EXHIBIT 10.26
[English translation of
original German text]
SALE AND ASSIGNMENT
OF
BUSINESS SHARES
Negotiated on December 21 (twenty one) 1998 in Hamburg
Before Xx. Xxxxxxx Xxxxxxxxx at Alstertor 14, 20095 Hamburg
1) Xx. Xxx Xxxxxxxx, born April 12, 1941
Resident at Xxxxxxxxx 0, 00000 Xxxxxxx, Xxxxxxx
Identified with personal identity card No. 1300463083
(hereinafter called "Seller")
And
2a) Xx. Xxxxxx Xxxxx, born December 10, 1962
Resident at Xxxxxxxxxxx 00, 0000 Xxxxxxx, Xxxxxxxxxxx
Identified with Swiss passport No. 5403362
And
2b) Xx. Xxxxxxx Xxxxxxxxxx, born November 1, 1961
Resident at Xxxxxxxxx 0, 0000 Inwil
Identified with Swiss passport No. 528/2018
Acting not in their own names, but as representatives of
COPE, Inc., a Delaware corporation, Xxxxxxxxxxxx 00, 0000 Xxxxxxxx, Xxxxxxxxxxx
(hereinafter called "Buyer")
The persons appearing declared the following for the record:
The company with the name
HICOMP Software Systems GmbH
Page 2 of 9
(hereinafter called "Company")
has its registered office in Hamburg and has been entered in the Commercial
Register of the Amtsgericht [Local Court] in Hamburg under Commercial Register
No. 53 850.
Of the total capital stock of 50,000.00 DM (fifty thousand German marks), the
Seller holds business shares (Stammanteile) of 49,000.00 DM and 1,000.00 DM,
which have been paid in full.
Based on the above, we enter into the following
ASSIGNMENT AGREEMENT FOR BUSINESS SHARES
(S) 1
The Seller herewith sells and assigns his aforementioned business shares in the
named Company with all rights and duties pertaining to the business shares to
the Buyer who accepts the business shares.
The Seller in his capacity as sole holder of business shares in the Company
herewith gives any and all consent to the transfer of the business shares in the
Company to the Buyer if and insofar as such consent is required by law and
articles of association.
If appropriate, the Company will give any approval necessary pursuant to law or
shareholder agreement outside of this document.
(S) 2
The parties have assessed the business value or special purpose value of this
agreement to be approximately 20 million DM. The Buyer is paying for the
aforementioned business shares of the Company exclusively with shares of the
Buyer, listed on the stock exchange. Accordingly, the Buyer undertakes to
deliver to the Seller 420,000 shares of the Buyer on February 28, 1999, and it
has the right to sell 200,000 of those shares within the framework of a
secondary placement at the "Neue Markt" (Frankfurt) at the earliest 90 days
after they were transferred. According to the parties, the remaining 220,000
shares are subject to sales restrictions under American law, pursuant to
Appendix 1 to this agreement.
Page 3 of 9
(S) 3
1. The Seller guarantees that the business shares sold are at his free
disposition and have not been assigned or pledged or otherwise encumbered with
the rights of third parties.
2. The Seller further guarantees that the Company in a legally valid manner
holds all industrial rights of use for the software products, know-how,
trademarks and trademark rights developed and sold by the Company (in
particular, but not exclusively in the trademarks HIBACK, HIBARS, and
INNOVATORS) and any other intangible property rights. The Seller in particular
guarantees that no actual or former employees of the Company hold any rights in
intangible property of the Company on the basis of inventions made by them,
(Arbeitnehmerfindung).
3. The Seller further guarantees that no claims for additional tax payments (for
example for trade, corporate, transfer or salary taxes) against the Company
exist except for those contained in the annual statements of accounts as of
December 31, 1996, December 31, 1997 and in the not yet set up annual statement
of accounts as of December 31, 1998, be it for salary taxes to be paid later or
for any other reason. The same applies to social security taxes.
4. The Seller further guarantees that the Company is not involved in any pending
litigation or other proceedings before any authorities and that it is not
threatened with any litigation or proceedings.
5. The Seller further guarantees that the Company has entered into all insurance
agreements necessary or customary for its business operation.
6. The Seller further guarantees that the software products developed by the
Company and either installed with clients or in its own business operation do
not contain any Year 2000 problem.
The Seller herewith undertakes that any problem that might arise with Dbtune
will be solved by March 31, 1999.
(S) 4
1. Upon signing this agreement, the Seller shall hand over to the Buyer a copy
of the Articles of Association (Gesellschaftsvertrag) of the Company at the
latest by February 15, 1999, the Seller shall hand over to the Buyer the
following additional documents:
Page 4 of 9
a) Asset and liability statements and income statements of the company with
certified reports of the tax consulting company, FAXON Auditors, 22083 Hamburg,
as of December 31, 1996, December 31, 1997 and December 31, 1998.
b) Economic plan for 1999 with projections to be defined jointly by the parties.
c) A list of all of the agreements entered into between the Company and third
parties (including Seller) that have a special purpose value of at least
50,000.00 DM each (non-recurrent or yearly recurring value).
2. The parties assume that the operating result as of December 31, 1998 will
consist of minimum sales of 3.6 million DM and minimum EBITDA of 450,000.00 DM.
EBITDA is defined as "earnings before interests, taxes, depreciation and
amortization."
(S) 5
1. Regardless of any rights of rescission provided for by law and any other
claims notwithstanding, both parties have the right to rescind this agreement
within 60 days after it was entered into in the following cases:
a) The Seller has the right to rescind the agreement in case the Buyer does not
within the time period mentioned enter into a cooperative agreement with an
investment bank (which is the condition for admission to the "Neue Markt,"
Frankfurt) and it thus becomes uncertain whether the shares will be saleable
pursuant to (S) 2, item 2, of this agreement.
b) The Buyer has the right to rescind the agreement in case the guarantees of
(S) 3 of this agreement should prove to be incorrect, in case the documents
listed in (S) 4, item 1, should not be handed over or not handed over in their
entirety, or in case the operating result pursuant to (S) 4, item 2, should not
be attained.
2. Regardless of any limitation in time, the Buyer has the right to rescind the
agreement if pursuant to US GAAP or pursuant to the SEC (Security and Exchange
Commission) the business transaction set forth in this agreement does not
qualify as "pooling of interests."
3. Upon receipt of an effectively exercised declaration of rescission of either
party, the business shares sold pursuant to (S) 1 of this agreement shall revert
to the Seller. The Buyer herewith executes the reassignment subject to a
condition precedent and the Seller accepts the reassignment.
Page 5 of 9
(S) 6
1. The Seller grants to the Buyer a purchase right and right of first refusal
for the shares he owns in the two American companies HICOMP America, Inc. (New
York) and HICOMP America, Inc. (Colorado). The purchase right and right of first
refusal shall expire at midnight on June 30, 2000 and shall be considered
exercised in a timely fashion if the pertinent declaration reaches the Seller
before that point in time.
2. The purchase price corresponds to the intrinsic value of the shares at the
point in time when the purchase right or right of first refusal is exercised. In
case of a dispute, an independent auditing company shall determine the intrinsic
value.
(S) 7
1. The Buyer is obligated to hold the Seller harmless from any and all liability
towards the Company or third parties, which might arise from the transferred
business shares.
2. The Seller shall be empowered and exclusively responsible for registering the
change in the shareholder position of the Company. He is obligated to make the
registration as soon as his contractual rights to rescission pursuant to (S) 5,
item 2.a), have expired and the Buyer has declared that it will not exercise its
right to rescission pursuant to (S) 5, item 2.
3. Until the registration has taken place, the Seller undertakes to coordinate
with the Buyer any measures taken at the Company level.
4. In order to be effective, the registration has to be made by explicit written
declaration to the second managing director of the Company by way of a
registered letter with return receipt for the Seller. Any other declarations not
made in this form will not be considered a registration ((S) 16 Gesetz uber
Gesellschaften mit beschrankter Haftung, GmbHG [Limited Liability Company Act]).
(S) 8
All profits shall remain with HICOMP Software Systems GmbH until the
registration or any rescission has taken place. There shall be no withdrawal of
profits.
(S) 9
After the contractual duration of the management contract with the Seller of
five years following August 28, 1998, the Seller shall be subject to a
comprehensive prohibition to compete with regard to the Buyer and HICOMP
Software Systems GmbH for an additional 18 months.
(S) 10
For SEC purposes, the parties undertake to sign an additional purchase agreement
(securities purchase agreement) governed by American law.
Page 6 of 9
That supplemental agreement shall not contain any provisions that would
contradict this agreement.
The parties further agree and undertake to sign any documents and undertake any
actions that may be required by German law in order to effect and complete the
transfer of the business shares from the Seller to the Buyer pursuant to the
terms of this agreement.
(S) 11
1. There shall be no rights of retention or set-off within the framework of this
agreement or in connection with it.
2. The Buyer shall pay the direct costs for this agreement, including the costs
for the notary public and consultation by tax consultants and attorneys.
(S) 12
Should any provision of this agreement be or become null and void, or should the
agreement contain any gaps, the validity of the remaining provisions shall not
be affected. The contracting parties undertake to replace any void provision
with another valid provision coming as close as possible to the economic effect
intended with the void provision. Any gap shall be filled by taking into account
the economic goals of this agreement. No oral subsidiary agreements exist.
This provision applies mutatis mutandi to (S) 6, in so far as this is advisable
under US law.
(S) 13
The parties were advised about the legal effects of the transfer of business
shares and in particular pointed out the following:
1. If a shareholder purchases a business share in addition to its original
business share, both of them remain legally independent.
2. The Buyer obtains the position with regard to the Company previously held by
the Seller only after the transfer of the share has been registered with and
proven to the Company, regardless of whether or not the Company had already
learned of the purchase from another side ((S) 16, paragraph 1, GmbHG).
3. The Buyer is obligated to accept any legal transactions undertaken before the
registration took place by the Company towards the Seller or by the Seller
towards the Company with regard to the conditions at the company ((S) 16,
paragraph 2, GmbHG).
Page 7 of 9
4. Buyer and Seller shall be jointly and severally liable vis-a-vis third
parties for any outstanding claims on the transferred business share at the time
of the registration ((S) 16, paragraph 3, GmbHG).
The parties were not advised about provisions of American law.
Page 8 of 9
The persons appearing read this record, approved it and then signed it as
follows:
Seller
By:/s/ Xxx Xxxxxxxx
-------------------------------
Xx. Xxx Xxxxxxxx
Buyer
COPE, Inc.,
a Delaware corporation
By:/s/ Xxxxxx Xxxxx
-------------------------------
Xxxxxx Xxxxx
By:/s/ Xxxxxxx Xxxxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxxxx
Page 9 of 9
Appendix 1
COPE Shares as "Restricted" Securities. The Seller is aware that neither the
--------------------------------------
420,000 shares of Buyer ("COPE Shares") nor the offer or sale thereof to the
Seller has been registered under the U.S. Securities Act of 1933, as amended
("Securities Act"), or under any foreign or state securities law. The Seller
further understand that no registration statement has been filed with the U.S.
Securities sand Exchange Commission ("SEC"), nor with any other U.S. or foreign
regulatory authority and that, as a result, any benefit which might normally
accrue to an investor such as the Seller by an impartial review of such a
registration statement by the SEC or other regulatory commission will not be
forthcoming. The Seller acknowledges that the COPE Shares will be characterized
as "restricted" securities under U.S. federal securities laws inasmuch as they
are being in a transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold without
registration under the Securities Act only in certain circumstances. The Seller
represents that the Seller is familiar in general with Rule 144 under the
Securities Act (which provides generally for a one year holding period and
limitations on the amount of "restricted" securities that can be publicly resold
in compliance with the rule upon completion of the holding period), and
understand the resale limitations imposed thereby and by the Securities Act.
The Seller agrees that the Seller will not sell all or any portion of COPE
shares except in accordance with an available exemption from registration under
the Securities Act. The Seller understands that each certificate for the COPE
Shares issued to the Seller or to any subsequent transferee shall be stamped or
otherwise imprinted with an appropriate legend summarizing the restrictions
described in this Appendix 1 and that Xxxxx shall refuse to transfer the COPE
Shares except in accordance with such restrictions, such legend to be
substantially as follows:
"This security has not been registered under the United States
Securities Act of 1933, as amended (the "Securities Act"), and such security may
not be offered, sold, pledged or otherwise transferred except pursuant to an
effective registration statement under the Securities Act or pursuant to an
exemption from registration, in each case as confirmed in an opinion of counsel
satisfactory to the company and in each case in accordance with any other
applicable law."
