EXHIBIT D
CONDITIONAL PURCHASE OF SHARES
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IN
BAAN COMPANY N.V.
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BETWEEN
VANENBURG GROUP B.V.
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AND
INVENSYS B.V. I.O.
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AND
INVENSYS PLC
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CONDITIONAL PURCHASE OF SHARES
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IN
BAAN COMPANY N.V.
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THE UNDERSIGNED:
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1. Vanenburg Group B.V., a private company with limited liability,
with corporate seat in Putten, and having its address at
Xxxxxxxxxxxxxxxx 00, Xxxxxx, xxx Xxxxxxxxxxx, (the "SELLER"),
and
2. Invensys B.V. i.o., a private company with limited liability in
the process of being incorporated, which will have its corporate
seat in Amsterdam , the Netherlands, (the "PURCHASER"),
and
3. Invensys Plc, a public limited company organised under the law of
England and Wales (the "PARENT"),
WHEREAS:
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a. The Seller is, and with respect to the Second Tranche (as defined
below) will be, the legal and beneficial holder of 15,823,028
ordinary shares (as further defined below, the "SHARES") in the
capital of Baan Company N.V., with its corporate seat in
Barneveld, the Netherlands and its address at 3771 LK Barneveld,
at Baron van Xxxxxxxxxxxx 00, (the "COMPANY");
b. On 31 May 2000 the Purchaser and the Company intend to announce
the terms of a firm offer by the Purchaser for all the issued and
outstanding ordinary shares in the Company (the "FIRM OFFER");
c. The Purchaser's intention to make the Firm Offer is conditional
upon Seller tendering all of its Shares to the Purchaser;
d. The Parent is the indirect owner of all the shares in the capital
of the Purchaser.
XXXXXX AGREE AS FOLLOWS:
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SUBJECT
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CLAUSE 1
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1.1. The Seller hereby sells 14,817,528 (fourteen million eight
hundred seventeen thousand and five hundred twenty eight)
ordinary shares in the Company's capital, each share with a par
value of NLG 0.06, to be transferred at First Closing (the "FIRST
TRANCHE") and hereby sells - to the extent required in advance
(bij voorbaat) - 1,005,500 (one million five thousand and five
hundred) ordinary shares in the Company's capital, each share
with a par value of NLG 0.06 to be transferred at Second Closing
(the "SECOND TRANCHE") (the First Tranche and the Second Tranche
collectively referred to as the "SHARES") to the Purchaser and
the Purchaser hereby purchases the Shares from the Seller
conditional only upon the announcement of the Firm Offer prior to
3 June 2000.
1.2. The purchase price per Share (the "PURCHASE PRICE") shall be the
same price per Share as will be offered by the Purchaser for all
ordinary shares of the Company pursuant to the Purchaser's Firm
Offer, i.e. EUR 2.85 (two Euro and eighty-five cents) per Share
(the "OFFER PRICE"), therefore EUR 42,229,954.80 (forty two
million two hundred twenty nine thousand nine hundred fifty four
Euro and eighty Euro cents) for the First Tranche, EUR 2,865,675
(two million eight hundred sixty five thousand six hundred
seventy five three Euro) for the Second Tranche and EUR
45,095,629.80 (forty five million ninety five thousand six
hundred twenty nine Euro and eighty Euro cents) for all Shares,
however subject to any adjustment in the Offer Price to be
announced after the Second Closing, as referred to in article 2,
which may lead to a higher price to be paid to the shareholders
tendering their shares to the Purchaser. Such difference in price
shall be transferred by the Purchaser to the Seller's bank
account no. 446079073 with ABN AMRO Bank immediately after the
announcement of the adjustment of the Offer Price.
1.3 Provided that the Firm Offer will be consummated (wordt gestand
gedaan) Purchaser and Parent shall procure (zal instaan voor)
that the Company will accelerate repayment of the remaining
outstanding debt in the amount of US$ 38,668,375 (thirty eight
million six hundred sixty eight thousand three hundred seventy
five United States Dollars in aggregate (the "DEBT") the Company
has with Seller, consisting of an amount of US$ 23,359,375
(twenty three million three hundred fifty nine thousand three
hundred seventy five United States Dollars) it owes pursuant to
an agreement entered into between the Company and the Seller,
dated 30 September 1999 (the "BAAN SETTLEMENT AGREEMENT") and an
amount of US$ 15,309,000 (fifteen million three hundred nine
thousand United States Dollars) it owes pursuant to the BMS Earn
Out, dated 21 January 1999 (the "EARN OUT"). The Debt will be
repayable in a single payment of US$ 36,500,000 (thirty six
million five hundred thousand US Dollars), which amount includes
principal and interest, within seven days after the date on which
the Firm Offer will be consummated. Upon payment of such amount,
the Company shall be fully discharged by Seller with respect to
the Debt and the Seller shall have released the Company from any
and all obligations with respect to the Debt (betaling tegen
volledige kwijting).
CLOSING
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CLAUSE 2
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FIRST CLOSING
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2.1. The first closing shall take place on 31 May 2000, or at a later
day and time to be determined by the Purchaser should (i) the
announcement of the Firm Offer be postponed for whatever reason
but in any event not later than 3 June 2000 or (ii) in case of
technical and/or administrative reasons as a result of which
parties, using their best efforts, cannot perform their
obligations timely, but in any event not later than 15 June 2000
(the "FIRST CLOSING").
2.2. At the First Closing, the following actions shall be performed:
a. The Seller shall instruct its banks to transfer the First
Tranche to the (securities) account of the Purchaser as
indicated by the Purchaser.
b. The Purchaser shall pay the Purchase Price for the First
Tranche to the Seller in accordance with the provisions of
article 2.3.
2.3. The Purchaser shall transfer the Purchase Price for the First
Tranche to account 00.00.00.000 at ABN AMRO Bank, one of the
escrow accounts of De Brauw Blackstone Westbroek N.V., notarissen
(civil law notaries), and immediately after the transfer of the
Shares (such transfer to be confirmed in writing by [ABN AMRO
bank] to Purchaser and with a copy to De Brauw Blackstone
Westbroek N.V.) De Brauw Blackstone Westbroek N.V. shall procure
the transfer of the amount received to bank account no. 446079073
at ABN AMRO Bank in the Seller's name. The amount to be paid by
the Purchaser must be credited to the escrow account of De Brauw
Blackstone Westbroek N.V., notarissen (civil law notaries), not
later than on the day of the First Closing with same day value.
The cost of making both payments shall be for the account of the
Purchaser.
SECOND CLOSING
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2.4 The second closing shall take place on 6 June 2000, or at a later
day and time to be determined by the Purchaser in case of
technical and/or administrative reasons as a result of which
parties, using their best efforts, can not perform their
obligations timely, but in any event not later than 15 June 2000
(the "SECOND CLOSING").
2.5. At the Second Closing, the following actions shall be performed:
a. The Seller shall instruct its banks to transfer the Second
Tranche to the (securities) account of the Purchaser as
indicated by the Purchaser.
b. The Purchaser shall pay the Purchase Price for the Second
Tranche to the Seller in accordance with the provisions of
article 2.3.
2.6. The Purchaser shall transfer the Purchase Price for the Second
Tranche to account 00.00.00.000 at ABN AMRO Bank, one of the
escrow accounts of De Brauw Blackstone Westbroek N.V., notarissen
(civil law notaries), and immediately after the transfer of the
Shares (such transfer to be confirmed in writing by ABN AMRO bank
to Purchaser and with a copy to De Brauw Blackstone Westbroek
N.V.) De Brauw Blackstone Westbroek N.V. shall procure the
transfer of the amount received to bank account no. 446079073 at
ABN AMRO Bank in the Seller's name. The amount to be paid by the
Purchaser must be credited to the escrow account of De Brauw
Blackstone Westbroek N.V., notarissen (civil law notaries), not
later than on the day of the Second Closing with same day value.
The cost of making both payments shall be for the account of the
Purchaser.
PROVISIONS APPLICABLE TO BOTH FIRST AND SECOND CLOSING
2.7. If one of the parties (the Purchaser and Parent being considered
as one party for the interpretation of this clause) fails to
perform any action required from it under sub clause 2, the other
party, at its option and without prejudice to any of its other
rights and claims (including, also if this agreement is
terminated, any right to payment of damages):
a. demand that the defaulting party performs the relevant
actions on a day and at a time to be determined by the other
party; or
b. terminate this agreement.
2.8. After the First Closing, this agreement may not be rescinded in
whole or in part with respect to the First Tranche. After the
Second Closing, this agreement may not be rescinded in whole or
in part.
SELLER'S WARRANTIES
CLAUSE 3
3.1. The Seller warrants to the Purchaser that, both at the time that
this agreement is made, (however, being it understood that this
shall not apply for the Second Tranche at the time of this
agreement), and at the time of the First Closing in relation to
the First Tranche and at the time of the Second Closing in
relation to the Second Tranche respectively, the following
statements (the "WARRANTIES") are true and not misleading:
- Seller is the undisputed legal and beneficial owner of the
Shares;
- the Seller owns neither legally or economically any other
shares in the capital of the Company than the Shares and all
the Shares are in bearer form;
- the Shares are fully paid up;
- the Shares are not subject to any right of pledge or any
other security right or any right of usufruct
(vruchtgebruik);
- the Shares have not been attached;
- no person other than the Seller has any claim, whatsoever,
in respect of any of the Shares;
- to the knowledge of Seller, no shareholder of Seller or any
100% subsidiary of the Seller owns any shares in the
Company, apart from the 386,542 shares in the capital of the
Company owned by the trust Stichting Oikonomos and the
256,410 shares in the capital of the Company owned by X.
Xxxx as representative of various members of the Baan family
which shares are collectively subject to a conditional share
purchase transfer agreement between the Purchaser, the
Parent and these parties of the date hereof;
- the Company's Debt is the only amount outstanding under the
Settlement Agreement and there are no other amounts
outstanding from the Company to the Seller, apart from
obligations resulting from day to day business between the
Company and the Seller.
3.2. The Seller shall have no right to rely on the argument that, at
the time that this agreement was made or at the time of the
Closing, the Purchaser knew or should have known that a Breach of
the Warranties existed.
RIGHT TO REPURCHASE
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CLAUSE 4
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Purchaser herewith grants to Seller the right to repurchase all but not
less than all of the Shares if by 1 August 2000 the Firm Offer will not
have been consummated. Such right can be exercised during a period of three
months following 1 August 2000 only. Repurchase of the Shares shall be at
the same price as the price paid by Purchaser to Seller under this
Agreement. In case Seller wishes to exercise its right granted in this
clause 4, Seller shall give notice in writing to Purchaser and the sale and
transfer of the Shares to be repurchased shall take place within 10
business days following the date of the notice.
LIABILITY FOR WARRANTIES
CLAUSE 5
5.1. If a breach of the Warranties becomes apparent after the
First and Second Closing respectively, the Purchaser may
demand that the Seller pays to the Purchaser the difference
between the market value of the Shares had there been no
breach of the Warranties and the actual market value of the
Shares. The damages to be paid shall, from the day of the
First and Second Closing respectively and without any notice,
be subject to the statutory interest.
5.2. If any person has any claim against the Purchaser which he
would not have had there been no breach of the Warranties,
the Purchaser shall also be entitled to be compensated for
any damage suffered by him as a result thereof. The damages
to be paid shall, from the day on which the damage was
suffered, be subject to the interest referred to in sub
clause 1.
CONFIDENTIAL INFORMATION
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CLAUSE 6
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6.1. The Seller undertakes not to use, reproduce or disclose to any
third party any confidential information (being all information
about this agreement (including the existence thereof), the
Company, its directors or any other person employed with or
acting for the Company, the Purchaser, its directors or any other
person employed with or acting for the Purchaser, the Company's
and Purchaser's customers and other relations, except for
information which can be obtained from publicly available
sources; "CONFIDENTIAL INFORMATION"). The Seller guarantees that
any of its affiliated parties (including their personnel and
advisors) shall comply with the provisions of the preceding
sentence.
6.2. Sub clause 1 shall not apply to:
a. the disclosure of Confidential Information to the members of
the bodies, employees or advisors of the Seller or any of
its affiliated parties to the extent that this is necessary
for the preparation, conclusion, performance or enforcement
of this agreement and after the person in question has
committed himself in writing to use or disclose to a third
party the Confidential Information only in accordance with
this clause, and the disclosure of Confidential Information
to the courts in proceedings between the parties in
connection with this agreement or other related agreements;
b. the use or disclosure of Confidential Information to which
the Seller or any of its affiliated Parties is obliged
pursuant to the law, any regulation of any officially
recognised exchange or any other competent government
authority.
NO FORFEITURE OF RIGHTS
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CLAUSE 7
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Unless this agreement provides otherwise, any entitlement of the parties to
any right derived from this agreement shall be without prejudice to any
other rights and claims under this agreement and all rights and claims at
law. No right of a party under this agreement or by law shall be affected
by a failure to invoke that right or to protest against the other party's
failure to perform an obligation.
BINDING EFFECT AND ENTIRE AGREEMENT; AMENDMENT
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CLAUSE 8
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8.1. This agreement shall not have any legal effect until each party
has validly executed this agreement.
82. If part of this agreement is or becomes invalid or non-binding,
the parties shall remain bound to the remaining part. The parties
shall replace the invalid or non-binding part by provisions which
are valid and binding and the legal effect of which, given the
contents and purpose of this agreement, is, to the greatest
extent possible, similar to that of the invalid or non-binding
part.
8.3. After this agreement ends, for whatever reason, clauses 5, 6 and
9 shall remain effective.
8.4. This agreement contains the entire agreement of the parties in
relation to its subject matter.
8.5. This agreement contains no stipulations for the benefit of a
third party which could be invoked by a third party against a
party to this agreement.
8.6. This agreement may only be amended or supplemented in writing.
8.7. With reference to the Guidelines adopted by the Royal Notarial
Professional Organisation ("Koninklijke Notariele
Beroepsorganisatie") and concerning forms of cooperation between
civil law notaries among themselves or with attorneys, the Seller
expressly agrees that De Brauw Blackstone Westbroek N.V. shall
advise the Purchaser in connection with, and shall act on behalf
of or for the Purchaser in any dispute concerning, this
agreement.
8.8. Sub clauses 1 to 7 (inclusive) shall apply mutatis mutandis to
agreements which are connected with this agreement, if any,
unless the relevant agreement expressly provides otherwise.
ASSIGNMENT OF RIGHTS AND OBLIGATIONS
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CLAUSE 9
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A party may assign or procure the assumption of, as the case may be, rights
and obligations under this agreement to or by a third party only with the
prior consent of the other party.
JOINT AND SEVERAL LIABILITY
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CLAUSE 10
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The Parent irrevocably and unconditionally agrees to be jointly and
severally liable for the payment obligations of the Purchaser towards the
Seller under this agreement.
GOVERNING LAW; COMPETENT COURT
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CLAUSE 11
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11.1. This agreement shall be governed exclusively by Dutch law.
11.2. Disputes arising in connection with this agreement, including
disputes concerning the existence and validity thereof, shall be
resolved exclusively by the competent courts in Amsterdam, the
Netherlands.
11.3. Sub clauses 1 and 2 shall also apply to disputes arising in
connection with agreements which are connected with this
agreement, unless the relevant agreement expressly provides
otherwise.
IN EVIDENCE WHEREOF:
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this agreement was signed in threefold on 31 may 2000 at 2:30 a.m. in the
manner set out below.
1. VANENBURG GROUP B.V.
By: /s/ X.X. Xxxxxxxx
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Name: X.X. Xxxxxxxx
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Title: C.O.O.
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and
2. INVENSYS B.V. I.O.
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
--------------------------
Title: Attorney in Fact
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and
3. INVENSYS PLC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
--------------------------
Title: Attorney in Fact
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AMENDMENT AGREEMENT
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BETWEEN
VANENBURG GROUP B.V.
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AND
INVENSYS B.V. I.O.
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AND
INVENSYS PLC
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AND
---
INVENSYS HOLDINGS LIMITED
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THE UNDERSIGNED:
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1. Vanenburg Group B.V., a private company with limited liability,
with corporate seat in Putten, and having its address at
Xxxxxxxxxxxxxxxx 00, Xxxxxx, xxx Xxxxxxxxxxx, ("VANENBURG"),
and
2. Invensys B.V. i.o., a private company with limited liability in
the process of being incorporated, which will have its corporate
seat in Amsterdam, the Netherlands, ("INVENSYS B.V. I.O."),
and
3. Invensys Plc, a public limited company organised under the law of
England and Wales (the "PARENT"),
and
4. Invensys Holdings Ltd., a limited liability company organised
under the law of England and Wales, having its registered office
at Invensys House, Carlisle Place, London ("INVENSYS LTD.")
WHEREAS:
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x. Xxxxxxxxx, Invensys B.V. i.o. and the Parent have entered into a
conditional purchase of shares agreement, dated 31 May 2000 (the
"AGREEMENT");
b. Parties now wish to amend the Agreement in the manner as set
forth in this amendment agreement.
XXXXXX AGREE AS FOLLOWS:
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TRANSFER OF CONTRACT
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ARTICLE 1
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1. B.V. i.o. hereby transfers all rights and obligations under the
Agreement to Invensys Ltd. and Invensys Ltd. accepts such
transfer. Xxxxxxxxx and the Parent acknowledge this transfer.
AMENDMENT OF PROVISIONS
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ARTICLE 2
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2. The following provisions and references in the Agreement shall be
replaced or deleted, as of the date of this amendment agreement:
a. any reference to "B.V. i.o." shall be replaced by "Invensys Ltd."
as Purchaser;
b. the number of "15,823,028" in recital a. shall be replaced by
"14,817,528";
c. the reference to "14,817,528 (fourteen million eight hundred
seventeen thousand and five hundred twenty eight)" in article 1.1
shall be replaced by "13,812.028 (thirteen million eight hundred
twelve thousand and twenty eight)";
d. the reference to "EUR 42,229,954.80 (forty two million two
hundred twenty nine thousand nine hundred fifty four Euro and
eighty Euro cents)" in article 1.2 shall be replaced by "Euro
39,364,279.80 (thirty nine million three hundred sixty four
thousand two hundred seventy nine Euro and eighty Euro cents)";
e. the reference to "EUR 45,095,629.80 (forty five million ninety
five thousand six hundred twenty nine Euro and eighty Euro
cents)" in article 1.2 shall be replaced by "Euro 42,229,954.80
(forty two million two hundred twenty nine thousand nine hundred
fifty four Euro and eighty Euro cents)";
f. the square brackets in "[ABN AMRO Bank]" in the fourth line of
article 2.3 shall be deleted;
g. the words "Stichting Oikonomos" in article 3.1 shall be replaced
by "Stichting Oikonomos Foundation";
h. the words "as representative of various members of the Baan
family" in article 3.1 shall be deleted.
GOVERNING LAW; COMPETENT COURT
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ARTICLE 3
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3.1. This amendment agreement shall be governed exclusively by Dutch
law.
3.2. Disputes arising in connection with this amendment agreement,
including disputes concerning the existence and validity thereof,
shall be resolved exclusively by the competent courts in
Amsterdam, the Netherlands.
3.3. Sub clauses 1 and 2 shall also apply to disputes arising in
connection with agreements which are connected with this
agreement, unless the relevant agreement expressly provides
otherwise.
IN EVIDENCE WHEREOF:
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this agreement was signed in fourfold on 2 June 2000 in the manner set out
below.
1. VANENBURG GROUP B.V.
By: /s/ X.X. Xxxxxxxx
----------------------------
Name: X.X. Xxxxxxxx
--------------------------
Title: C.O.O.
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and
2. INVENSYS B.V. I.O.
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
--------------------------
Title: Attorney in Fact
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and
3. INVENSYS PLC.
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
--------------------------
Title: Attorney in Fact
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and
3. INVENSYS PLC.
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
--------------------------
Title: Attorney in Fact
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and
4. INVENSYS HOLDINGS LIMITED
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
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Title: Director
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