EXHIBIT 10.30
SHARE PURCHASE AGREEMENT (EBA)
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MARC KEGELAERS
AND
MICROFRAME EUROPE N.V.
September 15, 1995
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT made the 15th day of September, 1995
between Marc Kegelaers, an individual residing at Xxxxxxxxxxxxxx 00, X-0000
X00X, Xxxxxxx ("Kegelaers" or the "Seller"), and MicroFrame Europe N.V., a
corporation existing under the laws of Belgium (the "Purchaser"), with its
registered office at Xxxxxxxxxxxxxx 00, X-0000 X00X and registered with the
Commercial Register of Antwerpen duly represented by Xxxxxx X. Xxxxxxx,
Chairman of the Board.
W I T N E S S E T H
WHEREAS, the Corporation (as hereinafter defined) is a
marketing organization engaged in the business of creating and managing
distribution networks and original equipment manufacturer relations for
suppliers to the telecommunications industry; and
WHEREAS, all of the issued and outstanding shares of capital
stock of the Corporation are directly owned by the Seller; and
WHEREAS, the Seller has agreed to sell to the Purchaser and
the Purchaser, in reliance upon the representations and warranties of the
Seller contained herein, has agreed to purchase from the Seller all of the
issued and outstanding shares of capital stock of the Corporation, in
accordance with the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the premises and the
mutual covenants contained in this Agreement and other valuable consideration
(the receipt and adequacy of which is hereby acknowledged by each of the
Parties, as hereinafter defined), the Parties agree as follows:
ARTICLE 1
INTERPRETATION
1.01 Defined Terms. As used in this Agreement, the following terms have
the following meanings:
" A c counts Receivable" means all accounts receivable, notes
receivable and other debts due or accruing to the Corporation in connection
with the Business as more particularly set out in Schedule 1.01(a);
"Agreement" means this share purchase agreement and all schedules
and instruments in amendment or confirmation of it; "hereof", "hereto" and
"hereunder" and similar expressions mean and refer to this Agreement and not to
any particular Article, Section, Subsection, Schedule or other subdivision;
"Article", "Section", "Subsection", "Schedule" or other subdivision of this
Agreement followed by a number means and refers to the specified Article,
Section, Subsection, Schedule or other subdivision of this Agreement;
"Assets" means all property and assets of the Corporation of every
kind and wherever situated as set forth on the Financial Statements or acquired
in the ordinary course of business since the date of such Financial Statements
through the date hereof;
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" Authorization" means, with respect to any Person, any
authorization, order, permit, approval, grant, license, consent, right,
franchise, privilege, certificate, judgment, writ, injunction, award, decree,
or by-law, rule or regulation of any Governmental Entity, whether or not having
the force of law, having jurisdiction over such Person;
"Benefit Plans" means all employee benefit plans relating to the
employees of the Corporation, including profit sharing, deferred compensation,
phantom stock option, stock option, employee stock purchase, bonus, retirement,
health or insurance plans which are disclosed as benefit plans on Schedule
3.01(ff)(v);
"Billing Period" means each of the five "rolling" twelve (12) month
periods commencing on the first anniversary of the Closing Date and on each of
the four (4) anniversary dates thereafter, each of such periods to include an
additional period of ninety (90) days following its scheduled expiration to
collect the Europe Revenues generated during such period, which if not
collected during said 90-day period shall be deemed relinquished by Seller, and
shall not carryforward to the next billing period.
"Books and Records" means, if applicable, all technical, business
and financial records, financial books and records of account, books, data,
reports, files, lists, drawings, plans, logs, briefs, customer and supplier
lists, deeds, certificates, contracts, surveys, title opinions or any other
documentation including the Corporate Records and information in any form
whatsoever (including written, printed, electronic or computer printout form)
relating to the Business;
"Business" means the business presently carried on by the
Corporation consisting of the creating and managing of distribution networks
and original equipment manufacturer relations for suppliers to the
telecommunications industry;
"Business Day" means any day of the year, other than a Saturday,
Sunday or any day which is declared a public holiday in Belgium;
"Cash Earn Out" means the portion of the Purchase Price referred to
in Section 2.02(iii) hereof and paid in accordance with Section 2.03 hereof;
"Claim" means any claim of any nature whatsoever, including any
demand, liability, obligation, debt, cause of action, suit, proceeding,
judgment, award, assessment, and reassessment;
"Closing" means the completion of the transaction of purchase and
sale contemplated in this Agreement;
"Closing Date" means the date upon which the Closing has occurred;
"Consents" means the consents of contracting parties to any
Contracts which are required thereunder with respect to the transactions
contemplated in this Agreement, and "Consent" means any one of such Consents;
"Consulting Agreement" shall mean the consulting agreement of even
date herewith between Kegelaers and MicroFrame Europe N.V.;
"Contracts" means all contracts through the date hereof to which
the Corporation is a party including all contracts, leases, licenses,
undertakings, engagements or commitments of any nature, written or oral, which
the Corporation has entered into in connection with the Business;
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"Corporate Records" means the corporate records of the Corporation,
including (i) the certificate of incorporation, if any, by-laws, any unanimous
shareholders agreement and any amendments thereto; (ii) all minutes of meetings
and resolutions of shareholders, directors and any committee thereof; (iii) the
share certificate books, register of shareholders and register of transfers;
and (iv) all accounting records, including without limitation all records
relating to the Financial Statements;
" Corporation" means European Business Associates BVBA, a
corporation existing under the laws of Belgium with its registered office at
Xxxxxxxxxxxxxx 00, 0000 B00M, registered with the Commercial Register of
Antwerpen under the number 276751;
"Effective Time" means 3:00 p.m. on the Closing Date;
"Encumbrances" means liens, charges, mortgages, pledges, security
interests, claims, defects of title, restrictions and any other rights of third
parties relating to any property, including rights of set-off and voting
trusts, and other encumbrances of any kind;
"European Revenues"means the cash revenues of the Purchaser and the
Parent Corporation generated and collected as a result of any sales from the
European Countries set out on Schedule 1.01(b) hereof;
"Financial Statements" means the nonaudited balance sheet of the
Corporation for the fiscal year ended December 31, 1994 and the six month
period ended June 30, 1995 and the accompanying statements of income and
retained earnings and changes in financial position for the period then ended
and all notes thereto;
"GAAP" means at any time, generally accepted accounting principles
in Belgium and the European Union;
" Governmental Entity" means (i) any multinational, federal,
provincial, state, municipal, local or other governmental or public department,
court, commission, board, bureau, agency or instrumentality, domestic or
foreign; (ii) any subdivision, agent, commission, board, or authority of any of
the foregoing; or (iii) any quasigovernmental or private body exercising any
regulatory, expropriation or taxing authority under or for the account of any
of the foregoing;
"Intellectual Properties" means any and all right, title, interest
and benefit of the Corporation in and to any registered or unregistered world
marks, trade or brand names, service marks, copyrights, copyright applications,
designs, inventions, patents, patent applications, patent rights (including any
patents issuing on such applications or rights), licenses, sub-licenses,
franchises, technology, computer rights and other intellectual or industrial
property other than know how;
"Laws" means all statutes, codes, ordinances, decrees, rules,
regulations, municipal by-laws, judicial or arbitral or administrative or
ministerial or departmental or regulatory judgments, orders, decisions, rulings
or awards, policies, guidelines or any provisions of the foregoing, including
general principles of common and equity, binding on or affecting the Person
referred to in the context in which such word is used; and "Law" means any one
of them;
"Leased Properties" means the real properties forming the subject
matter of the Property Lease at the municipal address listed in Schedule
3.01(v);
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"Letter Agreement" means the letter of agreement entered into on
May 31, 1995 among the Purchaser, the Corporation and Kegelaers;
"Lien" means, through the date hereof, any bailment, assignment,
levy, execution, seizure, attachment, garnishment, security interest, ownership
interest or with respect to ownership interest created by permitted
encumbrances, mortgage, charge, pledge, lien, or other encumbrance whatsoever,
whether fixed or floating and howsoever created or arising;
"Loss" means any loss whatsoever, including expenses, costs,
damages, penalties, fines, charges, claims, demands, liabilities, interest and
any and all reasonable legal fees and disbursements;
" Parent Corporation" means MicroFrame, Inc., a corporation
organized under the laws of the State of New Jersey, which corporation owns 124
shares of capital stock of the Purchaser;
"Parties" means the Seller and the Purchaser; and "Party" means any
one of them;
"Person" means an individual, partnership, corporation, trust,
unincorporated association, joint venture or other entity or Governmental
Entity, and pronouns have a similarly extended meaning;
"Property Lease" means the lease of real property to which the
Corporation is a party, as listed and described in Schedule 3.01(v);
"Purchase Price" has the meaning ascribed thereto in Section 2.02;
"Purchased Shares" means 100 shares of capital stock, no par value
of the Corporation, being all of the issued and outstanding shares of the
Corporation;
"Purchaser" means MicroFrame Europe N.V., a corporation existing
under the laws of Belgium;
"Purchaser Stock" means "restricted" shares (as such term is
defined in Rule 144 of the Securities Act of 1933) of the Common Stock, $.001
par value, of the Parent Corporation;
"Seller" shall have the same meaning set forth in the preamble to
this Agreement;
"Share Earn Out" means the portion of the Purchase Price referred
to in Section 2.02(iv) hereof and paid in accordance with Section 2.04 hereof;
Definitions set forth in any Schedule are incorporated herein by
reference.
1.02 Gender and Number. Any reference in this Agreement to gender shall
include all genders, and words importing the singular number only shall include
the plural and vice versa.
1.03 Headings, Etc. The division of this Agreement into Articles,
Sections, Subsections and other subdivisions and the insertion of headings are
for convenience of reference only and shall not affect or be utilized in the
construction or interpretation of this Agreement.
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1.04 Currency. All references in this Agreement to dollars are
expressed in U.S. currency.
1.05 Severability. Any Article, Section, Subsection or other subdivision
of this Agreement or any other provision of this Agreement which is, or becomes,
illegal, invalid or unenforceable shall be severed from this Agreement and be
ineffective to the extent of such illegality, invalidity or unenforceability
and shall not affect or impair the remaining provisions hereof.
1.06 Entire Agreement. This Agreement together with the Consulting
Agreement constitutes the entire agreement between the Parties pertaining to
the subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the Parties
including, without limitation, the Letter Agreement dated May 31, 1995 among
the Purchaser, Kegelaers and the Corporation. There are no representations,
warranties, conditions or other agreements, express or implied, statutory or
otherwise, between the Parties in connection with the subject matter of this
Agreement, except as specifically set forth herein.
1.07 Amendments. This Agreement may only be amended, modified or
supplemented by a written agreement signed by all of the Parties.
1.08 Waiver. No waiver of any of the provisions of this Agreement shall
be deemed to constitute a waiver of any other provision (whether or not
similar), nor shall such waiver constitute a waiver or continuing waiver unless
otherwise expressly provided in writing duly executed by the Party to be bound
thereby.
1.09 Governing Law; Consent to Jurisdiction; Venue. This Agreement
shall be governed by and construed and enforced in accordance with the laws of
Belgium. Each party hereby waives personal service of any summons, complaint
or other process, which may be delivered by any of the means permitted for
notices under Section 9.02 hereof. In addition, without limiting the
foregoing, the Seller hereby appoints Xxx Xxxxxxxx, Esq., Xxxxxxxxxxx 00, X0000
Xxxxx, Xxxxxxx, counsel to the Seller, to receive, for him and on his behalf,
service of process with respect to any dispute between the Seller and the
Purchaser arising under or related to this Agreement or the Consulting
Agreement. In addition, the Purchaser hereby appoints Xxxxx Xxxxxx, Esq.,
Loeff Xxxxxx Xxxxxxx, Xxxxxx xx Xxxxxxxxx 000X, 0000 Xxxxxxxx, Xxxxxxx, counsel
to the Purchaser, to receive, for it and on its behalf, service of process with
respect to any dispute between the Seller and the Purchaser arising under or
related to this Agreement. Service of process upon such authorized agents
shall be deemed, in every respect, effective service of process upon the Seller
or the Purchaser, as the case may be.
1.10 Inclusion. Where the word "including" or "includes" is used in
this Agreement it means "including (or includes) without limitation".
1.11 Accounting Terms. All accounting terms not specifically defined
in this Agreement shall be construed in accordance with GAAP.
1.12 Incorporation of Schedules. The following are the schedules
attached to and incorporated in this Agreement:
Schedule 1.01(a) - Accounts Receivable (including Overdue
Accounts Receivable)
Schedule 1.01(b) - European Countries
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Schedule 2.04 - Share Earn Out
Schedule 3.01(p) - Authorizations
Schedule 3.01(v) - Leased Properties
Schedule 3.01(y) - Indebtedness
Schedule 3.01(w) - Material Contracts
Schedule 3.01 (aa) - Personal Property
Schedule 3.01(ee) - Financial Commitments to Seller
Schedule 3.01(ff) - Employees and Compensation
Schedule 3.01(ff)(v) - Benefit Plans
Schedule 3.01(hh) - Insurance Policies
Schedule 3.01(kk) - Bank Accounts and Powers of Attorney
ARTICLE 2
PURCHASED ASSETS AND PURCHASE PRICE
2.01 Purchase and Sale. Subject to the terms and conditions hereof, the
Seller agrees to sell, assign and transfer to the Purchaser and the Purchaser
agrees to purchase from the Seller on the Closing Date, the Purchased Shares.
2.02 Purchase Price. The aggregate purchase price (the "Purchase
Price") payable by the Purchaser to the Seller for the Purchased Shares shall
be (i) an aggregate amount of U.S.$50,000; (ii) an aggregate amount of 25,000
shares of Purchaser Stock; (iii) the Cash Earn Out amount calculated in
accordance with Section 2.03; and (iv) the Share Earn Out amount calculated in
accordance with Section 2.04.
2.03 Payment of the Cash Earn Out. Subject to compliance by Seller with
the terms and conditions contained herein and compliance by Kegelaers with the
terms and conditions of the Consulting Agreement, for each of the five (5)
Billing Periods, the Purchaser shall pay to the Seller an aggregate amount of
.5% (one-half of one percent) of European Revenues generated and collected
during the applicable Billing Period, to be paid no later than thirty (30) days
following each of the Billing Periods.
2.04 Payment of the Share Earn Out. Subject to compliance by Seller
with the terms and conditions contained herein and compliance by Kegelaers with
the terms and conditions of the Consulting Agreement, for each of the five (5)
Billing Periods, the Purchaser shall cause the Parent Corporation, to pay to
the Seller an aggregate amount of one (1) share of Purchaser Stock for the
amount of European Revenues set forth in column B of Schedule 2.04 hereto for
each of the respective Billing Periods set forth in column A of Schedule 2.04
hereto, provided that no payment of Purchaser Stock will be made for any
particular Billing Period pursuant to this paragraph 2.04 unless the European
Revenues during such period exceed the minimum thresholds listed in column C to
Schedule 2.04 hereto with respect to such period. Payments shall be made no
later than thirty (30) days following each of the Billing Periods.
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2.05 Death of the Seller. In the event of the death of the Seller and
provided that the Seller is not in default hereunder or under the Consulting
Agreement, the estate of the Seller shall be entitled to receive, and the
Company will pay to such estate, all amounts the Seller would have been
entitled to receive under this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER
3.01 Representations and Warranties of the Seller. The Seller
represents as follows to the Purchaser and acknowledges and confirms that the
Purchaser is relying upon such representations and warranties in connection
with the purchase by the Purchaser of the Purchased Shares.
Corporate Matters Relating to the Seller and the Corporation
(a) Due Incorporation and Existence of the Corporation.
The Corporation is a corporation duly incorporated and validly existing and in
good standing under the laws of Belgium.
(b) Corporate Power. The Corporation has the corporate
power and authority to own its property and to carry on the Business as now
being conducted by it.
(c) Qualification. The Corporation is duly qualified,
licensed or registered to carry on business as a corporation in Belgium and in
all jurisdictions in which the nature of the Assets or the Business makes such
qualification necessary and where failure to so qualify would have a material
adverse effect on the affairs, assets, liabilities, business or prospects,
operations or conditions of the Corporation or the Business, financial or
otherwise.
(d) Authorized Capital. The authorized capital of the
Corporation consists of 100 shares of capital stock, no par value, of which at
the date hereof, 100 shares (and no more) have been duly issued and are
outstanding as fully paid and non-assessable. Immediately prior to Closing,
the Seller will be the registered and beneficial owner of an aggregate of 100
outstanding shares of capital stock, no par value, of the Corporation which
will be all of the issued and outstanding shares of the Corporation.
(e) Options, etc. Except for the Purchaser's rights
hereunder, no Person has any option, warrant, right, call, commitment,
conversion right, right of exchange or other agreement or any right or
privilege (whether by law, pre-emptive or contractual) capable of becoming an
option, warrant, right, call, commitment, conversion right, right of exchange
or other agreement (i) for the purchase from the Seller of any of the Purchased
Shares applicable to such Seller; or (ii) for the purchase, subscription,
allotment or issuance of any of the unissued shares in the capital of the
Corporation or of any securities of the Corporation.
(f) Title to Purchased Shares. The Seller is the
registered and beneficial owner of the Purchased Shares with good title
thereto, free and clear of all Encumbrances. The Seller has the right, power
and authority to enter into this Agreement and to sell the Purchased Shares as
contemplated herein. The delivery to the Purchaser by the Seller of the
Purchased Shares pursuant to the provisions hereof will transfer to the
Purchaser valid title thereto, free and clear of all Encumbrances, with all
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taxes attributable to the transfer of the Purchased Shares, excluding income
taxes, paid or provided for.
(g) Dividends, Distributions and Remuneration. Since
December 31, 1994, the Corporation has not, directly or indirectly, declared or
paid any dividends or declared or made any other distribution on any of its
shares of any class and has not, directly or indirectly, redeemed, purchased or
otherwise acquired any of its shares of any class or agreed to do so and has
not paid bonuses or salary in excess of those amounts set forth in Schedule
3.01(ff)
(h) Corporate Records. The Corporate Records of the
Corporation are complete and accurate in all material respects and all
corporate proceedings and actions of the Business reflected therein have been
conducted or taken in compliance with all applicable Laws and with the
Certificate of Incorporation and by-laws of the Corporation, and without
limiting the generality of the foregoing, to knowledge of the Seller, (i) the
minute books contain complete and accurate in all material respects minutes of
all meetings of the shareholders of the Corporation held since the
incorporation of the Corporation, and all such meetings were duly called and
held; (ii) the minute books contain all written resolutions passed or ratified
by the shareholders of the Corporation and all such resolutions were duly
passed or ratified; (iii) the register of shareholders is complete and accurate
in all material respects, and all such transfers have been duly completed and
approved and any exigible tax payable in connection with the transfer of any
securities of the Corporation has been duly paid; and (iv) all former and
present directors and officers of the Corporation were duly elected or
appointed as the case may be.
(i) Validity of Agreement. The execution, delivery and
performance by the Seller of this Agreement and the consummation of the
transactions contemplated hereby do not (or would not with the giving of
notice, the lapse of time or the happening of any other event or condition)
result in a violation or a breach of, or a default under or give rise to a
right of termination, amendment or cancellation or the acceleration of any
obligation under (A) any charter or by-law instruments of the Corporation; (B)
any contracts or instruments to which either the Seller or the Corporation is a
party or by which either the Seller or the Corporation is bound; or (C) of any
Laws applicable to either the Seller or the Corporation. This Agreement
constitutes a legal, valid and binding obligation of the Seller enforceable
against him in accordance with its terms.
(j) Restrictive Documents. Neither the Corporation nor the
Seller is subject to, or a party to, any charter or by-law restriction, any
Law, any Claim, any contract or instrument, any Encumbrance or any other
restriction of any kind or character which would prevent the consummation of
the transactions contemplated by this Agreement or compliance with the terms,
conditions and provisions hereof or the continued operation of the Business by
the Corporation after the Closing Date on substantially the same basis as
heretofore operated, or which would restrict the ability of the Purchaser to
acquire any of the Purchased Shares or to cause the Corporation to conduct the
Business in any area in each case except for the necessity of obtaining the
Consents.
(k) Acquisition of Purchaser Stock for Investment. The
Seller is acquiring the Purchaser Stock pursuant to Sections 2.02 and 2.04
hereof for investment and not with a view toward, or for the resale in
connection with, any distribution thereof, nor with any present intention of
distributing or selling such Purchaser Stock. The Seller understands that the
Purchaser Stock has not been registered under the Securities Act of 1933, as
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amended ("Securities Act"). The Seller agrees that such Purchaser Stock may
not be sold publicly, transferred, offered for sale, pledged, hypothecated or
otherwise disposed of within or outside the United States and must be held
unless it is subsequently registered under the Securities Act or unless an
exemption from registration is available under the Securities Act.
General Matters Relating to the Business
(l) Conduct of Business in Ordinary Course. Since June 30,
1995, the Business has been carried on in the ordinary course and the
Corporation has not:
(i) incurred any liability or obligation of any
nature (whether accrued, absolute, contingent or
o t h e rwise), which individually or in the
aggregate exceeded US $5,000;
(ii) sold, transferred or otherwise disposed of any of
the Assets;
(iii) made any material capital expenditure or
commitment therefor which individually or in the
aggregate exceeds US $5,000;
(iv) made any bonus or profit sharing payment or
distribution of profits by way of dividend or
otherwise;
(v) increased its indebtedness for borrowed money, or
made any loan to any Person;
(vi) wrote off as uncollectible any notes or Accounts
Receivable, except write-offs in the ordinary
course of the business charged to applicable
reserves, none of which individually or in the
aggregate is material to the Corporation;
(vii) permitted any of the Assets to be subject to any
Encumbrances;
(viii) canceled or waived any material claims or
material rights;
(ix) granted any general increase in the rate of
wages, salaries, bonuses, or other remuneration
of any executive or other employee;
(x) made any change in any method of accounting or
auditing practice;
(xi) entered into any non-arms-length transaction;
(xii) amended the articles or by-laws of the
Corporation; or
(xiii) agreed, whether or not in writing, to do
any of the foregoing.
(m) No Material Adverse Change. Since June 30, 1995, there
has been no change in the affairs, assets, liabilities, business, prospects,
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operations or conditions of the Corporation or the Business, financial or
otherwise, whether arising as a result of any legislative or regulatory change,
revocation of any license or right to do business, fire, explosion, accident,
casualty, labor trouble, flood, drought, riot, storm, condemnation, act of God,
public force or otherwise, which has materially adversely affected or which may
materially adversely affect the Corporation or the Business, except for general
economic conditions affecting Europe or the industry in which the Corporation
or the Business operates.
(n) Compliance with Laws. The Corporation is conducting
the Business in compliance with all applicable laws of each jurisdiction in
which the Business is carried on.
(o) Environmental Compliance. The Corporation has, since
its incorporation through the date hereof, never at any time received, handled,
generated, used, stored, deposited, labeled, handled, treated, documented,
transported or disposed of any hazardous substances except in accordance with
applicable law. Neither the Seller nor the Corporation has received notice
that any of the Leased Properties are subject to any material environmental
contamination including any patent or latent environmental contamination of the
atmosphere, air, soil, subsoil, ground water or surface waters within or
adjacent to the Leased Properties, or that any of the Leased Properties contain
any asbestos, urea formaldehyde foam insulation or polychlorinated byphenyls
(PCBs).
(p) Authorizations. The Corporation owns, holds, possesses
or lawfully uses in the operation of the Business all Authorizations which are
in any manner reasonably necessary for it to conduct the Business as presently
conducted or for the ownership and use of the Assets as used by the
Corporation, free and clear of all Encumbrances and in compliance with all laws
applicable thereto. All such Authorizations which are material to the conduct
of the Business or the ownership or use by the Corporation of the Assets are
listed and described in Schedule 3.01(p) and the Corporation is not in default,
nor has it received any notice of any Claim in default, with respect to any
such Authorizations. None of such Authorizations will be adversely affected by
the consummation of the transactions contemplated hereby. None of the Seller
owns or has any proprietary, financial or other interests (direct or indirect)
in any Authorization which the Corporation owns, possesses or uses in the
operation of the Business as now or previously conducted.
Matters Relating to the Assets
(q) Title to the Assets. The Corporation has good title to
all of the Assets. The Corporation has legal and beneficial ownership of the
Assets free and clear of all Encumbrances.
(r) No Options, Etc. No Person has any written or oral
agreement, option, understanding or commitment, or any right or privilege
capable of becoming such for the purchase from the Corporation of any of the
Assets, other than pursuant to purchase orders or other similar documents
accepted by the Corporation in the ordinary course of the Business.
(s) Collectibility. Accounts Receivable and amounts owing
to the Corporation by third parties are bona fide and collectible in full
without any offset or any other Claims.
(t) Liabilities. Except for those liabilities set forth on
the Financial Statements and for those liabilities incurred in the ordinary
course of business since the date of such Financial Statements or which are
otherwise disclosed herein, the Corporation is not subject to any liabilities,
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absolute or contingent, and whether or not required in accordance with the
applicable accounting Laws of Belgium to be disclosed on a balance sheet.
(u) Real Property. The Corporation is not the owner of, or
under any agreement or option to own, any real property or any interest
therein.
(v) Validity of Property Lease. The Corporation is not a
party to, or under any agreement or option to become a party to, any lease with
respect to real property or furnishings used or to be used in its Business,
other than the Property Lease. With respect to the Property Lease, (i) all
rents and additional rents due to the date hereof have been paid, (ii) neither
the lessor nor the lessee is in default thereunder, (iii) no waiver, indulgence
or postponement of the lessee's obligations thereunder has been granted by the
lessor, (iv) there exists no event of default or event, occurrence, condition
or act (including the purchase of the Purchased Shares hereunder) which, with
the giving of notice, the lapse of time or the happening of any other event or
condition, would become a default under such Property Lease, (v) the
Corporation has not violated any of the terms or conditions under the Property
Lease in any material respect, and (vi) all of the covenants, if any, to be
performed by any other party under any such Property Lease have been fully
performed. Schedule 3.01(v) contains a true, correct and complete copy of the
terms of the Property Lease.
(w) Material Contracts. All of the material Contracts of
the Corporation are listed on Schedule 3.01(w) hereof and except for such
Contracts and the Contracts listed in Schedules 3.01(ff) and 3.01(y) together
with the Property Lease, and the insurance policies set forth in Schedule
3.01(hh) , which constitute all the material Contracts of the Corporation, the
Corporation is not a party to or bound by any other:
(i) employment agreement, bonus, deferred
compensation, pension, profit sharing, stock
option, phantom stock plan, employee stock
purchase, health, insurance, retirement or other
employee benefit plan, any collective agreements
or any agreement (oral or written) providing for
compensation to be paid to any employee upon the
sale of any substantial portion of outstanding
shares in the capital of the Corporation;
(ii) agreement or commitment relating to the borrowing
of money;
(iii) agreement or commitment relating to capital
expenditures;
(iv) loan or advance to, or investment in, any other
Person or any agreement or commitment relating to
the making of any such loan, advance or
investment;
(v) bonds, debentures, mortgages, notes or other
similar indebtedness or liabilities whatsoever or
any agreement to create or issue any bonds,
debentures, mortgages, notes or other similar
indebtedness;
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(vi) guarantee or other contingent liability in
respect of any indebtedness or obligation of any
other Person;
(vii) management, consulting or any other similar
agreement or commitment;
(viii) agreement or commitment limiting the freedom
of the Corporation or the owner of the Assets or
the Business to engage in any line of business
or to compete with any other Person;
(ix) licensing or other agreement or commitment
relating to intellectual property used by the
Corporation in the conduct of the Business;
(x) agreement or commitment on a non-arm's length
basis;
(xi) agreement or commitment not entered into in the
ordinary course of the Business; and
(xii) agreement, arrangement, commitment or
understanding with any Person, whether written or
oral, implied or otherwise, that is not recorded
in the Books and Records of the Corporation;
There are no Consents required in connection with the transactions contemplated
hereunder except as described in Schedule 3.01(p) and 3.01(w).
(x) No Breach of Contracts. Each of the Contracts is in
full force and effect and there exists no default or event of default or event,
occurrence, condition or act (including the purchase of the Purchased Shares
hereunder) which, with the giving of notice, the lapse of time or the happening
of any other event or condition, would become a default or event of default
thereunder. The Corporation has not violated or breached, in any respect, any
of the terms or conditions of any Contract and all the covenants to be
performed by any other party thereto have been fully performed. True, correct
and complete copies of all Contracts in writing have been delivered or made
available to the Purchaser.
(y) Indebtedness. Schedule 3.01(y) contains a complete and
accurate list of all third party funders to whom the Corporation is indebted.
The contracts and other instruments reflecting such indebtedness are all of the
contracts and such instruments to which the Corporation is a party pertaining
to the borrowing of money by the Corporation. All such contracts and
instruments are in full force and effect, no default exists thereunder and all
contracts and instruments pertaining thereto are reflected in the Books and
Records of the Corporation.
(z) Intellectual Property Rights. The Corporation does not
use, license or own any material Intellectual Properties in whole or in part
and no Intellectual Properties are required for the carrying on of the Business
in the manner heretofore carried on. The conduct of the Business does not
infringe upon the Intellectual Properties of any Person.
(aa) Condition of Equipment and Vehicles. All tangible
personal property forming part of the Assets, including furniture, machinery
and equipment and motor vehicles, whether owned or leased, are set forth in
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Schedule 3.01 (aa), are in good operating condition and are in a state of good
repair and maintenance.
(bb) Subsidiaries. The Corporation has no subsidiaries or
agreements of any nature to acquire any subsidiary or to acquire any other
business.
Financial Matters
(cc) Books and Records. All Books and Records of the
Corporation have been fully, properly and accurately kept and completed in all
material respects. The Corporation's records, systems, controls, data or
information are under the exclusive ownership and direct control of the
Corporation.
(dd) Financial Statements. The Financial Statements have
been prepared in accordance with the applicable accounting principles of
Belgium, are consistent with those of previous fiscal years, are true and
correct in all respects and present fairly the financial position of the
Corporation as at December 31, 1994.
(ee) Commitments to Seller. The amounts and details of all
financial commitments owed by the Corporation to the Seller are set out in
Schedule 3.01(ee) hereof which represents any outstanding obligation of the
Corporation payable by the Corporation to the Seller as of the date hereof.
Particular Matters Relating to the Business
(ff) Employees.
(i) The Corporation is in compliance with all Laws
respecting employment and employment practices,
terms and conditions of employment and has not
and is not engaged in any unfair labor practice.
(ii) No unfair labor practice, complaint or grievance
against the Corporation is pending or is
threatened before any labor relations board or
similar Governmental Entity with respect to the
Business.
(iii) There is no labor strike, dispute, slowdown or
stoppage actually pending or threatened against
the Corporation with respect to the Business.
(iv) No union representation question exists
respecting the employees of the Corporation in
connection with the Business.
(v) The Corporation has never maintained or
contributed to any employee benefit plans other
than the Benefit Plans as set out in Schedule
3.01(ff)(v);
(vi) No grievance which might have an adverse effect
upon the Corporation or the conduct of the
Business exists, no arbitration proceeding
arising out of or under any collective agreement
is pending, and no claim therefor has been
asserted.
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(vii) No collective bargaining agreement or similar
agreement is currently being negotiated by the
Corporation with respect to any employees of the
Corporation and no collective agreements are
currently in force with respect to its employees.
(viii) Schedule 3.01(ff) contains a complete list
of all permanent and full time employees of
the Corporation, their salaries and wage
rates, bonus arrangements, benefits,
positions and length of service.
(ix) No employee of the Corporation has any agreement
as to length of notice required to terminate his
or her employment, other than such as results by
law from the employment of an employee without
agreement as to such notice or as to length of
employment.
(x) All vacation pay (including all accrued vacation
pay), bonuses and commissions are set out in
Schedule 3.01(ff) and other employee benefit
payments are set out in Schedule 3.01(ff)(v).
(gg) None of the Benefit Plans, nor any trust created
thereunder, nor any trustee or administrator thereof, has engaged in any
prohibited transactions under the applicable Laws of Belgium. No matter
relating to any of the Benefit Plans is pending before any court or government
agency.
(hh) Insurance. Schedule 3.01(hh) sets forth a list of all
insurance policies which are maintained by or on behalf of the Corporation with
respect to the Corporation, the Business, its Assets, employees, and otherwise
and any pending Claims thereunder. The Corporation (or the Seller as the case
may be) is not in default with respect to the payment of any premiums under any
such insurance policy and has not failed to give any notice or to present any
Claim under any such insurance policy in a due and timely fashion. There is no
circumstance in respect of which any Person may make a Claim against the
Corporation, whether covered by insurance or not. Such policies are in full
force and effect free from any right of termination on the part of the
insurers, except upon notice as stipulated in such policies. There has not
been any material adverse change in the relationship of the Corporation with
its insurers, the availability of coverage, or in the premiums payable pursuant
to such policies.
(ii) Litigation. Except as set forth on Schedule 3.01(ii),
there is no action, suit or proceeding, at law or in equity, by any Person, nor
any arbitration, administrative or other proceeding by or before (or any
investigation by) any Governmental Entity pending or threatened against or
affecting the Corporation or any of its properties or rights or any of the
Assets, and the Seller does not know of any valid basis for any such action,
suit, proceeding, arbitration or investigation. The Corporation is not subject
to any judgment, order or decree entered in any lawsuit or proceeding.
(jj) Taxes. The Corporation has filed or caused to be
filed, within the times and within the manner prescribed by Law, all tax
returns and tax reports which are required to be filed by or with respect to
the Corporation or the Business in each jurisdiction in which the Corporation
is authorized to do business. The information contained in such returns and
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reports is correct and complete in all material respects. All taxes and
assessments, of any kind (including interest and penalties), that are or may
become payable by or due from the Corporation, with respect to any time prior
to the date hereof, have been fully paid or disclosed or provided for in the
Books and Records and the Financial Statements. No examination of any tax
return of the Corporation is currently in progress, there are no outstanding
agreements or waivers extending the statutory period providing for an extension
of time with respect to the assessment or re-assessment of tax or the filing of
any tax return by, or any payment of any tax by the Corporation, and there are
no Claims (other than for tax liabilities accrued and not yet due which have
been fully provided for as aforesaid) pending against the Corporation in
respect of taxes or, to the best of the Corporation's or the Seller's
knowledge, threatened. The Corporation has withheld from each payment made by
it the amount of all taxes and other deductions required to be withheld
therefrom and has paid the same to the proper taxing or other authority within
the time prescribed under any applicable law.
(kk) Bank Accounts and Powers of Attorney. Schedule
3.01(kk) is a correct and complete list showing (i) the name of each bank in
which the Corporation has an account or safe deposit box and the names of all
persons authorized to draw thereon or to have access thereto; and (ii) the
names of any persons holding powers of attorney from the Corporation and a
summary statement of the terms thereof.
(ll) Full Disclosure. Neither this Agreement nor any
certificate or statement in writing which has been supplied by or on behalf of
the Corporation or the Seller in connection with the transactions contemplated
hereby contains any untrue statement of a material fact, or omits any statement
of a material fact necessary in order to make the statements contained herein
or therein not materially misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
4.01 Representations and Warranties of the Purchaser. The Purchaser
represents and warrants as follows to the Seller and acknowledges and confirms
that the Seller is relying on such representations and warranties in connection
with the sale by the Seller of the Purchased Shares:
(a) Due Incorporation and Existence. The Purchaser is a
corporation duly incorporated and validly existing and in good standing under
the laws of Belgium.
(b) Validity of Agreement. The Purchaser has all necessary
corporate power to enter into and to perform its obligations under this
Agreement. The execution, delivery and performance by the Purchaser of this
Agreement and the consummation of the transactions contemplated hereby:
(i) have been duly authorized by all necessary
corporate action on the part of the Purchaser;
and
(ii) do not (or would not with the giving of notice,
the lapse of time or the happening of any other
event or condition) result in a violation or a
breach of, or a default under or give rise to a
right of termination, amendment or cancellation
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or the acceleration of any obligation under (A)
any charter or by-law instruments of the
Purchaser; (B) any contracts or instruments to
which the Purchaser is a party or by which the
Purchaser is bound; or (C) of any Laws applicable
to the Purchaser.
This Agreement constitutes a legal, valid and binding
obligation of the Purchaser enforceable against it in accordance with its terms
subject to bankruptcy, insolvency, reorganization, winding-up, moratorium and
other laws affecting the rights of creditors generally and by general
principles of equity.
ARTICLE 5
NON - COMPETITION
5.01 Non-Competition. (a) The Seller hereby covenants that he
will not, directly or indirectly, at any time prior to the eighth anniversary
of the Closing Date, engage in the business of, own or control any interest in,
act as a director, officer or consultant to or be connected in any manner with,
as an employee or otherwise, any person, firm, corporation, association or
other entity other than the Purchaser, the Parent Corporation or any of their
subsidiaries or affiliated entities which is directly or indirectly engaged in
any business in which the Purchaser, the Parent Corporation or any of their
subsidiaries or affiliated entities is then engaged;
(b) from and after the Closing Date, directly or
indirectly, solicit (i) any of the customers of the Corporation existing as of
the Closing Date or which existed within eighteen (18) months prior to the
Closing Date and which are transferred to the Purchaser, or (ii) any of the
Purchaser's or the Parent Corporation's or their subsidiaries' or affiliated
entities' customers; or
(c) induce or persuade any employee or consultant of
the Purchaser or any of its subsidiaries or affiliated entities to join him in
any activity prohibited by this Section 5.01.
ARTICLE 6
DELIVERIES AT CLOSING
6.01 Deliveries of the Seller. The Seller shall have delivered or
caused to be delivered to the Purchaser the following in form and substance
reasonably satisfactory to the Purchaser:
(a) all Consents required for the completion of
the transaction contemplated herein,
including the Consent of each financial
institution or other lender to which the
Corporation is currently indebted as set
forth in Schedule 3.01(y) herein;
(b) a shareholders' register representing the
Purchased Shares duly endorsed in blank for
transfer to the Purchaser;
(c) a duly executed resignation effective as at
the Closing Date of each director and
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officer of the Corporation as the Purchaser
may specify;
(d) a release in favor of the Corporation of
such officers and directors of the
Corporation as the Purchaser may specify in
the form reasonable satisfactory to the
Purchaser;
(e) the Consulting Agreement duly executed by
Kegelaers and MicroFrame Europe N.V.
6.02 Deliveries of the Purchaser. The Purchaser shall have delivered or
caused to be delivered to the Seller the following in form and substance
satisfactory to the Seller:
(a) payment of the Purchase Price in accordance
with Article 2;
(b) the Consulting Agreement duly executed by
Kegelaers and MicroFrame Europe N.V.
ARTICLE 7
CLOSING
7.01 D a te, Time and Place of Closing. The completion of the
transactions contemplated by this Agreement shall take place at the offices of
Loeff, Claeys, Verbeke, on the Closing Date at the hour of 3:00 p.m.
7.02 Closing Procedures. Subject to satisfaction or waiver by the
relevant Party of the Deliveries at Closing set forth herein on the Closing
Date, the Seller shall deliver to the Purchaser actual possession of the
Purchased Shares and the instruments of conveyance described in Subsection 6.01
and upon such delivery, the Purchaser shall deliver to the Seller the
instruments of conveyance described in Section 6.02 and shall pay the Purchase
Price in accordance with Section 2.02. The transfer of possession of the
Purchased Shares shall be deemed to take effect as at the Effective Time on the
Closing Date.
ARTICLE 8
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNITIES
8.01 Survival of Representations and Warranties. (a) The
representations and warranties of the Seller contained in this Agreement shall
survive the Closing and, notwithstanding such or any investigation made by or
on behalf of the Purchaser, shall continue in full force and effect for the
benefit of the Purchaser, without limitation hereunder.
(b) The representations and warranties of the Purchaser
contained in this Agreement shall survive the Closing and, notwithstanding such
Closing or any investigation made by or on behalf of the Seller, shall continue
in full force and effect for the benefit of the Seller, without limitation
hereunder.
8.02 Indemnification in Favor of the Purchaser. The Seller shall
indemnify and save the Purchaser and the Parent Corporation and their
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respective shareholders, directors, officers, employees, agents and
representatives harmless (net of any income tax benefit resulting therefrom the
underlying Claims) of and from any Claim or Loss suffered by, imposed upon or
asserted against the Purchaser and the Parent Corporation as a result of, in
respect of, connected with or arising out of, under or pursuant to:
(a) any failure of the Seller to perform or fulfil any
covenant or undertaking of any of them under this Agreement; and
(b) any breach or inaccuracy of any representation or
warranty given by the Seller contained in this
Agreement.
8.03 Indemnification in Favor of the Seller. The Purchaser shall
indemnify and save the Seller harmless of and from any Claim or Loss suffered
by, imposed upon or asserted against the Seller as a result of, in respect of,
connected with or arising out of, under or pursuant to:
(a) any failure by the Purchaser to perform and
fulfil any covenant of the Purchaser under this
Agreement; and
(b) subject to the limitation period set forth in
Section 8.01 hereof, any breach or inaccuracy of
any representation or warranty given by the
Purchaser contained in this Agreement.
8.04 Indemnification Proceedings. (a) Any party seeking
indemnification under this Article (the "indemnified party") shall forthwith
notify the party against whom a claim for indemnification is sought hereunder
(the "indemnifying party") in writing, which notice shall specify, in
reasonable detail, the nature and estimated amount of the claim. If a claim by
a third party is made against an indemnified party, and if the indemnified
party intends to seek indemnity with respect thereto under this Article, the
indemnified party shall promptly (and in any case within 30 days of such claim
being made) notify the indemnifying party of such with reasonable particulars.
The indemnifying party shall have 30 days after receipt of such notice to
undertake to conduct and control, through counsel of its own choosing and at
its expense, the settlement or defense thereof, and the indemnified party shall
cooperate with it in connection therewith; except that with respect to
settlements entered into by the indemnifying party (i) the consent of the
indemnified party shall be required if the settlement provides for equitable
relief against the indemnified party, which consent shall not be unreasonably
withheld or delayed; and (ii) the indemnifying party shall obtain the release
of the indemnified party. If the indemnifying party undertakes to conduct and
control the settlement or defense of such claim (A) the indemnifying party
shall permit the indemnified party to participate in such settlement or defense
through counsel chosen by the indemnified party, provided that the fees and
expenses of such counsel shall be borne by the indemnified party; and (B) the
indemnifying party shall promptly reimburse the indemnified party for the full
amount of any loss resulting from any claim and all related expenses (other
than the fees and expenses of counsel as aforesaid) incurred by the indemnified
party. The indemnified party shall not pay or settle any claim so long as the
indemnifying party is reasonably contesting any such claim in good faith on a
timely basis. Notwithstanding the two immediately preceding sentences, the
indemnified party shall have the right to pay or settle any such claim,
provided that in such event, and unless it has done so due to default by the
indemnifying party in the performance of its obligations under this Article 8
it shall waive any right to indemnity therefor by the indemnifying party.
-18-
(b) With respect to third party claims, if the indemnifying
party does not notify the indemnified party within 30 days after the receipt of
the indemnified party's notice of a claim of indemnity hereunder that it elects
to undertake the defense thereof, the indemnified party shall have the right,
but not the obligation, to contest, settle or compromise the claim in the
exercise of its reasonable judgment at the expense of the indemnifying party.
(c) Failure by an indemnified party to provide notice on a
timely basis of a third party claim shall not relieve the indemnifying party of
its obligations hereunder, except that the foregoing shall not constitute a
waiver by the indemnifying party of any claim for direct damages caused by such
delay.
(d) In the event of any claim by a third party against an
indemnified party, the defense of which is being undertaken and controlled by
the indemnifying party, the indemnified party will use all reasonable efforts
to make available to the indemnifying party those employees whose assistance,
testimony or presence is necessary to assist the indemnifying party in
evaluating and in defending any such claims; provided that the indemnifying
party shall be responsible for the expense associated with any employees made
available by the indemnified party to the indemnifying party hereunder, which
expense shall be equal to an amount to be mutually agreed upon per person per
hour or per day for each day or portion thereof that such employees are
assisting the indemnifying party and which expenses shall not exceed the actual
cost to the indemnified party associated with such employees.
(e) With respect to third party claims, the indemnified
party shall make available to the indemnifying party or its representatives on
a timely basis all documents, records and other materials in the possession of
the indemnified party, at the expense of the indemnifying party, reasonably
required by the indemnifying party for its use in defending any claim and shall
otherwise cooperate on a timely basis with the indemnifying party in the
defense of such claim.
ARTICLE 9
MISCELLANEOUS
9.01 Further Assurances. From time to time subsequent to the Closing
Date, each Party shall at the request of any other Party execute and deliver
such additional conveyances, transfers and other assurances as may be
reasonably required to effectively carry out the intent of this Agreement and
to transfer the Purchased Shares to the Purchaser.
9.02 Notices. Any notice, direction or other instrument required or
permitted to be given hereunder shall be in writing and given by delivering or
sending it by telecopy or other similar form of communication addressed:
(a) to the Purchaser at:
MicroFrame Europe N.V.
c/o MicroFrame, Inc.
00 Xxxxxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
President
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with copies to:
Xxxxxx Xxxxxx Flattau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
and
Loeff Xxxxxx Xxxxxxx
Xxxxxx xx Xxxxxxxxx 000X
0000 Xxxxxxxx, Xxxxxxx
Attention: Xxxxxx Xxxxxx, Esq.
(b) to the Seller at:
Mr. Marc Xxxxxxxxx
Xxxxxxxxxxxxxx 00
X-0000 Xxxx, Xxxxxxx
with a copy to:
Xxx Xxxxxxxx, Esq.
Xxxxxxxxxxx 00
X0000 Xxxxx, Xxxxxxx
Any such notice, direction or other instrument given as aforesaid shall be
deemed to have been effectively given, if sent by telecopier or other similar
form of telecommunications on the next Business Day following such transmission
or, if delivered, to have been received on the date of such delivery. Any
Party may change its address for service from time to time by notice given in
accordance with the foregoing and any subsequent notice shall be sent to the
party at its changed address.
9.03 Publicity. Save as required by Law or in order to obtain Consents,
the Seller shall not issue any press release or make any other public statement
or announcement relating to or connected with or arising out of this Agreement
or the matters contained herein, without obtaining the prior written approval
of the Purchaser to the contents and the manner of presentation and publication
thereof. If disclosure is required by Law, the Seller shall consult in advance
with the Purchaser and attempt in good faith to reflect the Purchaser's
concerns in the required disclosure.
9.04 Brokers. It is understood and agreed that no broker, agent or
other intermediary acted for the Seller in connection with the sale of the
Purchased Shares and the Seller shall indemnify and save harmless the Purchaser
from and against any Claims whatsoever for any commission or other remuneration
payable or alleged to be payable to any broker, agent or other intermediary who
purports to act or have acted for the Seller.
9.05 Third Party Beneficiaries. Each Party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person, other than the Parties hereto, and no Person, other than
the Parties hereto, shall be entitled to rely on the provisions hereof in any
action, suit, proceeding, hearing or other forum.
9.06 Expenses. Except as otherwise expressly provided herein, all costs
and expenses (including the fees and disbursements of legal counsel, investment
advisers and auditors) incurred in connection with this Agreement and the
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transactions contemplated hereby shall be paid by the Party incurring such
expenses. The Seller represents and warrants that the Corporation has incurred
no costs or expenses.
9.07 Assignment. This Agreement, and each right, interest and
obligation hereunder, may not be assigned by either party hereto without the
prior written consent of the other party hereto, and any purported assignment
without such consent shall be void and without effect; provided, however, that
the purchaser may, at its option, assign all of its interest and rights
pursuant to this agreement to any wholly-owned subsidiary of the Purchaser.
9.08 Enurement. This Agreement shall enure to the benefit of and be
binding upon the Parties and their successors and shall enure to the benefit of
any permitted assigns.
9.09 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
9.10 Non-Merger. Except as otherwise expressly provided in this
Agreement, the covenants, representations and warranties of the Parties
contained in this Agreement shall not merge on and shall survive the Closing
and, notwithstanding such Closing, or any investigation made by or on behalf of
any Party, shall continue in full force and effect. Except as otherwise
expressly provided in this Agreement, closing shall not prejudice any right of
one Party against any other Party in respect of anything done or omitted
hereunder or in respect of any right to damages or other remedies.
9.11 Schedules. It is expressly acknowledged and agreed that any matter
disclosed by the Seller on any of the Schedules to this Agreement shall be
deemed to be disclosed by the Seller on each of the Schedules hereto. In
addition, the information set forth on each of the Schedules is stated as of
the date of this Agreement unless another date is indicated on such Schedule.
9.12 Transferability of Stock of the Corporation. Provided that the
Seller is not in breach of any term or condition with respect to this Agreement
and Kegelaers is not in breach of any term or condition with respect to the
Consulting Agreement, the Purchaser shall not transfer the Purchased Shares to
any non-Belgium corporation for a period of one (1) year from the Closing Date.
IN WITNESS WHEREOF this Agreement has been executed by the Parties
as of the date first above written.
/s/ Marc Kegelaers
MARC KEGELAERS
MICROFRAME EUROPE N.V.
/s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX
Prisident and Chief Executive Officer
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SCHEDULE 1.01 (a) Accounts Receivable
Outstanding Invoices:
Invoice Nr.: Date Customer Amount
95/021 31 August 1995 NeMO GmbH 7630 DEM
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SCHEDULE 1.01 (b)European Countries
Iceland, Ireland, Scotland, England, Spain, Portugal, France, Andorra, Norway,
Sweden, Finland, Denmark, Holland, Belgium, Luxemburg, Germany, Switzerland,
Italy, Monaco, Liechtenstein, Estland, Letiand, Litauwen, Poland, Tsechia,
Austria, Slowenia, Slovakia, Hungary, Kroatia, Bosnia-Herzegovina, Yugoslavia,
Macedonia, Albania, Greece, Cyprus, Bulgaria, Turkey, Kreta, Rumenia, Moldavia,
Ukraine, Russia, White Russia, Israel, Libanon, Syria, Kuweit, Saudi Arabia,
Oman, Abu Dhabi, Bahrein, United Arab Emirates, Yemen, Egypt.
-23-
SCHEDULE 2.04 Share Earn Out
Billing Period One Share for
each US$____ Minimum Threshold
of European of European Revenue
1 $ 120 $ 1,200,000
2 $ 165 $ 1,600,000
3 $ 215 $ 2,100,000
4 $ 280 $ 2,750,000
5 $ 350 $ 3,000,000
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SCHEDULE 3.01 (p)Authorizations
No authorizations have been granted.
The only person authorized to sign on behalf of the Company is Marc Kegelaers.
-25-
SCHEDULE 3.01 (v) Leased Properties
The Company rents its office at the Xxxxxxxxxxx 00 xx 0000 Xxxxx, Xxxxxxx from
Fiduciare Bergmans N.V.
Document Title: "Terbeschikkingsstelling van Kantoorruimte."
There are no other leases.
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SCHEDULE 3.01 (y) Indebtedness
Other than the loans as described in schedule 3.01 (ee), there is no
indebtedness.
-27-
SCHEDULE 3.01(w) Material Contract
Xxxxxxx, UK: Xxxxxxxx Xxxxxxxxxxxxxx Xxxxxxxxx
X0X, Xxxxx: European Representative Agreement
Exxon, Netherlands: Maintenance Contract for XX0000
Xxxxxxxx, Xxxxxxxxxxx: Maintenance Contract for XX0000
Xxxxxxxxx Xxxx, Xxxxxxx: Maintenance Contract for DL4000
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SCHEDULE 3.01 (aa) Personal Property
Following is a list of material assets, including furniture,
machinery and equipment that is Owned by E.B.A. and which is in
good working condition.
Furniture: 6 off office desks
3 off general purpose tables
3 off office chairs
4 off high filing cabinets
1 off low filing cabinet
2 off "Kitchen"-chairs
Company cars: 1 off Mercedes 190D
1 off Peugeot 405
1 off Opel Corsa
Equipment: 1 off desktop PC, Type Compaq Prolinea
2 off laptop PCs, Type IBM Thinkpad 340
1 off fax / answering machine; type Xxxxxxx
0 off fax machine, type Olivetti
1 off fotocopier, type Olivetti Copia 8006
1 off CD ROM drive, type D2
1 off Tape Backup Unit, type Colorado Trakker 250
1 off PBX, type TOPCOM
1 off Printer, type HP Laserjet IIP
1 off printer, type HP Deskjet 510
2 off breakout boxes type Datacom Technologies
2 off maintenance toolboxes
1 off Cordless Phone, Type Samsung
1 off percolator
1 off water boiler
-29-
SCHEDULE 3.01 (ee) Financial Commitment to Sellers
Seller has issued two loans to the Company to finance the purchase of the
company cars.
Loan 1: Lender: Marc Kegelaers
Value: 500,000 Bef
Start date: April 1994
Nr. of monthly payments: 36
Interest rate : 12%
Balance on August 3 1: 299,686 Bef
Loan 2: Lender: Marc Kegelaers
Value: 250,000 Bef
Start date: April 1995
Nr. of monthly payments: 24
Interset rate : 12%
Balance on August 3 1: 212,367 Bef
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SCHEDULE 3.01 (ff) Employees
Employee nr. 1:
Xxxxx Xxxxxxx
- Sexe :female
- Date of birth :January 11, 1966
- Date of employment :March 4, 1994
- Function :product engineer
- Base salary :66,300 Bef / month
- Bonuses :1 month of extra salary
- Holiday pay :1.85 month of extra salary
- Benefits :use of company car + 5000 bef month for non-
proven expenses
- Commission :nihil
Employee nr. 2:
Xxxx Xxxxxxxxx
- Sexe :male
- Date of birth :January 20, 1970
- Date of Employment :July 1, 1995
- Function :product engineer
- Base salary :6 1,000 Bef / month
- Bonuses :1 month of extra salary
- Holiday pay :1.85 month of extra salary
- Benefits :use of company car
- Commission :nihil
Bonus and holiday pay are valid for a full year of employment. For less than a
year employment, the amounts mentioned are accrued pro-rata the number of
months of employment.
The bonus is paid at the end of the year, on the condition that the employee is
still employed.
The holiday payment is paid in June of the year after the year during which the
holiday pay was accrued or when the employee leaves the company.
In addition to the amounts mentioned, the employer is required to pay an
"employer's contribution" for the social security system at a rate of +/- 37.5
% of the base amount. This is applicable to the base salary, the bonus and the
holiday payment.
This contribution covers health insurance; insurance against unemployment and
pension.
For Mieke, following grant have been obtained from the government:
- waiver of "employer's contribution" according to the following
schedule:
- first year of employment: 100% waived
- second year: 75% waived
- third year: 50 % waived
- additional subsidy of 10,000 bef/ month for a period of 24 months.
For Hans, no subsidies have been obtained as yet.
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SCHEDULE 3.01 (ffv) Benefit Plans
There are none.
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SCHEDULE 3.01 (hh) Insurance Policies
1) Car Insurance Policy nr: 5.895.226 + 5.895.225
Car: Mercedes 190D
Policy nr.: 5.894.093
Car: Peugeot 405D
Policy nr.: 5.909.673/4627
Car: Opel Corsa
2) Civil Liabilities: Policy nr.: 7.010.819
(Inshures damages to third parties ad a result of non-
nal operations and legal fees)
3) Employee Accidents: Policy nr.: 9.943.606/1484
4) Guaranteed Income: Policy nr.: 1.402.835
(Covers long-term and permanent disability of Marc
Kegelaers)
5) Fire and theft for the office at Eikenstraat : covered by the rental
agreement.
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SCHEDULE 3.01 (ii) Potential and actual Litigation
"Rijkswacht Project"
Main Contractor: Datelnet Service N.V.
Subcontractor for CCL development, installation and project management: E.B.A.
Contract value to E.B.A.: 1,935,920 Bef
Invoiced before project finalization:
500,000 Bef in march 1994
360,000 Bef in march 1995.
This second payment was under the condition that
Datelnet had the right to reclaim the amount if
customer did not accept delivery of the software in
June 1995.
The customer has not accpeted the solution. Datelnet
is now in a position to reclaim its payment but has not
done so.
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SCHEDULE 3.01 (kk) Bank Accounts and Powr of Attorney
Bank Accounts:
Banque Brussel Xxxxxxx, account nr. 000-0000000-00
Persons authorized to draw money and access to the account:
- Marc Kegelaers
- Xxxxxxx Xxx Xxxx (spouse of Marc Kegelaers)
Powers of attorney:
Have been granted to Fiduciare Bermans N.V. to represent EBA in it's dealings
with the tax authorities.
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