EXHIBIT 2.1
File No
From 22. 02. 2000
Deed Roll No.
NOTARIAL DEED
SHARE PURCHASE AGREEMENT
Today this twenty second day of February 2000
appeared before me, the undersigned notary public; ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
at my office in ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇:
1. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ 37, 82049 Pullach, here acting in
his own name,
2. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇, here acting in
his own name,
3. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, Tsingtauerstr. 24, 81827 Munchen, stating not to act
in his own name, but as managing director of
Onyx CSN Computer Holding GmbH, ▇▇▇▇▇▇-▇▇▇▇▇▇-Ring 29, 81929 Munchen.
After inspection of the commercial register of the lower court of
Munich HRB Nr. 129534, I, notary hereby confirm that ▇▇. ▇▇▇▇▇ as
managing director has power to act singly for Onyx CSN Computer
Holding GmbH.
4. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇. W., Seattle WA 98199, USA, stating not to
act in his own name but on behalf of
STOCK PURCHASE AGREEMENT Page 1
ONYX Software Corporation, ▇▇▇▇ ▇▇▇/▇▇/ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, U.S.A., in his capacity as duly authorized
Assistant Secretary and General Counsel.
▇▇. ▇▇▇▇▇▇ is acting in this capacity according to his oral
statement. A written confirmation of this is not produced. All other
parties accept this and require no further proof.
5. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Attorney at Law,
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ is personally known to me.
The other persons appearing proved their identity by presenting their
official identity card. The persons appearing requested notarization in
English. They stated that they have sufficient command of, and are
proficient in, the English language. The notary public, who himself is
proficient in English ensured, by way of a personal conversation, that the
persons appearing are sufficiently proficient in English. The persons
appearing were advised of their right to have this deed be translated by a
sworn translator. They expressly waived such right.
Schedule 2.8 was read in the german language and translated by ▇▇.
▇▇▇▇▇▇▇▇▇ into the english language. A written translation was waived.
The persons appearing request notarization of the following
STOCK PURCHASE AGREEMENT Page 2
SHARE PURCHASE AGREEMENT
By and between
1. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ 37, 82049 Pullach
- hereinafter "Shareholder 1" -
2. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇
- hereinafter "Shareholder 2" -
-Shareholder 1 and Shareholder 2 are hereinafter referred to jointly as the
"Shareholders" -
3. ONYX CSN Computer Holding GmbH, ▇▇▇▇▇▇-▇▇▇▇▇▇-Ring 29, 81929
Munchen.
- hereinafter the "Acquiror" -
Preamble:
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1. CSN Computer Consulting GmbH (hereinafter "CSN GmbH") with its
registered seat in Munich is registered with the commercial register
of the Lower Court Munich under HR B 89940. The share capital of CSN
GmbH amounts to DM 50,000 which is fully paid in. Shareholder 1 owns
one share in CSN GmbH in the nominal amount of DM 35,000 ("Target
Share 1"). Shareholder 2 owns one share in CSN GmbH in the nominal
amount of DM 15,000 ("Target Share 2") (Target Share 1 and Target
Share 2 are hereinafter referred to jointly as the "Target Shares").
The Target Shares are not encumbered with any third party right. CSN
GmbH does not hold any participations in other companies. Shareholder
1 and Shareholder 2 are the sole managing directors of CSN GmbH.
2. The purpose of CSN GmbH is to conduct business in the field of
the economic consultation of companies as well as the consultation in
the field of computer solutions, in particular, the development and
the realization of concepts for modern EDP solutions, EDP
consultation, the performance of workshops, training sessions and
information meetings as well as the conception, installation and
maintenance of local networks.
STOCK PURCHASE AGREEMENT Page 3
3. The Acquiror was established with notarial deed of the deputy
notary public ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, notaries public Prof. ▇▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, Munich dated January 24, 2000
(deed roll no. S0217/2000) and is registered with the commercial
register of the Lower Court Munich under HR B 129534. ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
is entitled to represent the Acquiror with his sole signature.
4. The Acquiror is fully owned by Onyx Software Corporation, a
company duly organized and existing under the laws of the State of
Washington with its registered office in Bellevue, Washington (USA)
(hereinafter "Onyx"). The authorized stock of Onyx consists of
40,000,000 shares of Onyx Common Stock of which 17,878,832 were issued
and outstanding as of January 31, 2000 and of 10,000,000 shares
preferred stock, of which no shares are outstanding. The Onyx Common
Stock is listed for trading on the Nasdaq national market. No
suspension of trading in the Onyx Common Stock is in effect and the
Onyx Common Stock meets the criteria for listing and trading on the
Nasdaq national market in the USA.
5. Onyx, by executing this Share Purchase Agreement, guarantees as
primary obligor ("selbstschuldnerischer ▇▇▇▇▇") the performance of any
and all of Aquiror's duties and obligations hereunder.
The Acquiror intends to acquire the Target Share 1 from the Shareholder 1
and the Target Share 2 from the Shareholder 2. With this Agreement the
parties want to lay down the terms and conditions for the acquisition of
the Target Shares by the Acquiror as well as regulate the common principles
for their future co-operation.
NOW, THEREFORE, the Parties agreed as follows:
STOCK PURCHASE AGREEMENT Page 4
ARTICLE I - PURCHASE AND SALE
1.1 Purchase and Sale
a. The Acquiror agrees to purchase the Target Share 1 from the
Shareholder 1, and the Shareholder 1 agrees to sell the Target Share 1
to the Acquiror.
b. The Acquiror agrees to purchase the Target Share 2 from the
Shareholder 2, and the Shareholder 2 agrees to sell the Target Share 2
to the Acquiror.
1.2. Assignment and Transfer of Target Shares
a. Shareholder 1 herewith assigns and transfers the Target Share 1
to the Acquiror. The Acquiror herewith accepts such assignment and
transfer.
b. Shareholder 2 herewith assigns and transfers the Target Share 2
to the Acquiror. The Acquiror herewith accepts such assignment and
transfer.
c. Title to Target Share 1 and Target Share 2 shall pass upon
fulfillment on the following conditions precedent ("aufschiebende
Bedingungen"):
(i) irrevocable arrival of Cash Consideration 1 in the bank
accounts of the Shareholders referred to in Subsection 1.3 (a);
(ii) delivery of the Onyx Shares as provided for in Subsection
1.3 (c); and
(iii) delivery of an effective bank guarantee according to
Subsection 1.3 (b).
The Shareholders shall confirm in writing fulfillment of the
conditions precedent to both the Acquiror and the Notary and such
confirmation shall be attached to this notarial deed.
STOCK PURCHASE AGREEMENT Page 5
d. With effect of January 1, 2000, (the "Key Date") the profit
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participation associated with the Target Shares shall be transferred
to the Acquiror. This applies also to all profits of CSN GmbH which
have been accrued as of the date of notarization of this Agreement
(the "Closing Date") but not
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been distributed to the Shareholders.
1.3 Consideration
The consideration for the entirety of the Target Shares (the "Purchase
--------
Price") amounts to DM 9,000,000 (in words ninemillion Deutschmarks) to be
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transferred free of charges and which shall be structured as follows:
a. Upon signing of this Agreement, the Acquiror shall pay to the
Shareholders for the Target Shares a first cash installment in the
amount of DM 2,250,000 (in words: twomilliontwohundredandfiftythousand
Deutschmarks) (the "Cash Consideration 1"). DM 1,575,000.00 (in
--------------------
words: onemillionfivehundredandseventyfivethousand Deutschmarks) shall
be paid to the bank account of Shareholder 1, account number
6040198634 routing code 70020270, with HypoVereinsbank. DM 675,000 (in
words: sixhundredandseventyfivethousand Deutschmarks) shall be paid to
the bank account of Shareholder 2, account number ▇▇▇▇▇▇▇▇, routing
code 70150000 with Stadtsparkasse Munchen.
b. The Acquiror shall pay to the Shareholders for the Target Shares
a second cash installment in the amount of DM 2,250,000 (in words:
twomilliontwohundredandfiftythousand Deutschmarks) (the "Cash
----
Consideration 2"). DM 1,575,000.00 (in words:onemillionfivehundred-
---------------
andseventyfivethousand Deutschmarks) shall be paid to the bank account
of Shareholder 1, account number 6040198634 routing code 70020270,
with HypoVereinsbank. DM 675,000 (in words:sixhundredandseventyfive
thousand Deutschmarks) shall be paid to the bank account of
Shareholder 2, account number ▇▇▇▇▇▇▇▇, routing code 70150000 with
Stadtsparkasse Munchen. The payment of the Cash Consideration 2
becomes due (i) on January 31, 2001 or (ii) upon the date on which the
Shareholders can demonstrate to the Acquiror that the payment of the
Cash Consideration 2 is necessary in order to fulfill a tax obligation
owed by the Shareholders as a result of this Agreement, whichever date
is earlier. In the event Shareholders request Cash Consideration 2
prior to January 31, 2001 they shall submit to Onyx in accordance with
Subsection 7.3 written proof by the Shareholders or confirmation in
writing by Shareholders' tax advisers of a current tax
STOCK PURCHASE AGREEMENT Page 6
obligation as contemplated herein. Upon receipt of such written
notice, Acquiror shall pay to Shareholders Cash Consideration 2 within
10 business days. In the event Acquiror fails to pay Cash
Consideration 2, the Shareholders shall notify Acquiror in writing of
such breach. Acquiror shall then have seven days from receipt of such
notice to cure such breach. Acquiror shall furnish a bank guarantee on
first request ("selbstschuldnerische Bankburgschaft auf erstes
Anfordern") of a German bank or a bank with a branch in Germany for
Cash Consideration 2 as set forth in Exhibit 1.
c. At the Closing Date the Acquiror shall transfer out of Onyx's
authorized share capital a number of shares of common stock, $.01 par
value per share, of Onyx Software Corporation listed on the Nasdaq
national market under the symbol ONXS (the "Onyx Common Stock"
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according to the sample handed over to each of the Shareholders, which
have been initialled by all parties equal to the agreed equivalent of
DM 4,500,000 in United States Dollars, amounting to 2,261,193 US$ (in
words:twomilliontwohundredandsixtyonethousandandonehundredandninety-
three United States dollars) (the "Onyx Shares"). Such number of Onyx
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Shares has been calculated using the average of the closing sales
prices of Onyx Common Stock on the Nasdaq national market on each
February 14, 15 and 16, 2000. The Shareholder 1 is entitled to
receiving 70 % of the Onyx Shares equaling 24,289
(twentyfourthousandtwohundredeightynine) Onyx Shares and the
Shareholder 2 is entitled to receiving 30 % of the Onyx Shares
equaling 10,410 (tenthousandfour
STOCK PURCHASE AGREEMENT Page 7
hundredandten) Onyx Shares. The Shareholders herewith agree, that they
shall receive 75% of their respective share certificates for the Onyx
Shares at the Closing Date and the remaining 25% of the share
certificates for the Onyx Shares shall be retained by Onyx pursuant to
the holdback provisions of Subsection 1.8.
1.4 Voting
The Onyx Shares shall be held by the Shareholders for all purposes
(including federal income tax purposes), and the Shareholders shall have
full right to vote the Onyx Shares on all matters coming before the
shareholders of Onyx.
1.5 Merger or Recapitalization
In the event of any merger or recapitalization or similar transaction
involving Onyx prior to the time when all Onyx Shares have been transferred
or released in accordance with this Agreement, any such Onyx Shares shall
be converted or exchanged in accordance with such transaction in the same
manner as other Onyx Common Stock, and any securities or property issued in
conversion or exchange thereof shall then be included within the definition
of Onyx Shares and shall otherwise become subject to this Agreement in lieu
of such shares of Onyx Common Stock.
1.6 Taxation of Dividends
For federal and state income tax purposes, any dividends or other
distributions with respect to the Onyx Shares shall be income of the
Shareholders.
1.7 Stock Split
Any Onyx Shares to which the Shareholders are entitled under this Agreement
shall be eligible for all results of any stock split or payment of a stock
dividend or other stock distribution in or on shares of Onyx Common Stock.
1.8 Holdback
a. As security for any guarantee claims of the Acquiror or Onyx, as the
case may be, Onyx shall retain 25% of each Shareholder's pro-rata
portion of the Onyx Shares. Specifically, 6072 shares of Onyx Common
Stock, represented by certificate number ONX 1108 (Shareholder 1) and
2602 shares of Onyx Common Stock, represented by certificate number
ONX 1109 (Shareholder 2)
STOCK PURCHASE AGREEMENT Page 8
shall be retained by Onyx. Together, these shares shall be called the
"Pledged Shares" and they shall be held by Onyx according to the
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following stipulations:
b. The Pledged Shares shall include any additional shares, dividends or
other payments to be received or made in the course of any stock
split, merger, or similar reorganization. The voting rights of the
Pledged Shares shall remain with the Shareholders.
c. Except as otherwise provided under this Subsection 1.8, Onyx is
obliged to transfer the Pledged Shares to the Shareholders two years
after the Closing Date.
d. If prior to the second anniversary of the Closing Date Acquiror
produces
(i) a written statement that a legal action for guarantee claims has
been filed and
(ii) a copy of the respective statement of claim stating the
registration number and receipt stamp ("Eingangsstempel") of the
Landgericht Munchen I,
then Onyx shall be entitled to hold back a number of the Pledged
Shares in the amount of the respective litigation values
("Streitwert") of the pending actions as stated on the statement of
claim (subject to any correction by the court). In order to translate
the litigation value into the corresponding value of Pledged Shares to
be held back, the officially stated closing stock exchange quotation
on the Nasdaq national exchange, converted at the DM/Euro : US $
conversion rate (as listed in the Wall Street Journal) for the date
of the filing of a respective action, shall be decisive.
e. In the event it is only necessary for Onyx to hold back a portion of
the Pledged Shares in order to satisfy a claim pursuant to Section
3.1, Onyx shall cause the Pledged Shares to be reissued as new stock
certificates of such smaller denominations in accordance with para.
(d) above. Onyx shall then be permitted to retain such number of
Pledged Shares to satisfy the claim and shall return the remainder of
the Pledged Shares to the Shareholders.
f. The Pledged Shares shall be delivered by ▇▇▇▇ to the winning party of
a law suit in relation to the respective pro-rata value as soon as one
of the parties produces a copy of a final judgement and/or Settlement.
"Settlement" shall mean a document signed by the Acquiror or Onyx as
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the case may be, and the
STOCK PURCHASE AGREEMENT Page 9
Shareholders, whereby the parties have reached agreement on the claim
in question.
g. Both parties agree that title to all Onyx shares including the Pledged
Shares shall pass to the Shareholders upon signing of this agreement.
Possession of the Pledge Shares shall remain with Onyx in the interest
of the Shareholders as defined in this Subsection 1.8.
h. In the event Onyx fails to deliver the Pledged Shares pursuant to
Subsection 1.8 (c) the Shareholders shall notify Onyx in writing of
such failure to deliver the Pledged Shares. If Onyx does not then
deliver the Pledged Shares within three (3) business days from receipt
of such notification, Shareholders shall be entitled to a contractual
fine ("Vertragsstrafe") in the amount of DM 100,000 without prejudice
to any additional damages claims resulting from such delay.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
The Shareholders herewith represent and warrant, each of them individually
and independent from each other, in the form of an independent guarantee
("selbstandiges Garantieversprechen") within the meaning of sec. 780, 781
German Civil Code to the Acquiror irrespective of the latter's knowledge or
negligent lack of knowledge that, except as expressly disclosed in this
Agreement or in Schedules to this Agreement (including any contracts or
other documents that are referenced in such Schedules and handed over to
Acquiror in two files receipt of which has been acknowledged by initialing
each page), as of the Closing Date the following statements are, complete
and correct:
2.1 Company Organization
a. The statements under Section 1 of the Preamble and Schedule 2.1 give
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an accurate picture on the corporate history and current status of CSN
GmbH (deed of establishment, list of deeds of share transfers, excerpt
from the commercial register etc.). Except for the agreements
disclosed in Schedule 2.1. no agreements exist between CSN GmbH and
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the Shareholders.
b. The Shareholders are the owners of the Target Shares which are fully
paid in, nonassessable ("keine NachschuBpflichten"), free and clear
of any encumbrances, restrictions or preemptive rights and no
repayment of
STOCK PURCHASE AGREEMENT Page 10
the share capital has been effected. No person other than the
Shareholders holds any interest in any of the Target Shares.
c. CSN GmbH does not own or control and has not in the past owned or
controlled, directly or indirectly, any equity or voting interest in
any joint venture, corporation, partnership, limited liability company
or other business entity and has no agreement or commitment to
purchase any such interest except for the agreement with Orderlink set
forth in Schedule 2.1 Nr. 25
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2.2 Financial Statements
The Shareholders have delivered to Acquiror in Schedule 2.2 (a) unaudited
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draft financial statements ("JahresabschluB") of CSN GmbH for the fiscal
year ended December 31, 1999 and unaudited financial statements and tax
returns of CSN GmbH as of and for the fiscal years ended December 31, 1998
and 1997 and (b) management accounts ("betriebswirtschaftliche Auswertung")
as of January 31, 2000. All the foregoing financial statements are herein
referred to as the "Company Financial Statements". The draft financial
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statements (not, however, the management accounts) of CSN GmbH as of
December 31, 1999 are herein referred to as the "Company Balance Sheet" and
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the management accounts of CSN GmbH as of January 31, 2000 are herein
referred to as the "Closing Balance Sheet." The Company Financial
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Statements fairly present the financial position and results of operations
of CSN GmbH as of the dates and for the periods indicated, in accordance
with the generally accepted accounting principles pursuant to the relevant
provisions of the German Commercial Code, consistently applied in
accordance with CSN GmbH's past practice, except for any deviations
therefrom that are disclosed on Schedule 2.2. CSN GmbH has no liabilities
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or obligations of any nature (absolute, contingent or otherwise) that are
not fully reflected or reserved against in the Company Balance Sheet,
except liabilities or obligations incurred since the date of the Company
Balance Sheet in the ordinary course of business and consistent with past
practice that are not in excess of DM 75,000 in the aggregate or DM 20,000
for each individual case. CSN GmbH maintains standard systems of accounting
that are adequate for its business. CSN GmbH is not a guarantor,
indemnitor, surety or other obligor of any indebtedness of any other
person. Based on the assumption of non-distribution of profits in the
Company Balance Sheet, CSN GmbH has an equity equipment within the meaning
of sec. 266 (3) (a) German Commercial Code as of December 31, 1999 in a
minimum amount of DM 364,331.97. For purposes of this equity equipment of
CSN GmbH sec. 269 German Commercial Code
STOCK PURCHASE AGREEMENT Page 11
(expenditures for start up and expanding the business) shall not be taken
into account.
2.3 Absence of Certain Changes or Events
Commencing January 1, 2000, CSN GmbH has not:
(a) taken any action or entered into or agreed to enter into any
transaction, agreement or commitment other than in the ordinary course
of business;
(b) forgiven or canceled any indebtedness or waived any claims or rights
of material value;
(c) granted any increase in the compensation of directors, officers,
employees or consultants except the raise of ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇'s
monthly salary from DM 6,750 to DM 7,500 effective as of January 1,
2000;
(d) suffered any change having a material ("wesentlich") adverse
effect on the CSN GmbH's business operations, assets, liabilities
(absolute, accrued, contingent or otherwise) condition (financial or
otherwise) or prospects. The sales forecast for the year 2000
("Auftrags-/Umsatzplanung") has been delivered as Schedule 2.3.;
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(e) knowingly permitted or allowed any of its property or assets (real,
personal or mixed, tangible or intangible) to be subjected to any
encumbrance;
(f) purchased or sold, transferred or otherwise disposed of any of its
material properties or assets (real, personal or mixed, tangible or
intangible);
(g) failed to protect any rights to the use of any trademark, trade name,
patent, copyright or confidential information of CSN GmbH in a manner
that CSN GmbH typically uses to protect such proprietary information
in the normal course of its business.
(h) made any capital expenditure or commitment ("Investitionen in das
Anlagevermogen oder Verpflichtungen dazu") in excess of DM 20,000
individually or DM 75,000 in the aggregate;
(i) made any change in any method of accounting or accounting practice or
internal control procedure;
Page 12
(j) issued any share capital or other securities, or declared, paid or set
aside ("Ruckstellung") for payment of any dividend or other
distribution in respect of its capital stock; or
(k) agreed, whether in writing or otherwise, to take any action described
in this Subsection 2.3.
2.4. Taxes
a. (Compliance with Tax Law): CSN GmbH (i) has timely filed or
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caused to be filed all tax returns, which returns are complete and
correct in all material respects, required to be filed prior to the
Closing Date by them with any tax or other governmental authority in
any jurisdiction, (ii) has paid prior to the Closing Date in full all
federal, state, local or foreign taxes, levy, fees, duties, fiscal and
social security or similar charges, including interest and penalties
thereon based on its income, capital, net worth, sales, employment,
business, imports, or assets (collectively, "Taxes") shown on such
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returns, or made adequate provision therefor, (iii) has made adequate
accrual ("Ruckstellung") on their books, in accordance with generally
accepted accounting principles under the provisions of the German
Commercial Code, of all Taxes that are or may become due but have not
yet been paid and (iv) is not engaged in any material dispute with any
tax or social security authorities.
b. (Tax Assessments): With the exception of fiscal year 1999, CSN
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GmbH`s corporate income tax returns have been assessed
("verbeschieden") by the respective tax authorities for all past
periods; all deficiencies asserted against CSN GmbH as a result of
such assessments have been paid or finally settled. There are no
audits pending of the tax returns filed by or on behalf of CSN GmbH.
c. (Books and Records): All accounts, books, financial and other records
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of CSN GmbH, including but not limited to, all deeds regarding CSN
GmbH and their business (the "Company Records") have been fully,
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properly and accurately maintained. Such Company Records are in the
possession of CSN GmbH to the extent applicable statutory retention
periods have not expired, and contain true and accurate records in all
material respects of all matters required by law and the local
accounting and bookkeeping practice. The Company Records do not
contain or reflect any material inaccuracies or discrepancies and
provide a fair view of the status of CSN GmbH.
Page 13
d. (Constructive dividends distribution): If since the foundation of CSN
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GmbH there have occurred any constructive dividends distributions
("verdeckte Gewinnausschuttungen") in CSN GmbH, the Shareholders will
be liable to the Acquiror to compensate for any resulting damages or
losses in accordance with the provisions of Article IV.
2.5 Real Property
a. CSN GmbH does not own any real property.
b. Schedule 2.5. sets forth a correct and complete list of all leases,
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subleases and other agreements under which CSN GmbH uses or occupies
or has the right to use or occupy, now or in the future, any real
property. Each lease is valid, binding and in full force and effect.
2.6. Assets
a. Schedule 2.6 contains a complete and accurate list of each item of
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personal property ("bewegliches Vermogen") having a value as of the
Closing Date in excess of DM 20,000 book value that is owned, leased,
rented or used by CSN GmbH (the "Personal Property"); provided that
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such list need not include the Technology (Subsection 2.11) or the
Intellectual Property (Subsection 2.10) to the extent these are
disclosed in other Schedules thereto. All Personal Property is in good
repair and usable condition.
b. Any personal property except for Intellectual Property (Subsection
2.10) and Technology (Subsection 2.11) is free of all encumbrances and
other third party rights except for any test equipment provided to CSN
GmbH by third parties. CSN GmbH has not granted any lease, sublease or
license of any portion of personal property, except in the ordinary
course of business.
2.7 Contracts to CSN GmbH by third partner
Unless already disclosed in Schedules 2.1 or 2.5, Schedule 2.7 contains a
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complete and accurate list of all contracts, oral or written, to which CSN
GmbH is currently a party or by which CSN GmbH is currently bound providing
for potential payments by or to CSN GmbH in excess of DM 75,000 for the
fiscal year 2000, including, without limitation, all leases, subleases,
rental agreements, contracts of sale, and all security agreements, license
agreements, software development agreements, distribution agreements, joint
venture agreements, reseller
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agreements, credit agreements and instruments relating to the borrowing of
money. Except as otherwise indicated in Schedule 2.7. and the documents
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referenced therein, all contracts set forth on Schedule 2.7. are binding
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and enforceable in accordance with their terms against each party thereto,
CSN GmbH has performed in all material respects all obligations imposed on
it thereunder. To the knowledge of CSN GmbH no other party to such
contracts is in default thereunder, and to CSN GmbH's knowledge there is no
event that with notice or lapse of time, or both, would constitute a
default by CSN GmbH. To CSN GmbH`s knowledge, no other party to one of the
agreements listed in Schedule 2.7. intends to terminate an agreement prior
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to the expiration of the agreed contractual period or short of the period
of ordinary notice.
2.8 Legal Proceedings
Except as set forth on Schedules 2.8., no claims have been raised
--------------
("geltendgemachte Anspruche"), and there are no law suits, arbitration
proceedings or investigations by a public authority pending. Except as set
forth on Schedules 2.8., to CSN GmbH's or each Shareholder's knowledge no
--------------
such claims, law suits, arbitration proceedings, investigations or
proceedings by a public authority are threatened by or against CSN GmbH
before or by any court or public authority or any other person. To the best
knowledge of CSN GmbH and the Shareholders there is no valid basis for any
such claim, suit, arbitration, proceeding or investigation. There are no
outstanding (unsatisfied) judgments or orders, to which CSN GmbH is a party
or by which it is bound. Schedule 2.8. and the documents referenced therein
-------------
set forth a description of any material disputes that have been settled or
resolved by litigation or arbitration since January 1, 1997.
2.9 Labor and Employment Matters
a. There are no labor disputes, pending or, to CSN GmbH's or each
Shareholder's knowledge, threatened against or involving CSN GmbH by
any of its present or former employees. CSN GmbH has complied with all
provisions of labor law including terms and conditions of employment
contracts. CSN GmbH is not engaged in any illegal labor practice and
has no liability for any arrears of wages or taxes or penalties for
failure to comply with any such provisions of law. There is no labor
strike, pending or, to CSN GmbH's and each Shareholder's knowledge,
threatened against or affecting CSN GmbH, and CSN GmbH has not
experienced any work stoppage or other labor difficulty since its
incorporation. No collective bargaining agreement is binding on CSN
GmbH. Neither CSN
Page 15
GmbH nor any Shareholder has knowledge of any organizational efforts
presently being made or threatened by or on behalf of any labor union
with respect to employees of CSN GmbH. Each employee, officer and
consultant of CSN GmbH has executed a nondisclosure agreement. To CSN
GmbH's and each Shareholder's knowledge, no employee (or person
performing similar functions) of CSN GmbH is in violation of any such
agreement or employment agreement, noncompetition agreement, invention
assignment agreement, proprietary information agreement or other
contract or agreement relating to the relationship of such employee
with CSN GmbH.
b. Schedule 2.9. (b) sets forth a true and complete list of all employees
-----------------
(excluding the managing directors) with information on salary and
pensions of employees, all group insurance programs in effect for
employees of CSN GmbH; the applicable termination period and the names
and current compensation packages of all independent contractors
("Subunternehmer") and consultants ("Berater") of CSN GmbH except for
professional advisers who are subject to termination without notice.
2.10 Intellectual Property
a. Ownership and Registration: Schedule 2.10. (a) contains a list of all
------------------
registered intellectual property including patents, utility patents,
trademarks, service marks, registered applications for any of the
foregoing in any country where a registration took place, and any
other similar registered intellectual property rights in other
jurisdictions (the "Registered Intellectual Property") owned by CSN
----------------------------------
GmbH. The Registered Intellectual Property and the know-how owned by
CSN GmbH as well as all copyrighted material and other technology,
including computer software, necessary for the operation of their
business as currently conducted are hereinafter together referred to
as the "Company Intellectual Property".
------------------------------
b. Schedule 2.10. (b) sets forth a list of all Internet domain names used
------------------
by CSN GmbH in its business (collectively, the "Domain Names"). CSN
------------
GmbH has a valid registration and all material rights (free of any
material restriction) in and to the Domain Names, including, without
limitation, all rights necessary to continue to conduct the CSN GmbH's
business as it is currently conducted.
c. Infringement of Rights of Third Parties: CSN GmbH has not infringed
----------------------------------------
and is not infringing the intellectual property of any third party
and CSN GmbH
Page 16
has not received any written notification alleging such infringement.
There is no outstanding claim against CSN GmbH for infringement of any
intellectual property of third parties.
d. Infringement or Challenge by Third Parties: To the best of the
-------------------------------------------
Shareholders` knowledge, the Company Intellectual Property has not
been and is not being infringed or challenged by any third party, and
CSN GmbH has not given any written notice alleging such infringement.
e. Proprietary Information: Neither CSN GmbH nor their employees have
------------------------
breached any confidentiality obligation to any third party which
breach has a material effect before, on or beyond the Closing Date.
f. Renewal Fees: Up to the Closing Date, all application and renewal
-------------
fees, costs and charges relating to the Company Intellectual Property
have been duly paid.
Page 17
2.11. Technology
a. CSN GmbH owns or has licensed and has all rights that are required
to conduct its business as now conducted in and to the following:
(a) all products, tools, computer programs, specifications, source
code, object code, graphics, devices, techniques, algorithms,
methods, processes, procedures, packaging, trade dress, formulas,
drawings, designs, improvements, discoveries, concepts, user
interfaces, "look and feel" software, development and other tools,
content, inventions (whether or not patentable or copyrightable and
whether or not reduced to practice), designs, logos, themes, know-
how, concepts and other technology that are now, or during the two
years prior to the Closing Date have been developed, produced, used,
marketed or sold by CSN GmbH (collectively, the "Technology-Related
------------------
Assets"); and (b) all intellectual property and other proprietary
------
rights ("Schutzrechte") in the Technology-Related Assets, including,
without limitation, all trade names, trademarks, domain names,
service marks, logos, brand names and other identifiers, trade
secrets, copyrights, and domestic and foreign letters patent, and
the registrations, applications, renewals, extensions and
continuations (in whole or in part) thereof.
b. Schedule 2.11.(b) sets forth a list of all products and
-----------------
tools developed or produced by CSN GmbH during the two years prior
to the Closing Date. Such items are, together with all prior
versions orpredecessors to such products or tools, called the
"Products". Such list need not contain any customer specific
--------
projects, products or tools. These items, however, shall be included
within the definition of Products. Except for the Third Party
Technologies (as defined in Subsection 2.11.(c)), CSN GmbH owns all
right, title and interest in and to the following (collectively, the
"Technology"), free and clear of all encumbrances: (a) the Products,
----------
together with any and all codes, techniques, software tools,
formats, designs, user interfaces, content and "look and feel"
related thereto; (b) any and all updates, enhancements
("Verbesserungen"), corrections, modifications and new releases
related to the items set forth in clause (a) of this Subsection; (c)
any and all technology and work in progress related to the items set
forth in clauses (a) and (b) of this Subsection; and (d) all
inventions, discoveries, processes, designs, trade secrets, know-how
and other confidential
Page 18
information related to the items set forth in clauses (a), (b) and (c)
of this Subsection 2.11(b). The Technology, excluding the Third Party
Technologies, is sometimes referred to herein as the "Company
-------
Technology."
----------
c. All Technology used in CSN GmbH's business for which CSN GmbH does not
own all right and title is herein called the "Third Party Technology".
----------------------
All license agreements or other contracts pursuant to which CSN GmbH
has the right to use the Third Party Technologies shall be referred to
as the "Third Party Licenses". CSN GmbH has the lawful right to use
--------------------
(free of any material restriction) (a) all Third Party Technology that
is incorporated in or used in the development or production of the
Company Technology, and (b) all other Third Party Technology necessary
for the conduct of the CSN GmbH's business as now conducted or as
presently proposed to be conducted. All Third Party Licenses are
valid, binding and in full force and effect, and to the best of CSN
GmbH's knowledge, each party thereto has performed in all material
respects their obligations thereunder. To the best of Shareholders'
knowledge, no event or circumstance has occurred that with notice or
lapse of time or both would constitute a default or event of default
on the part of CSN GmbH. To the best of Shareholders' knowledge, no
other party to such Third Party Licenses has the right to prematurely
terminate or modify any such license. CSN GmbH has not received notice
that any party to any Third Party License intends to cancel, terminate
or refuse to renew such Third Party License or to exercise or decline
to exercise any right thereunder.
d. Except as set forth on Schedule 2.11. (d), (a) CSN GmbH has not
------------------
disclosed any source code regarding the Technology to any person or
entity other than an employee of CSN GmbH under a written
nondisclosure agreement; (b) CSN GmbH has at all times maintained and
diligently enforced commercially reasonable procedures to protect all
confidential information relating to the Technology;
e. Except as set forth on Schedule 2.11.(e), the Technology is free from
-----------------
known material defects and substantially conforms to the applicable
specifications, documentation and samples of such Technology.
f. The Products (excluding all prior versions or predecessors) will
accurately process date data (including, but not limited to,
calculating, comparing and sequencing) from, into and between the
twentieth and twenty-first
Page 19
centuries, including, without limitation, leap year calculations,
without a material decrease in the functionality of the Products. The
Products are designed to be used prior to, during and after the
calendar year 2000 A.D. and will operate during each such time period
without error relating to date data, specifically including any error
relating to, or the product of, date data that represents or
references different centuries or more than one century and the
accurate display of such data. No customer of CSN GmbH has any claim
for non-compliance of the Products as relates to year-2000-
functionality.
2.12 Licenses and Permits
CSN GmbH possesses all public or administrative licenses permits and other
rights required by applicable law to continue its business as presently
conducted. CSN GmbH is in all material respects in compliance with all
terms and conditions of required permits and licenses, and is also in all
material respects in full compliance with all other limitations,
restrictions, conditions and timetables contained in those laws or
provisions or contained in any regulation, order (decree), judgment, or
demand letter issued, entered, promulgated ("verkundet") or approved
thereunder and applicable to CSN GmbH, necessary to continue their business
in its present scope.
2.13 Insurance
CSN GmbH has all insurances in place as represented on Schedule 2.13.
-------------
2.14 Brokers or Finders
CSN GmbH has not incurred, and will not incur, directly or indirectly, as a
result of any action taken by or on behalf of CSN GmbH, any liability for
brokerage or finders' fees or agents' commissions or any similar charges in
connection with this Agreement or any transaction contemplated hereby.
2.15 Bank Accounts
Schedule 2.15. sets forth the names and locations of all banks, and other
--------------
financial institutions at which CSN GmbH maintains safe deposit boxes or
accounts of any nature and the names of all persons authorized to draw on,
make withdrawals from or have access to those safety deposit boxes or
accounts.
Page 20
2.16 Full Disclosure
No information furnished by CSN GmbH to Onyx, Acquiror or their
representatives in connection with this Agreement (including, but not
limited to, the Company Financial Statements and all information disclosed
on the Schedules hereto) contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
so made or information so delivered not misleading.
ARTICLE III OBLIGATIONS AND WARRANTIES OF
SHAREHOLDERS RELATING TO ONYX STOCK
The Shareholders herewith represent and warrant, and each of them
individually and independent from each other, to Acquiror and to Onyx as
third party beneficiary that, except as expressly disclosed in this
Agreement or in the Exhibit to this Agreement, as follows:
3.1 Investment for Own Account
The Shareholders are acquiring the Onyx Shares for their own account, for
investment only and not with a view to resale or distribution.
3.2 Access and Information
The Shareholders have been given access to full and complete financial and
business information regarding Onyx and the Onyx Shares, including without
limitation, true and complete copies of its final prospectus dated February
11, 1999 with respect to its initial public offering, its Quarterly Reports
on Form 10-Q with respect to the quarters ended March 31, 1999, June 30,
1999 and September 30, 1999, all Current Reports on Form 8-K filed after
the date of the Prospectus and the press release dated January 31, 2000
with respect to certain financial results for the quarter and year ended
December 31, 1999; the Shareholders have utilized such access to his or her
satisfaction for the purpose of attaining information about the Onyx and
the Onyx Shares.
3.3 No Registration
The Shareholders acknowledge that the Onyx Shares have not been registered
under the United States Securities Act of 1933, as amended (the "Securities
----------
Act"), or any applicable state securities laws, and therefore constitute
---
"restricted securities" within the meaning of Rule 144 thereof, and that
the Onyx Shares
Page 21
may not be offered or sold in the United States or for the account or
benefit of U.S. persons (as described below) except in reliance on an
exclusion from such registration pursuant to Regulation S of the Securities
Act. The Shareholders acknowledge that Onyx has no obligation to register
the Onyx Shares under the Securities Act or any applicable state securities
law.
3.4 Transfer Restrictions
The Shareholders will not offer, sell or otherwise transfer any of the Onyx
Shares, directly or indirectly, except as permitted by the terms of the
Onyx Shares and unless (i) the disposition is to Onyx; (ii) the disposition
is made outside the United States in compliance with the requirements of
Rule 903 or Rule 904 of Regulation S, if available (or such successor rule
or regulation as then in effect); (iii) there is in effect a registration
statement under the Securities Act covering such proposed disposition and
such disposition is made in accordance with such registration statement;
(iv) the disposition complies in all respects with Rule 144 or Rule 145
under the Securities Act, or (v) in a transaction that does not require
registration under the Securities Act and any applicable state securities
laws and the Shareholders have, prior to such disposition, furnished to
Onyx an opinion of counsel of recognized standing reasonably satisfactory
to Onyx to the effect that such transaction does not require registration
under the Securities Act and any applicable state securities laws;
3.5 No Hedging Transactions
The Shareholders will not engage in hedging transactions with regard to the
Onyx Shares during the one year "distribution compliance period" beginning
on the date hereof unless in compliance with the Securities Act.
3.6 Non-U.S. Person
The Shareholders (i) are not a U.S. Person (as such term is defined in
Regulation S) and are not acquiring the Onyx Shares for the account or
benefit of a U.S. Person and (ii) were not offered, did not execute and did
not deliver this Agreement while in the United States.
3.7 Legends
The Shareholders understand that upon the original issuance thereof, and
until such time as the same is no longer required under applicable
requirements of the Securities Act or applicable state securities laws,
certificates representing the
Page 22
Onyx Shares, and all certificates issued in exchange therefor or in
substitution thereof, shall bear the following (or a substantially similar)
legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED
STATES IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, IF AVAILABLE, (C) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (D) IN
A TRANSACTION THAT COMPLIES IN ALL RESPECTS WITH THE REQUIREMENTS
OF RULE 144 OR RULE 145 UNDER THE SECURITIES ACT, IF AVAILABLE,
AND IN COMPLIANCE WITH ANY STATE SECURITIES LAWS, OR (E) IN A
TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, PROVIDED
THAT, PRIOR TO SUCH DISPOSITION, THE HOLDER HAS FURNISHED TO THE
COMPANY AN OPINION OF COUNSEL OF RECOGNIZED STANDING REASONABLY
SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH TRANSACTION
DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
THE HOLDER HEREOF MAY NOT ENGAGE IN ANY HEDGING TRANSACTIONS WITH
RESPECT TO THE SECURITIES EVIDENCED HEREBY FOR A PERIOD OF ONE
YEAR FROM THE DATE OF ORIGINAL ISSUANCE UNLESS IN COMPLIANCE WITH
THE SECURITIES ACT.
The Shareholders acknowledge that ▇▇▇▇ will refuse to register any transfer
of the Onyx Shares if such transfer is not made in accordance with the
legend set forth in the subparagraph above.
3.8 Compliance with Regulation S
Onyx will refuse to register any subsequent transfer of the Onyx Shares if
such transfer is not made in accordance with Regulation S of the Securities
Act,
Page 23
pursuant to registration under the Securities Act or pursuant to an
available exemption from registration under the Securities Act.
3.9 Onyx Covenance
Onyx hereby covenants and warrants that, from and after the first
anniversary of the Closing Date, it shall not take any action that would
render the Onyx Shares ineligible for public resale by the Shareholders in
the United States pursuant to an exemption from registration under the
Securities Act. The foregoing warranty shall not apply to actions taken by
Onyx in compliance with (i) the laws of the United States or (ii) Onyx's
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy. Further, ▇▇▇▇ agrees to use all reasonable efforts
to assist Shareholders in their efforts to sell the Onyx Shares.
ARTICLE IV - REMEDIES IN CASE OF A BREACH OF THE
REPRESENTATION S AND WARRANTIES
4.1 Remedies
(a) If a representation or warranty contained in Article II or
Article III of this Agreement is breached, the Shareholders shall be
entitled to cure the breach of the representation or warranty within a
reasonable period of time which in no event shall exceed three months
after the Acquiror has notified the Shareholders in writing of the
breach, unless immediate action is required in order to secure the
continuation of the business operation. In case the Shareholders elect
not to cure the breach or fail to cure the breach within such
aforementioned reasonable period of time and the damage is not covered
by an accrual ("Ruckstellung"), the Shareholders at the sole
discretion of the Acquiror shall be obliged
(i) to indemnify and hold Acquiror harmless from any and all damages
(excluding all types of punitive damages under U.S. law) suffered by
it as a result thereof to the extent necessary to put Acquiror into
the economic position which it would have enjoyed if the
representation or warranty had not been breached, including without
limitation consequential damages and all costs and expenses (including
reasonable attorneys' fees); or
(ii)to put CSN GmbH into the economic position which it would have
enjoyed if the representation or warranty had not been breached,
including without limitation consequential damages and all costs and
expenses (including reasonable attorneys' fees).
STOCK PURCHASE AGREEMENT Page 24
Notwithstanding the foregoing, in the event any claim is based on a
breach of Subsection 2.11(e) for any Technology provided to customers
of Acquiror or CSN GmbH or third parties after the Closing Date, no
consequential damages shall be awarded.
(b) The right of the Acquiror to rescind ("wandeln") shall be
restricted to the case that a breach causes direct or indirect
financial damages in excess of DM 1 million. The Acquiror must
exercise said right to rescind during a period of six months from the
Closing Date.
(c) For any and all obligation under this Subsection 4.1. the
Shareholders shall be held jointly and severally liable in the meaning
of sec. 421 ff. German Civil Code.
(d) Any and all financial claims of Onyx and/or the Acquiror against
the Shareholders shall be satisfied through Shareholders' other assets
only to the extent that they cannot be satisfied through the Pledged
Shares which practice shall, for tax purposes of the Shareholders, be
regarded as lowering the Purchase Price ("Verringerung des
Kaufpreises" nicht "Minderung" des Kaufpreises i.S.v. (S)(S) 459ff
BGB).
4.2 Limitation
Save for acts of gross negligence or willful misconduct, the Shareholders
entire liability hereunder shall be limited to DM 4,500,000 plus the price
of the Onyx Shares on the Nasdaq stock exchange at the first anniversary of
the Closing Date.
4.3 Cooperation
(a) In the event of a breach of warranty or representation by the
Shareholders, both parties agree that they shall work together and fully
cooperate in an attempt to resolve such situation. Acquiror and Onyx shall
provide all reasonable assistance and/or shall cause CSN GmbH to provide
all reasonable assistance to Shareholders in their attempts to remedy any
breach of warranties. In particular, if a third party raises claims against
CSN GmbH and/or the Acquiror which could lead to any claims of the Acquiror
against the Shareholders, or if a fiscal or any other audit is announced by
any public and/or tax authorities, the Acquiror shall without delay inform
both of the Shareholders in writing about any such claims or audits and
provide the Shareholders with copies of all correspondence and relevant
documents.
STOCK PURCHASE AGREEMENT Page 25
(b) The Acquiror shall inform both of the Shareholders in writing about
all meetings of decisive relevance with third parties and/or any
authorities. The Shareholders and their respective professional advisers
shall be entitled to participate in all such aforementioned meetings. If
and as long as any of the Shareholders is employed with CSN GmbH or
affiliated companies he shall be granted leave to the extent necessary to
participate in such meetings.
(c) The Acquiror shall defend any claims, actions, law suits or
investigations by a public authority and shall cause CSN GmbH to do the
same. Should CSN GmbH and/or the Acquiror fail or refuse to take any such
measures to defend any claims, actions, law suits or investigations by a
public authority, the Shareholders shall be entitled to demand to initiate
or join any proceedings, to the extent permissible under the applicable
law, at their own cost. To the extent that such right is denied for
whatever reason, the Shareholders shall be released from respective damages
claims.
4.4 No Restriction of Warranties
The representation and warranty given to Onyx and/or the Acquiror by the
Shareholders under Article II or Article III of this Agreement are not in
any manner restricted by the due diligence investigation conducted by Onyx
or its affiliates and/or its advisors. Any investigation and/or objection
obligations of Onyx and/or the Acquiror, in particular the obligations of
the Acquiror under sec. 377, 378 German Commercial Code, if any, are
herewith excluded.
4.5 Period of Warranties
Subject to anything to the contrary in this Agreement, the claims of Onyx
and/or the Acquiror based upon a breach of a representation or warranty
shall be time-barred after twenty-four (24) months after the Closing Date,
except for claims based on Subsection 2.1 (a) and (b) which shall be
subject to the legal limitation period applicable by virtue of law. The
claims of Onyx and/or the Acquiror based upon a tax assessment or an audit
of the taxing authorities shall be time-barred six (6) months after the
relevant tax assessment has become legally binding and is subject to no
further appeal, at the latest, however, five (5) years after the Closing
Date. Notwithstanding the foregoing, in no event shall any claim be time
barred if such claim is based on the fraudulent conduct of the
Shareholders.
STOCK PURCHASE AGREEMENT Page 26
ARTICLE V - FURTHER CO-OPERATION/NON COMPETITION COVENANT
5.1 Further co-operation
The shareholders have entered into new employment contracts with CSN GmbH
(the Acquiror has also signed these contracts as future shareholder), which
shall not be changed by either party unless this agreement is rescinded.
5.2 Non Competition Covenant
For a period of three (3) years after the Closing Date, the Shareholders
will neither jointly nor separately, whether on their own behalf and/or
account or for any other person, firm, company or organization, directly or
indirectly engage in any activity by which they would compete directly or
indirectly with the current or future business activity of Acquiror or CSN
GmbH, nor will they engage in any activity which would result directly or
indirectly in any such competition. The Shareholders will in particular
neither jointly nor separately establish a firm, company or organization,
which competes directly or indirectly with Onyx, Acquiror or CSN GmbH, nor
will they hold shares or any other participation of more than five (5)
percent in such firm, company or organization or consult such firm, company
or organization.
5.3 Release from Liabilities
(a) The Acquiror shall use its best efforts to have Shareholder 1
released from (i) his liability under the pledge of his life insurance
policy (certificate no. 6 380 537-8 issued by Schweizerische
Lebensversicherungs-und Rentenanstalt) to ▇▇▇▇▇▇▇▇ & Co. pursuant to an
agreement dated March 25, 1996, and (ii) his personal guarantee
("selbstschuldnerische Burgschaft") given to ▇▇▇▇▇▇▇▇ & Co. in the
amount of DM 96,000, both securing the current accounts of CSN GmbH
with ▇▇▇▇▇▇▇▇ & Co.
(b) The Acquiror shall use its best efforts to have Shareholder 2
released from his personal guarantee securing the office lease of CSN
GmbH under an agreement with ▇▇▇▇▇▇▇▇ & Co dated October 15, 1997.
(c) If, in spite of ▇▇▇▇▇▇▇▇'s best efforts the aforementioned
security holders refuse to agree to such release, the Acquiror shall
indemnify the
STOCK PURCHASE AGREEMENT Page 27
respective Shareholder from any liability arising out of the
aforementioned security agreements.
ARTICLE VI - POST-CLOSING COVENANTS
6.1 Further Action
In case that at any time after the Closing Date any further action is
necessary or desirable to carry out the purposes of this Agreement, each
party to this Agreement shall use its reasonable best efforts to take all
such action. No party to this Agreement will undertake any course of action
inconsistent with this Agreement or which would make any representations,
warranties or agreements made by such party in this Agreement or in the
documents related thereto untrue. Each party hereto, at the request of and
without any further cost or expense to the other parties, will take any
further actions necessary or desirable to carry out the purposes of this
Agreement or any related documents, to vest in the Acquiror full title to
the Target Shares and to effect the issuance and transfer of the Onyx
Shares to the Shareholders pursuant to the terms and conditions hereof.
6.2 Market Standoff
Each Shareholder agrees that he shall not, without the prior written
consent of Onyx, directly or indirectly, sell, offer to sell (including,
without limitation any short sale), grant any option to purchase or
otherwise transfer or dispose of (collectively, "Transfer") any Onyx Shares
--------
held by him until one year after the Closing Date. Each Shareholder further
agrees that, after the one-year period described above, he shall not,
without the prior written consent of Onyx, Transfer more than 50 percent of
the number of Onyx Shares issuable to him pursuant to the sale in any
three-month period.
Notwithstanding the foregoing, the Transfer restrictions shall not apply to
(i) any pledge made pursuant to a loan transaction that creates a mere
security interest, (ii) any transfer to the ancestors, descendants or
spouse (or to the trusts for the benefit of such persons) of a Shareholder;
provided that (i) the transferring Shareholder shall inform Onyx in writing
of such Transfer no less than 15 days prior to effecting it; (ii) the
pledgee or transferee furnishes Onyx with a written agreement to be bound
by and comply with all the provisions of this Agreement and (iii) the
Transfer is made in compliance with the United States securities law
restrictions described in Article III.
STOCK PURCHASE AGREEMENT Page 28
6.3 Publicity
Except as otherwise required by law, no party hereto shall issue any press
release or otherwise make any statements to any third party with respect to
this Agreement or the transactions contemplated hereby until the issuance
by ▇▇▇▇ (or Acquiror) and CSN GmbH of a joint press release announcing the
transactions contemplated hereby that shall be prepared by them in
cooperation. This prohibition shall not apply to disclosure made by either
party to such party's accountants, attorneys, or other business advisors.
ARTICLE VII - GENERAL
7.1 Tax Matters
Except as otherwise provided in this Agreement, neither party to this
Agreement makes any representation or warranty with respect to, and
expressly disclaims any responsibility for, any tax consequences to the
other party arising out of the structure or terms of this Agreement or the
negotiation or consummation hereof. Both parties have consulted with their
own tax advisors in such matters and are solely responsible for any such
tax consequences.
7.2 Expenses
Regardless of whether the transactions contemplated by this Agreement are
consummated, each party shall pay its own fees and expenses incident to the
negotiation, preparation and execution of this Agreement and the related
documents (including legal and accounting fees and expenses); provided,
however, that the attorneys' fees and expenses of the prevailing party in
any action brought hereunder shall be paid as provided by the applicable
law and the notarial fees for the recording of this Agreement shall be
borne fifty (50) percent by the Shareholders (35 % Shareholder 1, 15 %
Shareholder 2) and fifty (50) percent by the Acquiror.
7.3 Notices
(a) Any notice required to be given hereunder shall be in writing and
in English (except for official documents originated in German) and
shall be given by personal delivery, certified or registered mail,
confirmed facsimile transmission by sender's fax machine
("Sendeprotokoll"), or courier service, in each case addressed as
respectively set forth below or to such other address as any party
shall have previously designated by such a notice.
STOCK PURCHASE AGREEMENT Page 29
The effective date of any notice shall be the date of personal
delivery, four days after the date of mailing by certified or
registered mail, the date on which successful facsimile transmission
is confirmed or the date undertaken for delivery by a reputable
courier service, as the case may be, in each case properly addressed
as provided herein and with all charges prepaid. Notice shall be
deemed given if delivered to Onyx or the Shareholders. All other
copies shall be for convenience only and are not required to prove
official notice has been given.
(b) Onyx herewith appoints the law firm of Lovells Boesebeck Droste,
Marstallstrabe 8, 80539 Munchen to act as its service agent for
purposes of official service of any court documents in connection with
this Agreement and any legal proceedings arising thereunder.
TO ONYX OR ACQUIROR:
Onyx Software Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ U.S.A.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Chief Executive Officer and
▇▇▇▇ ▇▇▇▇▇▇, General Counsel
with a copy to:
▇▇▇▇▇▇▇ Coie LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇ ▇. ▇▇▇▇▇
and:
Lovells Boesebeck Droste
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇-▇▇▇
Attention: Dr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TO THE SHAREHOLDERS:
STOCK PURCHASE AGREEMENT Page 30
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ 37
82049 Pullach
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ 14 a
82418 Murnau
STOCK PURCHASE AGREEMENT Page 31
7.4 Severability
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party.
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate
in good faith to modify this Agreement so as to effect the original intent
of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.
7.5 Entire Agreement
This Agreement, the Exhibit and the Schedules attached hereto constitute
the entire agreement among the parties with respect to the subject matter
hereof and supersede all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject
matter hereof and thereof.
7.6 Governing Law/Jurisdiction
This Agreement including any rights and obligations, if any, of Onyx shall
be governed by, and construed in accordance with, the laws of Germany
provided, however, that Article III and matters regarding the sale and
issuance of Onyx Shares shall be governed by United States securities law
to the extent applicable. All actions and proceedings arising out of or
relating to this Agreement including those with Onyx shall be heard and
determined exclusively by the Regional Court Munich I (Landgericht Munchen
I).
7.7 Headings
The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning
or interpretation of this Agreement.
7.8 Amendments
This Agreement may not be amended except by an instrument in writing signed
by the parties hereto or a notarial deed if so required by the applicable
law.
STOCK PURCHASE AGREEMENT Page 32
7.9 Translations
All German translations contained in this Agreement shall take precedence
in the event of a dispute.
7.10 Copies
Each party to this contract shall receive a certified copy (Ausfertigung).
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, Attorney at Law, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇, and
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Attorney at Law, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
each a copy.
A certified copy (beglaubigte Abschrift )shall be sent to Finanzamt -
Korperschaftsteuerstelle-.
* * *
All Schedules were signed by those present. It was waived to have them read
aloud except for Schedule 2.8. The Exhibit and all Schedules are essential
parts of this document and attached to it. Schedule 2.8 was translated by
▇▇. ▇▇▇▇▇▇▇▇▇.
This notarial deed together with the Exhibit 1 and Schedule 2.8 was read
aloud by the Notary, approved and signed by the persons appearing as
follows:
STOCK PURCHASE AGREEMENT Page 33
