EXHIBIT 2.3
SALE AND PURCHASE AGREEMENT
BETWEEN THE UNDERSIGNED
- Xx. Xxxx-Xxxxxxx XXXXXX,
born on March 16, 1947 in NICE,
of French nationality,
residing at 00 xxx xx Xxxxxxx, 00000 XXXXXX,
- Xx. Xxxxxxxxxx XXXXXX,
born on October 31, 1952 in CANNES,
of French nationality,
residing at 00 xxx xx Xxxxxxx, 00000 XXXXXX,
- Xx. Xxxxxxxx XXXXXX,
born on June 23, 1975 in GRENOBLE,
of French nationality,
residing at 2 Allee du Pre Blanc, 38240 MEYLAN,
- Xxxx Xxxxxxxx XXXXXX,
born on October 23, 1973 in GRENOBLE,
of French nationality,
residing at 2 Allee du Pre Blanc, 38240 MEYLAN,
- Xx. Xxxxxxx XXXXX,
born on June 26, 1941 in CASABLANCA (MOROCCO)
of French nationality,
residing at 43 bis Xxxxxx xx xx Xxxxxxxxxxx, 00000 XXXXXX,
- Xx. Xxxxxx XXXXX,
born on September 26, 1941 in AHFIR (MOROCCO)
of French nationality,
residing at 43 bis Xxxxxx xx xx Xxxxxxxxxxx, 00000 XXXXXX,
- Xx. Xxxx XXXXX,
born on July 22, 1969 in GRENOBLE
of French nationality,
residing at 0 xxx xx Xxxxxxxx, 00000 XXXXX,
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- Xx. Xxxxx XXXXX,
born on December 27, 1946 in PARIS,
of French nationality,
residing at Le Clos du Rozat, 38330 SAINT ISMIER,
- Xx. Xxxxxxx XXXXX,
born on Xxxxxxx 00, 0000 xx XXXXXXXXX (XXXXXX)
of Swedish nationality,
residing at 00 Xxx Xxxxxxx, Xxxxxxxxx 00000 XX (XXXXXX XXXXXXX)
- Xx. Xxxxxxx XXXXX,
born on November 23, 1966 in La TRONCHE
of French nationality,
residing at 000 Xxxxxx Xxxxxxx, 00000 XXXXXX,
- Xx. Xxxxxxxxx XXXXXXX,
born on June 20, 1969 in XXXXX
of French nationality,
residing at 0 xxx xxx Xxxx Xxxxx, 00000 XXXXXXXX,
present or represented herein by Xx. Xxxx-Xxxxxxx XXXXXX or Xx. Xxxxxxx
XXXXX duly empowered to this effect,
Hereinafter referred to together as the "ASSIGNORS",
----------------------------------------------------
PARTIES TO THE FIRST PART,
- the company VIEWLOCITY HOLDING FRANCE SARL,
limited liability company with 50 000 F capital
headquarters at ISSY LES MOULINEAUX (92430), 16 rue Kleber ,
a company in the process of being recorded with the Register of
Commerce and Companies of NANTERRE,
represented herein by Mr. Xxxxxx XXXXXX, its Manager, duly qualified,
Hereinafter referred to as the "ASSIGNEE",
------------------------------------------
PARTY TO THE SECOND PART,
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- The company E.D.T. -- ELECTRONIC DATA TRANSFEr,
limited liability company with 1,000,000F share capital,
headquarters in MEYLAN (38240), 0 Xxxxxx xx Xxxxxxxx,
registered with the Register of Trade and Companies of GRENOBLE under
number B 352 753 800,
represented herein by Xx. Xxxx-Xxxxxxx XXXXXX, President of the Board
of Directors, duly qualified,
Hereinafter referred to as the "COMPANY",
-----------------------------------------
PARTY TO THE THIRD PART,
AND
- The company VIEWLOCITY, INC.,
A company governed under the laws of Delaware,
headquarters xx000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Xxxxxx
Xxxxxx of America, registered with the Secretary of State of the State
of DELAWARE,
represented herein by Xx. Xxxx XXXXXXXXXXX, duly qualified,
Hereinafter referred to as "VIEWLOCITY, INC.",
----------------------------------------------
PARTY TO THE FOURTH PART.
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PRIOR TO THIS AGREEMENT, THE FOLLOWING HAS BEEN SET FORTH:
BRIEF
The ASSIGNORS own the entirety of the 10,000 shares making up the capital of the
COMPANY. The list of shareholders and the number of shares held by each in the
COMPANY are set up in DOCUMENT 1.
The ASSIGNORS wish to transfer their share interest in the COMPANY.
Subsequently, VIEWLOCITY, INC. has expressed its interest in purchasing the
share interest of the ASSIGNORS by the intermediary of the ASSIGNEE, a French
subsidiary, whose entire shares are held by VIEWLOCITY, INC.
The ASSIGNORS also recognize that the ASSIGNEE would not have contracted without
the execution of the "Representations and Guarantee of assets and liabilities",
object of an agreement signed simultaneously, which represents an essential
condition of the assignment of the entire shares of the COMPANY for the agreed
price.
This Agreement is aimed at defining the conditions and terms of this share
transfer.
Many declarations concerning the COMPANY do not appear herein but in the
aforementioned warranty agreement. Accordingly, the parties agree not to refer
back to them in this agreement, but consider that they form an integral part of
this Agreement.
ACCORDINGLY, THE FOLLOWING HAVE BEEN AGREED TO AND RULED UPON:
AGREEMENTS
ARTICLE 1 -- TRANSFER OF SHARES
The ASSIGNORS hereby assign, under normal guarantees and lawful conditions in
the field, to the ASSIGNEE, who hereby acquires the 10,000 shares of the
COMPANY, valued at 100F each, fully paid up (the " SHARES ").
The ASSIGNEE becomes owner of the SHARES as of this date. However, he has the
enjoyment retroactively thereof as of April 1, 2000
The ASSIGNEE is purely and simply subrogated in all rights and obligations
attached to the assigned SHARES as of this date.
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The ASSIGNORS hereby deliver all share transfers concerning the SHARES signed by
all the ASSIGNORS against payment by the ASSIGNEE of the price agreed to below.
ARTICLE 2 -- PRICE OF SHARE TRANSFER - PAYMENT
2.1.-- The price of the SHARES is fixed at one million U.S. dollars
(US$1,000,000), i.e., $100 per share, corresponding at this date to French
francs SIX MILLION EIGHT HUNDRED EIGHTY FOUR THOUSAND FRENCH FRANCS (6,884,000
FF) . The price may be subject to a price complement for some ASSIGNORS if
several conditions are fulfilled. The price complement will be paid by issuing a
certain number of shares of VIEWLOCITY, INC. under the conditions provided for
in article 3 hereafter. This $1,000,000 price will be paid as follows :
0 Cash payment this day of FIVE HUNDRED THOUSAND AMERICAN DOLLARS (US$
500,000), corresponding on this date to the amount of THREE MILLION
FOUR HUNDRED FORTY TWO THOUSAND FRENCH FRANCS (3,442,000 FF) paid by
bank guaranteed checks or electronic wire transfers from the ASSIGNEE
to the ASSIGNORS;
This amount is distributed as follows:
- Xx. Xxxx-Xxxxxxx XXXXXX : 40.67% of the selling price (or the
amount of US$203,350, representing the equivalent of
1,399,861.40 French francs);
- Xx. Xxxxxxxxxx XXXXXX : 9% of the selling price (or the amount
of US$45,000, representing the equivalent of 309,780 French
francs);
- Xx. Xxxxxxxx XXXXXX : 0.04% of the selling price (or the
amount of US$200, representing the equivalent of 1,376.80
French francs);
- Xxxx Xxxxxxxx XXXXXX : 0.02% of the selling price (or the
amount of US$100, representing the equivalent of 688.40 French
francs);
- Xx. Xxxxxxx XXXXX : 40.79% of the selling price (or the amount
of US$203,950, representing the equivalent of 1,403,991.80
French francs);
- Xx. Xxxxxx XXXXX : 0.03% of the selling price (or the amount
of US$150, representing the equivalent of 1,032.60 French
francs);
- Xx. Xxxx XXXXX : 8.93% of the selling price (or the amount of
US$44,650, representing the equivalent of 307,370.60 French
francs);
- Xx. Xxxxx XXXXX : 0.01% of the selling price (or the amount of
US$50, representing the equivalent of 344.20 French francs);
- Xx. Xxxxxxx XXXXX : 0.01% of the selling price (or the amount
of US$ 50, representing the equivalent of 344.20 French
francs);
- Xx. Xxxxxxx XXXXX : 0.20% of the selling price (or the amount
of US$ 1,000, representing the equivalent of 6,884 French
francs);
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- Xx. Xxxxxxxxx XXXXXXX : 0.30% of the selling price (or the
amount of US$1,500, representing the equivalent of 10,326
French francs).
- Payment on December 31, 2000 of FIVE HUNDRED THOUSAND AMERICAN
DOLLARS (US$500,000), corresponding to the amount of THREE
MILLION FOUR HUNDRED FORTY TWO THOUSAND FRENCH FRANCS
(3,442,000 FF) paid by bank guaranteed checks or electronic
wire transfers from the ASSIGNEE to the ASSIGNORS and
allocated as stated hereabove. The Company VIEWLOCITY, INC.
hereby undertakes to pay to the ASSIGNORS upon first demand of
the latter, without question, this US$500,000 differed price
in case of the ASSIGNEE's default on said date.
2.2.--This price is fixed, unconditional and irrevocable, for any reason
whatsoever, at the request of one or the other party, the sale of said SHARES
being final and definitive in consideration of the US$1,000,000 payment against
the remittance of the transfer shares provided for hereabove, despite the
eventual enforcement of the "Statements and Guarantees of assets and
liabilities", or despite any difficulty whatsoever that could be incurred in
connection with the payment or default in payment of the price complement
hereunder referred to in Article 3.
More generally, the provisions of this Article concerning the price of share
transfer are independent and different from any other provisions of this
Agreement, in particular those concerning the price complement.
ARTICLE 3 --PRICE COMPLEMENTS OF SHARES TRANSFER
3.1.-- This $1,000,000 price in exchange for the SHARES may be subject to a
price complement to benefit only certain ASSIGNORS in the event of their
compliance of certain conditions as specified hereafter.
For four principal ASSIGNORS, the potential price complements are linked to
their current presence on December 31,2000 and December, 2001 in the COMPANY, in
which case the price complements are due.
For the other ASSIGNORS, the price complements are due with no condition
attached.
The price complements will not be paid in cash but against shares of the company
VIEWLOCITY, INC. which will be issued to the ASSIGNORS. To this end, the debts
corresponding to the price complements due by the ASSIGNEE will be transferred
to VIEWLOCITY, INC. for a price equal to the nominal value of the debts. The
transfer price for the debts will be paid to the ASSIGNORS by way of issuance of
VIEWLOCITY, INC.'s stocks. To this end, VIEWLOCITY, INC. hereby undertakes to
acquire the debts of the assignors in exchange for the issuance of VIEWLOCITY,
INC.'s stock. The number and the value of the shares VIEWLOCITY, INC. are
specified hereafter depending on whether or not the company will be quoted on
the Stock Exchange on the following dates:
- Delivery on December 31, 2000 with an effective date as of January 1,
2001 of an N0 number of shares of the company VIEWLOCITY, INC.
according to the V0 value of the shares on December 31, 2000 determined
under the following conditions:
- -
- if V Greater than US$31.25 : N = 125 000 x | 31.25 |
0 0 | ----- |
| V |
| 0 |
- -
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- if US$ 25 Less Than or Equal to V :Less Than or Equal to US$31.25:N = 125 000
0 0
- -
- if US$ 6.17 Less Than or Equal to V Less Than US$25 : N = 125 000 x | 25 |
0 0 | -- |
| V |
| 0 |
- -
- if V Less Than US$6.17 : N = 506 483
0 0
With: 1) V equal to the average of stock quotations of the company
0
VIEWLOCITY, INC. over the month preceding December 31, 2000 in
the hypothesis that VIEWLOCITY, INC. would be quoted on the
NASDAQ on this date;
2) V equal to the value of the share taken into account in the
0
framework of the last issuance of shares of the company
VIEWLOCITY, INC., including the last operation of the exchange
of shares of companies preceding the date of issuance for
which more than 50% of the capital would have been assigned to
VIEWLOCITY, INC. in exchange for shares in VIEWLOCITY, INC..
- Delivery on December 31, 2001 with an effective date as of January 1,
2002 of a N number of shares of the company VIEWLOCITY, INC. according
1
to the V value of the shares on December 31, 2001 determined under the
1
following conditions:
- -
- if V Greater Than US$35 : N = 125 000 x | 35 |
1 1 | -- |
| V |
| 1 |
- -
- if US$25 Less Than or Equal to V Less Than or Equal to US$35 : N = 125 000
1 1
- -
- if US$6.17 Less Than or Equal to V Less Than US$25 : N = 125 000 x | 25 |
1 1 | -- |
| V |
| 1 |
- -
- if V Less Than US$6.17 : N = 506 483
1 1
With: 1) V equal to the average of the stock quotations of the
1
company VIEWLOCITY, INC. over the month preceding December 31,
2001 in the hypothesis that VIEWLOCITY, INC. would be quoted
on the NASDAQ on this date;
2) V equal to the value of the share taken into account in the
1
framework of the last issuance of shares of the company
VIEWLOCITY, INC., including the last operation of the exchange
of shares of companies preceding the date of issuance for
which more than 50% of the capital would have been assigned to
VIEWLOCITY, INC. in exchange for shares in VIEWLOCITY, INC.
These Shares will be allocated on December 31, 2000, and December 31, 2001 as
follows:
- Xx. Xxxx-Xxxxxxx XXXXXX : 40.67% of the N or N amount of the
0 1
shares of the company VIEWLOCITY, INC.;
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- Xx. Xxxxxxxxxx XXXXXX : 9% of the N or N amount of the
0 1
shares of the company VIEWLOCITY, INC.;
- Xx. Xxxxxxxx XXXXXX : 0.04% of the N or N amount of the
0 1
shares of the company VIEWLOCITY, INC.;
- Xxxx Xxxxxxxx XXXXXX : 0.02% of the N or N amount of the
0 1
shares of the company VIEWLOCITY, INC.;
- Xx. Xxxxxxx XXXXX : 40.79% of the N or N amount of the
0 1
shares of the company VIEWLOCITY, INC.;
- Xx. Xxxxxx XXXXX : 0.03% of the N or N amount of the shares
0 1
of the company VIEWLOCITY, INC.;
- Xx. Xxxx XXXXX : 8.93% of the N or N amount of the shares of
0 1
the company VIEWLOCITY, INC.;
- Xx. Xxxxx XXXXX :0.01% of the N or N amount of the shares of
0 1
the company VIEWLOCITY, INC.;
- Xx. Xxxxxxx XXXXX : 0.01% of the N or N amount of the shares
0 1
of the company VIEWLOCITY, INC.;
- Xx. Xxxxxxx XXXXX : 0.20% of the N or N amount of the shares
0 1
of the company VIEWLOCITY, INC.;
- Xx. Xxxxxxxxx XXXXXXX : 0.30% of the N or N amount of the
0 1
shares of the company VIEWLOCITY, INC.
3.2. -- In the event the number of shares of VIEWLOCITY, INC. issued and
outstanding between this day and December 31, 2000 or December 31, 2001, by
means of a stock split, stock dividend, reverse stock split or any other similar
recapitalization, the reference value of the shares VIEWLOCITY, INC. as defined
hereabove and the number of shares to be issued to the ASSIGNORS shall be
adjusted appropriately to reflect said restructuring.
For instance, in the event of a 2 for 1 stock split or a 1 for 1 stock dividend,
the adjustments to the computation provided for in article 3.1. hereabove will
be as follows:
- 125,000 shares become 250,000 shares
- the reference values for the 12/31/00 distribution should
change from $25 - $31.25 to $12.50 - $15.625, and those for
the 12/31/01 distribution should change from $25-$35 to $12.50
-$17.50;
- the floor and ceiling share values should change as follows:
- $15.625 instead of $31.25;
- $3.085 instead of $ 6.17.
On the other hand in the event of a 1 for 2 reverse stock split, the adjustments
to the computation provided in article 3.1. hereabove will be as follows:
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- 125,000 shares become 62,000 shares
- the reference values for the 12/31/00 distribution should
change from $25 - $31.25 to $50 - $62.50 and those for the
12/31/01 distribution should change from $25 - $ 35 to $ 50 -
$70;
- the floor and ceiling share values should change as follows:
- $62.50 instead of $31.25;
- $12.34 instead of $6.17.
3.3.-- If a dispute arises between the parties concerning (i) the reference
value of the share VIEWLOCITY, INC. (without leaving the parties to have any
possibilities to challenge the reference value itself as defined in article 3.1.
herebelow which value is binding upon the parties), (ii) the computation of the
number of shares or the value of the VIEWLOCITY, INC. shares to be issued in
conformity with article 3.2. herebelow and, consequently, the number No or N1 of
shares to be issued to some or all of the ASSIGNORS, it will be referred to a
third party belonging to the national list of Accountants, in conformity with
Article 1592 of the Civil Code, agreed upon by the parties, or, if need be,
decided by the President of the Commercial Court of NANTERRE, referring to the
request of the claimant party.
The Expert could request any and all documents concerning his assignment and
will have to specify the reference value of the VIEWLOCITY, INC. Shares, proceed
with the computation herebelow defined and determine the number of shares to be
issued to each of the ASSIGNORS within the month of his appointment. The Expert
Testimony will take place in Paris. The ASSIGNEE undertakes to provide for all
appropriate documents and information to the Expert. The costs incurred for an
accountant will be divided equally between the parties.
3.4.-- In case of change of control in the capital of the company VIEWLOCITY,
INC. (i.e. change of more than 50% of the capital or the voting rights) before
December 31, 2000 or December 31, 2001, VIEWLOCITY, INC. will, immediately
following the change of control, proceed with the issuance of the shares
corresponding to the price complements listed in this contract and the payment
of the differed price as described in article 2.1. hereabove. The V0 and/or V1
values will correspond to the value of the shares of the company VIEWLOCITY,
INC. taken into account in the framework of the transfer of control or voting
right of the latter.
3.5.-- It is agreed between the parties that the shares of the company
VIEWLOCITY, INC., object of the price complements provided for hereabove, will
be delivered by the ASSIGNEE to Xx. Xxxx-Xxxxxxx XXXXXX, Xx. Xxxxxxx XXXXX, Xx.
Xxxxxxx XXXXX and Xx. Xxxxxxxxx XXXXXXX on the condition that these
Beneficiaries, for the delivery each should obtain, are still employees and/or
officers of the COMPANY on December 31, 2000 and/or December 31, 2001.
However, these people on December 31, 2000 and/or December 31, 2001, will have
the right to an earlier delivery of the shares of the company VIEWLOCITY, INC.,
even though they are not anymore an employee of the COMPANY, in the following
cases:
- in case of either a revocation or a non-renewal of his officer
position without cause in the sense of the regime of members
of the Directory concerning Xx. Xxxxxxx XXXXX, or a
termination different from a termination for fault of which
the origin is prior to the dates listed hereabove concerning
Xx. Xxxx-Xxxxxxx XXXXXX, Xx. Xxxxxxxxx XXXXXXX and Xx. Xxxxxxx
XXXXX;
- in case of death or inability of these people in the sense of
article L. 341.4-2) and 3) of the Social Security Code;
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- in case of transformation of the COMPANY leading to Xx.
XXXXX'x dismissal.
3.6. -- In any event, the issuance of the VIEWLOCITY, INC. shares will be
subject to certain conditions specified in the Stock Restriction Agreement
hereto attached as DOCUMENT 2. Each ASSIGNOR declares and acknowledges that he
read the attached document in the English language and fully understood its
terms.
This document constitutes an essential and determining condition of the issuance
of said shares to each Assignor. They undertake to initial and sign the Stock
Restriction Agreement in the same form as the one hereto attached prior to any
issuance of shares. It is however specified that if any minor changes are made
because of the necessity to comply with current regulation, each ASSIGNOR
expressly undertakes to sign the document as modified prior to any issuance of
shares.
3.7.-- The issuance of the VIEWLOCITY, INC. shares will finally be subject to
certain conditions specified in the document entitled Offshore Investment
Representations hereto attached as DOCUMENT 3. Each ASSIGNOR declares and
acknowledges that he read the attached document in the English language and
fully understood its terms. Each ASSIGNOR hereby also undertakes to comply with
all of the US securities regulations contained in this document.
ARTICLE 4 -- REIMBURSEMENT OF SHAREHOLDERS' LOANS
The ASSIGNORS are, as of this day, holders of the following shareholders' loans,
registered in their names in the COMPANY's books :
- - M.Xxxxxxx XXXXX for an amount of 140 000 F,
- - M. Xxxx-Xxxxxxx XXXXXX for an amount of 2 405 F.
The BENEFICIARY reimburses on this date to each of these ASSIGNORS in the amount
of their shareholders' loans to the COMPANY.
ARTICLE 5 - DOCUMENTS DELIVERED THIS DAY BY THE ASSIGNORS TO THE ASSIGNEE
The ASSIGNORS deliver this day to the ASSIGNEE the following documents:
1. The Statements and Guarantees of assets and liabilities, duly signed by
the ASSIGNORS;
2. All stock transfer certificates duly completed and signed concerning
the SHARES as specified in Article 1 above;
3. The unconditional resignation letters with no compensation possible
from all Board members of the COMPANY;
4. The corporate documents concerning the COMPANY (register of shares'
transfers; shareholders' accounts updated as of this date; register of
the minutes of the Shareholders' and Board of Directors' Meetings of
the COMPANY);
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5. A certified copy of the minutes of the Board of Directors' Meeting of
the COMPANY, approving the ASSIGNEE as is provided for in Article 8.1.
herebelow;
6. A certified copy of the minutes of the Board of Directors of the
COMPANY inviting shareholders to attend the Special Shareholders'
Meeting on June 21, 2000 as specified in Article 8.2 hereunder.
ARTICLE 6 -- GUARANTEE OF THE ASSIGNORS
Xx. Xxxx-Xxxxxxx XXXXXX and Xx. Xxxxxxx XXXXX xxxxx ASSIGNEE all the SHARES
forming the COMPANY's share capital, a guarantee according to the terms of an
agreement titled "Statements and Gurantees of assets and liabilities," signed
simultaneously on this day, which concerns the COMPANY's accounts already
submitted to the ASSIGNEE, closed on December 31, 1999 and the COMPANY's
accounting status closed on March 31, 2000.
This Share and Purchase Agreement and the Statements and Guarantees Agreement
are integral to each other.
ARTICLE 7 -- INTERIM PERIOD
As far as the interim period is concerned ranging from March 31, 2000 to this
day, the ASSIGNORS declare:
7.1. -- The COMPANY has not, since March 31, 2000, carried out any assignment or
acquisition of intangible fixed assets.
It has not, since March 31, 2000, either assigned or acquired any tangible asset
of a substantial nature other than in the normal course of its business.
It has not to date, conferred or subscribed other than in the normal course of
its business, any promise of sale or purchase having as its object any asset
whatsoever, notably securities such as shares in French or foreign companies,
elements of industrial, commercial or artistic property, real estate or real
estate rights or property rights or any goodwill, elements of goodwill, rights
or options to leases, and this list isnon-exhaustive. It has not, since March
31, 2000, abandoned any rights or privileges or made any exceptional losses
above in an amount exceeding 5,000F.
Since March 31, 2000, the COMPANY has not contracted or incurred any certain
debt, whether immediately due or not which is not accounted for in this balance
sheet with the exception however of current liabilities incurred in the normal
and habitual course of business.
7.2. -- Since March 31, 2000, the COMPANY has not subscribed any hire-purchase
contract, off balance sheet transaction and has not given any security or
endorsement; it has not been the subject of any guarantee given by a third
party.
7.3.-- Since March 31, 2000, and up until the present date, no allocation,
payment or distribution of a dividend or installment thereon or reserve to the
shareholders of the COMPANY has taken place.
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7.4. -- Since March 31, 2000, the rent under the current lease has not been
increased other than in accordance with the contractual indexation provided for
in the said lease.
7.5. -- Since March 31, 2000, the COMPANY has not granted any individual,
general or uniform increase of remuneration in whatever form, to its executives,
managers, leaders or representatives notably bonuses or retirement schemes.
7.6. -- Since March 31, 2000, the COMPANY has not recorded the mass resignation
or intention to resign of either the commercial staff or the executive managers,
and more generally of any person whose departure would have a material effect on
the business operations of the COMPANY.
7.7. -- More generally, there has been since March 31, 2000, up until this date
no major change affecting in a significant and durable way the financial or
business situation of the COMPANY as the COMPANY has been regularly managed
according to the same methods as during prior financial years.
The ASSIGNORS thus confirm that since March 31, 2000, up until this date, only
operations of a basic nature, forming part of the framework of the COMPANY's
customary activities were accomplished. The ASSIGNORS are unaware of any precise
elements that occurred during this period and that could significantly or
unfavorably influence the situation of the COMPANY or the interest of the
ASSIGNEE in the take-over.
7.8. -- To the knowledge of the ASSIGNORS, the COMPANY's financial situation so
far has not developed unfavorably compared to that of March 31, 2000, and they
are unaware of any elements or specific circumstance that, to date, could have
any substantially negative consequences upon the operation of the COMPANY.
More generally, all Declarations and Guarantees mentioned in the agreement
titled " Statements and Guarantees of assets and liabilities " signed
simultaneously with this Agreement, concerning the COMPANY's situation prior to
this date shall be applicable to this interim period.
ARTICLE 8 -- GENERAL CONDITIONS
8.1. -- ASSIGNEE'S APPROVAL
The ASSIGNEE has been approved by the competent authorities of the COMPANY as is
the result of the copy of the minutes of the Board of Directors Meeting dated
June 1, 2000.
8.2. -- CHANGE OF AGENTS
The ASSIGNORS deliver to the ASSIGNEE the letter of resignation from each of the
COMPANY's Directors on this date.
In addition, the ASSIGNORS agree to convene an Extraordinary Shareholders'
Meeting with the following on the agenda:
- resignation of the members of the Board of Directors to take effect as
of this date,
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- appointment of Xx. Xxxxxxx XXXXX Mr. Stanyarne XXXXXXXXXXX and Xx.
Xxxxxxx XXXXXX as new Directors to take effect as of this date.
8.3. -- UNDERTAKING OF SOME ASSIGNORS
8.3.1. -- NON-COMPETITION UNDERTAKING
As long as they will exercise an activity in the COMPANY and during two (2)
years which will follow the termination of their duties with the COMPANY,
whatever the reason may be and whichever party takes the initiative, including
the cases of resignation or dismissal for those of the ASSIGNORS who will remain
to have duties with the COMPANY, or during a period of two (2) years from the
date of this Agreement for those of the ASSIGNORS who will no longer have any
duties with the COMPANY, the ASSIGNORS undertake not to exercise any activities
which would compete with the activities carried out by the COMPANY on the date
they cease to exercise their duties with the COMPANY or on the date of this
Agreement, as the case may be, and this, directly or indirectly, personally or
by any other person, in return for payment or free of charge, acting for
themselves or for a third party.
8.3.2. -- NON-REEMPLOYMENT UNDERTAKING
During the first two (2) years which will follow the termination of their duties
with the COMPANY, whatever the reason may be and whichever party takes the
initiative, including the cases of resignation and dismissal for those of the
ASSIGNORS who will remain to have duties with the COMPANY, or during a period of
two (2) years from the date of this Agreement for those of the ASSIGNORS who
will no longer have any duties with the COMPANY, the ASSIGNORS undertake not to
solicit, directly or indirectly, for themselves or for any other person
whatsoever, any employees, agents or directors of the COMPANY.
8.3.3. -- EXCLUSIVITY UNDERTAKING
As long as they will exercise an activity in the COMPANY, those of the ASSIGNORS
who will remain to have duties with the COMPANY undertake to devote the whole of
their time and the exclusivity of their professional activity, even should it be
part time, exclusively for the COMPANY.
8.4. -- SANCTIONS
Any harm caused by any violation of the undertakings certified in 8.3.1., 8.3.2.
and 8.3.3., will give place to injunctive relief to stop this breach as well as
the allocation of damages in favour of one of the COMPANY and/or the ASSIGNEE.
ARTICLE 9 -- ATTRIBUTION OF JURISDICTION - APPLICABLE LAW
The Commercial Court of NANTERRE will solely be considered competent for any
litigation concerning the performance, interpretation and consequences of this
Agreement Solely French law will apply to this Agreement.
ARTICLE 10 -- CONFIDENTIALITY
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The parties agree that this Agreement as well as all other related documents are
confidential and may not be disclosed except as required by law or any relevant
regulatory body.
Consequently, any party in breach of this covenant will bear all of the costs
and fees related to this breach and indemnify the other party for any harm
suffered.
It is however agreed between parties that the Beneficiary is authorized to
provide a copy of this document to the appropriate authorities in case of public
offering of the company VIEWLOCITY, INC. or any other affiliate thereof.
ARTICLE 11 - GENERAL PROVISIONS
These operations are an integral whole and cannot be carried out in part, except
as far as concerns the victim in renouncing all or part of its rights if it so
deems fit.
Each party will bear the costs of its counsels.
This agreement and its attachments are a complete protocol replacing any prior
agreement or memorandum written or oral elsewhere and which are considered as
null and void.
In Paris
Dated June 21, 2000
THE ASSIGNEE THE ASSIGNORS
FOR VIEWLOCITY HOLDING FRANCE SARL Xx. Xxxx-Xxxxxxx XXXXXX
----------------------------------
Ms. Xxxxxx XXXXXX
Xx. Xxxxxxxxxx XXXXXX
Xx. Xxxxxxxx XXXXXX
Xxxx Xxxxxxxx XXXXXX
Xx. Xxxxxxx XXXXX
Xx. Xxxxxx XXXXX
15
THE COMPANY Xx. Xxxx XXXXX
FOR EDT S.A. Xx. Xxxxx XXXXX
------------
Xx. Xxxx-Xxxxxxx XXXXXX Xx. Xxxxxxx XXXXX
Xx. Xxxxxxx XXXXX
Xx. Xxxxxxxxx XXXXXXX
FOR VIEWLOCITY, INC.
--------------------
--------------------
Xxxx XXXXXX
16
DOCUMENT 1
LIST OF SHAREHOLDERS
--------------------
AND NUMBER OF SHARES HELD BY EACH OF THEM
-----------------------------------------
- Xx. Xxxx-Xxxxxxx XXXXXX : 4 067 actions
- Xx. Xxxxxxxxxx XXXXXX : 900 actions
- Xx. Xxxxxxxx XXXXXX : 4 actions
- Xxxx Xxxxxxxx XXXXXX : 2 actions
- Xx. Xxxxxxx XXXXX : 4 079 actions
- Xx. Xxxxxx XXXXX : 3 actions
- Xx. Xxxx XXXXX : 893 actions
- Xx. Xxxxx XXXXX : 1 action
- Xx. Xxxxxxx XXXXX : 1 action
- Xx. Xxxxxxx XXXXX : 20 actions
- Xx. Xxxxxxxxx XXXXXXX : 30 actions
-------------
TOTAL : 10 000 actions
17
STATEMENTS AND GUARANTEE OF ASSETS AND LIABILITIES
BETWEEN THE UNDERSIGNED:
- XX. XXXX-XXXXXXX XXXXXX,
born on March 16, 1947 in NICE,
of French nationality,
residing at 00 xxx xx Xxxxxxx, 00000 XXXXXX,
- XX. XXXXXXX XXXXX,
born on June 26, 1941 in CASABLANCA (MOROCCO),
of French nationality,
residing at 00 xxx Xxxxxx xx xx Xxxxxxxxxxx, 00000 MEYLAN,
acting jointly and severally and undertaking jointly themselves and their
descendents, minor or otherwise,
HEREINAFTER REFERRED TO TOGETHER AS THE "GUARANTOR",
PARTIES TO THE FIRST PART,
AND :
- THE COMPANY VIEWLOCITY HOLDING FRANCE SARL,
limited liability company with 50 000 F capital,
headquarters at ISSY LES MOULINEAUX (92430), 16 rue Kleber ,
a company in the process of being recorded with the Register of
Commerce and Companies of NANTERRE, under the number
B___________________ represented herein by Xx. XXXXXX, its Manager,
duly empowered,
HEREINAFTER REFERRED TO AS THE "BENEFICIARY",
PARTY TO THE SECOND PART,
18
AND :
- THE COMPANY EDT - ELECTRONIC DATA TRANSFER, described in full
herebelow, represented herein by Xx. Xxxx-Xxxxxxx XXXXXX, in his
capacity as President of the Board of Directors, duly empowered,
PRIOR TO THIS AGREEMENT, THE FOLLOWING HAS BEEN SET FORTH :
BRIEF
The Guarantor has transferred to the Beneficiary the entirety of the 10,000
shares making up the capital of company EDT - ELECTRONIC DATA TRANSFER (a
limited liability company with a share capital of 1,000,000F with a registered
office at 0 xxxxxx xx Xxxxxxxx, Xxxxxx - 00000, and registered with the Register
of Commerce and Companies of GRENOBLE under number B 352 753 800)(hereafter
referred to as the "COMPANY").
The acquisition of the Company from the Guarantor by the Beneficiary was
completed through the Statements given to it by the Guarantor, and through the
confirmation of the provisions of the Guarantees stated herein.
This agreement is aimed at defining the conditions and terms of this obligation.
ACCORDINGLY, THE FOLLOWING HAVE BEEN AGREED UPON AND FINALIZED AS:
ARTICLE 1 - GENERAL STATEMENTS
The Guarantor declares and guarantees that:
1.1.- CONSTITUTION AND OPERATION OF THE COMPANY
The company EDT - ELECTRONIC DATA TRANSFER is a limited liability company with a
registered office at 0 xxxxxx xx Xxxxxxxx, Xxxxxx - 00000, and is filed with the
Register of Commerce and Companies of GRENOBLE under number B 352 753 800, as
indicated by the K-bis extract attached hereto (ANNEX 1).
19
It validly holds the title of the corporate name EDT-ELECTRONIC DATA TRANSFER,
the property of which can not be contested, nor does it infringe the right to
principle use by a legal entity, nor the rights of a trademark or trade name
holder whatsoever.
The Company's business activity is in conformity with those provided for in the
Company's bylaws attached hereto (ANNEX 2).
The Company's share capital is currently set at 1,000,000F, divided into 10,000
shares of a per value of 100F each, fully paid up.
The closing of the Company's fiscal year is on December 31st of each year.
The Company is managed by a Board of Directors composed of four members. Xx.
Xxxx-Xxxxxxx XXXXXX declares on this date not to be the beneficiary of an
employment contract on top of his position as President of the Board of
Directors. No Board Member is the beneficiary of an employment contract on top
of his/her position at the Board level.
The Company's auditors are:
- Xx. Xxxxxx XXXXXXX, Principal Auditor,
- Mr. Thierry GLENAT, Deputy Auditor,
Their term of office expires upon the Annual Shareholders' Meeting to approve
the financial statements for the fiscal year ending on December 31, 2001.
The minutes of the Board of Directors' and the Shareholders' Meetings and the
attendance sheets to such Meetings are in conformity with the current
regulations, regularly kept up to date and signed.
Since the incorporation of the Company, all formalities of notice resulting from
the decisions reached from the very beginning have been followed regularly in
accordance with the current regulations.
1.2.- SHARES OF THE COMPANY
The 10,000 shares making up the share capital of the Company being acquired by
the Beneficiary are free of any mortgage, privilege, option, restriction,
seizure or engagement whatsoever and their origin of ownership in the hands of
the Guarantor is regular.
The ownership of the Company shares results from their registration with the
register of share transfer (COPY IN ANNEX 3).
20
Except the 10,000 shares making of its share capital, the Company has
established no other shares whatsoever of any kind.
Each share comprising the share capital of the Company corresponds to the right
to a one vote.
1.3.- ANNUAL ACCOUNTS OF THE COMPANY AND THE INTERIM ACCOUNTING STATUS AS OF
MARCH 31, 2000 - FINANCIAL STATE AND SITUATION OF THE TREASURY
The annual accounts (balance sheet, profits and loss accounts and appendixes) of
the Company, closed on December 31, 1999, decided by the Board of Directors of
March 15, 2000 and approved by the Ordinary General Shareholders' Meeting dated
May 3, 2000 (minutes of the Board of Directors' and the Shareholders' Meetings
are hereto attached as ANNEX 4) and the interim accounting status of the Company
of March 31, 2000 (the "Interim Accounting Status of March 31, 2000") were drawn
up in conformity with the accounting principles in effect, and in compliance
with continuity in their applications from one financial year to another. These
accounts are attached to this Agreement (ANNEX 5 AND 6) and are a sincere and
faithful image of the Company's situation, as well as of its assets, and of its
activities on those dates.
All the obligations or commitments of the Company on December 31, 1999 and March
31, 2000 are duly accounted for or given an allowance according to the same
principles and accounting rules as for the previous fiscal years.
All the Company's assets are subject to depreciation due to the events occurred
before December 31, 1999 or March 31, 2000, or that are underway on these dates.
On the balance sheets on these dates, there are sufficient allowance to offset
such depreciation. They also contain all allowances needed for any loss or
charge that might reasonably be anticipated.
Finally, all allowances concerning the proper accounting and financial
management are reported in the accounting entries, and in particular, all
necessary allowances have been made for all direct or indirect taxation imposed
or to be imposed on the Company for the closing period on December 31, 1999 and
for the period prior to the Interim Accounting Status as of March 31, 2000,
including an allowance of 88,000F for a penalty that the company France TELECOM
may claim against the company in connection with the order number 946 M 853.
Accordingly, the Guarantor declares and guarantees that there are no known
liabilities on December 31, 1999 and/or on the date of the Interim Accounting
Status due or the term of which is known, determined or determinable, not
indicated in the balance sheet of the Company closed on December 31, 2000 and/or
the interim accounting status of March 31, 2000.
The different books and accounting documents required by the current regulations
have been kept regularly and depict the exact situation of the Company.
1.4.- MATERIAL, INSTALLATIONS AND EQUIPMENT
21
The Company is the full owner of all material, installations and equipment
listed in its balance sheet closed on December 31, 1999. The Guarantor declares
that it has full ownership of the material, installations and equipment listed
in the Interim Accounting Status of March 31, 2000.
None of the elements comprising the material, installations and equipment
necessary for the operation at present nor the real property of the Company's
business has been rented or loaned to the Company, nor given by a third party,
the Company having sole ownership, with the exception of those elements listed
in ANNEX 7. Said Annex also contains the current capital lease contracts.
None of these assets or rights has been seized or is subject to seizure. The
Guarantor has no knowledge of any restrictions or limitations whatsoever
concerning the use of these rights and assets in the context of their present
exploitation. None of them is the subject of any retention of title provision.
All of the various materials and equipment used by the Company is, as of this
date, in its normal state of use, maintenance and repair.
1.5.- COMPANY'S ASSETS
The business freeholds operated by the Company were established by the Company
upon its incorporation.
The elements comprising the Company's assets and, more particularly, its
business freeholds, are free from any inscription, mortgage, privilege, option,
restriction, seizure or engagement whatsoever, other than those listed in ANNEX
8.
The Guarantor declares that nothing hinders the Company's right to free disposal
and enjoyment of its business freeholds (with the exception of rights resulting
from the pledge inscriptions listed in Annex 8 mentioned above) and all elements
comprising said business freeholds.
The Company is the valid holder of a sub-rental agreement hereto attached as
ANNEX 9, for the premises located at its registered office; it is not the holder
of any other lease agreement nor of any domiciliation agreement, except for a
draft of lease agreement for the future location of the Company, for which a
copy is hereto attached as ANNEX 10; nor has it agreed to a lease or
domiciliation agreement.
The Company's right to occupy the premises on which its registered office is
located is presently valid, and no termination thereof has been sent; the next
term is set for September 30, 2000, and in absence of a statement request
otherwise from either the principal tenant or the Company, this lease will
continue until September 30, 2002, at which time the Company must definitively
leave the premises.
1.6.- OFF-BALANCE SHEET ENGAGEMENT - ENDORSEMENTS AND GUARANTIES
22
The Company has neither given nor received, up until present, any endorsement or
guarantee of any kind for the execution of engagements contracted either by
itself, or by a third party.
There exists, at present, for the Company, no off-balance sheet obligations nor
capital loans, other than that listed in ANNEX 11.
1.7.- INSURANCE
The Company is insured with a reputable and solvent company against damages
which may cover the companies' properties, and its professional civil liability
conforming with the custom in its field of profession, and the Company has not
done or omitted to do anything which might render null or of no effect the said
policies. Premiums are regularly paid and there is no late payment.
1.8.- ONGOING CONTRACTS
The Company is not bound by any other contract or commitment whatsoever, that
can be terminated without indemnity in compliance with a prior notice in excess
of three months.
The state of the Company's loans and lines of credit (mentioning the ongoing
guaranties granted) included in ANNEX 12 are true and correct.
The Company has duly complied with and still complies with its contractual
obligations in such a way that no claim or termination of contracts may be
applicable on this date.
The take-over of the Company by the Beneficiary is not likely to give rise to
the early termination of any contracts, which are significant to the carrying on
of the Company's activities or to the termination of any loan agreements entered
into by the Company. Moreover, the Company has not received any letter from any
client concerning their intent to terminate their relations with the Company
after the take-over, purpose of this Agreement.
The Company has not committed itself, in its contracts entered into with its
clients or suppliers, to any obligation that could be considered as exorbitant
applicable to said contracts, according to their nature or specificity.
The Company purchases directly from its suppliers or their subsidiaries without
the intervention of intermediaries directly or directly linked to the Guarantor.
The Company is not bound by any contract limiting its freedom to compete. It has
not entered into any contract with sales representatives or commercial agents or
any other person and has not taken any commitment whatsoever referring to the
purchase, distribution and sale of its products.
23
All of the Company's supplies have at present been made under conditions
comparable on all points with those of the free competition market.
Prior to this date, no particular advantage whatsoever has been granted to the
benefit of the Company or to its detriment through preferential transactions
which could have, in the past, affected the annual accounts and, in the future,
modified operating conditions.
Similarly, sales have gone through prior to this date under normal market
conditions without any preferential condition on the Company or any exceptional
discount with the exception of the simple interplay of normal business practice.
The Company's General Conditions of Sales, hereto attached as ANNEX 13, comply
in particular with the economic regulation in force.
Furthermore, both for purchase and sales of goods or services, there is no
engagement to operate at prices that are already determined or to be determined
according to a pre-established formula. There is no agreement, even verbal,
which would have the result of obliging the Company of accepting imposed
purchase prices or of preventing them from freely setting their sales prices in
the future.
No substantial interruption has occurred prior to the takeover by the
Beneficiary in business relations between the Company and its suppliers or major
customers and nothing suggests that such an interruption or refusal to pay for
current orders may occur.
The Company has not taken any engagement that would preclude them from passing
on these prices increases for raw materials and other purchases, to their
current retail prices until after this date.
1.9.- EMPLOYMENT CONTRACTS - LABOR POLICY
The list of employees, hereto attached as ANNEX 14, is correct and represents
the complete state of personnel at present.
The Company is subject to the bargaining agreement of the Office of Technical
Studies, Engineering Advisors and Consulting Firms.
No employment contract or particular advantage has been granted by the Company
to any one of its officers, nor has any employment contract intended for any one
of the employees been created with more favorable provisions, in particular in
terms of termination indemnity, including retirement plans, profit-sharing
schemes or otherwise, other than those listed in the applicable bargaining
convention.
There exists no fixed-term employment contract.
The employment contracts concluded between the Company and its personnel all
conform with the applicable regulations (legislative, statutory or those issued
from the Company's applicable bargaining convention).
24
The Guarantor declares and guarantees that the Company has not, at present,
granted nor promised any increase in salary or other advantages to its employees
or company officers.
All of the Company's registers (in particular the registers concerning incoming
and outgoing personnel, pay, etc.) are regularly opened and kept up to date.
Working regulations in the Company are in conformity with legal prescriptions in
terms of labor, hygiene and safety regulations and the Company is not the
subject of any claims, procedures or penalties on this point; the Company is in
compliance with the legislative provisions and regulations regarding the working
hours.
The Company has always complied with labor regulations and is up to date in the
payment of all its contributions regarding social security, family allowances
and all the retirement and unemployment organizations.
The Company complies with all social security regulations. It also complies in
every way with the applicable regulation in terms of personnel representative
bodies.
The Guarantor declares that all information required by law and regulations
resulting from change of control of the Company have been given regularly to the
employees and in particular to the personnel representative bodies.
1.10.- FISCAL REGULATIONS
The Company has always complied, up to this date, with the fiscal regulations,
and is up to date with the payment of all taxes and dues.
There exists at present no request for information or contention from the tax
authorities, nor any complaint of any kind.
The Guarantor declares that all acts and operations completed up until present
by the Company have been and are regular, notably from a tax point of view. He
guarantees to the Beneficiary that all fiscal operations up until present
regarding taxes are up to date.
1.11.- CURRENT LITIGATION
The Company is not a part, as of this date, of any legal action, litigation,
arbitration on both the defense or the claiming side except for the litigation
listed in ANNEX 15 FOR WHICH THE GUARANTOR REMAINS LIABLE.
25
Moreover, there exists no legal action against someone whose acts would subject
and bind the Company to be legally responsible.
The Guarantor declares that, to his knowledge and the knowledge of the Company's
officers, there is no action, inquiry or similar procedure to be engaged which
might affect the Company, its activities or its assets.
The Company has complied with both the French and European economic regulations
relating to competition, and is not the subject of any request, proceedings or
claim in these areas.
The Company operates in accordance with the legislative and regular provisions
that apply specifically to it.
It has not been notified, as of this date, of any infringement, even if claimed
against, which could prohibit it from exercising all or part of its activities
or restricting such exercise or even more so, depreciating its assets.
The industrial and/or intellectual property rights are owned by the Company and
are not, as of this date, the subject of any court injunction; the Guarantor has
no knowledge, as of this date, of any infringement of the said rights by any
third party, nor of any claim by a third party for violation by the Company of
the rights belonging to third parties.
The products manufactured and marketed by the Company conform with legislative
and regular provisions whether general or specific to its activity, in
particular those concerning hygiene and safety and information and protection of
consumers.
No particular guarantee has been given for these products under the terms of
which the Company might be responsible beyond the limits and duration provided
for by law.
As of this date, there is no action underway for liability or termination of
contract against the Company for reasons of non-conformity, hidden defects or
defective products. Further, to the knowledge of the Guarantor, no event
susceptible to cause such action has occurred.
The Guarantor remains in any event liable for any defects, disfunctions or
others incurring a complaint on the part of the clients concerning the design,
the manufacturing and/or the deliveries of these products prior to this date.
The Company has not committed any illegal acts regarding freedom of prices and
competition regulations, whether national or European, regarding customs
regulations, regulations concerning financial relations with foreign countries.
More particularly, there are no claims or investigations being underway for
infringement of legislation concerning freedom of prices or competition.
1.12.- MANAGEMENT OF THE COMPANY FOR THE PERIOD SINCE DECEMBER 31, 1999
26
Between December 31, 1999 and the date of signature of the present agreement,
the Company has undergone no modification in its financial situation, other than
changes resulting from normal activity.
The Company has filed, in due time, all taxes, special taxes and company
statements imposed by legislation in force.
The Company is, as of this date, up to date with the payment of all its taxes,
duties, social contributions, etc., and in the subject of no assessment,
upcoming audit or complaint by any authorities whatsoever, with the exception of
the tax assessment which occurred during the months of February and March, 2000
for the period from January 1, 1997 up until September 30, 1999 and for which
the elements listed in ANNEX 16 are communicated by the Guarantor.
The Company has never been in bankruptcy or liquidation proceedings, and no
inscription has ever been filed against it at the Register of Pledges.
The Company has no interest, even a minority interest, in any company
whatsoever, or in any other grouping or legal entity.
The Guarantor declares, moreover, that the Company has made a total turnover
before tax 3,000,000F for the period from January 1, 2000 to March 31, 2000, and
that in the same period, the estimated loss is 200,000F.
1.13.- ENGAGEMENTS CONCERNING THE " TRANSITION INTO THE YEAR 2000 "
CONCERNING COMPUTER EQUIPMENT USED BY THE COMPANY IN ORDER TO OPERATE THE
COMPANY
The Guarantor guarantees that all computer equipment used by the Company in
order to operate the Company can sustain the transition from the year 2000 to
the year 2001. He guarantees the Beneficiary that all consequences of any future
system malfunction causing harm to the Company and caused by said transition
will be the subject of compensation paid by the Guarantor.
CONCERNING THE COMMITMENTS MADE BY THE COMPANY IN REGARD TO THIRD PARTIES ON THE
COMPATIBILITY OF PRODUCTS SOLD, DEVELOPED OR INSTALLED BY IT IN THE FRAMEWORK OF
THE TRANSITION TO THE YEAR 2000 AND 2001
The Company guaranteed to certain clients that the products that it installed or
sold or developed for them are completely compatible with the transition to the
year 2000 as well as the year 2001.
The Guarantor guarantees the Beneficiary against all consequences resulting from
product malfunction in the framework of these events except for the AM Trix
products supplied by VIEWLOCITY, INC.; all cases of malfunction, except for
those cases related to the AM Trix products, detrimental to the Company will be
subject to compensation by the Guarantor based on this Agreement.
27
1.14.- OWNERSHIP RIGHTS
The Company holds by right, without any restriction or reservation, all the
trademarks, brand names, logos, signs, drawings, patents, author's rights and
other rights (hereinafter referred to as the "RIGHTS") that it uses for
conducting its activities included in the list attached in the ANNEX 17 and
there is no conflict with the rights held by third parties. The Rights are held
and when they can be registered, are validly registered in the name of the
Company (and not in particular in the name of the Guarantor or an employee of
the Company) and are free of any lien.
The Company has paid up all corresponding fees. The Company has not granted to
any party whatsoever any rights or license to use any of the Rights. The Rights
are not the subject of any contestation by third parties and are not liable to
be so.
The Company is not a user and does not need to use and has no interest in the
trademarks, trade names, logos, drawings, patents or author's rights other than
the Rights.
The Company has not counterfeited any patents, trademarks, trade names,
drawings, author's rights held by third parties.
As owners or licensee on an exclusive basis and for all countries in which it
operates, the Company holds all of the intellectual and industrial property
rights related to the activities of the Company of which a complete list and
description are given in ANNEX 17.
The Guarantor hereby confirms that the rights the Company can grant to its
clients in the framework of its activities are valid and do not interfere with
any right of any third party nor cause any harm to any third party.
For the rights to which it is not the owner, the Company has always settled any
dues it owed, in conformity with the provisions of the license agreements.
These rights are not the subject of any claim by third parties and are not
likely to become one. The Rights benefiting from legal protection have been duly
registered or deposited by the Company.
1.15.- CREDITS
The client debts, bills and receivables held by the Company are valid and
recoverable for the amounts entered into the Company's accounts as of December
31, 1999 and/or March 31, 2000, less such applicable provisions for bad debts
which have been entered into its accounts and for
28
which sufficient allowance as of December 31, 1999 or March 31, 2000 has been
made so that their net value reflects exactly the amounts recoverable.
The Company owns the bank accounts entered on its balance sheets. It has the
free disposition of all sums credited to such bank accounts. The signing powers
are granted to Xxxx-Xxxxxxx XXXXXX and Xxxxxxx XXXXX.
1.16.- GRANTS
The Company has not entered into any agreement that could incur the
reimbursement or the non-payment of a grant or a subsidy that would have been or
that should be paid to it. All grants or subsidies paid to the Company over the
last six years have been disclosed to the Beneficiary and are listed in ANNEX
18.
29
1.17.- DEBTS
The cumulative borrowings and other financial debts set out in lines DV and DU
of the Company's March 31, 2000 Interim Accounting Status are not greater than
763,353 French Francs as of this date, and the cash flow corresponding to the CF
line of the Company's March 31, 2000 Interim Accounting Status are not inferior,
as of this date, to _________ French Francs.
As of this date, there is no engagement aimed at making or financing an
investment.
The Company has not granted guarantees or any promise of loan, subsidies on lost
capital or advanced capital to the benefit of any third party or any of its
employees, including to the benefit of any of their Board Members, managers or
shareholders or companies or entities whose the Guarantor or the officers of the
Company are officers, shareholders or partners.
There exist no loan between the Company and the Guarantor or companies
controlled directly or indirectly by the Guarantor, nor any particular
advantages or guarantees, securities, comfort letters given by the Company to
the Guarantor or granted by the Guarantor to the Company.
The Company has not granted any loan or advance payment nor any security
whatsoever to any Board Member, manager, employee or shareholder of the Company.
As of this date, all assignor shareholders have no current accounts opened in
the Company's books.
1.18.- GENERAL STATEMENTS
No statement made by the Guarantor herein and its appendixes omits to disclose a
material fact which would be determining or would render misleading all or part
of the statements contained in this Guarantee and which might have affected the
Beneficiary in his decision to go through with the take-over.
ARTICLE 2 - GUARANTIES
2.1.- INACCURACY OR OMISSION
The Guarantor declares that the Declarations and Guarantees hereabove reflect
the truth of the situation of the Company and omits no fact, element,
information, event or inquiry susceptible to negatively affect, as of this date,
the situation of the Company as well as its future perspectives.
30
The Guarantor will compensate either the Company or the Beneficiary, at the
latter's choice, for all damages resulting from the inaccuracy or omission in
the Statements or Guarantees included in the present contract and in the
Appendixes as well as for non-compliance with the obligations mentioned therein.
In such a case, it is the Beneficiary's responsibility to notify the Guarantor
of the nature of the inaccuracy or omission that would be revealed, to prove the
harm that would be incurred as well as the amount of this harm, with all backup
documents, if there is any.
2.2.- GUARANTEE OF ASSETS AND LIABILITIES
2.2.1.- PURPOSE OF THE GUARANTEE
2.2.2.1.- The Guarantor guarantees and certifies the existence and reality of
all elements included in the assets, as they are listed in the balance sheet of
the Company closed on December 31, 1999 and in the Interim Accounting Status of
March 31, 2000.
Consequently, the Guarantor guaranties to the Beneficiary to indemnify the
Company or the Beneficiary, at the latter's choice, for the following:
any amounts borne by or to the charge of the Company due because of insufficient
assets and excess liabilities the cause of which is prior to the balance sheet
of the Company closed on December 31, 1999 and/or the Interim Accounting Status
of March 31, 2000 and/or resulting, among others, from irregular or false
accounting entries in these balance sheets and more particularly:
- insufficient assets resulting more particularly from the non-existence or
an insufficiency of the provisions of any element of the assets entered
into the balance sheet of the Company closed on December 31, 1999 and/or
the Interim Accounting Status of March 31, 2000;
- any unposted or supplementary liabilities whatsoever (unpaid, payments,
reimbursements, charges, debts, irregular accounting entries, penalties or
other), including those resulting from insufficient provisions not
included in the balance sheet closed on December 31, 1999 and/or in the
Interim Accounting Status of March 31, 2000 (having a generator effect
prior to December 31, 1999 or the date of the Interim Accounting Status of
March 31, 2000), and more particularly any amounts covered and placed at
the expense of the Company and claimed by tax, customs, social security
administrations, or retirement funds as supplementary contributions or
rights of any nature whatsoever, as well as penalties, double rights and
fines relating thereto, such liabilities also applying to off balance
sheet commitments such as guarantees or other securities that the Company
has agreed to provide and not brought to the knowledge of the Beneficiary
as of this date.
2.2.2.- EXTENT OF THE GUARANTEE
31
It is also expressly agreed, that:
- any assets insufficiently accounted for in the balance sheet as defined
hereabove will be taken into account for its net value, taking into
account in particular all deductions and potential tax credits the
Company may benefit from;
- this guarantee will not include any tax reminders which constitute a
simple transfer in time of the corresponding charge (reintegration of
provisions; depreciation, etc.). However, penalties or increases not
related to the above reminders will be borne by the Guarantor;
- in the case of the missing of a tangible asset, the Guarantor's
indemnification will be equal to the net accountable value of the
missing asset;
- the Guarantor will advance to the Company all sums it will be obliged
to pay out due to any court order, even if they consider that the
request of the claimants is unfounded, and appeal this court order in
accordance with the conditions stated in 2.3. hereafter;
- in the event that some guarantees would be requested from the Company,
in particular by the French authorities, the Guarantor will be
personally responsible for them, and if this is impossible, he will
offer equivalent guarantees to the Company.
2.3.- IMPLEMENTATION OF THE GUARANTEES
The responsibility of the Guarantor can only be engaged on the condition that he
is notified by the Beneficiary by registered mail with return receipt requested.
By necessity of this contract, the Guarantor appoints Xx. Xxxx-Xxxxxxx XXXXXX or
Xx. Xxxxxxx XXXXX as agents in charge of receiving certified letters, requests
and to assume the role of intermediary between the Beneficiary and/or the
Company in the framework of this Agreement.
Consequently, the Beneficiary will be considered as having validly implemented
this Agreement or validly addressed all notification required by this Agreement
by notifying either Xx. Xxxx-Xxxxxxx XXXXXX or Xx. Xxxxxxx XXXXX.
For all litigation, upon receipt of the notice letter, the Guarantor may
appoint, if need be, a representative, at the Guarantor's expense, to
participate in the discussions and proceedings, concurrently with the Company's
representatives.
The notice for indemnification will be validly notified by registered mail with
return receipt requested addressed to the Guarantor and the sums due will be
payable in the month following the mailing of said letter.
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The parties expressly agree that the Beneficiary may prefer, if he so wishes, to
decide not to pay to the Guarantor all or part of price of $500,000 due on
December 31, 2000 and/or not to issue to the Guarantor all or part of the
VIEWLOCITY, INC. common shares for a value corresponding to all or part of the
indemnity that would be due on December 31, 2000 or December 31, 2001 as a
substitute for the indemnity due either to the Beneficiary or the Company. He
may enforce this provision at any time. It is hereby specified that the above
described compensation may not be exercised by the Beneficiary unless the
indemnification is not contested by the Guarantor or an arbitration decision
sentenced the Guarantor to such an indemnification in accordance with the
provisions of article 2.9. hereafter.
This present warranty agreement shall benefit all heirs and legal successors.
The Guarantor shall always comply with the present undertakings and, more
particularly, and although the list is not exhaustive, in the event of a change
of legal structure of the Company, merger with another company, transfer of the
Company shares by the Beneficiary.
2.4.- DURATION OF THE GUARANTEE
The above Guarantee is valid for a period terminating on December 31, 2003,
except when it concerns the assessments following tax or social security
controls, for which the guarantee will continue to be valid during the entire
period of the Statute of Limitations for all operations occurred prior to
December 31, 1999.
2.5.- TRIGGERING THRESHOLD
It is agreed that the present guarantee shall only apply in the event that the
amount du by the Guarantor would positively exceed the total amount of two
hundred thousand French Francs (200,000F), this amount being agreed as a
triggering threshold.
This amount of 200,000F applies consistently throughout and not per separate
event.
2.6.- NOTICE
All notices and/or other communications shall be addressed by certified letter
with return receipt to Xx. Xxxx-Xxxxxxx XXXXXX'x or Xx. Xxxxxxx XXXXX'x address.
They must notify any changes of address in order to render opposable said
notifications.
2.7.- CEILING
In the case of implementation of this guarantee, the obligation for payment by
the Guarantor will be limited to the total amount of acquisition price for the
shares of the Company by the Beneficiary, including the price complements, as
determined on the date the guarantee is implemented.
33
It is specifically agreed between the parties that the indemnity each Guarantor
is committed may not exceed the purchase price (including the price complements)
received by each Guarantor.
34
2.8.- GENERAL PROVISIONS
The beneficiaries of each Guarantor and each Guarantor himself are and will be
jointly and severally required to carry out the contracted engagements in full
under the terms of this Agreement.
In addition, the Guarantor must always comply with these obligations in the
event of assignment and/or transfer of this guarantee to a third party, more
particularly, and although the list is non-exhaustive, in the event of a change
of the Company's form, its absorption by another company or the assignment by
the Beneficiary of the Company's shares.
This Guarantee contains the full agreement of the parties concerning the subject
and purpose of the guarantee and no other document or contracts, other than
those mentioned herein, may be used for interpreting any clause of this
guarantee. It may not be modified, changed or amended, except in writing, duly
signed by the parties to this Guarantee.
All provisions of this Guarantee must be enforced in spite of the fact that the
Beneficiary proceeded with an audit and other inspections of the Company's
situation before this date.
The Appendixes are an integral part of this Agreement.
The Company or the Beneficiary, at the latter's option, operates in the present
as Beneficiary of any compensation that may be due as part of this agreement and
agrees to accept all rights and obligations announced herein.
2.9.- APPLICABLE LAW - ARBITRATION CLAUSE
The present contract, its interpretation, its execution and its consequences are
governed by French law.
The parties undertake to amicably resolve all problems that could arise
concerning the present Agreement and its application.
They also undertake to submit all unresolved litigation that could arise from
the validity, interpretation or the execution of this Agreement to an
arbitration court.
The parties expressly recognize that the obligations of this Agreement result
from an operation of a commercial nature and, consequently, differences of
opinion may enter into play among the parties concerning the meaning, scope,
interpretation and execution of this Agreement will be resolved by an arbitrator
in application of articles 1442 to 1491 of the French Civil Procedure Code
relating to internal arbitration.
35
In case of resort to an arbitration, the arbitration Court will be constituted
as follows:
- the party to resort to arbitration (the first party) shall give the other
party (the second party) a notification letter by registered mail with return
receipt requested indicating the difference of opinion and its desire to
recourse either to one arbitrator or three arbitrators and, in this case, the
first party indicates the name of the arbitrator that it chooses;
- the second party responds by registered mail with return receipt requested
either to accept the recourse to one arbitrator proposed by the first party, or
to propose the name of an arbitrator among the three arbitrators' option that it
chooses;
- if the second party has not responded within fifteen (15) days following the
date the letter was presented by the first party, the designation of a second
arbitrator will immediately be made by the President of the Commercial Court of
NANTERRE, ruling on an emergency basis at the request of the first party.
The two chosen arbitrators must designate a third arbitrator within a
fifteen-day period. Failing to do so, the third arbitrator will be appointed by
the President of the Commercial Court of NANTERRE, ruling on an emergency basis
at request of the party who made the request first.
The arbitrators must be chosen among professionals having experience in
accounting, finance and tax affairs.
The parties will submit the case to the Arbitration Court, without prior
agreement, by registered mail with return receipt requested stating the purpose
of the litigation; such letter shall be addressed by one of the parties to each
other party and to each of the arbitrators.
The Arbitration Court is located at PARIS , will rule within a period of three
(3) months from the date the case was submitted to the Court. The arbitrators
shall divide the arbitration expenses (arbitrators' invoices and expertise
expenses) between the parties.
The decision shall not be subject to any appeal or opposition.
2.10.- CONFIDENTIALITY
The parties undertake expressly not to refer to the present document to any
third party with the sole exception of their advisors or with a view to compel
the Guarantor to comply with their obligations due to their refusal to do so. It
is however agreed between the parties that the Beneficiary is authorized to
provide a copy of this document to the appropriate authorities in case of public
offering of the company VIEWLOCITY, INC. or any other affiliate thereof.
36
Signed on June 21, 2000 in four originals.
THE BENEFICIARY THE GUARANTOR
For Viewlocity Holding France SARL Xx. Xxxx-Xxxxxxx XXXXXX
-----------------------------------
Mr. Xxxxxx XXXXXX
Xx. Xxxxxxx XXXXX
THE COMPANY
For EDT S.A.
--------------
Xx. Xxxx-Xxxxxxx XXXXXX
