Exhibit 2.4
-----------
SHARE SALE AND PURCHASE AGREEMENT
---------------------------------
BETWEEN
J.L.B. HOLDING B.V.
-------------------
AS THE VENDOR
AND
XXXXX XXXXX HOLDING B.V.
------------------------
AS THE PURCHASOR
AND
MUSIC PRINT B.V.
----------------
AS THE COMPANY
AND
MR. J.D.H. XXXXX
----------------
AS MANAGING DIRECTOR AND 100%-SHAREHOLDER OF THE VENDOR
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FOR THE ACQUISITION BY THE PURCHASER OF THE
ENTIRE ISSUED SHARE CAPITAL OF MUSIC PRINT B.V.
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INDEX
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1. DEFINITIONS............................................................ 2
1.1. General Words................................................ 2
1.2. Definitions.................................................. 2
2. SALE, PURCHASE AND TRANSFER OF SHARES.................................. 7
2.1. Sale and Purchase of the Shares.............................. 7
2.2. Transfer of the Shares....................................... 7
3. PURCHASE PRICE AND PAYMENT............................................. 8
3.1. Purchase Price............................................... 8
3.2. Payment...................................................... 8
3.3. Escrow....................................................... 8
4. COMPLETION............................................................. 8
4.1. Date and Venue............................................... 8
4.2. Vendor's Obligations......................................... 8
4.3. Other Transactions........................................... 9
5. RELATIONSHIPS WITH THE COMPANY......................................... 9
5.1. General...................................................... 9
5.2. Exclusions................................................... 10
5.3. Other Interests.............................................. 11
6. OTHER TRANSACTIONS..................................................... 11
6.1. Consultancy Agreement........................................ 11
6.2. Agreements with Associates................................... 11
6.3. Vacation of the Properties................................... 11
6.4. Xxxxxxx Xxxxxxx.............................................. 12
6.5. Packaging Personnel.......................................... 12
7. WARRANTIES AND INDEMNITIES............................................. 12
7.1. The Warranties............................................... 12
7.2. Limitations.................................................. 12
7.3. Quantification of Loss....................................... 12
7.4. Further Disclosure........................................... 13
7.5. Indemnities.................................................. 13
7.6. Liability to Tax............................................. 14
7.7. Indemnities in respect of Tax Liabilities.................... 14
8. COVENANTS......................................................... 15
8.1. Specific Covenants........................................ 15
8.2. Compensation for Infringement............................. 16
8.3. Benefit of Undertaking.................................... 16
9. FURTHER ASSURANCE................................................. 16
9.1. Investing Ownership and Ensuring Benefit.................. 16
9.2. Information............................................... 17
10. GENERAL........................................................... 17
10.1. Costs..................................................... 17
10.2. Successors................................................ 17
10.3. Collateral Agreements and Variations...................... 17
10.4. Continuing Effect......................................... 17
10.5. Non Waiver................................................ 18
10.6. Several Dealings.......................................... 18
10.7. Circulars and Announcements............................... 18
10.8. Previous Agreements....................................... 18
10.9. Counter Parts............................................. 18
10.10. Fraud..................................................... 18
10.11. No Recision............................................... 19
11. NOTICES........................................................... 19
11.1. Authorized Addresses...................................... 19
11.2. Service................................................... 19
12. LAW AND PROCEEDINGS............................................... 19
12.1. Governing Law............................................. 19
12.2. Proceedings............................................... 20
SCHEDULE 1
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Draft Notarial Deed
SCHEDULE 2a
-----------
Excerpt from the Registers of the Chamber of Commerce concerning the
Company
SCHEDULE 2b
-----------
Articles of Association of the Company
SCHEDULE 3
----------
Employees
SCHEDULE 4
----------
SCHEDULE 5
----------
Properties
SCHEDULE 6
----------
Article 7.1: The Warranties........................................... 1
1. PRELIMINARY........................................................... 1
1.1. Disclosures.................................................... 1
1.2. Other knowledge................................................ 1
1.3. Vendor's Claims against the Company............................ 2
1.4. Independence of Warranties..................................... 2
1.5. Warranties..................................................... 2
1.6. Definition..................................................... 2
2. COMPANY INFORMATION................................................... 2
2.1. Incorporation, Constitution and Statutory Matters.............. 2
2.2. Share Capital and Shares....................................... 3
3. ACCOUNTS AND RECORDS.................................................. 3
3.1. Contents of Accounts........................................... 3
3.2. Stock Provisions............................................... 4
3.3. Debts.......................................................... 4
3.4. Depreciation................................................... 4
3.5. Company Records................................................ 4
3.6. Management Accounts............................................ 5
4. FINANCIAL MATTERS..................................................... 5
4.1. Bank Accounts.................................................. 5
4.2. Financial Facilities........................................... 5
4.3. Encumbrances................................................... 5
4.4. Loss of Benefits............................................... 6
4.5. Guarantees for the Company..................................... 6
4.6. Foreign Exchange Commitments................................... 6
4.7. Creditors...................................................... 6
5. REAL PROPERTY......................................................... 6
5.1. Identity and Information....................................... 6
5.2. Title.......................................................... 6
5.3. Encumbrances on Title.......................................... 7
5.4. Possession..................................................... 7
5.5. Adverse Interests............................................. 7
5.6. Forfeiture and Loss of Use.................................... 7
5.7. Access........................................................ 8
5.8. Public Authority Obligation................................... 8
5.9. Private Obligations........................................... 8
5.10. Leasehold Obligations......................................... 8
5.11. Condition and Repair.......................................... 8
5.12. Right to buy a Freehold....................................... 8
6. INTELLECTUAL PROPERTY................................................ 9
6.1. Ownership..................................................... 9
6.2. Registered Intellectual Property.............................. 9
6.3. Valid Registrations........................................... 9
6.4. Adverse Claims................................................ 9
6.5. Infringement of Third Party Rights............................ 9
6.6. Third Party Rights............................................ 10
6.7. Licences from Third Parties................................... 10
6.8. Disclosures................................................... 10
6.9. Trade Name.................................................... 10
6.10. Business Name................................................. 11
6.11. Software...................................................... 11
6.12. Software Support.............................................. 11
6.13. Fault Correction.............................................. 12
6.14. Millennium Compliance......................................... 12
7. FYSICAL ASSETS....................................................... 12
7.1. Ownership..................................................... 12
7.2. Leasing and Hire Purchase..................................... 13
7.3. Asset Register................................................ 13
7.4. Condition..................................................... 13
7.5. Computers..................................................... 13
7.6. Stock-in-Trade................................................ 13
8. CONDUCT OF BUSINESS.................................................. 14
8.1. Business since last Accounting Date........................... 14
8.2. Authorizations and Approvals.................................. 15
8.3. Absence of Legal Proceedings.................................. 16
8.4. Public Obligations............................................ 16
8.5. Invalid and Disputed Contracts................................ 16
8.6. Negligent Services............................................ 16
8.7. Defective Goods............................................... 17
8.8. Orders and Judgements......................................... 17
8.9. Competition Law............................................... 17
8.10. Contractual Characteristics................................. 18
8.11. Overseas Undertakings....................................... 19
8.12. Agency Distributorship and Similar Arrangements............. 19
8.13. Material Contracts.......................................... 20
8.14. Adverse Matters............................................. 20
8.15. Material Customers.......................................... 20
8.16. Insurance................................................... 20
8.17. Legal Documents............................................. 21
8.18. Effect of Agreement......................................... 21
8.19. Health and Safety........................................... 21
8.20. Improper Practices.......................................... 21
8.21. Outstanding Tenders......................................... 21
9. EMPLOYMENT............................................................ 22
9.1. Employment Particulars...................................... 22
9.2. Termination of Employment................................... 22
9.3. Disputes.................................................... 22
9.4. Compensation Obligations.................................... 23
9.5. Claims...................................................... 23
9.6. Incentive Schemes........................................... 23
9.7. Long Term Contracts......................................... 23
9.8. Industrial Action........................................... 23
9.9. Employment Records.......................................... 23
9.10. Obligations to Employee..................................... 23
9.11. Engagement of Employees by Operation of Law................. 24
10. PENSIONS.............................................................. 24
11. TAXATION.............................................................. 24
11.1. Submission of Returns....................................... 24
11.2. Payment of Tax Due.......................................... 24
11.3. Penalties and Interest...................................... 24
11.4. Deduction of Tax............................................ 24
11.5. Tax Authority Investigations................................ 25
11.6. Accounts Provisions......................................... 25
11.7. Secondary Liabilities....................................... 25
11.8. Asset Values................................................ 25
12. ENVIRONMENTAL MATTERS................................................. 25
12.1. Existing Legislation........................................ 25
12.2. Breach of Legislation....................................... 25
12.3. Litigation.................................................. 25
12.4. Released Substances......................................... 25
12.5. Authorizations............................................. 26
13. MISCELLANEOUS...................................................... 26
13.1. Accuracy of Information.................................... 26
13.2. Finders fee................................................ 26
SCHEDULE 7
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Article 7.7.: Indemnity against Taxation Liabilities
SCHEDULE 8
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Article 7.2.: Limitations on Claims
1. LIABILITY FOR WARRANTY CLAIMS
2. MAXIMUM LIABILITY AND THRESHOLD
2.1. Maximum
2.2. Threshold
SCHEDULE 9
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Consultancy Agreement
SCHEDULE 10
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Printing and Production Work Agreement
SCHEDULE 11
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Disclosure
1
SHARE SALE AND PURCHASE AGREEMENT
---------------------------------
The undersigned:
I. J.L.B. HOLDING B.V., a private company with limited liability organized and
------------------
existing under the laws of the Netherlands, having its statutory seat at
Amersfoort, the Netherlands, and its principal office at Xxxxxxxxxx 00,
00000 XX Amersfoort, the Netherlands, under registration number 31045538
(Handelsregister Xxxxx van Koophandel cn Fabrieken voor Gooi- en Eemland),
in this duly represented by its managing and statutory director Mr. Johan
Xxxx Xxxxxx XXXXX, as hereafter mentioned under IV, hereinafter referred to
as "the Vendor";
II. XXXXX XXXXX HOLDING B.V., a private company with limited liability
-------------------------
organized and existing under the laws of the Netherlands, having its
statutory seat at Uden, the Netherlands, under registration number 16079138
(Handelsregister Xxxxx van Koophandel en Fabrieken voor Oost-Brabant), in
this duly represented by its managing and statutory director Xx. Xxxxxxxx
XXXX, hereinafter referred to as "the Purchaser";
III. MUSIC PRINT B.V., a private company with limited liability organized and
-----------------
existing under the laws of the Netherlands, operating under the trade name
MUSIC PRINT & MORE, having its statutory seat at Weesp, the Netherlands,
------------------
and its principal office at Xxxxxxxxxxxxxxx 00, 0000 XX Xxxxx, xxx
Xxxxxxxxxxx, under registration number 32061865 (Handelsregister Xxxxx van
Koophandel en Fabrieken voor Gooi- en Eemland), in this duly represented by
J.L.B. HOLDING B.V. as aforementioned under I, hereinafter referred to as
"the Company";
IV. MR. JOHAN XXXX XXXXXX XXXXX, born 15/th/ November 1935 in Amsterdam, the
---------------------------
Netherlands, residing at Xxxxxxxxxx 00, 0000 XX Amersfoort, the
Netherlands, hereinafter referred to as "Xx Xxxxx";
2
WHEREAS:
A. the Vendor has full right and title to the entire issued and outstanding
share capital of the Company;
B. Xx. Xxxxx has full right and title to the entire issued and outstanding
share capital of the Vendor;
C. the Vendor wishes that the Shares (as defined in article 1 hereof) be sold
to the Purchaser and the Purchaser wishes to purchase the Shares subject
to the terms and conditions set out in this Agreement;
HEREBY AGREE UNDER THE FOLLOWING TERMS AND
CONDITIONS AS FOLLOWS:
ARTICLE 1: DEFINITIONS
1.1 GENERAL WORDS
-----------------
The words and phrases "other", "including" and "in particular" shall not limit
the generality of any preceding words or be construed as being limited to the
same class as the preceding words where a wider interpretation is possible.
1.2. DEFINITIONS
----------------
Unless the context requires otherwise, the following terms and expressions in
this Agreement including its recitals and schedules are defined terms and
expressions which shall have the following meaning:
The Accounts: The audited balance sheet of the Company as at
the Last Accounting Date and the profit and
loss account of the Company for the period then
ended together with the explanatory notes
thereto and the directors' and auditors'
reports thereon or attached thereto.
The Last Accounting Date: 31/st/ December 1997.
3
Associate: Means any person:
a. which is a Subsidiary of or controlled by the person
concerned, or
b. of which or by whom the person concerned is a Subsidiary
or is controlled, or
c. who or which is a Subsidiary of or controlled by a person
who or which controls or is the holding company of the
person concerned, or
d. in which the person concerned has a direct or indirect
financial interest (disregarding any interest in shares
in a company quoted on a recognized stock exchange
representing less than 1% [one percent] of its issued
share capital and investment in independently managed
pension schemes, unit trusts, managed funds or any
similar investments), or
e. of which one is an officer of the other, or
f. of which one is the spouse, parent, issue, brother or
sister of the other, or
g. of which one is trustee or nominee for the other or for
any associate of the other (whether sole or joint trustee
or nominee and whether the other or the associate is sole
or one of several beneficiaries), or
h. who or which is acting on behalf of that other, and
without limiting the foregoing each of the following is an
Associate of the Vendor and of Xx. Xxxxx:
D.M.S.I G.m.b.H and Music Print Packaging B.V.
"aware" means that the person concerned is either actually aware or
ought to be aware were he diligently to make all appropriate
and reasonable enquiries and give the matter full and
careful consideration.
Civil Law Notary: Any civil law notary of Xxxxx Dutilh Advocaten Notarissen
Belastingadviseurs (Xxxxx Dutilh lawyers, civil law notaries
and tax advisors) or any of their deputies.
Completion: Actual completion of the sale and purchase hereunder.
4
Confidential Information: Any and all information and other matters referred
to in paragraph (a) of the definition of
Intellectual Property and all other information of
a confidential nature relating to customers,
suppliers, finances or other affairs of the
Company, especially in relation to Products.
Deed of Transfer: The notarial Deed of Transfer of the Shares in
the draft form attached hereto as Schedule 1.
----------
Disclosure Letter: The letter and annexes thereto of even date with
this Agreement from the Vendor to the Purchaser in
the form attached hereto as Schedule 11, accepted
-----------
in writing by the Purchaser and containing various
disclosures against the Representations and
Warranties.
Employees: The employees of the Company listed in Schedule 3,
----------
which schedule shows their dates of birth, dates
of entry into service, as well as their current
salaries and benefits and positions.
Encumbrance: Any mortgage, charge, lien, pledge, attachment,
usufruct, security, option, right to acquire,
equity or other encumbrance or adverse interest
whatsoever or commitment to constitute any of the
same, or registrations thereof.
Environmental Claim: Any claim, notice of violation, prosecution,
demand, action, official warning, abatement or
other order or notice (conditional or otherwise),
relating to any notification or order requiring
compliance with the terms of any Environmental
Licence or Environmental Law.
Environmental Law: All European, state, national, provincial,
municipal or local laws, regulations, statutory
instruments and orders, whether administrative,
criminal or otherwise, and all guidelines relating
thereto and/or rules and practices promulgated
thereunder in respect of environmental matters
including without limitation any such laws,
regulations, statutory instruments and orders
relating to emission or
5
discharge of substances into the environment or to
the production, processing, distribution,
management, use, treatment, storage, burial,
disposal, transport or handling of any hazardous
material. The foregoing as may be in force or
applicable to the Company from time to time in the
Netherlands.
Environmental Licence: Any permit, licence, authorisation, consent,
certificate, regulatory plan, exemptions, consents
and authorisations, howsoever named, compliance
schedule or other approval obtained or which ought
to have been obtained at any time by the Company
and / or in relation to the business carried on by
the Company pursuant to any environmental law.
Hazardous Material: Any material such as chemicals, radio active
materials, paints, ink, pollutants, or other
hazardous material, the presence or release of
which into the environment is or may be considered
hazardous or damaging for the public health and /
or the environment, and such other material as is
or may from time to time be designated or treated
as hazardous materials under the environmental
laws.
Indemnities: The obligations of the Warrantors under Schedule 8.
----------
Intellectual Property: a. all know-how, expertise, technological
information, data, formulae, designs,
processes, specifications and other
knowledge and information;
b. all drawings, writings and other papers,
computer programs and other tangible and non-
tangible manifestations of any items referred
to in paragraph a. of this definitions;
c. all rights to and copy right, patent, trade
xxxx, registered design, design right and
other protection for or relating to the
foregoing; and
d. all claims and rights in or arising from the
foregoing.
The aforementioned a. to d. especially in relation
to Products.
6
Management Accounts: The management accounts of the Company a copy of which
is attached to the Disclosure Letter.
Material Customer: Each of the following: EMI Compaq Disc Holland,
Polygram (Germany), Polygram (France), Sentinel, T.S.I.
(France).
person: includes any legal or natural person, partnership,
trust, company, government, local or public authority
department or other body or association of persons.
Products: Printed material for use in or with packaging for 12
cm. disks, mini disks and related or derivative
products and any other CD-ROM or other medium for
electronic machine readible storage of music, data and
other information.
Properties: The land described in Schedule 5.
----------
Purchaser's Group: The Purchaser and any Subsidiary of the Purchaser for
the time being, not including the Company.
Purchaser's Lawyers: Pot & Stoop Advocaten, Xxxxxxxx 0, 0000 XX Xxxxxxxxx,
xxx Xxxxxxxxxxx (P.O. Box 23202, 3001 KE Rotterdam, the
Netherlands).
Relevant Substance: a. any radio active emissions;
b. electricity and any electrical or electromagnetic
emissions;
c. any substance whatsoever (whether in a solid or
liquid form or in the form of a gas or vapour or
whether unknown or in combination with any other
substance);
d. waste material;
e. any activity or other phenomenam, which in the
case of e. and d. above is capable of causing harm
to men or any other living organism supported by
the environment (which include natural resources
whether pertaining to life or not, such as air,
qua water, soil, qua fauna and flora and the
interaction between the same factors and also the
built
7
environment) or damaging the environment or public
health or welfare.
Shares: All 400 issued and outstanding shares with a nominal
value of Dfls. 100 (in words: one hundred Dutch
guilders) each in the share capital of the Company with
numbers 1 through 400 constituting the whole of the
allotted and issued share capital of the Company, which
is fully paid up.
Tax and Taxation: Any liability to any form of taxation or other
financial duty, contribution, premium, grant, subsidy,
levy, withholding or imposed of any kind, whether of
the Netherlands or not and whether of a supra-national,
national, regional, municipal or other public authority
including but not limited to corporate income tax
("vennootschaps-belasting") and all sums paid in
respect thereof by way of deduction, in advance or
otherwise and all fines, penalties, charges, costs and
interest ("heffings- en invorderingsrente") or damages
incidental or relating thereto.
Tax Warranties: The warranted statements contained in part XI of
Schedule 6 (relating to Taxation).
----------
Vendor's Lawyers: Van Mens & Wisselink, Advocaten, Xxxxxxxxxxxxxx 00-00,
0000 XX Xxxxxxx, the Netherlands (X.X. Xxx 00000, 0000
XX Xxxxxxx, the Netherlands).
Warranties: The warranted statements in Schedule 6.
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ARTICLE 2: SALE, PURCHASE AND TRANSFER OF SHARES
2.1. SALE AND PURCHASE OF THE SHARES
------------------------------------
Subject to the terms and conditions set out in this Agreement, the Vendor hereby
sells to the Purchaser 400 shares in the Company numbered 1 through 400 and the
Purchaser hereby purchases the Shares from the Vendor.
2.2. TRANSFER OF THE SHARES
---------------------------
On Completion the Vendor shall transfer the Shares to Purchaser by executing the
Deed of Transfer before the Civil Law Notary. The Company shall acknowledge the
transfer of the
8
Shares on Completion and enter such transfer in its Register of Shareholders
forthwith. On Completion the parties shall furthermore take such action as may
be required by this Agreement.
ARTICLE 3: PURCHASE PRICE AND PAYMENT
3.1. PURCHASE PRICE
-------------------
The total Purchase Price for the sale of the Shares shall be the sum of TEN
MILLION DUTCH GUILDERS (Dfls. 10,000,000) which shall be paid in cash upon
Completion.
3.2. PAYMENT
------------
On or before Completion Purchaser shall transfer an amount equal to the Purchase
Price to the bankaccount of the Civil Law Notary in same day funds. Immediately
after the Deed of Transfer has been passed and the requirements of article 4
have been satisfied, the Civil Law Notary shall release the Purchase Price to
the Vendor, with regard to what is stated in article 3.3. of this Agreement
hereunder.
3.3. ESCROW
-----------
By way of Escrow from the Purchase Price an amount of TWO MILLION DUTCH GUILDERS
(Dfls. 2,000,000,--) will, as commissioned by Purchaser and vendor, be paid by
Purchaser to a yet to be specified account with STAAL BANKIERS N.V., hereinafter
referred to as "the Escrow Agent". The rights and obligations of parties with
regard to this Escrow are laid down in the Escrow Agreement which, in draft
form, is attached to this Agreement under Schedule 4. As long as the Escrow
----------
Agreement is not yet signed by all parties thereto the aforementioned amount
will rest under the Civil Law Notary.
ARTICLE 4: COMPLETION
4.1. DATE AND VENUE
-------------------
4.1.1. Subject to the provisions of this Agreement, Completion shall take
place at the offices of the Civil Law Notary, no later than five
working days after signature of this Agreement.
4.1.2. Completion will be dependent on the Company having become the sole
owner of the Properties as mentioned under article 5 of the Warranties
which are attached to this Agreement under Schedule 6.
----------
4.2. VENDOR'S OBLIGATIONS
-------------------------
Upon or before Completion the Vendor shall:
9
4.2.1. deliver to Purchaser:
a. the resignations required by article 4.2.2. duly executed as
required by the respective persons who so resign;
b. the items required by article 5;
4.2.2. procure:
a. that such persons as the Purchaser may nominate are validly
appointed additional directors of the Company and that upon such
appointment such other directors as the Purchaser may specify of
the Company resign, each such resignation being confirmed by the
person resigning handing to the Purchaser a letter addressed to
the Company in a form required by the Purchaser acknowledging
that he has no claim or entitlement whatsoever against or from
the Company outstanding or arising from termination of his office
or employment whether for compensation, arrears of salary, fees,
expenses, damages or otherwise howsoever;
b. the revocation of all authorities to bankers for the Company
relating to bankaccounts giving authority through such persons as
the Purchaser may direct to operate the same;
c. the resignation of the existing auditors of the Company in
writing, acknowledging that they have no claim against the
Company.
4.3. OTHER TRANSACTIONS
-----------------------
It shall be a precondition to the obligation of the Purchaser to proceed to
Completion that upon Completion each of the persons respectively party thereto
(other than the Purchaser) shall effect or procure that there are effected the
transactions and enter into or procure that there are entered into the documents
required by article 7; shall deliver to the other parties thereto a part of such
document duly executed by him (underhand or as a deed, as the document
requires).
ARTICLE 5: RELATIONSHIPS WITH THE COMPANY
5.1. GENERAL
------------
Each of the Vendor and Xx. Xxxxx undertake with the Purchaser that, subject to
article 5.2., upon or before Completion each of the Vendor and Xx. Xxxxx will:
5.1.1. repay and fulfil, or procure there to be repaid and fulfilled, to the
Company all sums and liabilities which are owing, incurred or
outstanding to the Company at Completion by him or by any Associate of
himself;
5.1.2. return to the Company any item of property of the Company in the
possession or control of himself or any Associate of himself;
10
5.1.3. confirm and procure that such of his Associates as the Purchaser may
specify prior to Completion confirm, to the Company and to the
Purchaser in writing, and will procure that:
a. neither he nor any such Associate has any claim, entitlement or
rights whatsoever (whether contractual, tortuous, statutory or
otherwise howsoever) against the Company or in respect of any of
the Shares safe those agreed to be sold by him hereunder;
b. the Company is not in any way obliged or indebted to him or to
any such Associate;
c. neither he nor any such Associate of his has any entitlement to
carry out work for the Company after Completion, and without
limiting the foregoing the Company is entirely free to carry out
or have carried out by any person, free from obligation to him or
to any Associate of his, of any pre-press or origination or
reprographic work; and
d. neither he nor any such Associate owns or has any interest in any
item which is then or has been at any time during the six months
preceding Completion used in the business of the Company;
5.1.4. assign and procure that such of his Associates as the Purchaser may
specify assign, to the Company or to such person as the Purchaser
specifies, any rights in any Intellectual Property now or then held by
him or such Associate which is used by or is relevant to any business
of the Company;
5.1.5. acknowledge and undertake that neither he nor any Associate of his
then has, or at any time during the six months preceding Completion
has had, any rights to use or any other right or interest in or
relating to any such Intellectual Property;
5.1.6. procure that any Guarantee or other obligation of any kind incurred by
the Company to any person for the account of any of the Vendor and /
or Xx. Xxxxx or any Associate of any of the Vendor and / or Xx. Xxxxx
is effectively discharged and released to the satisfaction of the
Purchaser;
and each of the Vendor and Xx. Xxxxx shall indemnify the Company against any
loss or liability incurred by it which would not have incurred had the foregoing
paragraphs been wholly complied with and (in the cases of articles 5.1.3. and
5.1.4) all Associates of each of the Vendor and Xx. Xxxxx had been specified in
accordance therewith.
5.2. EXCLUSIONS
---------------
Nothing in article 5.1. or in any document entered into pursuant thereto shall
apply to any contract, claim, entitlement, right, obligation, indebtness or
interest disclosed in the Disclosure Letter with express reference to this
article 5.2.
11
5.3. OTHER INTERESTS
---------------------
Upon or before Completion Xx. Xxxxx shall deliver or procure to be delivered to
the Purchaser a complete and correct list of all other companies, businesses or
undertakings in which he has any direct or indirect financial interest
(disregarding interests which are limited to investments in companies listed or
quoted on a recognized stock exchange or investments in or through independently
managed pension schemes or units trusts or managed funds or similar investments)
and such list shall contain a full description of the businesses respectively
carried on by them.
ARTICLE 6: OTHER TRANSACTIONS
6.1. CONSULTANCY AGREEMENT
--------------------------
Upon completion the Vendor and Xx. Xxxxx shall enter into with the Company and
the parties shall cause the Company to enter into with them a Consultancy
Agreement in agreed form and a counter-part of such agreement duly signed by
each party shall be delivered to each of them.
Schedule 9.
-----------
6.2. AGREEMENTS WITH ASSOCIATES
-------------------------------
6.2.1. Upon Completion Xx. Xxxxx shall cause his Associates as mentioned in
the Printing and Production Work Agreement attached hereto under
Schedule 10, to enter into that Agreement with the Company and the
-----------
Purchaser.
6.2.2. Xx. Xxxxx shall cause any other undertaking which becomes an Associate
of his during the three years following Completion for the remaining
term thereof which has interests in the production or supply of Products
to enter into an agreement in the like form to that required by the
preceding article 6.2.1., as soon as practicable following his
acquisition of such interest.
6.3. VACATION OF THE PROPERTIES
-------------------------------
Each of the Vendor and Xx. Xxxxx shall procure that they and all their
Associates which previously used or occupied any part of the Properties cease to
use or occupy the same and vacate the same in good order and without causing
damage within six months or lesser period as agreed, when asked to do so by
Purchaser, or in case each of the Vendor and Xx. Xxxxx and any of their
Associates would so desire.
12
6.4. XXXXXXX XXXXXXX
--------------------
Each of the Vendor and Xx. Xxxxx shall cause the employment of Xx. Xxxxxxx
Xxxxxxx by the Company to terminate on or before Completion by mutual agreement
with him and for him to become employed by the Vendor or an Associate of the
Vendor and each of the Vendor and Xx. Xxxxx shall indemnify the Company against
any cost, claim, liability or expense to Xxxxxxx Xxxxxxx which it may incur.
6.5. PACKAGING PERSONNEL
------------------------
Each of the Vendor and Xx. Xxxxx shall cause Messrs. X. Xxxxxxxx, M.A.M.
Vesters, A.R. Xxxxx, M. van Roomen and Xxx. X. Xxxxx to become employed by the
Vendor or an Associate of the Vendor and each of the Vendor and Xx. Xxxxx shall
indemnify the Company against any cost, claim, liability or expense to the
aforementioned persons which it may incur.
ARTICLE 7: WARRANTIES AND INDEMNITIES
7.1. THE WARRANTIES
-------------------
The provisions of Schedule 6 shall have effect as if set out herein at length.
----------
7.2. LIMITATIONS
----------------
Except where any claim arises by reason of fraud or wilful concealment or
dishonesty or deliberate non-disclosure on the part of the Vendor or of any
representative of the Vendor (in which case Schedule 8 shall not apply) the
----------
provisions of Schedule 8 shall have effect as if herein set out at length in
----------
order to limit the liability of the Vendor in respect of the Warranties.
7.3. QUANTIFICATION OF LOSS
---------------------------
Without limiting the rights of the Purchaser or otherwise affecting its ability
to claim and recover damages on any other basis available to it, if any of the
Warranties is or proves to be incorrect, incomplete or misleading (a "Breach"),
the Vendor shall at the request of the Purchaser pay to the Purchaser or (if so
directed by the Purchaser) to the Company:
7.3.1. such amount as will put the Company into the position which would have
existed if there had been no Breach and without limiting this
paragraph:
a. if any asset of the Company is extinguished or is not owned by it
or is worth less than its value would have been if the Breach had
not occurred, the amount to be paid by the Vendor at the request
of the Purchaser shall be the amount of the loss or shortfall in
value of such asset;
13
b. if the Company has or will have a liability or an increased
or substituted liability which would not have been the case
had the Breach not occurred, the amount to be paid by the
Vendor at the request of the Purchaser shall be the amount
of the increase in liabilities which would not have been the
case but for the Breach;
c. if the effect of the Breach is that there does not accrue to the
Company a benefit, gain or profit which it might reasonably have
been expected would accrue, the amount to be paid by the Vendor
at the request of the Purchaser shall be the amount equal to the
capitalized value of such benefit, gain or profit;
d. in any case there shall be paid such further amount (if any)
as may be necessary to put the Company into the same
position in financial terms as it would have been had the
Breach not occurred;
7.3.2. all costs and expenses incurred by the Purchaser or the Company as a
result of any of the Warranties being untrue, incomplete or misleading
and any costs (including legal costs on a full Indemnity basis),
expenses and other liability which any of them may incur either before
or after commencement of any action in connection with any legal
proceedings in pursuit of any claim under the Warranties in which
judgement is given for the Purchaser or in connection with the
enforcement of any settlement or judgement relating to such claim.
7.4. FURTHER DISCLOSURE
-----------------------
Immediately that either of the Vendor or Xx. Xxxxx or the Purchaser become aware
of the same he shall disclose in writing to the Purchaser respectively the
Vendor any matter, thing or occurrence whatever and whenever it arose or
occurred or became known to him (and whether before, on or after Completion)
which is inconsistent with any of the Warranties and might be material to the
Company or to the Purchaser, and such disclosure shall be without prejudice to
any rights or remedies of the Purchaser.
7.5. INDEMNITIES
----------------
The Vendor shall indemnify the Company and the Purchaser and each of them
against the following, save to the extent provided for in the Accounts and shall
pay to the Purchaser or (if the Purchaser so requests, shall pay to the Company)
an amount equal to:
7.5.1. any liability to any person in respect of any Environmental Claim or
for any environmental damage (whether damage to ground or surface,
water, air, soil, buildings, animals, chattels, or otherwise) or for
damage to human health, whether or not such liability is based on
fault and weather or not it comprises penalties, cleaning costs,
compensation, other costs, or other liability, where the damage or
other matter the subject of the claim occurred or arose wholly or
partly prior to Completion;
14
7.5.2. any liability to any person arising from or relating to any product
manufactured, produced or supplied or service rendered by the Company
prior to Completion;
7.5.3. any liability to any employee or former employee of the Company in
respect of any illness contracted or injury suffered in the course of
his employment wholly or partly before Completion;
7.5.4. all costs, claims, proceedings and expense (including legal fees on
the basis of a full indemnity) suffered or incurred by the Company or
the Purchaser in dealing with, disputing or otherwise in relation to
any liability referred to in the preceding paragraphs of this article
7.5.;
7.5.5. all costs (including labour costs, calculated with the full burden of
overhead costs, of the Company) incurred in carrying out, in legal or
reasonable commercial response (taking into account the nature and
circumstances of the claim, the general commercial interests of the
Company and the passed practice of the Company) to claim for such
action, any replacement of goods or services supplied by the Company
prior to Completion, whether or not such replacement was effected
pursuant to a warranty commitment given by the Company (and the
certificate of the Purchaser's auditors shall be conclusive as to
costs so incurred but not of whether the work was reasonably carried
out);
7.5.6. any liability of the Company to any third party under any Guarantee or
other commitment given to support or secure the obligation of either
of the Vendor or any Associate of either of the Vendor or Xx. Xxxxx.
7.6. LIABILITY TO TAX
---------------------
If any sum payable by the Vendor under the preceding provisions of this article
7.5. is subject to payment of any Tax in the hands of the recipient (whether by
deduction, withholding or direct assessment) such payment shall be increased to
such amount as after deduction, withholding or payment of such Tax leaves clear
in the hands of the recipient a net amount equal to the payment otherwise
required to be made by the relevant provision.
7.7. INDEMNITIES IN RESPECT OF TAX LIABILITIES
----------------------------------------------
The provisions of Schedule 7 shall have affect as if set out herein at length.
----------
15
ARTICLE 8: COVENANTS
8.1 SPECIFIC COVENANTS
----------------------
Each of the Vendor and Xx. Xxxxx undertake with the Purchaser and (as separate
undertaking) with the Company that, save with the prior written consent of the
Purchaser, neither of them will, directly or indirectly and whether alone or
jointly with or as proprietor, shareholder, officer, manager, servant,
consultant or agent to or for or on behalf of any person, firm or company:
8.1.1. at any time:
a. disclose or permit to be disclosed to any third party any
Confidential Information;
b. use or allow to be used any Confidential Information for its own
benefit or for the benefit of any other person or persons except
the Company or in a manner which might injure or cause loss or
otherwise be detrimental to the Company;
c. use or permit the use of any name, style logo or image of the
Company;
8.1.2. at any time during the three years from the date of Completion be
engaged, concerned or interested in the production or supply of
printing for any Products at or from any location in the Netherlands,
Belgium, Germany or France in competition with the Company or any
member of the Purchaser's Group;
8.1.3. at any time during the three years from the date of Completion be
engaged, concerned or interested in the production or supply of
printing for any Products which is directly or indirectly to be
supplied:
a. to any Material Customer; or
b. to any Associate of any Material Customer in the Netherlands,
Belgium, Germany or France;
8.1.4. except on behalf of the Company or the Purchaser's Group, attempt to
seek orders for the supply of printing for Products from any person,
firm or company which has been a customer or client of the Company at
any time within the period of eighteen months ending with the date of
Completion;
8.1.5. at any time persuade or attempt to persuade or do anything else
calculated to cause or induce any person who or which purchases goods
from or supplies goods or services to the Company to seize doing so or
to take any action that may result in the impairment of any such
relationship;
8.1.6. persuade or attempt to persuade any employee or sales representative
or agent of the Company to terminate his or her or their relationship
with the
16
Company or for a period of three years from the date of
Completion employ or engage any such person or take any such
action that may result in the impairment of the relationship
between such person and the Company;
8.1.7. use or permit the use of any name, xxxx, get-up, style, label or
image which is now or at any time in the two years preceding the
date of Completion has been used by the Company which causes or
might cause confusion with the name, style, logo or image of or
to imply a connection with the Company;
8.1.8. this Article 8 does not apply to Kreon B.V., whilst no other
limitation than contained in this Article 8 shall apply to the
businesses of DMSI G.m.b.H. and Music Print Packaging B.V.
8.2. COMPENSATION FOR INFRINGEMENT
----------------------------------
If there occurs any breach of the obligations of each of the Vendor and Xx.
Xxxxx contained in the preceding article 8.1., each of the Vendor of Xx. Xxxxx
shall immediately without any action or formality being required to be taken or
fulfilled by the Purchaser, forfeit for the benefit of the Purchaser (or at the
discretion of the Purchaser for the benefit of the Company) an immediately
payable penalty of ONE MILLION DUTCH GUILDERS (Dfls. 1.000.000) for each such
infringement and of ONE HUNDRED THOUSAND DUTCH GUILDERS (Dfls. 100.000) for each
day that such infringement continues, without any damage or loss being required
to be proven and without prejudice to the right of the Purchaser to claim
additional damages if there are grounds for so doing.
8.3. BENEFIT OF UNDERTAKING
---------------------------
Each of the Vendor and Xx. Xxxxx acknowledge and agree that for the purpose of
article 8.1., the Purchaser contracts, not only for itself, but also on behalf
of the Company, to the intent that such covenants shall be enforceable by any
person to whom any of the business or undertaking of the Company is from time to
time transferred or by whom it is carried on after the date of this Agreement.
ARTICLE 9: FURTHER ASSURANCE
9.1. VESTING OWNERSHIP AND ENSURING BENEFIT
-------------------------------------------
Each of the Vendor and Xx. Xxxxx shall do, execute and perform and procure to be
done, executed and performed such further acts, deeds, documents and things as
the Purchaser may from time to time reasonably require effectively to vest the
full legal and beneficial ownership of the Shares in the Purchaser or as it
directs free from all Encumbrances and otherwise to ensure to the Purchaser the
full benefit of this Agreement.
17
9.2 INFORMATION
----------------
Each of the Vendor and Xx. Xxxxx shall cause to be made available to the
Purchaser all Information in the possession or under the control of themselves
or their Associates which the Purchaser may from time to time reasonably require
(before of after Completion) relating to the business and the affairs of the
Company.
ARTICLE 10: GENERAL
10.1 COSTS
----------
Each party hereto shall pay his own costs of and incidental hereto and to the
sale and purchase hereby contracted and other matters herein provided for,
including in particular but without limiting the foregoing all legal and
accountancy fees relating to this Transaction or the negotiations therefore or
matters arising in the course of the same notwithstanding that any of the
Companies may be legally liable for the same and the Warrantors shall indemnify
the Company against any costs incurred by it before Completion which it would
not have incurred but for matters referred to in this article.
10.2 SUCCESSORS
---------------
Subject as hereinafter provided, this Agreement and all Warranties, undertakings
and provisions contained herein shall be binding upon and endure for the benefit
of the successors and assigns of the parties hereto including their legal
personal representatives and estates and without limiting the foregoing the
Purchaser may from time to time assign in whole or in part the benefit of all or
any of this Agreement, the Warranties and the Indemnities.
10.3 COLLATERAL AGREEMENTS AND VARIATIONS
-----------------------------------------
This Agreement and the attached Schedules (including any documents referred to
herein) constitutes the entire agreement between the parties and no variation
hereof shall be effective unless in writing signed by the parties hereto or on
their behalf by their respective lawyers above defined.
10.4 CONTINUING EFFECT
----------------------
The provisions of this Agreement and of the Schedules (in sofar as the same has
not been wholly performed at Completion) shall remain in full force and effect
for so long as may be necessary to give full effect thereto and in particular
the Warranties and the representations given by each of the Vendor and / or
Xx. Xxxxx shall continue to have effect after Completion whether or not the
Purchaser is then aware of any breach or circumstance which might be or give
rise to a Breach. Completion shall in no circumstances whatsoever constitute a
waiver of any of the rights or remedies of the Purchaser.
18
10.5. NON-WAIVER
-----------------
No time or other indulgence granted by any party to another shall constitute any
waiver of or otherwise affect any right or remedy hereunder. Subject as herein
provided all rights and remedies shall be cumulative and not mutually exclusive.
10.6. SEVERAL DEALINGS
-----------------------
The Purchaser may deal separately with, grant time or other indulgence to, and
enter into separate agreements or compromises with or release the liability of
either the Vendor or Xx. Xxxxx and no action or inaction whatsoever of the
Purchaser in relation to either the Vendor or Xx. Xxxxx shall affect the
liability of the other.
10.7. CIRCULARS AND ANNOUNCEMENTS
----------------------------------
Any announcements, reports, circulars and other documents which any party hereto
shall be required or wish to have prepared in connection with or resulting from
this transaction within six months from Completion shall be subject to the
approval of the other parties hereto (which shall not be unreasonably withheld)
safe that any party (after consultation with the other parties hereto) may make
or issue any announcements, circulars and other communications which it or its
holding company is required to make by law or by the London Stock Exchange.
10.8. PREVIOUS AGREEMENTS
--------------------------
This Agreement replaces any previous agreement, understanding or arrangement in
the matter between the parties all of which shall by mutual consent cease to
have affect on the signing hereof.
10.9. COUNTER-PARTS
--------------------
This Agreement may be executed in any number of counter-parts each bearing the
signature of one or more of the parties hereto and each such counter-part shall
be original and shall be effective once a party hereto has executed one or more
such counter-parts (whether the same or different counter-part) and together
shall constitute a single agreement.
10.10. FRAUD
------------
Nothing in this Agreement shall prevent or restrict liability for Fraud.
19
10.11. NO RECISION
------------------
The parties hereto waive their rights under Sections 6:265 et seq of the
Netherlands Civil Code to claim recision ("on binding") of this Agreement,
unless such recision is claimed pursuant to article 4.1. hereof.
ARTICLE 11: NOTICES
11.1. AUTHORIZED ADDRESSES
--------------------------
Any notice or other communication hereunder shall be given in writing in the
English language and (without prejudice to service in any other manner) shall be
validly served:
11.1.1. on each of the Vendor or Xx. Xxxxx if addressed to them and given to
the Vendor's lawyers, or if given to them at their respective
addresses stated at the beginning of this Agreement;
11.1.2. to the Purchaser if given to it at its address stated with a copy
given to the Purchaser's lawyers;
PROVIDED THAT any party may by notice to each other change its address for
service of notices and such new address shall therefrom be substituted for that
previously applicable.
11.2. SERVICE
-------------
Any notice so given shall be deemed to have been given as follows:
11.2.1. if given personally to the addressee or to a director or of a
corporate addressee or if left at the address for the addressee for
the time being authorized as stated above (and any such notice or
communication shall be deemed served when so delivered);
11.2.2. if sent within the Netherlands, if sent by registered mail to the
address for the time being authorized for the addressee as stated in
article 11.1. (and any such communication so sent shall be deemed
delivered at noon on the second day following the date of registered
mail).
ARTICLE 12: LAW AND PROCEEDINGS
12.1. GOVERNING LAW
-------------------
This Agreement shall be governed and construed in accordance with the laws of
the Netherlands.
20
12.2 PROCEEDINGS
----------------
The parties irrevocably submit to the exclusive jurisdiction of the Court of
Rotterdam, the Netherlands.
THUS AGREED AND SIGNED IN TWO ORIGINAL COPIES IN WEESP ON 20TH NOVEMBER 1998.
/s/ Johan Xxxx Xxxxxx Xxxxx
---------------------------------------
For and on behalf of J.L.B. Holding B.V.:
Mr. Johan Xxxx Xxxxxx Xxxxx
/s/ Xxxxxxxx Xxxx
---------------------------------------------
For and on behalf of Xxxxx Xxxxx Holding B.V.:
Xx. Xxxxxxxx Xxxx.
/s/ Johan Xxxx Xxxxxx Xxxxx
--------------------------------------
For and on behalf of Music Print B.V.:
Mr. Johan Xxxx Xxxxxx Xxxxx.
/s/ Johan Xxxx Xxxxxx Xxxxx
---------------------------
Mr. Johan Xxxx Xxxxxx Xxxxx.
Schedules to the Investment Agreement (Omitted Herein)
Schedule 1 Draft Notary Deed
Schedule 2a Excerpt from the Registers of the Chamber of Commerce concerning
the Company
Schedule 2b Articles of Association of the Company
Schedule 3 Employees
Schedule 4
Schedule 5 Properties
Schedule 6 The Warranties
Schedule 7 Indemnity against Taxation Liability
Schedule 8 Limitations on Claims
Schedule 9 Consultancy Agreement
Schedule 10 Printing and Production Work Agreement
Schedule 11 Disclosure
The Company will furnish supplementally a copy of any omitted schedule to the
Securities and Exchange Commission upon request.
