Exhibit 2.9 Acquisition Agreement, dated March 14, 2000, by
and among Xx. X.X. XXXXXXXX, Mr. P.R.M. van
BINSBERGEN, NeSBIC CTE Fund B.V., and XX0XXX.XXX
Inc.
Dated March 14, 2000
(1) Xx X. X. XXXXXXXX, Mr P.R.M. van BINSBERGEN and
NeSBIC CTE Fund B.V.
(2) XX0XXX.XXX Inc
ACQUISITION AGREEMENT
relating to
Personal Care Card Nederland Holding BV
XxXxxxxx, Xxxxxxxxxx & Xxxx
City Tower- Level Four
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X SDE
Tel: 0171638 8788
Fax: 0171638 8799
ACQUISITION AGREEMENT
Date: March 14, 2000
Parties:
1. "The Vendors" The persons or companies whose names and
addresses are set in Schedule 1
2. "The Purchaser" XX0XXX.XXX Inc. a corporation organized
under the laws of Delaware and having its principal office at Xxx
Xxxxxxxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, XXX;
Operative provisions:
1 Interpretation
1.1 In this Agreement the following words and expressions have
the following meanings:
"Accounts Date" means December 31,1999;
"Agreement" means this acquisition agreement;
"Business Day" means a day (other than a Saturday or a Sunday) on
which banks generally are open far business in London and
Amsterdam;
"Civil Law Notary" means the civil law notary mentioned in
article 4.2;
"Company" means Personal Care Card Nederland Holding BV;
"Completion Date" means March 27, 2000 or such earlier date as
may be agreed by Parties;
"Consideration Shares" means the shares, credited as fully paid,
in Purchaser to be allotted to the Vendors pursuant to clause
3.1;
"Facility Agreement" means the facility agreement to be entered
into on the Completion Date providing for a medium term loan of
US$2,000,000 to be made by the Purchaser to the Company;
"Group Company" means any company (a) in which a Party has
directly or indirectly (i) a majority shareholding or (ii) has
the control over or (b) that has directly or indirectly (i) the
majority shareholding in or (ii) the control over any Party;
"Intellectual Property" means any patent, patent application,
know-how, trade xxxx, trade xxxx application, trade name,
registered design, copyright or other similar industrial or
commercial right;
"Last Accounts" means the non-audited balance sheet, as at the
Accounts Date, and audited profit and loss account for the period
ended on the Last Accounts Date of the Company and the
Subsidiaries,;
"Management Agreements" mean the agreements between each of Xx
Xxxxxxxx and Xx Xxxxxxxx and the Company to be entered into on
Completion Date;
"Party and Parties" mean the Purchaser and/or the Vendors as the
case may be
"Purchaser's Warranties" mean the warranties and representations
by the Purchaser in clause 7 and Schedule 4;
"Shares" means the issued share capital of the Company as the
same is set out in Schedule 2;
"Subsidiaries" shall mean F'xxxxx Facilities B.V., Family care
Facilities B.V. and Funcare B.V.;
"Taxation" means all forms of taxation, duties, imposts,
withholdings and levies whatsoever, and wherever or whenever
imposed including social security duties, withholdings and
premiums;
"Warranties" means the warranties and representations by the
Vendors in clause 5 and Schedule 3.
1.2 All references in this Agreement to a statutory
provision shall be construed as including references to:
a any statutory modification, consolidation or
re-enactment (whether before or after the date of this Agreement)
for the time being in force;
b all statutory instruments or orders made pursuant to a
statutory provision; and
c any statutory provisions of which a statutory provision
is a consolidation, re-enactment or modification;
1.3 A reference in this Agreement to Dutch GAAP shall be a
reference to the standard accounting practice adopted by the Raad
voor de Jaarverslaglegging.
1.4 Clause headings in this Agreement are for ease of reference
only and do not affect the construction of any provision.
2. Agreement for sale
Subject to the terms and conditions of this Agreement the Vendors
shall sell and the Purchaser shall purchase the Shares, free from
all liens, charges and encumbrances and with all rights attaching
to them, with effect from the date of this Agreement.
3. Purchase consideration
3.1 As purchase consideration parties agreed in December 1999
that the price would be fixed at the than current private
offering price of US$5.- a Share, and that for the sale and
transfer of the Shares by Vendors to Purchaser, Purchaser shall
transfer 2,000,000 Consideration Shares to the Vendors at
Completion. The Consideration Shares shall be allotted as
follows:
Xx X. X. XXXXXXXX: 65,18 % = 1.303.612 Consideration
Shares;
Mr P.R.M. van BINSBERGEN: 0,99 % = 19.765 Consideration
Shares;
NeSBIC CTE Fund B.V.: 33,83 % = 676.623 Consideration
Shares.
3.2 The Consideration Shares shall be issued on terms that they
will rank pari passu in all respects with the common stock of the
XX0XXX.XXX INC in issue at the date of allotment save as regards
any dividend declared or paid by reference to a record date which
is prior to Completion.
3.3 Each of the Vendors agrees with the Purchaser that he will
not dispose of any of his Consideration Shares other than in
accordance with SEC Regulations and any other laws and
regulations applicable to the trading of the Consideration
Shares.
4. Completion
4.1 Completion of the purchase of the Shares shall take place at
the offices of the Civil Law Notary on the Completion Date.
4.2 The notarial deed of transfer of the Shares will be executed
before Xx. Xxxxxx Xxxx van Waateringe, Civil Law Notary in
Amsterdam, The Netherlands, or a deputy of Mr. Van Waateringe,
Mr. Van Waateringe, is a civil law notary of Holland Van Gijzen
Advocaten en Notarissen, the firm of the external legal advisors
of Purchaser. Vendors acknowledge that they are aware of the
provisions 9 and 10 of the guidelines concerning the association
between civil law notaries and banisters/solicitors as
established by the Royal Professional Association of civil Law
Notaries (Koninklijke Notariele Beroepsorganisatie). Vendors
agree that Holland Van Gijzen Advocaten en Notarissen might in
the future advise and act on behalf of Purchaser with respect to
this Agreement and the execution thereof, including any dispute.
4.3 On the Completion Date the Vendors shall deliver to the
Purchaser:
4.3.1 Relevant authorisations and powers of
attorney (if necessary), and
4.3.2 the resignation letters of the members of the
supervisory board of the Company, each resignation including a
waiver of any non-paid consideration and/or (rights to) damages,
which resignations will be accepted by Purchaser under the
discharge of each member of the supervisory board for its
liability arising out of the performance of its duties fulfilled
in its capacity as member of the supervisory board,
4.4 A shareholders' meeting of the Company and of each of
the Subsidiaries shall be held on the Completion Date at which:
4.4.1 such persons as the Purchaser may nominate
shall be appointed directors of the Company and each of the
Subsidiaries with immediate effect;
4.4.2 such persons as the Purchaser may nominate
shall be appointed members of the supervisory board of the
Company with immediate effect;
4.4.3 the Facility Agreement shall be approved;
4.4.4 each member of the board of directors of each
of the Company and each of the Subsidiaries will be instructed
and granted powers of attorney to represent the Company and the
Subsidiaries with respect to the (entering into the) Facility.
4.5 There shall be delivered to the Purchaser on the
Completion Date:
4.5.1 the Management Agreements duly signed by Xx
Xxxxxxxx and Xx Xxxxxxxx;
4.5.2 the completed and signed shareholders'
registers of the Company and each of the Subsidiaries.
4.6 The Vendors shall have repaid on the Completion Date all
monies then owing by them to the Company, whether due for payment
or not, if any.
4.7 Upon completion of the matters referred to in clauses 4.2 to
4.6 the Purchaser will deliver to the Vendors the Consideration
Shares.
5. Warranties by the Vendors
5.1 NeSBIC and Xx Xxxxxxxx warrant to the Purchaser that the
Warranties set out in Schedule 3 are true and accurate in all
respects regarding the Company and the Subsidiaries when signing
this Agreement and on the Completion Date and that the contents
of any documents previously provided to the Purchaser are true
and accurate in all respects and fully, clearly and accurately
disclose every matter to which they relate. Mr Binsbergen
warrants to the Purchaser that the Warranty number 1.6 regarding
the title to the Shares, set out in Schedule 3 is true and
accurate in all respects when signing this Agreement and on the
Completion Date.
Each of NeSBIC's and Xx Xxxxxxxx'x liability vis a vis Purchaser
is limited to a pro rata part of the damages equal to their
shareholding in the Company. For the purpose of this clause Xx
Xxxxxxx shall be deemed to hold the Shares of Mr Binsbergen in
addition to his own Shares, except with respect to any liability
based on Warranty number 1.6 regarding the title to the Shares,
as set out in Schedule 3, for which Mr Binsbergen shall bear
liability to a pro rata part of his shareholdings in the Company.
5.2 Each of the Warranties is without prejudice to any other
warranty or undertaking and, except where expressly stated, no
clause contained in this Agreement governs or limits the extent
or application of any other clause.
5.3 The rights and remedies of the Purchaser in respect of any
breach of the Warranties shall not be affected by completion of
the purchase of the Shares, by any investigation made by or on
behalf of the Purchaser into the affairs of the Company and/or
the Subsidiaries, by any failure to exercise or delay in
exercising any right or remedy with regard to each and/or any of
the Vendors or by any other event or matter whatsoever, except a
specific and duly authorised written waiver or release.
5.4 No claim shall be made by the Purchaser in respect of the
warranties unless the aggregate damages exceeds DFL 100,000, in
which case the full amount of the damages will due, and in
computing such aggregate individual claims of less than DFL
10,000 shall be ignored, unless multiple claims of less than DFL
10,000 have the same basis and the aggregate of these claims is
more than DFL 10,000 in which case the full aggregate amount will
count for the calculation of the loss of DFL 100,000 as mentioned
above. The maximum total liability ofVendors together is DFL
20,000,000.-.
5.5 No claim shall be made by the Purchaser in respect of the
warranties more than twenty-four months after the Completion
Date, except where there shall be prima facie evidence of fraud
("bedrog") and with the exception of the warranties set out in
Schedule 3 under 1 for which the statue of limitation will be
indefinite and under 4 for which the statue of limitation will be
the statutory period under which the Taxation Authorities will be
able to levy any Taxation and/or costs and interests regarding
the period before the Completion Date.
5.6 In the event of breach of any of the Warranties, each of the
Vendors in the manner as set out in article 5.1 will indemnify
Purchaser for the damages it has suffered and/or will suffer
because of that breach or, to the sole option of Purchaser will
bring the Company and or the Subsidiaries in a situation as if
the relevant Warranty had not been breached. Damages will include
any reasonable legal costs incurred by Purchaser including all
legal fees arising from any legal proceedings.
6. Restrictive Agreement
6.1 For the purpose of assuring to the Purchaser the full
benefit of the business and goodwill of the Company and the
Subsidiaries each of the Vendors undertakes by way of further
consideration for the obligations of the Purchaser under this
Agreement as separate and independent agreements that he will
not:
6.1.1 at any time after the Completion Date disclose to any
person or himself use for any purpose and shall use his best
endeavours to prevent the publication or disclosure of, any
information concerning the business, accounts or finances of the
Company or any of its clients' or customers' transactions or
affairs which may, or may have, come to his knowledge unless
required to do so by law, rules and/or any relevant public
authorities, in which event the Vendor concerned will inform
Purchaser prior to publication or disclosure what information is
to be published or disclosed;
6.1.2 for a period of two years after the Completion Date
either on his own account or for any other person directly or
indirectly solicit, interfere with or endeavour to entice away
from the Company any person who to his knowledge is now or has
during the two years preceding the date of this Agreement been a
client, customer or employee of, or in the habit of dealing with,
any such Company;
6.1.3 The Vendors and/or their Group Companies, with the
exception of NeSBIC and its Group Companies, shall not directly
or indirectly work for or offer services to competitors of the
Company and/or the Subsidiaries and shall not, either during or
within 2 (two) years after the Completion Date, directly or
indirectly, engage in activities competing with the business of
the Company and/or its Subsidiaries, either on its own account or
for others, all over the world (taking into consideration the
global nature of the activities and that they can be performed
anywhere) except on behalf of and for the Company or as an
investment only in a listed company.
6.2 In the event Vendors and/or their Group Companies breach
article 6.1 of the Agreement the Vendor concerned will forfeit a
penalty not open to judicial moderation of DF'L one million for
each breach and of DFL 250,000 for each day, part of a day to be
calculated as a complete day, the breach continues, without any
notice of default being necessary and notwithstanding the rights
of Purchaser, the Company or the Subsidiaries to demand full
damages.
7. Purchaser's Warranties
7.1 Purchaser warrants to the Vendors that the Purchaser's
Warranties set out in Schedule 4 are true and accurate and not
misleading in all respects regarding the Purchaser and the
Consideration Shares when signing this Agreement and on the
Completion Date.
7.2 Purchaser shall indemnify the Vendors for any damages,
including but not limited to, any expenses (including but not
limited to reasonable attorney's fees) incurred in respect of any
misrepresentation, breach of warranty contained in this
Agreement, (including Schedule 4), failure to perform or
violation of any agreement or covenant on the part of the
Purchaser, under the Agreement.
7.3 The representations, warranties and undertakings of
Purchaser and the indemnification herein shall survive Completion
for a period of two years, unless:
(a) within such period a demand pursuant to this article has
been made by Vendors against Purchaser and proceedings have been
instituted within six month upon making such demand in which case
the indemnification therefor shall survive beyond the period of
two years until a final agreement is reached or full payment has
been made in accordance with a final judgement, as the case may
be; or
(b) Purchaser has settled the claims of the Vendors in
accordance with the provisions of this clause.
8. General
8.1 No announcement of any kind shall be made in respect of the
subject matter of this Agreement unless specifically agreed
between the Parties. Any announcement by either Party shall in
any event be issued only after prior consultation with the other
Parties.
8.2 If any of the Shares shall at any time be sold or
transferred to Group Companies of Purchaser, the benefit of each
of the Warranties may be assigned to the purchaser or transferee
of those Shares who shall accordingly be entitled to enforce each
of the Warranties against the Vendors as if he were named in this
Agreement as the Purchaser, but not otherwise.
8.3 This Agreement shall be non-assignable, without the prior
written agreement of the other Parties with the exception that
Purchaser is allowed to assign and transfer its rights and
obligations hereunder to a Group Company, without the consent of
the Vendors, prior thereto or otherwise.
8.4 Save where expressly otherwise provided, all expenses
incurred by or on behalf of the Parties, including all fees or
agents, representatives, solicitors, accountants and actuaries
employed by any of them in connection with the negotiation,
preparation or execution of this Agreement shall be borne solely
by the Party who incurred the liability and the Company shall not
have any liability in respect of them. The costs of the Civil Law
Notary will be equally split between Purchaser and Vendors.
8.6 Any notice required to be given by any of the Parties under
this Agreement may be sent by fax or post to the address of the
addressee as set out in Schedule 1 to this Agreement or to such
other address as the addressee may from time to time have
notified for the purpose of this clause: Communications sent by
post shall be deemed to have been received two Business Days
after posting. In proving service by post it shall only be
necessary to prove that the communication was contained in an
envelope which was duly addressed and posted in accordance with
this clause.
8.7 The failure of either Party to enforce at any time the
provisions of this Agreement, or the failure to require at any
time performance by the other Party of any of the provisions of
this Agreement, shall in no way be constituted to be a present or
future waiver of such provisions, nor in any way affect the
validity of either Party to enforce each and every such
provision.
8.8 Any amendment of this Agreement is valid only, if the
amendment is in writing and signed on behalf of each Party.
8.9 If any paragraph, provision or clause of this Agreement is
found or held to be invalid or unenforceable, the Parties agree
that the remainder of this Agreement shall be valid and
enforceable.
8.10 Parties waive their rights to seek dissolution of this
Agreement.
8.11 This Agreement can be executed in two (2) or more
counterparts, all of which taken together, shall be as effective
as if all signatures on the counterparts were on a single copy of
this Agreement.
8.12 The considerations in, and all Schedules to the Agreement
form an integral part of the Agreement. References to this
Agreement include references to the Schedules.
8.13 This Agreement including all Schedules and Annexes,
supersedes any and all other agreements, oral or written, between
the Parties hereto, and contains the entire Agreement with
respect to the subject matter hereof.
8.14 If any provision of this Agreement is or becomes, at any
time and under any laws, rules or regulations, unenforceable or
invalid in any jurisdiction in which the Parties are located or
in which this Agreement is being performed, the remainder of this
Agreement shall be valid and enforceable. Parties shall negotiate
in good faith in order to come to a mutual agreement on a
substitute, valid and enforceable provision which most nearly
effects the Parties' intent in entering into this Agreement.
9 Jurisdiction, Competent court
The operative law relating to this Agreement shall be that of the
Netherlands and the Parties hereby submit to the exclusive
jurisdiction of the District Court of Amsterdam, the Netherlands.
AS WITNESS the hands of the Parties hereto or their duly
authorised representatives on the date set out above
Signed by Xx. X.X. Xxxxxxxx
Signed by Xx. Xxx Xxxx for and
on behalf of NESBIC CONVERGING
TECHNOLOGIES EUROPE (CTE) FUND B.V.
Signed by Xx. X.X. Xxxxxxxx for and on behalf of Mr. P.R.M. van
Binsbergen
Signed by Xx. X.X. Xxxx
for and on behalf of XX0XXX.XXX INC
SCHEDULE I
Vendors' holdings
Vendor's Name Vendor's Address
X.X. Xxxxxxxx ("Koekkoek") "Sonnehardt" Hertog Xxxxxxxxxxx 0
0000 XX Xxxxxxxxx Nesbic Converging Technologies Savannahwe8 17,
Utrecht, Europe (CTE) Fund B.V. ("Nesbic") Attention: Xxxxx
Xxxxxxxxx P.R.M. van Binsbergen ("Binsbergen") Eikenlaan 28,
5263 GN Vught
Notices Addresses as meant Article 8.6:
Vendor's Addresses as above
copy of any correspondence to:
Xx X. Xxxxxxx
X.X. Xxx 00000, 0000 XX Xxxxxxxxx
Purchaser's Address 00 Xxxxxxxxx Xxxxxx
xxxxxxxxx: Xxx Xxxx
XX00 0XX Coay 10
copy of any correspondence to:
Xx Xxxxxx Xxx Xxxxx
City Tower, Level four, 00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX 0X SDE
Vendor's Name Vendor's shareholdings
A B C
Koekkoek: 28,801 484
Nesbic: 10,755 4,445
Binsbergen: 444 +
Total 40,000 4,445 484
SCHEDULE 2
Details of Personal Care Card Nederland Holding BV
Chamber of Commerce number: 32066578
Date of incorporation: 29-01-1996
Share capital:
Authorised: NLG 200,000
Issued: 40,000 A Shares, 4,445 B Shares and 484
C Shares
Registered office: Noordse Bosje 43, le etage
1211 BE Hilversum
Directors: Mr W.A. Xxxxxxxx
SCHEDULE 3
Warranties
1. Corporate Matters
1.1 The information relating to the Company contained in
Schedules 1 and 2 are true and complete in all respects.
1.2 The Shares constitute the whole of the issued and allotted
share capital of the Company.
1.3 There are no agreements or arrangements in force, other than
this Agreement, which grant to any person the right to call for
the issue, allotment or transfer of any share or loan capital of
the Company and or the Subsidiaries. This warranty specifically
includes and is also valid with respect to the disclosed option
schemes of Xx Xxxxxxxx and Mr Eek, with whom adequate and
satisfactory arrangements have been made by Vendors and who have
discharged the Company and/or Subsidiaries.
1.4 The register of shareholders and other statutory books of
the Company and the Subsidiaries have been properly kept and
contain an accurate and complete record of the matters with which
they should deal; and no notice or allegation, that any of them
is incorrect or. should be rectified, has been received. The
current and valid articles of association of the Company and the
Subsidiaries have been presented in the due diligence
investigation.
1.5 All returns, particulars, resolutions and documents required
by any legislation to be filed with the Chamber of Commerce or
other registration offices in respect of the Company and the
Subsidiaries have been duly filed and were correct.
1.6 The Vendors are the full and unencumbered owners of the
Shares, the Shares are free of any usufruct, lien, attachment,
charge or other restriction and or limitation and Purchaser will
receive full, unencumbered and complete title.
1.7 The Company is the only shareholder in each of the
Subsidiaries and the shares in the Subsidiaries are free of any
usufruct, lien, attachment, charge or other restriction and/or
limitation.
1.8 The Company and the Subsidiaries are fully incorporated
companies with limited liability (besloten vennootschap met
beperkte aansprakelijkheid), validly existing under the laws of
The Netherlands.
1.9 No order has been made, petition presented or resolution
passed for the bankruptcy (f'aillissement), dissolution
(ontbinding en vereffening), moratorium of payments (surs9ance
van betaling) of the Company and/or a Subsidiary.
1.10 No resolutions to merge with an other company, to amend the
articles of association, to legally split the Company or the
Subsidiaries or to dissolve the Company or the Subsidiaries were
taken by their general meetings of shareholders nor is any action
being taken by any Chamber of Commerce in the Netherlands to
dissolve the Company or the Subsidiaries.
1.11 The Company and the Vendors have the right, power and
authority and have taken all action necessary to execute and
deliver this Agreement and each document to be executed by them
at or before the Completion Date.
1.12 Vendors warrant (i) each for itself that the entering into
this Agreement by it and its performance of its obligations in
this Agreement does not and will not breach or conflict with any
obligation to which it is subjected, and (ii) that this Agreement
does not and will not breach or conflict with any obligation to
which the Company or the Subsidiaries are subjected.
1.13 Since the date of incorporation of each the Company and the
Subsidiaries all annual general meetings of shareholders have
been held in accordance with the relevant provisions in law and
its articles of association and all other shareholders' and
corporate action required by law or by its articles of
association have been taken when necessary or required to be
taken. Since its date of incorporation, each of the Company and
the Subsidiaries have materially complied with all the provisions
of its deed of incorporation and articles of association, and
have not entered into or performed any ultra xxxxx
transaction(s).
2. Accounting Matters
2.1 The Last Accounts have been prepared in accordance with
the historical cost convention; and the bases and policies of
accounts, adopted for the purpose of preparing the Last Accounts,
are the same as those adopted in preparing the audited accounts
of the Company and the Subsidiaries in respect of the three last
preceding accounting periods.
2.2 The Last Accounts:
2.2.1 give a true and fair view of the assets, liabilities
(including contingent unquantified or disputed liabilities) and
commitments of the Company and the Subsidiaries at the Last
Accounts Date and its profits and losses for the financial period
ended on the date;
2.2.2 comply with all current Dutch GAAP applicable to a
Netherlands company;
2.2.3 properly reflect the financial position of the Company
and the Subsidiaries as at their date.
2.3 All the accounts, books, ledgers, financial and other
records, of whatsoever kind,of each the Company and the
Subsidiaries are in its possession and give a true and fair view
of its financial position.
2.4 The annual accounts of the Company and the Subsidiaries
have been timely deposited with the Chamber of Commerce in
accordance with articles 2:394 and 2:395 of the Dutch civil code.
2.5 Since November 30, 1999 no material adverse changes in
the financial revenue of the Company and subsidiaries have
occurred.
3. Financial Matters
3.1 Except as disclosed to the Purchaser in the attached
Annex 1 ("Disclosure Letter"), the Company and the Subsidiaries
have no capital commitments outstanding at the Last Accounts Date
and has not since then, incurred or agreed to incur any capital
expenditure or commitments or disposed of any capital assets.
3.2 Except as disclosed to the Purchaser in the Disclosure
Letter, since the Last Accounts Date the Company has not paid or
declared any dividend or made any other payment which is, or can
be considered as a distribution as meant m article 2:216 of the
Dutch civil code.
3.3 Except as disclosed to the Purchaser in the Attached
Letter, the Company and the subsidiaries have not since the Last
Accounts Date, repaid, or become liable to repay, any
indebtedness in advance of its stated maturity.
3.4 There are no liabilities (including contingent
liabilities) which are outstanding on the part of the Company
and/or the Subsidiaries other than those liabilities disclosed in
the Last Accounts or incurred in the ordinary and proper course
of trading since the Last Accounts Date.
3.5 None of the facilities available to the Company or the
Subsidiaries are dependent on the guarantee or indemnity of, or
any security provided by, a third party, with the exception of a
guarantee in the amount of US$150,000.- to the financing bank of
the Company.
3.6 The amounts now due from debtors will be recoverable in
full in the ordinary course of business, and in any event not
later than twelve weeks from the date of this Agreement, unless
provided for in the Last Accounts.
3.7 Other than in the normal course of business, there is not
now outstanding in respect of the Company any guarantee, or
agreement for indemnity or for suretyship, given by, or for the
accommodation of, the Company.
4. Taxation Matters
4.1 Except as disclosed to the Purchaser in the attached
Disclosure Letter, the Last Accounts make full provision or
reserve for all Taxation (including deferred Taxation) which is
liable to be or could be assessed on the Company and/or each of
the Subsidiaries, or for which it may be accountable, in respect
of the period ended on the Last Accounts Date.
4.2 All returns, computations, withholdings and payments which
should be, or should have been, made by the Company and each
Subsidiary for any Taxation purpose have been made within the
requisite periods and are up-to-date, correct and on a proper
basis and none of them is, or is likely to be, the subject of any
dispute with the relevant Taxation authorities.
4.3 The Company and each of the Subsidiaries have duly deducted
and accounted for all amounts which it has been obliged to deduct
in respect of Taxation and, in particular, have properly deducted
tax and social security premiums, as required by law, from all
payments made, or treated as made, to its employees, officials or
former employees, and accounted to relevant Taxation authorities
for all tax and social security premiums so deducted and for all
tax and social security premiums chargeable on benefits provided
for its employees or former employees, including but not limited
to any payments made under any management agreement or similar
understanding.
4.4 Except as disclosed in the Disclosure Letter, the Company
and the Subsidiaries are not, nor will become, liable to pay, or
make reimbursement or indemnity in respect of, any Taxation (or
amounts corresponding thereto) in consequence of the failure by
any other person (not being a group company) to discharge that
Taxation within any specified period or otherwise, where such
Taxation relates to a profit, income or gain, transaction, event,
omission or circumstance arising, occurring or deemed to arise or
occur (whether wholly or partly) on or prior to the date of this
Agreement.
4.5 The Company and each Subsidiary have not, since the Last
Accounts Date, incurred or are, or have become, liable to incur
after that date expenditure which will not be wholly deductible
in computing its taxable profits except for expenditure on the
acquisition of an asset to be held otherwise than as
stock-in-trade.
4.6 The Company has not entered into any transaction that could
trigger the application of the Sixteenth Standard condition for
Fiscal Unity under the Dutch Corporate Income Tax Act (as
published in the Staatscourant no 189 of 1991) or the equivalent
of this article under the predecessors of these Standard
Conditions.
5.6 The Company has conducted and is conducting its business in
all respects in accordance with all applicable laws and
regulations, whether of the Netherlands or elsewhere, including
any privacy laws.
5.7 No power of attorney given by the Company is in force,
except as disclosed in the attached letter Disclosure Letter or
registered at the Chamber of Commerce.
5.8 There are no outstanding authorities (express or implied) by
which any person may enter into any contract or commitment to do
anything on behalf of the Company.
5.9 The Company is not, nor will with the lapse of time become
in default in respect of any obligation or restriction binding
upon it, unless provided for.
5.10 The Company is not a party to, not have its profits or
financial position during the three years prior to the date
hereof been affected by, any contract or arrangement which is not
of an entirely arm's length nature, with the possible exeption of
the financing by the Vendors.
5.11 The Company and the Subsidiaries have in total at least 5400
cardholders.
5.12 The supplier agreements with Cendant BRC and HS B are valid>
have not been terminated, nor is any termination expected or
foreseeable.
5.13 The Company and Subsidiaries have the full and unencumbered
legal ownership of the databases) kept by HSB.
6 Employment Matters
6.1 A list containing the full particulars of the identities,
dates of commencement of employment, or appointment to office,
and terms and conditions of employment of all the employees and
officers of the Company and the Subsidiaries, including without
limitation profit sharing, commission or discretionary bonus
arrangement as disclosed in the Disclosure Letter.
6.2 The rate of remuneration, emoluments, pension benefits and
all (other) commitments whether accepted or not of any personnel
including officers of the Company and Subsidiaries as per
February 25, 2000 are as disclosed in an attachment to the
Disclosure Letter and no personnel and /or officers are omitted
from this Letter and no material change has occurred since
February 25, 2000.
6.3 The Company or the Subsidiaries are not bound or accustomed
to pay any monies other than in respect of remuneration, or
emoluments of employment, or pension benefits, to, or for the
benefit of, any of its officers or employees.
6.4 The Company or each of the Subsidiaries are not under any
legal or moral liability or obligation, or a party to any
ex-gratia arrangement or promise, to pay pensions, gratuities,
superannuation allowances, or the like, to or for any of its
past or present officers or employees or their dependants in the
attached Disclosure Letter; and there are no retirement benefit,
or pension or death benefit, or similar schemes or arrangements
in relation to, or binding on, the Company or to which the
Company contributes.
6.5 There are no back service obligations with regard to
pensions.
7. Asset Matters
7.1 The Company and Subsidiaries owned at the Last Accounts
Date, and had good and marketable title to, all the assets
included in the Last Accounts, and (except for current assets
subsequently sold or realised in the ordinary course of business)
still owns and has good and marketable title to them and to all
assets acquired since the Last Accounts Date.
7.2 To the best of Vendors' knowledge, the Company and the
Subsidiaries are now, and have at all material times been,
adequately covered against accident, damage, injury, third party
loss (including product liability) loss of profits and other
risks normally insured against by persons carrying on the same
business as that carried on by the Company and the Subsidiaries.
7.3 All insurances are currently in full force and effect,
and to the best of Vendors' knowledge nothing has been done or
omitted to be done which could make any policy or insurance void
or voidable, or which is likely to result in an increase in
premium. The Company or the Subsidiaries have never been refused
an insurance.
7.4 No claim is outstanding, or may be made, under any of
the insurance policies and to the best knowledge of Vendors no
circumstances exist which are likely to give rise to a claim.
8. Property Matters
8.1 Except for the lease agreements disclosed in the
Disclosure Letter, the Company and the Subsidiaries are not party
to any other agreement concerning the rent, the acquisition, the
ownership or otherwise in connection with real estate(onroerende
taken)
8.2 The Company and Subsidiaries have duly and punctually
performed and observed all covenants, conditions, agreements,
statutory requirements, planning consents, by-laws, orders and
regulations with regard to the leased property to the best of
Vendors' knowledge, and no notice of any breach of any such
matter has been received.
8.3 The use the leased property is the permitted use under
the lease agreement and in accordance with any planing acts.
8.4 There are no compulsory purchase notices, orders and
resolutions affecting the leased property.
9. Intellectual Property Rights and Trade Secrets
9.1 All intellectual property rights set forth in the Disclosure
Letter are in full force and effect and are vested in and
beneficially owned by the Company and the Subsidiaries. The
Company and the Subsidiaries are registered as proprietor of the
intellectual property rights specified on the Disclosure Letter
and each of those rights is valid and enforceable, and none of
them is being used, claimed, opposed or attached by any other
person, except as disclosed in the Disclosure Letter.
9.2 No right or licence has been granted to any person by the
Company and the Subsidiaries to use in any manner or to do
anything which would or might otherwise infringe any of the
intellectual property rights referred to above; and no act has
been done or omission permitted by the Company or the
Subsidiaries whereby they or any of them have ceased or might
cease to be valid and enforceable.
9.3 The business of the Company and the Subsidiaries (and of any
licensee under a licence granted by the Company) as now carried
on does not and is to the best of Vendors' knowledge not likely
to infringe any intellectual property right of any other person
(or would not do so if the same were valid) or give rise to a
liability to pay compensation and all licences to the Company in
respect of any such Right are in full force and effect.
9.4 The Company and the Subsidiaries have not (otherwise than in
the ordinary and normal course of business) disclosed or
permitted to be disclosed or undertaken or arranged to disclose
to any person other than the Purchaser any of its know how, trade
secrets, confidential information, price lists except as
necessary in the ordinary cause of bussiness or lists of
customers or suppliers.
9.5 The Company and/or each of the Subsidiaries are not a party
to any secrecy agreement or agreement which may restrict the use
of disclosure of information except as disclosed in the attached
Disclosure Letter (Schedule [ ]).
9.6 Nothing has been done or omitted by the Company and/or each
of the Subsidiaries which would enable any licensee under a
licence granted by the Company and/or the Subsidiaries to be
terminated or which in any way constitutes a breach of terms of
any licence.
10. General Matters
10.1 All information given by any of the Vendors, or the Vendors'
advisors to the Purchaser, or the Purchaser's advisors relating
to the business, activities, affairs, or assets or liabilities of
the Company was, when given, accurate and comprehensive in all
respects.
10.2 There are no material facts or circumstances, in relation to
the assets, business or financial condition of the Company and/or
each of the Subsidiaries, which have not been fully and fairly
disclosed in writing to the Purchaser and which, if disclosed,
might reasonably have been expected to affect the decision of the
Purchaser to enter into this Agreement.
SCHEDULE4
All definitions used in this Schedule shall have the same meaning
as ascribed to them in the Acquisition Agreement to which it is
attached.
Purchaser
Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
Purchaser has the requisite power and authority to create, issue,
offer and use the the Consideration Shares as consideration for
the Shares.
Consideration Shares
The Consideration Shares will be validly issued and outstanding,
fully paid and non-assessable and will not be subject to any
pre-emptive or similar right, or exercise thereof, free and clear
of any lien, except as may have been created by the holder
thereof and such restrictions on transfer as may be imposed under
federal securities laws or state securities laws.
Required authorization
All authorizations, consents and approvals required by Purchaser
for or in connection with the creation and issue of the
Consideration Shares, the execution of the Acquisition Agreement,
the performance by Purchaser of the obligations undertaken by it
herein have been obtained and are in full force and effect.
Neither the nature of Purchaser, nor of any of its respective
businesses, nor any relationship between Purchaser and any other
person nor any circumstance in connection with the execution and
delivery of the Consideration Shares is such as to require a
consent, approval or authorization of, any governmental authority
on part of Purchaser as a condition to the execution and delivery
of this or the offer, issue, sale or delivery of any of the
Consideration Shares.
Confidential Offering Memorandum
To the best of the knowledge and belief of the Purchaser, the
Confidential Offering Memorandum dated January, 2000, is true and
accurate in all material respects and is not misleading in any
material respect in light of the circumstances under which the
statements contained therein were made; any opinions, predictions
or intentions expressed in the Offering Memorandum are true and
honestly held or made and are not misleading in any material
respect and have been made after due and careful consideration of
all relevant factors known to CI4Net; the Offering Memorandum
does not contain any untrue statement of a material fact and does
not omit to state any material fact necessary to make such
information not misleading in any material respect in light of
the circumstances under which such statements were made.
Parties understand and agree that the reference to the
Confidential Offering Memorandum does not and will not create any
liability under and/or in connection with laws other than Dutch
law.
Dividends, distribution of profits
Purchaser did not declare any dividend or other distribution
which has not been fully paid, nor do any rights to distribution
from reserves or from profits, including but not limited to
bonuses, exist.
Shareholders decisions
There are no decisions of the general meeting of shareholders of
Purchaser, or of any other body of Purchaser, which have not been
fully carried out.
No misrepresentation
To the best of Purchaser's knowledge, no representation or
warranty by Purchaser in the Acquisition Agreement, or in any
Exhibit or other document furnished relating to the transaction
contemplated hereby, contains or will as of Closing Date contain,
any untrue statement of any material fact or omits or will, as of
Closing Date, omits to state a material fact or event necessary
to make the statements contained therein not misleading.
Breach of Schedule 3
To the best knowledge of Purchaser, Vendors are not in breach of
any of the representations and Warranties contained in Schedule
3.
