 REDUCTION
In the event that any of the Transferred Contracts with customers that are
listed are terminated within three (3) months following the Transfer Date (i) as
a result of the sale of the Business or (ii) because of the non-compliance with
the provisions requiring the customer's consent to assignment or (iii) due to
breach by the Seller of such Transferred Contract prior to the Transfer Date,
then the Sale Price shall be reduced by the amount of damages and any other
amounts claimed against the Buyer by such customers.
ARTICLE 8 - CHARGES AND CONDITIONS - OBLIGATIONS
For purposes of this sale of Business, the Seller and the Buyer hereby assume
the following obligations:
8.1 SELLER'S OBLIGATIONS
The Seller agrees, in addition to its legal obligations, to be personally
responsible for all third-parties claims (including creditors' claims) which are
not satisfied and which could arise in connection with this transaction, so that
the Buyer shall never be troubled thereby and shall assume responsibility for,
and indemnify the Buyer against, all actions, claims or losses of any kind
against it or incurred by it in this respect.
More generally, the Seller agrees to sign all documents, agreements, and deeds
to ensure the transfer of the Business and to introduce the Buyer to its
customers and suppliers, on the basis of procedures to be mutually agreed by the
Parties.
8.2 BUYER'S OBLIGATIONS
7
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
The Buyer shall be responsible for taking care of publication formalities for
the sale of the Business at its expense and as required by law. The Buyer shall
make available the financial and other resources necessary to perform the
Transferred Contracts for a period of one year following the Transfer Date
without any financial contribution from the Seller.
ARTICLE 9 - REPRESENTATIONS AND WARRANTIES
The Seller and the Guarantors hereby represent and warrant, jointly and
severally, that:
9.1 ORIGIN OF OWNERSHIP
The Business belongs to the Seller, inasmuch as it founded it and has managed it
since January 1988.
9.2 TURNOVER AND PROFITS
The Business turnover and profits for the past three financial years are:
FISCAL YEAR FISCAL YEAR FISCAL YEAR
ENDED ENDED ENDED
28 FEB 2001 31 DEC 2001 31 DEC 2002
(14 MONTHS) (10 MONTHS) (NOT APPROVED)
TURNOVER 6,266,046 4,503,881 4,656,160
EXCLUDING TAXES
PROFITS (870,957) (1,009,587) (667,832)
The estimated Business turnover for the period from December 31, 2002 to April
30, 2003 amounts to Euros 1,456,000.
The estimated Business profit for the period from December 31, 2002 to April 30,
2003 amounts to Euros (30,000).
The Seller represents and warrants that there were no significant changes in the
financial position of the Business since December 31, 2002.
9.3. LIENS AND ENCUMBRANCES
8
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
(a) The Seller and the Guarantors declare that the Business as well as
all the elements composing it, are subject to no registered lien, pledge, charge
or encumbrance whatsoever, save for the following liens recorded on the
certificate of liens delivered by the Commercial Court of Paris and attached
hereto as Annex 9.3 :
- Lien recorded by Loxxia Bail (19 place Xxxxxxx Xxxxxx, 75740 Paris
Cedex 15) on December 16, 1999 for a car VP Volkswagen golf,
- Lien recorded by Loxxia Bail (19 place Etienne Pernet, 75747 Paris
Cedex 15) on March 7, 2000 for a car VP Mercedes Type ML 320 AS,
- Lien recorded by Loxxia Bail (19 place Etienne Pernet, 75747 Paris
Cedex 15) on March 15, 2000 for a car VP Volkswagen golf,
- Lien recorded by Loxxia Bail Slibail (106 rue des Trois Fontanot,
92751 Nanterre Cedex) on April 12, 2001 for a car VP Audi Ambition
Serie,
- Lien recorded by Loxxia Bail Slibail (106 xxx xxx Xxxxx Xxxxxxxx,
00000 Nanterre Cedex) on September 25, 2001 for a car VP Audi A3.
(b) Unless otherwise agreed in writing by the Buyer, none of the assets
subject to liens, pledges or other encumbrances (including but not limited to
those set forth above) shall be transferred to the Buyer, and the Seller shall
be solely responsible for satisfying all obligations in connection with such
assets and for having lifted all liens, pledges and other encumbrances.
(c) Neither the Guarantors nor any other shareholder, director or officer
(mandataire social) of the Seller, nor any company or entity owned or controlled
by a shareholder of the Seller holds title to, or possession of, assets which
might be necessary to the operation of the Business.
9.4. ACCOUNTING BOOKS AND RECORDS
The accounting books and records inspected and initialled before the Transfer
Date by the Parties without the presence of the preparer of this Agreement and
relating to the last three (3) fiscal years of the Business have been duly and
properly kept and accurately reflect the Business. Such books and records shall
be available to the Buyer, with the related supporting documentation, for three
years from the Transfer Date.
9.5 CONSTITUTION; AUTHORIZATION; COMPLIANCE WITH LEGAL PROVISIONS
(a) The Seller is a corporation (societe anonyme) duly constituted and
validly existing and in good standing since its formation and has all requisite
power and authority to own, manage, use, and dispose of its properties and the
assets relating to the Business. The Seller is current with respect to the
filing of its tax returns and the payment of all taxes and social charges of any
kind whatsoever, charges. The Seller and the Guarantors have all requisite power
9
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
and authority to enter into this Agreement and perform the transactions
contemplated hereby, and the Seller's Board of Directors has approved this
Agreement. The Seller and Guarantors warrant to the Buyer that none of them
requires any authorization of a French public authority for the signature and
performance of this Agreement and that the signature and performance of this
Agreement is not contrary to the by-laws of the Seller, any applicable legal
provision or any undertaking of the Seller or Guarantors, whether oral or
written. This Agreement has been duly and validly made by the Seller and the
Guarantors and is valid and binding on them.
(b) The Seller has never been and is not on the Transfer Date, subject to
any claim of invalidity or in liquidation, or any bankruptcy, reorganization, or
liquidation proceeding, or the equivalent. The Seller is not undergoing a period
of difficulties ("periode suspecte").
(c) The transfer of the Business will not affect in any manner whatsoever
the perpetuity and the good standing of the Seller. The Seller undertakes not to
propose to its shareholders to vote in favor of the voluntary dissolution or
liquidation of the Seller for a period of one year as from the Transfer Date,
and the Guarantors undertake not to vote in favor of any such resolutions in the
event they are proposed notwithstanding this provision. The foregoing shall not
apply to a "transmission universelle de patrimoine", merger or other transaction
with a subsidiary or affiliate of DDB in which the surviving entity assumes the
obligations of the Seller under this Agreement.
9.6 SHARE CAPITAL
The Seller`s share capital to date is Euros 50,000; it is divided into 5,000
shares with a par value of Euros 10 distributed between the shareholders of the
Seller in the proportions set out in Annex 9.6 hereto. These shares constitute
the totality of the Seller's share capital and carry an entitlement to the
exercise of the totality of the Company's voting rights. There are no warrants
or options or other rights of any kind entitling any person or entity to
subscribe to additional shares or other securities of the Seller.
9.7 ACTIVITY OF THE SELLER
The Seller has full capacity to carry out the activities and to own and use the
assets and property owned or used by it in connection with the Business. The
Seller is duly authorised to carry out the activities relating to the Business
in all the places where they are currently carrying out such activities and
possess all powers necessary to that effect.
The products distributed and the services provided by the Seller in connection
with the Business are in conformity with legislation and regulation applicable
to them and do not have any fault or defect whatsoever. The Seller has not
10
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
given any contractual warranties in relation to its products or services which
exceeds warranties normally given in the profession. .
9.8 ACCOUNTS
The annual accounts (such as defined by Article L123-12 of the Code de Commerce)
of the Seller for the period ended December 31, 2002 (the "ANNUAL ACCOUNTS") set
out in Annex 9.8 of the Agreement:
(i) have been established in accordance with the accounting principles and
methods described in the annex to the Annual Accounts and, with regard to
questions not treated by these principles and methods, in conformity with
accounting principles generally accepted in France; these were applied
respecting the principles of continuity of operations and consistency of
methods (the "ACCOUNTING PRINCIPLES");
(ii) reflect, with regard to the Accounting Principles, in a truthful, orderly
and sincere manner, the financial situation of the Seller as at December
31, 2002.
The Seller has made adequate provisions in the Annual Accounts in application of
the Accounting Principles.
9.9 CONTRACTS AND AGREEMENTS
(a) The Buyer shall have no liability or obligation in connection with any
contract or agreement, or any other written or oral commitments of any kind,
except for liabilities arising under the Transferred Contracts for the period
beginning after the Transfer Date. There are not any contracts or agreements, or
any other written or oral commitments of any kind, that are necessary or useful
for operation of the Business,
(b) The Transferred Contracts have been entered into by the Seller in the
ordinary course of business.
(c) The Seller is not in default with respect to the Transferred Contracts
and has not breached any material obligation under a Contract except as regards
provisions concerning the consent to assignment, but without prejudice to the
provisions of Article 7.4. None of the other parties to the assigned Transferred
Contracts is in default, and the Seller has not received any written notice
(mise en demeure) relating to any event of default in connection with the
Transferred Contracts. The Seller represents that the sale of the Business and
the Transferred Contracts will not give any supplier, customer, distributor,
financial institution, or other person any right to terminate the Transferred
Contracts binding it with the Seller, to claim any benefit of any kind, or to
cause any damage to the Business.
11
XXXX ET ASSOCIES
FINAL XXXXX 00, 0000
(x) The Seller has not entered into an agreement or undertaken any
obligation whatsoever (notably an agreement to hire, maintain, employment,
investment or restoration) in particular in order to obtain bonuses, subsidies,
favourable loans or any administrative authorisation whatsoever.
(e) None of the Transferred Contracts involve an administrative
authorisation the validity of which, in whole or in part, and/or the terms and
conditions of which would be likely to be affected by the sale of the Business
or any of the assets relating to the Business, except for the Transferred
Contract with the French Ministry of Culture.
(f) The Seller has not received any notices of non-renewal of maintenance
agreements representing together 10% or more of annual maintenance revenues and
is not aware of any that are likely not to be renewed.
(g) All of the Transferred Contracts provide for the following clauses:
(A) repair or replacement as exclusive remedy for defects or faults; (B)
exclusion of indirect damages; and (C) a cap on vendor liability to the amount
paid by the customer under the Transferred Contract;
(h) None of the Transferred Contracts contain any of the following
clauses: (A) transfer of any ownership of Intellectual Property Rights; (B)
access to software source code; (C) commitments to supply custom enhancements,
upgrades or other software in the future; (D) commitments as to future pricing
and product availability
9.10 EQUIPMENT AND TANGIBLE ASSETS
All equipment and other tangible assets used for operation of the Business are
in good operating condition and proper repair and are not subject to any claim.
9.11 INTELLECTUAL PROPERTY RIGHTS
(a) The Seller has an absolute, valid and exclusive right either directly
or as a licensee for the use of all literary, artistic or industrial proprietary
rights, in particular software, patterns, know-how, trade marks, trade secrets,
Internet domain names and Internet web sites, designs and models, droits
d'auteur, copyright, and/or all other rights over software (including all
software under development), software packages, software development tools,
products, designs and models, designs and all other works whatsoever of whatever
type, nature or medium, including all related rights and including but not
limited to the world-wide rights of distribution, publication, adaptation,
development and integration, translation in all languages and computer software
languages disclosure and reproduction on all media which the Seller uses,
develops or commercialises in the context of the Business exploitation (the
"INTELLECTUAL PROPERTY RIGHTS"), and all of the foregoing shall be transferred
to the Buyer on
12
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
the Transfer Date for the entire duration of the legal protection of the
Intellectual Property Rights.
(b) The list of the Intellectual Property Rights described above which are
the only Intellectual Property Rights used, developed or commercialised by the
Seller in the context of the Business, is provided at Annex 2.1.3 (a) hereto in
respect of those Intellectual Property Rights which are wholly and directly
owned by the Seller and at Annex 2.1.3 (b) in respect of those Intellectual
Property Rights which are used by the Seller on the basis of a license, apart
from the low-priced software commonly used (for example: word processing
software).
(c) The Seller has the exclusive ownership of the Intellectual Property
Rights set out Annex 2.1.3 (a) which are freely transferable with the Business
in connection with the sale provided for hereby.
(d) The consultants and the Employees have validly transferred to the
Seller all Intellectual Property Rights in the context of their relation with
the Seller. All agreements entered into between the Seller and independent
service providers include the necessary provisions in order for the Intellectual
Property Rights to be automatically transferred to the works carried out by such
service providers, without the Seller owing any additional remuneration to the
employee in addition to the service provider's normal remuneration.
(e) The Seller has not granted an option, license, right to use or
exploit, or any other right whatsoever whether for free or for consideration,
over the Intellectual Property Rights with the exception of customers benefiting
from a license to use and partners to which licenses for the exploitation,
distribution and/or technical integration have been granted.
(f) The Seller has never infringed or misappropriated in any form
whatsoever, patents, patterns, trade marks, copyrights or other intellectual
property rights of any kind whatsoever belonging to third parties. The use of
the Intellectual Property Rights do not infringe or violate the rights of any
third party.
(g) All the Employment Agreements contain the provisions necessary to
automatically transfer the Intellectual Property Rights in the works carried out
by such Employees, without the Seller owing any remuneration in addition to the
normal salary with regard to the employee. The Employment Agreements ensure the
transfer of the Intellectual Property Rights to the works carried out by the
said employees whether these be in particular (i) carried out alone or in
common, (ii) related to the subject of the Employment Agreements or in relation
to the products or projects of the Business, or (iii) carried out by involving
working hours, equipment or premises of the Business.
13
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
(h) The Seller is not informed of the fact that the Employees have an
obligation pursuant to any contract, agreement or judicial or arbitral decision
in contradiction with their obligations as regards the Business.
(i) The Seller has taken all necessary steps to maintain the
confidentiality of all information and Intellectual Property Rights that is not
intended to be disclosed to third parties, including but not limited to all
software source code, customer lists, and other trade secrets and the Seller
knows of no unauthorized disclosures of its confidential or proprietary
information.
(j) There is not any third-party software embedded in any of the software
marketed by the Seller.
9.12 EMPLOYEES
(a) There are no other employees than those that are set out at Annex 3A.
(b) Except for Xx. Xxxxxx Xxxxxxx and except as described in paragraph 50
of the April 8 Memorandum with respect to Xx. Xxxxxxx and two other employees,
the employment agreements of the Employees (the "EMPLOYMENT AGREEMENTS") contain
no provisions which derogate from any and all legal and regulatory provisions
and from the applicable collective bargaining agreement, especially with respect
to notice period for termination, the amount of severance indemnities, pensions,
retirement or other benefits. With respect to the pension benefits mentioned in
paragraph 50 of the April 8 Memorandum, the Buyer shall have the benefit of any
retirement/pension assets paid in respect of the relevant employees. The Seller
is not a party, and is not subject to, the provisions of any plan or agreement
relating to options, bonuses, share purchases, severance indemnities,
supplemental retirement, life insurance, or providing for profit sharing or
profit participation (interessement) like a typical profit sharing plan (plan
d'interessement). No Employee working for the Seller in connection with the
operation of the Business has suffered any accident at work and no legal
proceedings related to work accidents are pending or on appeal. All salaries,
commissions or other compensation and expense reimbursements due to officers
(mandataires) and Employees of the Seller on the Transfer Date have been duly
and completely paid. The Seller has not employed, in connection with the
operation of the Business, any employee, officer, or advisor:
(i) who would have a right to claim the status of sales representative
("VRP") or commercial agent, except for Mr.Bru, who represents the
Seller in Belgium. In this regard the Seller certifies that no
distributor is in a position to claim any indemnity of any kind
during the term of, or upon termination of, its business
relationship with the Buyer; or
14
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
(ii) who is compensated proportionally to profits of the Business, or who
is entitled to a pension or other benefit upon retirement.
(c) Except as set forth in this Article 9.12(c), the Seller has respected
and is currently in compliance with all provisions of French law with respect to
employee matters (including but not limited with respect to worker health and
safety, overtime, working hours, employee representatives, calculation of
vacation pay and other benefits, immigrant and foreign workers, and
discrimination and harrassment). The Seller has not notified all employees of
the terms of its implementation of the 35-hour work week; provided, this
disclosure is for information only and the Seller and Guarantors shall remain
liable to the Buyer for such non-compliance as set forth in Article 10.
(d) Since December 31, 2002, the Seller has not increased or decided to
increase the remuneration or benefits of any of the Employees.
(e) No employee has indicated, in writing or orally, that he or she
intends to resign from the Seller.
(f) All primes de vacances (vacation bonuses) required by the applicable
collective bargaining agreement in respect of the period prior to the Transfer
Date shall have either been paid by the Seller or, if not, shall be reimbursed
by the Seller to the Buyer in the event of any claims by employees for payment
of such vacation bonuses.
9.13 ONGOING DISPUTES
(a) Except as set forth on Annex 9.13, there are no enquiry, legal action,
arbitration, administrative or governmental enquiry against or concerning the
Business ongoing or foreseeable, which could unfavourably affect the financial
situation, the results or the activities of the Business, and there is no legal,
arbitral, administrative or other decision or agreement of whatever nature which
could affect the financial situation, the results or the activities of the
Business. Notwithstanding disclosures on Annex 9.13, the Buyer shall assume no
liability for any matters covered by this Article 9.13, and the Seller shall
continue to defend such matters at its sole expense and hold harmless the Buyer
from any liability arising therefrom.
(b) The Seller is not pursued for a criminal offence and has no knowledge
of circumstances likely to lead to the commission of such an offence, legal
action or proceedings of any nature whatsoever.
9.14 OBSERVANCE OF LAW AND REGULATIONS
15
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
(a) All agreements, authorisations, approvals and permits necessary for
the exercise of the Business's activities have been obtained and are currently
in force and the activities of the Business have been and are carried out in
conformity with the said agreements, authorisations, approvals and permits.
(b) No procedure whatsoever has been commenced which could have as a
consequence the revocation, suspension or modification of one of the agreements,
authorisations, approvals and permits referred to above and there is no threat
of such a procedure.
(c) The Seller has respected and respect all laws, regulations or
prescriptions of any administrative organisation or authority which have applied
or apply to the Business.
9.15 INTERIM PERIOD - MANAGEMENT
Between December 31, 2002 and the Transfer Date, the Seller has undertaken no
action and has taken no decision which has not been brought to the attention of
the Buyer in writing and which would be likely to lead to:
- a significant change to the financial or commercial situation and
the activities of the Business, or its running and, in particular,
the net loss of clients representing more than twenty-five thousand
(25,000) Euros in annual revenues or a significant reduction of
sales made ordinarily to any given client;
- any damage, destruction or loss (whether insured against or not) or
any other event which affect or may affect unfavourably the
activities of the Business or the waiver of any right whatsoever of
a substantial value and, in particular, the reduction and value of
an asset of the Business other than by way of depreciation;
- except in the ordinary course of business, a transfer of any assets
of the Business whatsoever, likely to affect the continuity of its
activities;
- a change in the remuneration of the Employees other than a change
resulting from the application of laws, regulations and agreements
in force concerning the particular personal sector;
- the dismissal of an Employee with the exception of those made in the
normal course of business;
- a recruitment for which the annual amount of remuneration (gross)
would be in excess of fifty thousand (50,000) Euros;
- a change in accounting methods or practices adopted by the Seller;
- incurring any indebtedness for borrowed money except with the
Guarantor;
- any bad or doubtful debts in excess of fifty thousand (50,000)
Euros;
16
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
- a labour unrest, strike or other event or situation in respect of
the social climate which could affect or would ultimately affect in
an unfavourable way the assets, activities or perspectives of the
Business;
9.16 CONDUCT OF BUSINESS
Between the date of signing of this Agreement and the Transfer Date, the Seller
undertake to operate the Business in the ordinary course of business, consistent
with past practices.
9.17 ACCURACY OF DISCLOSURES
The representations and warranties made and information given by the Seller and
the Guarantors in this Agreement and/or annexes thereto are accurate, complete,
correct and made in good faith, without misleading information and do not omit
any information, which, if known, would have been important for the drafting of
this Agreement or would have made misleading all or part of representations
contained herein. Moreover, the Information Memorandum and the document entitled
"Marketic SA - Finance, Legal and HR Matters dated April 8, 2003 (the "APRIL 8
MEMORANDUM"), both as attached hereto as Exhibit 9.17 are accurate, complete,
correct and made in good faith, without misleading information and do not omit
any information, which, if known, would have been important for the drafting
thereof or would have made misleading all or part of the information contained
therein.
None of the representations and warranties in this Agreement shall be limited or
affected in any way by any due diligence examinations carried out by or on
behalf of the Buyer.
ARTICLE 10 - INDEMNIFICATION
10.1 SCOPE OF THE INDEMNIFICATION
In addition to any legal warranties which might be applicable, the Seller and
the Guarantors, agree and commit themselves, irrevocably to indemnify the Buyer
against all costs, damages, losses, increase in charges or liabilities, or
decrease in assets of the Business originating prior to the Transfer Date:
(i) relating to a fact or event not disclosed to the Buyer in the
representations and warranties made by the Seller or Guarantors herein, or
an inaccuracy or omission in such representations and warranties, or
17
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
(ii) resulting from the violation of any obligation undertaken by the Seller or
Guarantors herein, or
(iii) resulting from any dispute, litigation, or claim of any kind related to
either provisions of Article 10.1 (i) or provisions of Article 10.2 (ii).
The undertaking and the obligation of the Guarantors and the Seller under this
Article 10 are made jointly and severally (conjointement et solidairement).
Any costs, damages, losses, increase in charges or liabilities, or decrease in
assets shall be assessed after the benefits of any income tax deductions in
respect thereof to which the Buyer is entitled during the same period in which
such costs, damages, losses, increases or decreases are incurred. However, tax
deductions that result simply in an increase in tax-loss carryforwards shall not
be taken into account.
10.2 LIMITATION OF THE INDEMNIFICATION
The Seller's and the Guarantors' obligation to indemnify the Buyer under this
Agreement shall be limited to an amount equal to the Sale Price.
The Seller's and the Guarantors' obligation to indemnify does not apply to the
extent that the total amounts due to the Buyer as a result of the exercise of
this warranty will exceed an amount equal to, in the aggregate, Euros 50,000
(fifty thousand), such amount representing a de minimis threshold for payment
but not a starting point; thus when this amount has been reached, all sums are
due from the first Euro.
10.3 DURATION AND PROCEDURE OF THE WARRANTY
The term of this indemnification given hereby by the Seller and the Guarantors
to the Buyer, shall be for the applicable limitations period, to the extent it
involves inaccuracies in the "mentions legales" contained herein, and for three
(3) years from the Transfer Date for all other representations, statements, or
warranties. However, with respect to tax and social insurance matters, this
undertaking shall remain in effect until ninety (90) days following expiration
of the applicable statute of limitations.
Any claim made under this Article 10 shall be notified in writing to the Seller
and the Guarantors no later than forty-five (45) days after expiration of this
undertaking, or the applicable limitations period, as the case may be. The
Seller and the Guarantors shall be entitled to participate, at their own
expense, in the defense of any proceedings brought by third parties that are
covered by the terms of this indemnification.
18
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
The indemnity due, by virtue of this Article 10, has to be paid to the Buyer
within fifteen (15) days of the receipt by the Seller and the Guarantors of the
above notification or, if applicable, the court decision rendering such
indemnity due and payable.
Any delay by the Guarantors and/or the Seller to fulfil a financial obligation
resulting from the exercise of this present warranty will oblige the Guarantors
and/or the Seller to pay to the Buyer interest for such delay calculated pro
rata temporis, at a rate equal to the official interest rate increased by two
(2) points commencing on the date fixed for payment until the date of effective
payment and on the basis of a year of three hundred and sixty (360) days.
ARTICLE 11 - INFORMATION AND ATTESTATION OF ACCURACY
The Parties acknowledge having been advised of the penalties applicable in cases
of insufficient or hidden prices and false attestations of accuracy. The Parties
confirm, subject to the penalties provided under Article 1837 of the General Tax
Code, that this Agreement sets forth the entire agreed price.
ARTICLE 12 - TAXES, CONTRIBUTIONS, AND CHARGES: PAYMENT
12.1 The Buyer shall pay and satisfy all taxes, contributions, and other
charges of any kind relating to the operation of the Business as from the
Transfer Date and relating to the period following the Transfer Date. To the
extent such taxes, contributions, and charges are paid by the Seller, the Buyer
shall reimburse it for the amount thereof prorata temporis with respect to the
period satisfied by the Seller after the Transfer Date, upon receipt of a
statement setting forth the amount of such taxes, contributions, and charges.
12.2. The Seller shall also pay and satisfy all taxes, contributions, and other
charges of any kind relating to operation of the Business with respect to the
period prior to the Transfer Date, regardless of whether such taxes,
contributions, and charges become due and payable before or after the Transfer
Date. Specifically, and in application of the foregoing, the Buyer shall
reimburse to the Seller its pro rata share of the taxe professionnelle in
respect of calendar year 2003, and the Seller shall provide proof of payment of
such tax.
12.3 The Seller shall reimburse the Buyer, upon the latter's demand, upon
presentation of supporting documentation, for all taxes, contributions, and
other taxes payable with respect to the Business, but not paid on the date
hereof by the Seller which the Buyer may pay for the Seller's account.
19
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
ARTICLE 13 - NON-COMPETITION
Each of the Seller and DDB undertake and agree, with respect to the Buyer, for a
period of (5) five years as from the Transfer Date:
a. not to undertake, either directly or indirectly, in any form whatsoever an
activity which is similar to, or liable to compete, either directly or
indirectly, with the Business as conducted or proposed to be conducted at
the Transfer Date, and
b. not to disclose to any third party a list of customers or any other
confidential information with respect to the Business,
c. not to solicit the employment, or employ, any employee or independent
contractor of the Business.
In general, each of the Seller and DDB also undertake with respect to the Buyer
not to create or to acquire an interest in any structure having activities which
are the same as those of the Business.
Nothing in this Article 13 shall be interpreted as a requirement that the Seller
modify its corporate purpose (objet social) as set forth in its bylaws
(statuts).
Each of the Seller and DDB recognises that the non-competition obligation
contained in this Article is an essential and determinant condition for the
Buyer to enter into and execute this Agreement.
ARTICLE 14 - GOVERNING LAW - VENUE
This Agreement shall be governed by French law. Any dispute relating to its
construction, validity, or performance shall be referred to the Tribunal de
Commerce de Paris (Paris Commercial Court).
ARTICLE 15 - AUTHORIZATION AND FORMALITIES
Authorization is hereby given to a bearer of an original hereof to carry out all
registration and filing and publication formalities required by law.
ARTICLE 16 - CHALLENGES
The Parties hereby elect their domicile to receive service of all challenges at
the offices of the Seller, 00 xxx Xxxxx Xxxxxxxxx, which will promptly advise
the Buyer of any challenges of which it receives a notice.
20
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
ARTICLE 17 - NOTICES
Any notices or communications made pursuant to this Agreement has to be made in
writing and will be considered duly made in respect of the Parties, (i) the day
following receipt of notice subject to confirmation by fax transmission receipt,
in the event that said notice has been made by telefax to the telefax numbers
set out below or, (ii) four (4) working days after receipt of the notice sent by
registered post with acknowledgement of receipt, by Federal Express or similar
means, sent as follows to their respective addresses set forth on the first page
of this Agreement .
ARTICLE 18 - REGISTRATION FEES - EXPENSES
18.1 All registration fees relating to this Agreement and the transactions
contemplated hereby shall be borne by the Buyer. The Buyer shall be responsible
for registering this Agreement within the period required by law.
18.2 All costs, fees and expenses (including attorneys' fees) incurred by the
Buyer in enforcing the indemnification provisions or other obligations of Seller
or Guarantors shall be borne by the Seller and Guarantor, jointly and severally.
18.3 All other costs, fees, and expenses hereof incurred by any Party shall be
borne by such Party.
ARTICLE 19 - CONFIDENTIALITY - PRESS RELEASE
Except as required by applicable law, the Parties shall not disclose the terms
of this Agreement or publish any press releases or other public communications
with respect to this Agreement unless mutually agreed with the other Parties.
Signed in three (3) originals,
in Paris
on April 24, 2003.
This Agreement shall be initially signed in the English language. The parties
agree to sign, prior to the Transfer Date, a French version of this Agreement,
which upon signature shall replace and prevail over the English version so that
it is the sole effective version of this Agreement and which shall be identical
to the English version except that UNICA SAS may replace UNICA CORPORATION as
the signatory.
21
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
/s/ Xxxx-Xxxxxx Seguret /s/ Xxxxxxx Xxxxx
__________________________________ _________________________________
Marketic S.A., by UNICA, by
Xxxx-Xxxxxx Seguret Xxxxxxx Xxxxx
/s/ Xxxx-Xxxxxx Seguret
__________________________________
DDB France Communication, by
Xxxx-Xxxxxx Seguret
/s/ Xxxxxx Xxxxxxx
__________________________________
Xx. Xxxxxx Xxxxxxx
22
XXXX ET ASSOCIES
FINAL APRIL 24, 2003
LIST OF ANNEXES
Annex 2.1.1 Customer list
Annex 2.1.2 List of portfolio of prospective clients
Annex 2.1.3 (a) List of all Intellectual Property Rights owned by the Seller
Annex 2.1.3 (b) List of all Intellectual Property Rights used by the Seller
Annex 2.1.4 List of Software Products
Annex 2.2 List of tangible assets
Annex 3A List of employees
Annex 4 List of the Transferred Contracts
Annex 5 Sub-lease agreement to be entered into between the
Guarantor and the Buyer on the Transfer Date
Annex 9.3 Certificate of liens delivered by the Commercial Court of Paris
Annex 9.6 Description of the Seller's share capital
Annex 9.8 Annual Accounts
Annex 9.13 Ongoing disputes
Annex 9.17 Information Memorandum and Finance, Legal, HR Report
23
