Exhibit 10.30
AGREEMENT
between
1. Artificial Life, Inc.
0000 Xxxxxx Xxxx, Xxxxxxxxxx (Xxxxxxxx), XXX
Represented by ...
hereinafter: "ALIFE"
2. E-tail AG
Xxxxxxxxxxxx 0, 0000 Xxxxxxxxxxxx
Represented by Xxxxx Xxxxxxx
hereinafter: "e-tail"
1+2 together, hereinafter: "Old Shareholders"
and
3. BC Medien Holding AG
Xxxxxxxxxx 000, 0000 Xxxxxxxxx
Represented by Beat Xxxxx
hereinafter: "BCM"
4. Mr. Hans Xxxx Xxxxxx
hereinafter: "Xxxxxx"
3 and 4 together, hereinafter: "New Shareholders"
and
5. Artificial Life Schweiz AG (legal successor of Artificial Life Solutions
AG)
Xxxxxxxxx 0, 0000 Xxxxxxxxx
Represented by Xxxxxx Xxxxx
hereinafter: "ALIFE Schweiz"
6. Xxxxxx Xxxxxx
Xxxxxxxxxxx 00, 0000 Xxxx
Represented by Xxxxxxxxx Xxxxxx, Attorney at Law
7. Xxx-xxxxxxx.xxx AG
Xxxxxxxxxxx 000, 0000 Xxxxxxxxxx
Represented by Manual Xxxxx and Xxxxx Xxxxxxx
concerning
Xxx-xxxxxxx.xxx AG
(hereinafter: "Company")
Page 2
PREAMBLE
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It having been set forth that
- the founding shareholders and, respectively, the companies affiliated
with them entered into a shareholders commitment to offer a contract
with respect to the Company (named JVAG therein) on 3/25/99;
- the founding shareholders and, respectively, the companies affiliated
with them founded the Company on 4/28/99 with a share capital of CHF
3,000,000 in execution of the shareholders commitment to offer a
contract;
- the Company has entered into a project agreement with a subsidiary of
ALIFE, Artificial Life Solutions AG, regarding the development and
introduction of E-commerce software for the Rappenspalter business
model (hereinafter "Project Agreement");
- ALIFE Solutions has subsequently produced and delivered additional
software for the Company (contract software);
- the founding shareholders increased the share capital to CHF 8,000,000
on April 25, 2000;
- ALIFE Solutions has been transformed into ALIFE Schweiz by merger with
other subsidiaries of ALIFE and a legal change of name, thus assuming
all rights and obligations of ALIFE Solutions;
- the business trend of the Company necessitated the inflow of
additional funds in the form of loans from the founding shareholders;
- the Company's liquid funds again will have been exhausted as of
12/31/00 and the founding shareholders are no longer willing to inject
additional funds;
- the New Shareholders are willing to commit CHF 2,505 million in
capital to the Company, provided that:
- they thereby receive 65.6% of the Company's share capital;
- ALIFE Schweiz transfers to the Company all rights to the contract
software for all European countries; [handwritten:] Swiss laws
- ALIFE Schweiz continues to allow the Company the use of BOT
technology for the German-speaking area of Europe free of charge;
[handwritten:] bot licenses, German
- E-tail reduces its claims against the Company to CHF 600,000 and
converts it into a subordinated interest-free shareholder loan;
- ALIFE Schweiz limits its claim against the Company to a maximum
CHF 6000,000 and converts CHF 300,000 into a subordinated
interest-free shareholder loan;
- the Old Shareholders continue to work actively towards the
Company's development through representation on the Supervisory
Board;
- the Old Shareholders move their shares in the Company into a
holding company at the same time as the New Shareholders.
the parties agree as follows:
Page 3
I. PARTICIPATING INTEREST OF THE NEW SHAREHOLDERS
1. Present Shareholder Structure
According to the Company's shareholders register, the following shareholders
have a participating interest in the Company at the present time:
Name: Share certificate Number of shares Participation in share capital
ALIFE No. 1 15,000 25%
e-tail No. 2 7,500 12.5%
e-tail No. 3 7,500 12.5%
ALIFE No. 4 15,000 25%
e-tail No. 5 15,000 25%
The agreed sale of shares via the purchase of 3,000 bearer shares arranged for
in the agreement dated 8/11/00 between Prodega and Xxxxxx Xxxxxx has not been
executed to this time. This agreement is cancelled and replaced by the
obligation pursuant to Clause 4.
2. Capital Reduction
The Old Shareholders agree to convene an extraordinary shareholders' meeting
within six days of the signing of this agreement in which the share capital will
be reduced from the present CHF 6,000,000 to CHF 2,000,400 by reducing the per
share value from the present CHF 100 to the new per share value of CHF 33.34.
The details can be found in the public document appended hereto as Annex 1.
3. Capital Increase
Simultaneous with the reduction of the share capital according to Clause 2, the
share capital will be increased to CHF 4,505,400 by the issue of 25,050 shares
at a par value of CHF 100.
The Old Shareholders agree to waive their subscription rights in the capital
increase. The New Shareholders agree to subscribe to the newly created shares as
follows:
- BCM: 15,050 shares at CHF 100 per share;
- Xxxxxx: 10,000 shares at CHF 100 per share.
The details can be found in the public document appended hereto as Annex 1.
Page 4
4. Share Transfers
Immediately after the capital increase according to Clause 3 has been recorded
in the Commercial Register, ALIFE agrees to transfer 3,108 shares of the Company
valued at CHF 33.34 per share to the Company as compensation for the services of
e-tail to the Company in accordance with Clause 7 and 9, without additional
payment to e-tail.
Thereupon, e-tail agrees to transfer 2,973 shares of the Company to X. Xxxxxx at
the total purchase price of CHF 1. Upon termination of the employment relation
between the Company and X. Xxxxxx before 12/31/2002 based on a notice of
termination by Xxxxxx Xxxxxx, the Company shall have a right to repurchase the
shares bought by X. Xxxxxx at a total price of CHF 1.
The parties and, respectively, the Company, shall undertake the following
actions with respect to executing this transfer of shares:
- Submission of all share certificates; they will be held in safekeeping in
the law offices of Xxxxxxxxxxx + Partner until the capital increase is
recorded;
- Immediately upon recording of the capital increase, the share certificates
will be destroyed and the Company will issue new certificates according to
the schedule in Annex 2 and it will enter the corresponding shareholders in
the shareholders' register.
This transfer of shares will be executed by the surrender of the endorsed share
certificates No. 3 and No. 4 for a total of 3,108 shares of the Company by ALIFE
to e-tail and the surrender of share certificate No. 3 for 2,973 shares of the
Company by e-tail to Xxxxxx Xxxxxx.
5. New Shareholding Structure
After execution of Clauses 1-4, the parties' interests in the share capital of
the Company will be as follows:
a) BCM 15,050 shares at CHF 100 per share / 33.4% of share capital
b) Xxxxxx 10,000 shares at CHF 100 per share / 22.2% of share capital
c) e-tail 30,1365 shares at CHF 33.34 per share / 22.3% of share capital
d) ALIFE 26,89[8?]2 shares at CHF 33.94 per share/ 19.9% of share capital
e) Xxxxxx 2,973 shares at CHF 33.34 per share / 2.2% of share capital
6. Representations and Warranties
The Old Shareholders represent and warrant with respect to the New Shareholders
that
- the interim balance sheet and profit and loss statement at November 30,
2000 drawn up on ............., which is appended to this Agreement as
Annex 3, was drawn up according to generally recognized accounting
principles. In addition, the following applies specifically:
a) that all assets remain the property of the Company and there are no
third-party rights to them;
Page 5
b) that the assets are in no way the subject matter of court, arbitration
or administrative proceedings and that upon the signing of this
Agreement, no court or administrative proceedings are pending in which
the Company is involved;
c) that there are no liabilities that should have been recorded or for
which provisions should have been formed, except for the liabilities
shown in the balance sheet;
d) that, except for the agreements mentioned in Annex 4, the Company has
not entered into any agreements that obligate the Company (agreements
with clients excepted);
e) that according to the project agreement the Company is entitled to the
software rights solely and without limitation; [handwritten:] Swiss
laws
f) that the BOT technology on the Company's website (presently www.net-
xxxxxxx.xxx) can continue to be used free of charge for the German-
speaking area of Europe; [handwritten:] bot license German
g) that receivables recorded in Annex 3 are assumed at no less than book
value, less provisions for contingent losses;
h) that the Company has not effected any transactions, nor will it effect
any transactions, between the signing of this Agreement and its
execution and that transactions are not included in the normal conduct
of business of the Companies, and that no additional obligations have
been or will be assumed and that, in particular, the conditions of the
existing agreements have not been, or will not be, changed during this
time.
If it should turn out after the Agreement is signed that one of the
representations made in this Agreement is incorrect, the New Shareholders shall
have 15 days from discovery to request each of the Old Shareholders by
registered letter that they restore the promised condition within 15 days. There
is no immediate duty of inspection.
If such remedy is obviously not possible or if the Old Shareholders do not
restore the condition according to the Agreement, the following shall apply:
- the Old Shareholders must reimburse the New Shareholders or the Company for
verifiably incurred costs, which are appropriate considering the defect, to
restore the condition of the Agreement; any offset on the part of the Old
Shareholders is excluded.
- all further claims, in particular the right to cancellation of contract,
are hereby expressly eliminated by agreement.
Page 6
II. SHAREHOLDER PERFORMANCE
7. Shareholder Loans
The Old Shareholders agree to convert their current short-term loans to the
Company into subordinated no-interest shareholder loans, as follows:
a) ALIFE Schweiz
ALIFE and/or ALIFE Schweiz have not up to now not invoiced the Company for their
expenses to produce the contract software. ALIFE and/or ALIFE Schweiz guarantee
that this outstanding claim against the Company will not exceed the amount of
CHF 600,000 by 12/31/2000. This claim is recorded on the Company's balance sheet
as a short-term shareholder loan. The Company shall repay CHF 300,000 of this
loan within 30 days of the recording of the capital increase. ALIFE or ALIFE
Schweiz shall convert the remaining credit balance not to exceed CHF 300,000
into a no-interest subordinated (shareholder) loan by making a statement to this
effect. [handwritten:] Invoice max 600 (effectively 640) / payment book within
30 days [illegible] from 1/22/01
b) e-tail
After implementing the capital increase, e-tail shall waive loans amounting to
CHF 150,000 by signing a notice of waiver to that effect, so that e-tail will
still have a loan receivable against the Company in the amount of CHF 600,000.
e-tail shall convert this loan receivable into a subordinated no-interest
shareholder loan by making a statement to that effect.
c) BCM
BCM agrees to grant the Company a short-term loan for no more than CHF 150,000
for the payment of wages, which must be reimbursed in full upon execution of the
capital increase.
8. Transfer of Rights to Software
Pursuant to the Project Agreement of the Company with ALIFE Schweiz, the Company
has a non-transferable, 15-year own-use license to use the standard
software/BOTs software of ALIFE in Switzerland, Germany, Austria and Poland
(Sec. 7.1 of the Project Agreement). The Company and ALIFE Solutions are jointly
entitled to additional software developed by ALIFE Schweiz for the Company
(hereinafter: "Contract Software") so that both parties may have all rights of
utilization to the Contract Software independent of each other. However, the
Company has a claim to 25% of the license fees generated by ALIFE Schweiz by
marketing the Contract Software to third parties (Sec. 7.2 of the Project
Agreement).
Page 7
By signing this Agreement, the Company and ALIFE Schweiz agree to the following
change regarding the transfer of rights to the Contract Software pursuant to
Clause 7.2 of the Project Agreement:
a) ALIFE / ALIFE Schweiz hereby to the Company assign all created rights to
the Contract Software, in particular all copyrights to that software, to
the full extent, i.e., unlimited as to content and time, for all European
states (including the former East Bloc countries and Turkey). The transfer
of title includes in particular, but not exclusively, the right of
reproduction, editing/further development, publication, marketing in any
form and for all possible uses. The Company thus becomes the sole
proprietor of all copyrights to the Contract Software in all European
states.
The assignment of rights also includes all rights to records, documents,
descriptions, etc. associated with the software. [handwritten:] Swiss law -
copies: 10 days after agreement code source code and documentation
ALIFE / ALIFE Schweiz shall turn over copies of all codes, including the
source code as well as all documentation, to the Company within ten days of
the signing of the Agreement. [handwritten:] Source Code!
In all other countries, ALIFE / ALIFE Schweiz becomes the sole proprietor
of all copyrights to the software.
b) In order to strengthen the territorial division of rights agreed in Clause
a, the parties agree not to offer any products and/or services based on the
Contract Software in any form (direct or indirect) in the legal territory
of the other party to the Agreement for a period of three years from the
signing of this Agreement.
c) ALIFE AND ALIFE Schweiz guarantee that the Company will acquire all
copyrights to the Contract Software for all European Countries, that these
rights have neither been transferred either entirely or in part to third
parties nor encumbered with third party rights. They also have not been
entrusted to third parties. The use of the software by the Company or by a
contracting partner authorized by it does not violate any rights of third
parties. ALIFE and ALIFE Schweiz shall indemnify the Company against any
third party claims on first request. Other claims of the Company pursuant
to the Project Agreement remain unaffected.
d) ALIFE and ALIFE Schweiz agree to undertake all actions on first request
that are necessary or may become necessary to implement the transfer of
rights in individual countries. If, and to the extent that, a transfer of
rights is not possible, an exclusive, transferable license to use the
Contract Software without limits as to time or materials shall take effect
in this territory.
e) In other respects, the provisions of the Project Agreement, in particular
the provisions regarding warranty and liability, shall not be affected.
Page 8
9. Orders from e-tail
e-tail agrees to place orders with the Company during each of the next three
years amounting to at least CHF 200,000 annually. The payment of these orders
will be in settlement of the loan according to Clause 7b.
10. Supervisory Board
ALIFE and e-tail assure the other shareholders that they will actively support
the development of the Company with one representative each on the Supervisory
Board. Payment of remuneration for the Supervisory Board is waived.
11. Bringing the Shares into B2B Media Corp.
The New Shareholders plan to bring their shares in the Company together with
other participating interests in the media and Internet business into a holding
company that is to be floated on the stock exchange (hereinafter referred to as:
"B2B").
It is consistent with the will of all parties that all shares of the Company
should be brought into B2B. Provided B2B consents to this bringing in, the New
Shareholders undertake an obligation towards the Old Shareholders that the
latter may bring their shares in the Company into B2B at the same time and at
the same rating key per share as the former (share swap).
The New Shareholders assure the Old Shareholders that their shares will be
treated equally in terms of value as those of the New Shareholders on being
introduced into B2B. Consequently, the New Shareholders waive any premium for
the bringing of the majority of the shares. The valuation of the Company and of
B2B approved by the New Shareholders shall be the standard for this
introduction.
In order to safeguard this conversion obligation, the share certificates of the
Old Shareholders will be deposited in the law offices of Xxxxxxxxxxx + Partner.
12. Xxxxx Xxxxx
ALIFE Schweiz is willing to terminate the employment agreement with Xxxxx Xxxxx
effective 12/31/2000 without consequence as to costs if Xxxxx Xxxxx wishes to be
employed with the Company.
13. Cancellation of the Shareholders Commitment to Offer a Contract
The shareholders commitment to offer a contract is cancelled upon the signing of
this Agreement.
Page 9
III. FINAL PROVISIONS
14. Severability Clause
In the event that this Agreement should be in need of supplementation in its
execution and/or if it contains gaps, the parties agree to seek a good faith
arrangement which safeguards the interests of the parties according to
reasonable discretion.
If a provision of this Agreement is or becomes void, non-binding or null, this
shall not affect the legal validity of the remaining provisions. In such a case,
the voided provision shall be replaced by a provision that comes as close to it
as possible in a legally admissible form.
15. Written Form
Amendments to or supplements of this Agreement, including as regards this
provision, require a written agreement between the parties for them to be valid.
16. Annexes
The annexes appended to this Agreement constitute an integral component of this
Agreement.
17. Jurisdiction / Applicable Law
Swiss law applies exclusively to the present Agreement, excluding the rules of
the IPR.
The courts where the offices of the Company are registered, or the Commercial
Court of the Canton of Zurich, at the discretion of the plaintiff, shall be the
legal venue for all disputes arising out of this Agreement, including its
annexes, as well as those concerning the validity of its formation, its legal
effectiveness or amendment.
Zurich, January 17, 2001
----------------
Artificial Life, Inc. e-tail AG
[signature] [signature]
----------- -----------
BC Medien Holding AG Hans Xxxx Xxxxxx
[signature] [signature]
----------- -----------
Page 10
Artificial Life Schweiz AG Xxxxxx Xxxxxx
[signature] [signature]
----------- -----------
Xxx-xxxxxxx.xxx AG
[signature] [signature]
--------- ---------
[Regarding Clause 13)
Bon appetit Group AG
[signature]
-----------
Annexes to the Agreement
1. Public document, capital reduction and capital increase, including move of
registered offices and reelection of the Company's executive bodies
2. Division of shares after the capital increase
3. Interim financial statements of the Company
4. List of Company contracts
Annex 1
PUBLIC DOCUMENT
Of The
Resolutions Of The Shareholders' Meeting
- Reduction And Re-Increasing Of Capital -
- Transfer Of Business Domicile -
- Partial Amendment Of The Corporate Articles -
- Supervisory Board Elections -
Of
xxx-xxxxxxx.xxx ag
------------------
Based In Egerkingen (Solothurn)
An extraordinary meeting of the shareholders of the forenamed company took place
on this date in the offices of the Notariat Zurich (Altstadt) [Zurich (Old Town)
Notary Office]. The undersigned recorder has prepared this official document of
the decisions of the meeting according to the provisions of the Swiss Law of
Obligations (OR).
I.
Attorney Xxxxxx Xxxxx, Xxxxxxxxxxx & Partner, Talacker 50, 8001 Zurich, opened
and chaired the meeting. He served simultaneously as secretary and vote teller.
The Chairman stated:
- there are neither representatives of the corporate agents nor other
independent proxies proposed in accordance with Art. 689c OR, nor are
custodianship account representatives exercising participatory rights in
accordance with Art. 689d OR;
- the entire stock capital of the company, CHF 6,000,000, is represented;
- today's Shareholders' Meeting is constituted as a universal meeting in
accordance with Art. 701 OR and has a quorum;
- Xxxxx Xxxxxxxxxxx, c/o KPMG Fides Peat, Zurich, is present as specially
enabled auditor authorized on the basis of Art. 732 Par. 2 OR.
No objection was raised to these statements.
II.
On the basis of the existing special audit report in accordance with Art. 732
Par. 2 OR from the specially authorized auditor who is present, the
Shareholders' Meeting resolved unanimously:
1. The capital stock is reduced by CHF 3,999,600 to CHF 2,000,400;
2. as a result of the special audit report it has been found that the claims of
the creditors are fully covered in spite of the reduction of the capital
stock;
3. The reduction in capital will be carried out in the following manner:
a) by reducing the nominal value of the 60,000 registered shares from the
former CHF 100 to a new value of CHF 33.34;
b) and by using the amount of the reduction to partially eliminate a deficit
of CHF 4,909,912 resulting from losses.
4. any book profit that may result from the reduction of capital is to be used
in accordance with Art. 732 Par. 4 OR exclusively for depreciation;
Art. 4 of the corporate articles is amended a follows:
"Art. 4
The capital stock of the company is CHF 2,000,400 (two million four hundred
Swiss Francs), divided into 60,000 registered shares with a nominal value of CHF
33.34 per share. All shares are fully paid in."
But see Section V below.
III.
The Shareholders' Meeting then resolved unanimously to carry out a regular
increase in the capital stock by CHF 2,505,000 to CHF 4,505,400 and stipulated
as follows:
1. a) the entire nominal amount by which the capital stock is to be
increased:
CHF 2,505,000;
b) amount of the contributions to be paid thereon:
CHF 2,505,000;
2. a) number, nominal value and type of the new shares:
25,050 registered shares with a nominal value of CHF 100 each;
b) privileges of individual categories:
none;
3. a) Issue amount:
CHF 100 per registered share;
b) start of dividend entitlement:
1/1/2001
4. Type of contribution:
In money for 25,050 registered shares at a nominal value of CHF 100 each
5. Restriction of the transferability of the registered shares:
The transferability of the new registered shares is restricted as specified
in Art. 5 of the corporate articles.
6. Restriction or suspension of the subscription right and assignment of non-
exercised or withdrawn subscription rights:
The subscription rights will be neither restricted nor suspended. If
shareholders waive subscription rights these rights will be assigned by the
Supervisory Board.
IV.
This increase in the capital stock is to be carried out by the Supervisory Board
within three months, Art. 650 Par. 1 OR.
If the capital increase is not recorded in the Commercial Register within this
period, today's resolution of the shareholder's meeting shall be void, Art. 650
Par. 3 OR.
V.
The Shareholders' Meeting further resolves unanimously to amend the articles of
the company as follows:
Art. 1
------
"Under the legal name
xxx-xxxxxxx.xxx ag
xxx-xxxxxxx.xxx sa
xxx-xxxxxxx.xxx ltd
there exists a stock corporation in accordance with the present corporate
articles and the regulations in Title XXVI of the Swiss Obligation law, based in
Sursee, Canton Lucerne.
Art. 11
-------
The Shareholders' Meeting is authorized to take the following actions:
1. establishing and amending the corporate articles, to the extent that this
authority is not allocated by law to the Supervisory Board (Art. 000x, 000,
000, 000x, 652g, 653g, 653i, 656b OR);
2. electing and recalling the members of the Supervisory Board and of the
Auditing Department;
3. approving the annual report and the consolidated accounts;
4. approving the annual financial statements and deciding on the allocation of
the net annual profit, especially determining the dividend and the management
bonus;
5. approving the reports and actions of the members of the Supervisory Board;
6. deciding on the items that are reserved for the Shareholders' Meeting by law
or by the corporate articles;
7. deciding on motions of the Supervisory Board, the Auditing Department and the
shareholders.
Art. 15
-------
The shareholders exercise their voting right in the Shareholders' Meeting in
proportion to the total nominal value of the shares belonging to them."
VI.
The chairman presented a copy of the corporate articles and stated that these
were the complete corporate articles, taking into account all of the above
amendments. These corporate articles are part of the record of the subsequent
decisions made today by the Supervisory Board and also take into account the
capital reduction and simultaneous re-increase of capital.
VII.
The Shareholders' Meeting acknowledged the departure of the following
Supervisory Board members and expressed thanks for the work that they had
performed:
- XXXX. XXXXXXXX SCHONEBURG, German citizen, in Beckenried,
- ELMAR WOHLGENSINGER, from Mosnang, in Hergiswil
- XXXXX X XXXXXXXX, from Kirchberg, Sankt Gallen, in Rudolfstetten-
Friedlisberg
and of the General Manager
- XXXXX XXXXXXX, from Emmen and Reiden, in Beckenried.
The Shareholders' Meeting then appointed the following new Supervisory Board
members:
- XXXXXXXX XXXXXXXX, from Zurich, in Dietikon
- XX. XXXX XXXXXX XXXXXX, from Sursee and Hochdorf, Lucerne, in Zug
The statements of acceptance of election are on file.
VIII.
The Supervisory Board is instructed to carry out the resolutions of the
Shareholders' Meeting and to submit the necessary record of them to the
Commercial Register.
IV.
In addition, the extraordinary Shareholders' Meeting grants power of attorney to
Xxxxxx Xxxxx, attorney at law, born May 19, 1971, x/x Xxxxxxxxxxx & Xxxxxxx,
Xxxxxxxx 00, 0000 Xxxxxx, to make any requisite changes to the corporate
articles or to the process of reduction or increase of capital necessitated by
objection from the Commercial Registry authorities, acting in the name of all
shareholders, by means of an addendum to be certified publicly.
Zurich, January 22, 2001 [illegible notation by hand]
[illegible signature]
[Seal of the Notariat Zurich (Altstadt)]
[illegible signature]
X. Xxxxxx-Xxxx
Deputy Notary
XX. XXXX XXXXXX XXXXXX
XXXXXXXXX XXXXXXXX 00
0000 XXX
To the
Shareholders' Meeting of
xxx-xxxxxxx.xxx ag
Statement of acceptance of election to the Supervisory Board
------------------------------------------------------------
Ladies and Gentlemen
I hereby declare my willingness to accept the election to the Supervisory Board
of your company. At the same time, together with this statement of acceptance, I
am providing my official signature for the company.
Thank you very much for your confidence in me.
Zug, December 19, 2000
[illegible signature]
---------------------
Xx. Xxxx Xxxxxx Xxxxxx
Company signature:
xxx-xxxxxxx.xxx ag
[illegible signature]
---------------------
Xx. Xxxx Xxxxxx Xxxxxx
XXXXXXXX XXXXXXXX
XXXXXXXXXXXXX 0
0000 XXXXXXXX
To the
Shareholders' Meeting of
xxx-xxxxxxx.xxx ag
Statement of acceptance of election to the Supervisory Board
------------------------------------------------------------
Ladies and Gentlemen
I hereby declare my willingness to accept the election to the Supervisory Board
of your company. At the same time, together with this statement of acceptance, I
am providing my official signature for the company.
Thank you very much for your confidence in me.
Dietikon, December 19, 2000
[illegible signature]
---------------------
Xxxxxxxx Xxxxxxxx
Company signature:
xxx-xxxxxxx.xxx ag
[illegible signature]
---------------------
Xxxxxxxx Xxxxxxxx
PUBLIC DOCUMENT
Of The
Resolutions Of The Supervisory Board
- Determination Of The Ordinary Increase Of Capital -
Of
xxx-xxxxxxx.xxx ag
------------------
Based In Egerkingen (Solothurn)
A meeting of the Supervisory Board of the forenamed company took place on this
date in the offices of the Notariat Zurich (Altstadt) [Zurich (Old Town) Notary
Office]. The undersigned recorder has prepared this official document of the
decisions of the meeting according to the provisions of the Swiss Law of
Obligations (OR).
I
Xx. Xxxxxx Xxxxx, residing at Xxxxxxxxx 0, 0000 Xxxxxxxxx, member of the
Supervisory Board, opened and chaired the meeting. Xxxxxx Xxxxx, attorney at
law, Talacker 60, 8001 Zurich, served as secretary.
The chairman stated that
- he alone of five members of the Supervisory Board of the company was present;
- for declarations of resolutions requiring official notarization, like the
present one, the presence of one member of the Supervisory Board was
sufficient (Art. 20 Par. 4 of the corporate articles);
- he was now going to conduct a meeting of the Supervisory Board at which, on
the basis of the aforementioned provision of the corporate articles, there was
a quorum present for the planned agenda.
He stated that the Supervisory Board had carried out the resolution of the
Shareholders' Meeting of January 22, 2001 concerning an ordinary increase of the
capital stock by CHF 2,505,000, from CHF 2,000,400 to CHF 4,505,400.
II.
The chairman presented the following documents:
- A public document about the resolutions of the Shareholders' Meeting of
January 22, 2001 concerning an ordinary increase of the capital stock by CHF
2,505,000;
- 2. subscription certificates in accordance with Art. 6542 OR covering the
complete subscription of the newly issued capital stock by:
a. BC MEDIEN HOLDING AG, c/o Dr. Beat Xxxxx, Xxxxxxxxxx 000, 0000 Xxxxxxxxx
for 15,060 registered shares of stock in the company at a nominal
value of CHF 100 per share for the issue amount of CHF 100;
b. XX. XXXX XXXXXX XXXXXX, Xxxxxxxxx Xxxxxxxx 00, 0000 Xxx, for 10,000
registered shares of stock in the company at a nominal value of CHF 100 per
share for the issue amount of CHF 100.
- written certification dated January 19, 2001 from the Xxxxxxx Kantonalbank,
Xxxxxxxxxxxxxx 0, 0000 Xxxxxx, as a financial institution that is subject to
the Federal Law on Banks and Savings Association, of the deposit of CHF
2,505,000 for the exclusive disposition of the company. This deposit serves as
payment in full of the contributions promised by the subscribers;
- report of the Supervisory Board on the increase of capital in accordance
with Art. 652e OR, dated today.
III.
On the basis of these documents the Supervisory Board declares unanimously that
1. all of the newly issued shares are validly subscribed;
2. the promised contributions correspond to the entire issue amount;
3. the contributions paid in money in the amount of CHF 2,505,000 have been
deposited to the forenamed bank for the exclusive disposition of the company,
and that the contributions have thereby been paid in accordance with the
requirements of the law and of the corporate articles and as required by the
resolution of the Shareholders' Meeting.
IV.
The Supervisory Board resolved without discussion to amend the articles of the
corporation as follows:
"Art. 4
-------
The capital stock of the company is CHF 4,505,400 (four million five hundred and
five thousand four hundred Swiss Francs), divided into 60,000 registered shares
with a nominal value of CHF 33.34 per share, and 25,050 registered shares with a
nominal value of CHF 100 per share. All shares are fully paid in."
In other respects the existing corporate articles continue in effect unchanged.
V.
The chairman presented a copy of the corporate articles and stated that these
were the complete corporate articles, taking into account the above amendments.
These corporate articles accompany the document.
VI.
The undersigned recorder confirms in accordance with Art. 652g Par. 2 OR that
the supporting documents and vouchers mentioned individually in this document
have been submitted to the Supervisory Board.
VII.
The Supervisory Board must report the above amendment to the corporate articles
and its declarations in a timely fashion for recording in the Commercial
Register; see Art. 652h Par. 1 OR.
Zurich, January 22, 2001 [illegible notation by hand]
[Signature] [Signature]
[Seal of the Notariat Zurich (Altstadt)]
[illegible signature]
X. Xxxxxx-Xxxx
Deputy Notary
SUBSCRIPTION CERTIFICATE
------------------------
With reference to the corporate articles of xxx-xxxxxxx.xxx ag, Egerkingen, with
which it is acquainted, and to the resolutions of the Shareholders' Meeting and
of the Supervisory Board on January 22, 2001 concerning the increase of the
capital stock by CHF 2,505,000.00 to the new total of CHF 4,505,400,
BC MEDIEN HOLDING AG,
--------------------
c/o Dr. Beat Xxxxx, Xxxxxxxxxx 000, 0000 Xxxxxxxxx
declares its subscription for
15,050 REGISTERED SHARES OF STOCK of xxx-xxxxxxx.xxx ag
at a nominal value of CHG 100 per share for an issue amount of CHF 100..
BC Medien Holding AG agrees unconditionally to pay the entire contribution
corresponding to the issue amount for the shares for which it has subscribed
upon the first demand of the Supervisory Board.
Erlenbach, January 22, 2001
BC Medien Holding AG
[signed]
Dr. Beat Xxxxx
SUBSCRIPTION CERTIFICATE
------------------------
With reference to the corporate articles of xxx-xxxxxxx.xxx ag, Egerkingen, with
which it is acquainted, and to the resolutions of the Shareholders' Meeting and
of the Supervisory Board on January 22, 2001 concerning the increase of the
capital stock by CHF 2,505,000 to the new total of CHF 4,505,400
XX. XXXX XXXXXX XXXXXX,
----------------------
Xxxxxxxxx Xxxxxxxx 00, 0000 Xxx
declares his subscription for
10,000 REGISTERED SHARES OF STOCK of xxx-xxxxxxx.xxx ag
at a nominal value of CHG 100 per share for an issue amount of CHF 100.
Xx. Xxxx Xxxxxx Xxxxxx agrees unconditionally to pay the entire contribution
corresponding to the issue amount for the shares for which he has subscribed
upon the first demand of the Supervisory Board.
Zug, January 22, 2001
[signed]
Xx. Xxxx Xxxxxx Xxxxxx
[Letterhead caption obscured]
Zurich City Branch
XXXXXXXXXXXXXX 0
0000 XXXXXX
xxx-xxxxxxx.xxx ag
TEL. 01/000 00 00
6210 Sursee FAX 01/000 00 00
(formerly Egerkingen) POSTAL ACCOUNT 80-151-4
Zurich, January 19, 2001
Reference F9/zu
Direct dial 00 000 00 00
Xx. X. Xxxxxxx
CAPITAL STOCK INCREASE ACCOUNT
We confirm that
FR. 2,505,000 (TWO MILLION FIVE HUNDRED FIVE THOUSAND FRANCS)
have been deposited with us for your benefit.
Release
-------
The deposited amount will be at the free disposal of the authorized signatory
agents after the increase of your capital stock has been recorded in the
Commercial Register and has been published in the Schweizerisches
Handelsamtsblatt, or earlier upon submission of the original journal statement.
Sincerely,
Xxxxxxx Kantonalbank
[Two illegible signatures]
REPORT OF INCREASE OF CAPITAL
Of The Supervisory Board
Of
XXX-XXXXXXX.XXX AG
In Accordance With Art. 652e OR
--------------------------------------------------------------------------------
The Supervisory Board of xxx-xxxxxxx.xxx ag, Egerkingen, declares in conjunction
with the capital stock increase in accordance with Art. 652e OR:
1. The resolution of the Shareholders' Meeting on January 22, 2001 concerning
the increase of capital stock by CHF 2,505,000 to the new total of CHF
4,505,400 has been complied with.
2. The Shareholders' Meeting did not pass any resolutions about restricting or
suspending the subscription right and assigning subscription rights that have
not been exercised or which have been withdrawn. The former shareholders have
not exercised their subscription rights. The 25,050 registered shares not
subscribed by the former shareholders have been subscribed as follows and
assigned accordingly:
- 15,050 by BC Medien Holding AG, Erlenbach;
- 10,000 by Dr. Hans Xxxx Xxxxxx
3. No special advantages were established for the benefit of individual
shareholders or other persons.
4. The capital increase is to be accomplished by means of a cash contribution in
the amount of CHF 2,505,000 for 25,050 new registered shares with a nominal
value of CHF 100 each at an issue amount of CHF 100.00 each. The capital
stock is fully paid in.
Zurich, January 22, 2000
In the name of the Supervisory Board
[Signed] [Signed]
Xxxxxx Xxxxx Dr. Beat Xxxxx
CORPORATE ARTICLES
net-tissimo.c ag
domiciled in Sursee (Lucerne)
I. LEGAL NAME, DOMICILE, PURPOSE AND DURATION OF THE COMPANY
------------------------------------------------------------
Art. 1
------
Under the legal name
xxx-xxxxxxx.xxx ag
xxx-xxxxxxx.xxx sa
xxx-xxxxxxx.xxx ltd
there exists a stock corporation in accordance with the present corporate
articles and the regulations in Title XXVI of the Swiss Obligation law, based in
Sursee, Canton Lucerne.
ART. 2
------
The purpose of the company is the sale and distribution of consumer goods and
articles or all sorts to end-users in Switzerland, Germany, Austria and the
Principality of Liechtenstein via e-commerce and conventional shipping channels.
The company is authorized to set up branches and subsidiaries at other locations
in Switzerland and abroad, and to invest in enterprises of the same and
different industries in Switzerland and abroad.
The company is permitted to carry out all transactions that may arise in
conjunction with its activity. It can purchase, encumber and sell real estate in
Switzerland and abroad.
ART. 3
------
The duration of the company is undefined.
II. CAPITAL STOCK, PARTICIPATION CAPITAL
----------------------------------------
Art. 4
------
The capital stock of the company is CHF 4,505,000 (four million five hundred and
five thousand four hundred Swiss Francs) divided into 60,000 shares of
registered stock with a nominal value of CHF 33.34 per share, and 25,050 shares
of registered stock with a nominal value of CHF 100 per share. All stock is
fully paid in.
ART. 5
------
The company maintains a share register covering the registered stock, in which
the names and address of the owners and beneficiaries are recorded.
[Top sentence partially obscured]
...ownership or the reason for a usufruct and the [xxxxx xxxxx xxxxx] in
advance.
The company will certify the recording on the stock documents.
In relation to the company, that person is considered the shareholder or
beneficiary who is recorded in the share register.
Registered shares may only be transferred with the approval of the company. The
company can decline the application for transfer if it offers to the seller to
take over the stock for its own account, for the account of other shareholders
or for the account of third parties at the actual value at the time of the
request, or if it makes known a significant reason designated below.
Significant reasons with regard to the purpose of the company and the economic
self-sufficiency of the enterprise are:
a) To preserve the economic self-sufficiency of the enterprise, the
Supervisory Board can refuse to record a buyer if the latter has not joined
in the shareholder binding agreement of March 25, 1999, with supplements.
b) The recording of shares that the applicant has bought in trust for third
parties is not allowed.
ART. 6
------
The Supervisory Board is authorized to issue stock certificates for more than
one share. Two members of the Supervisory Board must sign the stock documents or
certificates in their own hands.
The possession of a stock certificate is accompanied by recognition of the
corporate articles and any organizational and business rules of the company.
ART. 7
------
The Supervisory Board is authorized, for a period of two years from the date of
the corporate articles, to issue participation capital up to a nominal value of
Fr. 1,000,000. The participation certificates are made out to the bearer, have a
nominal; value of Fr. 100, and do not grant any voting right nor any right
associated with the voting right.
ART. 8
------
The participation certificates are equivalent to the existing shares and to any
shares to be issued in the future (of the least preferred category), in
reference to their nominal value, in distributing net profit and the proceeds of
liquidation and with respect to subscription rights.
ART. 9
------
The shareholders and participants have a right to subscribe for newly issued
shares or participation certificates according to their former ownership of
shares or participation certificates, unless the resolution on increasing
capital or contracts with third parties specify otherwise. If participation
capital is created, the shareholders have a right to subscription as when new
shares are issued.
If the capital stock and the participation capital are increased simultaneously
and proportionately, then the shareholders can only subscribe to stock shares,
the participants only to participation certificates.
If the capital stock or the participation capital is increased alone or if one
is increased more than the other, the subscription rights are to be allocated in
such a way that shareholders and participants can continue to participate [in
the] total capital just as before.
III. ORGANIZATION OF THE COMPANY
--------------------------------
Art. 10
-------
The corporate agents of the company are:
A. The Shareholders' Meeting
B. The Supervisory Board
C. The Auditing Department
A. THE SHAREHOLDERS' MEETING
----------------------------
Art. 11
-------
The Shareholders' Meeting is authorized to take the following actions:
1. establishing and amending the corporate articles, to the extent that this
authority is not allocated by law to the Supervisory Board (Art. 000x, 000,
000, 000x, 652g, 653g, 653i, 656b OR);
2. electing and recalling the members of the Supervisory Board and of the
Auditing Department;
3. approving the annual report and the consolidated accounts;
4. approving the annual financial statements and deciding on the allocation of
the net annual profit, especially setting the dividend and the management
bonus;
5. approving the reports and actions of the members of the Supervisory Board;
6. deciding on the items that are reserved for the Shareholders' Meeting by law
or by the corporate articles;
7. deciding on motions of the Supervisory Board, the Auditing Department and the
shareholders.
ART. 12
-------
The regular Shareholders' Meeting takes place annually no later than six months
after the end of the fiscal year. It is called by the Supervisory Board or, if
necessary, by the Auditing Department.
The Supervisory Board, the [xxx] of the Auditing Department or a Shareholders'
Meeting can call Extraordinary Shareholders' Meetings, [if the] interests of the
company so necessitate.
One or more shareholders who together represent at least one tenth of the
capital stock, in writing, also can call a Shareholders' Meeting, so long as
they specify the purpose. In this case the Supervisory Board must call the
Shareholders' Meeting within four weeks.
The Shareholders' Meetings take place at the business domicile of the company or
at some other location to be determined by the Supervisory Board.
ART. 13
-------
The invitations to the Shareholders' Meeting are issued at least 20 days in
advance by being published one time in the Schweizerisches Handelsamtsblatt, or,
if all [shareholders] are known, by registered letter or telegram or fax. The
invitation to the Shareholders' Meeting must state the place, date and time of
the meeting, the various agenda items and the motions of the Supervisory Board
or of the shareholders who demanded that the Shareholders' Meeting be held. In
addition it states the manner in which the shareholders are to authenticate
their identity.
ART. 14
-------
If [there is] no objection, the owners or representatives of all the shares of
stock can hold a Shareholders' Meeting in the sense of a universal meeting in
accordance with [Art.] 701 OR without observing the rule of written notification
specified for calling the meeting.
If all of the owners or representatives of all or the shares are present, the
universal meeting can negotiate and make decisions on all of the subjects that
fall within the purview of the Shareholders' Meeting.
ART. 15
-------
The shareholders exercise their voting rights in the Shareholders' Meeting in
proportion to the total nominal value of the shares belonging to them.
ART. 16
-------
Each shareholder can have himself/herself represented in the Shareholders'
Meeting by means of written proxy [by] a shareholder designated by name in the
proxy. Substitutive proxy is not permitted.
The Shareholders' Meeting has the right to check the identification credentials
of the representative [; it] can in particular exclude persons who are not or
are no longer related to it as shareholders or it can exclude who in fact are
not or are no longer shareholders from participation [in the] Shareholders'
Meeting.
ART. 17
-------
The Shareholders' Meeting has a quorum if more than half of the stock [class] is
represented.
The Shareholders' Meeting makes its decisions and carries out its elections by
absolute majority of the stock votes represented, unless compelling provisions
of the law or of the corporate articles specify otherwise.
ART. 18
-------
The Shareholders' Meeting is conducted by the Chairman of the Supervisory Board
or, if that person is prevented from doing so, by another member of the
Supervisory Board, or finally by a Chairman pro tempore elected by the meeting.
The Chairman appoints a secretary and a vote teller, who do not need to be
shareholders.
The Chairman of the Shareholders' Meeting determines the voting procedure.
The Chairman does not have the tie-breaking vote.
B. THE SUPERVISORY BOARD
------------------------
ART. 19
-------
The Supervisory Board consists of four to six members, who are elected by the
Shareholders' Meeting for a term of three years, in each case until the next
regular Shareholders' Meeting. Re-election is permitted.
The Supervisory Board constitutes itself. It is also possible to elect a person
who is not a member of the Supervisory Board as secretary; this person does not
have to be a shareholder in the company.
ART. 20
-------
The Supervisory Board meets as often as business requires. The Chairman of the
Supervisory Board calls the meetings and leads the discussions. Any member of
the Supervisory Board has the right to request in writing that the Chairman call
a meeting of the Supervisory Board.
The Supervisory Board has a quorum only if the majority of the members are
present.
The Supervisory Board makes its decisions with a majority of the votes cast. In
case of a tie, the Chairman does not have the tie-breaking vote.
No quorum of members present needs to be observed if the only business to be
conducted is to state that a capital increase has been carried out and to
resolve to make the requisite subsequent amendment to the corporate articles.
Discussions and decisions of the Supervisory Board must be recorded in minutes
of the meetings.
Decision-making by written circulation is permissible, as long as no member
demands verbal consultation. Decisions by circulation are to be incorporated
into the minutes.
ART. 21
-------
The Supervisory Board decides on all matters that laws or corporate articles or
regulations do not reserve or transfer to the Shareholders' Meeting or to some
other corporate agent of the company.
Within the framework of the law the Supervisory Board is authorized to transfer
the management of business and the representation of the company, in accordance
with an organizational regulation, in whole or in part to several (committees)
or individual members (delegates) or to third persons, who do not need to be
shareholders (directors).
ART. 22
-------
The Supervisory Board issues the necessary organizational regulations that
describe its powers and the transfer of management and representation of the
company in greater detail.
ART. 23
-------
The Supervisory Board designates the persons authorized to represent the
company, and the manner of their signing. Only collective signatory rights are
to be granted.
ART. 24
-------
In addition to reimbursement of their expenses members of the Supervisory Board
will receive appropriate compensation, which is to be set by the Supervisory
Board.
C. THE AUDITING DEPARTMENT
--------------------------
ART. 25
-------
The Shareholders' Meeting elects one or more auditors to form the Auditing
Department.
The Auditing Department is elected in each case for a term of one year until the
next regular Shareholders' Meeting.
ART. 26
-------
The Auditing Department is responsible for the duties and powers assigned to it
by the law.
IV. ANNUAL FINANCIAL STATEMENTS AND DISTRIBUTION OF PROFITS
-----------------------------------------------------------
ART. 27
-------
The fiscal year is the calendar year. The first fiscal year begins on the date
of the corporate articles and ends on December 31 of the following year.
ART. 28
-------
As of the conclusion of the fiscal year, the annual account and the annual
report are to be prepared in accordance with the provisions of the law.
No later than twenty days before the regular Shareholders' Meeting the annual
accounts, the annual report with the auditors' report and the proposals for the
allocation of the net profit for the year are to be made public at the head
office for examination by the shareholders.
ART. 29
-------
The Shareholders' Meeting decides on the appropriation of the net profit for the
year and decides, in accordance with the legal provisions of Art. 671 OR, on the
distribution of a dividend, on any participation by the Supervisory Board in the
profits, and on the creation and utilization of special reserves. Each year an
amount of one twentieth of the net profit for the year is to be allocated to the
general reserve fund until the latter reaches the amount of one fifth of paid-in
capital stock [One or two lines obscured at top of next page]
V. DISSOLUTION AND LIQUIDATION
------------------------------
ART. 30
-------
The company will be dissolved in the cases specified by law.
In the event of dissolution, the Supervisory Board will arrange for liquidation,
unless the Shareholders' Meeting resolves otherwise.
VI. ANNOUNCEMENTS AND NOTIFICATIONS
-----------------------------------
Art. 31
-------
The announcements of the company are made in the Schweizerisches
Handelsamtsblatt. The Supervisory Board can designate additional publication
organs.
ART. 32
-------
Notification also can also be given by registered letter if the addresses of all
shareholders or participants are known.
VII. COURT OF ARBITRATION
-------------------------
ART. 33
-------
Disputes between the company, the members of the Supervisory Board, the Auditing
Department, the management and the shareholders which pertain to matters of the
company, will be decided definitively by a three-person court of arbitration in
accordance with the rules of arbitration for internal Swiss cases of the Zurich
Chamber of Commerce based in Zurich, with each party naming one arbitrator.
ART. 34
-------
The court of arbitration is also responsible for determining the actual value of
the stock shares in the event that the company offers to take over shares for
its own account or for the account of other shareholders or of third parties at
the actual value; to do so it will designate experts, if necessary.
Zurich, January 22, 2001
[Two illegible signatures]
Commercial Register of [the Canton of Lucerne]
Company number Legal nature Recording Deletion Transfer
from:
CH-240.3.000.573-5 Stock corporation 1/24/2001 to: 1
---------------------------------------------------------------------------------------
All entries
Re De Company Ref Domicile
-------------------------------------------------------------------------------------
0 xxx-xxxxxxx.xxx ag 0 formerly in Egerkingen
1 (xxx-xxxxxxx.xxx sa) (xxx-xxxxxxx.xxx ltd.) 1 Sursee
-------------------------------------------------------------------------------------
Ref Capital stock (CHF) Subscr. pmt. (CHF) Stock denomination Ref Address of the company
---------------------------------------------------------------------------------------------------------------------
0 6,000,000.00 6,000,000.00 60,000 reg. shares at CHF 100.00 0 [Illegible]
1 4,505,400.00 4,505,400.00 50,000 reg. shares at CHF 33.34 & 4633 Egerkingen
25,050 reg. shares at CHF 100.00 1 Xxxxxxxxxxxxxxx 00
---------------------------------------------------------------------------------------- Enterprise
Ref Part. cert. cap. (CHF) Subscr. pmt. (CHF) Participation certificates 6210 Suree
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
Re De Purpose Ref
------------------------------------------------------------------------------------------------------------------------------
0 Sale and distribution of consumer goods and articles of all types to end
consumers in Switzerland, Germany, Austria and the Principality of
Liechtenstein via e-commerce and conventional shipping channels; is authorized
to invest in enterprises in the same and related sectors; can purchase,
encumber and sell real estate in Switzerland and abroad .
------------------------------------------------------------------------------------------------------------------------------
Re De Remarks Ref Date of corporate articles
------------------------------------------------------------------------------------------------------------------------------
0 The facts crossed out prior to recording in the commercial register of the 0 Orig. corp. articles 4/14/1999
Canton of Zurich, as well as any earlier journal and SHAB citations, can be 0 4/26/2000
examined in the register extract from the former location, which is 1 1/22/2001
located with the stored commercial register files.
Notifications to shareholders by publication in the SHAB or by registered letter
0 1 The registered stock shares are transfer-restricted.
Notifications are given by registered letter.
0 In the capital reduction of 1/22/2001 the nominal value of the 60,000 registered
1 shares at CHF 100.00 is reduced to CHF 33.34 in accordance with Art. 735 OR.
1 At the same time 25,050 registered shares at CHF 100.00 are issued.
----------------------------------------------------------------------------------------------------------------------------------
Re De Contrib. in kind, asset acquisition, special advantages, [illegible] Ref Publication organ
------------------------------------------------------------------------------------------------------------------------------------
0 SHAB
------------------------------------------------------------------------------------------------------------------------------------
Re De Branch location Re De Branch location Re De Branch location Re De Branch location
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Zei Ref TB no. TB date SHAB SHAB date Page Zei Ref TB no. TB date SHAB SHAB date Page
-----------------------------------------------------------------------------------------------------------------------------------
0 (Loc. moved) (Loc. moved)
XXX 000 0/00/0000 (xxxx. XXXX)
-----------------------------------------------------------------------------------------------------------------------------------
Re [xx] De Personnel information Function Type of signature
------------------------------------------------------------------------------------------------------------------------------------
0 Xxxxxxx, Xxxxx, from Xxxxxx, in Fechy President Collective signature
in pairs
0 1 Schoneburg, Xxxx. Xxxxxxx, German citizen, in Vice president Collective signature
Beckenried in pairs
0 1 Wohlgensinger, Elmar, from Mosnang, in Hergiswil Member Collective signature
in pairs
0 Xxxxx, Dr. Beat, from Lucerne and Rapperswil SO, in Erlenbach ZH Member Collective signature
Xxxxxxxx, Xxxxx X., from Xxxxxxxxx XX, in Rudolfstetten-Friedlisberg in pairs
0 1 Member Collective signature
Xxxxx, Manual from Gruningen, in Herrliberg in pairs
0 Member Collective signature
Xxxxxx, Xxxxxx, from Fourisberg, in Muri near Bern in pairs
0 General manager Collective signature
Gabriel, Bruno, from Emmen and Reiden, in Beckenried in pairs
0 1 General manager Collective signature
KPMG Fides Peat, in Zurich in pairs
0 Xxxxxxxx, Xxxxxxxx, from Zurich, in Dietikon Auditing body
1 Member Collective signature
Xxxxxx, Xx. Xxxx Xxxxxx, from Sursee and Hochdorf, in Zug in pairs
1 Member Collective signature
in pairs
-----------------------------------------------------------------------------------------------------------------------------
Lucerne, 1/25/2001 13:35 Continued on the following page 2
Commercial Register of [the Canton of Lucerne]
-------------------------------------------------------------------------------------------------------------------
CH-240.3.000.573-5 xxx-xxxxxxx.xxx ag Sursee 2
-------------------------------------------------------------------------------------------------------------------
All entries
Lucerne, 1/25/2001 13:35 This extract from the cantonal commercial register is invalid without the
adjacent original certification. It contains all of the entries that are
currently in effect for this company as well as any entries that have been
canceled since 1/24/2001. This extract was issued prior to publication in the
Schweizerisches Handelsamtsblatt and after approval of the last entry by the
National Office for the Commercial Register.
CERTIFIED
-----------------------------
Jan. 25, 2001
-----------------------------
COMMERCIAL REGISTER OFFICE
OF THE CANTON OF LUCERNE
-----------------------------
(Illegible signature)
Annex 2
Division of shares after capital reduction and increase
Share certificate Number of shares Par value per share Total par value
No. 1 30,000 33.34 1,000,200.00
No. 2 26,892 33.34 896,579.30
No. 3 2,973 33.34 99,119.80
No. 4 135 33.34 4,500.90
No. 5 15,050 100.00 1,505,000.00
No. 6 2,000 100.00 200,000.00
No. 7 2,000 100.00 200,000.00
No. 8 2,000 100.00 200,000.00
No. 9 2,000 100.00 200,000.00
No. 10 2,000 100.00 200,000.00
Total 4,505,400.00
Xxxxx 0
Xxx-xxxxxxx.xxx XX, Xxxxxxxxxx
Report Of The Auditors
For The Attention Of The Shareholders' Meeting
In Accordance With Art. 732 OR
Concerning Reduction Of The
Capital Stock
KPMG Fides Peat
Zurich, December 20, 2000
[Part of letterhead obscured]
Certified Public Accountants
KPMG Fides Peat Tel. x00 0 000 00 00
Badenerstrasse 172 P.O. Box Fax x00 0 000 00 00
XX-0000 Xxxxxx XX-0000 Xxxxxx xxx.xxxx.xx
Auditors' report to the attention of the Shareholders' Meeting in accordance
with Art. 732 OR concerning reduction of the capital stock of
XXX-XXXXXXX.XXX AG, EGERKINGEN
--------------------------------------------------------------------------------
The Supervisory Board of net-tissimo AG commissioned us to prepare the auditor's
report for the planned reduction of the capital stock.
The balance sheet and the motion to carry out the reduction of capital are the
responsibility of the Supervisory Board, whereas our task consists in examining
and judging whether the claims of the creditors are fully covered after the
proposed capital reduction are fully covered. We affirm that we fulfill the
requirements of law with regard to qualification and independence.
The balance sheet of the company as of November 30, 2000 shows capital stock of
Fr. 6,000,000 and the following net loss:
CHF
Net loss as of 1/1/2000 1,387,527
Annual loss 1/1 - 11/30/2000 3,522,385
---------
Net loss for the year as of November 30, 2000 4,909,912
---------
By motion of the Supervisory Board, this deficit
is to be lowered by reducing the capital stock of 6,000,000
(divided into 60,000 registered shares at Fr. 100 per share) by 3,999,600
---------
to 2,000,400
As a restorative measure, the Administrative
Board moves that the capital stock be raised
again at the same time by 2,505,000
---------
to 4,505,400
=========
by pay-in of cash.
The nominal value of the shares should be reduced accordingly, so that the
capital stock is newly divided into 60,000 shares of registered stock at the
(former) value of Fr. 33.34 per share, and 25,050 shares of registered stock
(from increasing the capital stock again) at Fr. 100.00 per share.
Our audit was conducted in accordance with the principles of the profession,
according to which an audit is to be planned and carried out in such a way that
significant errors connected with the evaluation of the coverage of the
creditors after the reduction in capital are recognized with appropriate
certainty. We carried out the audit activities appropriate to the circumstances.
We are of the opinion that our audit constitutes an adequate basis for our
judgment.
The capital reduction does not exceed the deficit that resulted from the losses,
so that according to Art. 735 OR calls to the shareholders concerning
satisfaction or guarantees can be dispensed with.
According to our assessment, the claims of credits will be fully covered even
after execution of the reduction and re-increasing of the capital stock.
KPMG Fides Peat
[Illegible signature] [Illegible signature]
Xxxxx Xxxxxxxxxxx By authority, Xxxxx Xxxxxxxxxx
Chief Auditor
Zurich December 20, 2000
Attachment:
- Balance sheet at going concern values as of November 30, 2000 (before and
after capital reduction)
BEFORE CAPITAL AFTER CAPITAL
Interim balance sheet as of November 30, 2000 REDUCTION REDUCTION
-------------------------------------------------------------------------------
CHF CHF
ASSETS
Current assets
Cash 180,230 180,230
Cash pay-in claim from
re-increase in capital stock 0 2,505,000
Trade accounts receivable
- vis-a-vis third parties 90,381 90,381
Other receivables
- vis-a-vis third parties 207,299 207,299
Inventories 59,180 59,180
Prepaid expenses 3,073 3,073
--------- ---------
540,163 3,045,153
--------- ---------
FIXED ASSETS
Furnishings and equipment 235,222 235,222
Intangible assets
- Organizational costs 33,075 33,075
- Software 2,188,000 2,188,000
--------- ---------
2,456,297 2,456,297
--------- ---------
2,996,460 5,501,460
========= =========
BEFORE CAPITAL AFTER CAPITAL
Interim balance sheet as of November 30, 2000 REDUCTION REDUCTION
-------------------------------------------------------------------------------
CHF CHF
LIABILITIES
Borrowed capital
Trade accounts payable
- vis-a-vis third parties 34,599 34,599
Other liabilities
- vis-a-vis third parties 211,473 211,473
- vis-a-vis affiliates and shareholders 1,213,000 1,213,000
Prepaid income 447,300 447,300
----------- ---------
1,906,372 1,906,372
----------- ---------
SHAREHOLDERS' EQUITY
Capital stock 6,000,000 4,505,400
Net annual loss
- Loss carryover 1/1/2000 -1,387,527
- Loss 1/1 - 11/30/2000 -3,522,385
(Total net annual loss) (-4,909,912) (-910,312)
------------ ---------
1,090,088 3,595,088
----------- ---------
2,996,460 5,501,460
=========== =========
Annex 4
List of Contracts
CHF
Type of contract Term Costs Monthly costs from
YR 2000 Jan 01
Employment agreements of net-tissimo
employees
Rimag-Versicherung
- Accident insurance
- Employer's liability
- Property, interruption of business
- Property insurance
- Daily benefit insurance
- Vicarious liability
- Motor vehicle fleet agreement
- EDP insurance
4,000
Logistics agreement with MS Mail Service
- Shipment of goods
- Call Center
4,500
Copying machine - Toshiba
100
hp - EDP lease agreement
- hp network server LH 4 Fr. 100,000
- 3 month hp EDP lease Fr. 256,000
- Monthly lease amount
21 months 356,000 33,000
Abacus-Leasing
- Agreement
- Lease plan - Auto lease
- Vehicles
5,000
Contracts such as Swisscom, Europay and
rent are not included.
Addendum to the Agreement dated 12/19/2000
The execution of the Agreement previously signed by all parties with the
exception of Artificial Life Inc. on December 19, 2000 regarding xxx-xxxxxxx.xxx
AG (hereinafter: "ABV") requires that there be a shift of the participating
ratios of the Old Shareholders and a new alignment of one principal shareholder
and various minority shareholders (hereinafter: "the Transaction").
To take Artificial Life's concerns into account, the parties stipulate the
following both to state in more precise terms the parties' already existing
intent with regard to the contract and the business, as well as to add new
content.
1. Limitations on the Sale of Specific Assets
Without the express consent of the Supervisory Board (Supervisory Board
resolution, approved by a 2/3 majority) of xxx-xxxxxxx.xxx AG, the Company
shall not sell or pledge to third parties assets that constitute the
Company's essential substance, in particular proprietary and licensing
rights to the software belonging to the Company. Subsidiaries, affiliated
companies or parent companies of xxxxxxxxxx.xxx AG also are regarded as
third parties in particular. The shareholders agree to have the
corresponding quorum for passing a resolution of the Supervisory Board duly
included in the Company's articles of incorporation.
2. Retention of the Object of the Company
Pursuant to Sec. 704 para. 1 No. 1 OR [Swiss Law of Obligations], a change
of the object of a company requires a resolution by the shareholders'
meeting based on at least two-thirds of the votes represented and the
absolute majority of the nominal value of shares represented. The
shareholders undertake an obligation to comply with Sec. 704 OR at all
times. In addition, they also shall ensure that the Supervisory Board and
Management comply with Sec. 704 OR. This obligation also includes
transactions that may result in a de facto change of the object of the
Company.
3. Supervisory Board
The minority shareholders who will be recorded in the shareholders'
register after this transaction is effected shall have the right to
nominate a Supervisory Board; the shareholders undertake mutually to elect
the Supervisory Board nominated accordingly.
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4. Subscription Right
For this transaction, the previous shareholders fully waive their
statutory/legal right of first refusal.
The subscription rights of the shareholders provided in Sec. 650 para. 2
No. 8 in conjunction with Sec. 652b OR and in Sec. 9 of the Articles of
Incorporation must be upheld by the Company at any time in connection with
any future increases of share capital. Consequently, subject to the
statutory and legal regulations, each shareholder has a claim to that
portion of any newly issued shares that corresponds to his previous
interest.
5. Restrictions on Disposal
The parties mutually concede a right of first refusal (Clause 5.1), a right
of co-sale with founders (Clause 5.2) and also a come-along (Clause 5.3).
5.1 Right of First Refusal
The parties hereby mutually concede a right of first refusal to all shares
of the Company owned by them at any time in proportion to their previous
shareholdings.
If a shareholder wishes to sell his shares to third parties, he must first
offer them to the other shareholders in proportion to the future
shareholdings at the conditions that were offered to him in writing by a
third party.
If the shareholders having a right of first refusal do not make use of
their right of first refusal, or make use of it incompletely, within 30
days of written notice, then the remaining shares for sale shall be offered
to the other shareholders in proportion to the future shareholdings at the
conditions that were offered in writing by the third party. These remaining
shares burdened with a right of first refusal shall not be offered to those
parties who waived the right of first refusal by written statement or
failed to make use of them before the deadline.
If the shareholders have not made use of their right of first refusal, or
did not make use of it completely, within an additional thirty days, then
the party desiring to sell shall be entitled to sell the remaining shares
for sale to such third party within three months at the conditions offered
in writing by the third party. A sale to a different buyer or a sale at
other conditions is not allowed.
Page 3
Exempt from the right of first refusal are transfers of shares to Company
subsidiaries, affiliated companies or parent companies of the shareholders
desiring to sell, transfers among the New Shareholders and to Xx. Xxxxx
Xxxxxxxx. If such transfers to affiliates, subsidiaries or parent companies
occur, the seller or sellers undertake to ensure that the buyers accede to
the ABV and the present addendum to the ABV without reservation and
assuming all rights and duties in their place.
5.2 Right of Co-Sale with Founders
Each party has a right of co-sale (must take along). Subject to the rights
of first refusal pursuant to Clause 5 above, the shareholders are entitled
to demand a "take along" in the event another shareholder or other
shareholders (hereinafter: "the Sellers") sell a majority interest (at
least 67%) or all shares of the Company to a third party. In such event,
the shareholders are entitled to co-sell all their shares at the same
conditions and the Sellers must ensure that this co-sale comes into being.
The Sellers may only execute the sale of the shares if the sale of the
shares offered by the other shareholders by exercise of their right of co-
sale is also executed at the same time.
The selling party is required to obtain a corresponding written offer to
buy from the interested buyer and, if the possible interested buyer's
credit standing is not obvious, a corresponding capital-evidencing
certificate for the other parties and invite them by registered letter to
exercise their right of first refusal. Within 30 days of receipt of the
notification, each of the entitled parties must inform the selling party by
a written statement without reservation whether he intends to exercise his
right of first refusal. The period is allowed if the statement of intent to
exercise is turned over to a post office as a registered letter within the
time period cited. Otherwise, the shareholder has waived it for the
specific case.
7. "Come Along"
In return, the shareholders mutually concede a "come along" in such a case
(co-sale of all shares at the same conditions if requested by the third
party). If one shareholder or several shareholders together sell shares to
a third party and if such sale includes more than 67% of the share capital,
the Sellers may request that the other shareholders or the other
shareholder sell their/his shares to such third party at the same
conditions.
Page 4
The parties are assuming that the purchase price negotiated "at arms-
length" by the Sellers with any third party will correspond to the market
price. If other shareholders hold the opinion in good faith that this is
not the case, they may request that an expert draw up an appropriate
report. The expert in this case must be a recognized fiduciary company that
is appointed by the shareholders jointly. The come along shall lapse if the
sale price in the expert report is deemed to be at least 20% too low. The
costs of the expert report shall be borne by the shareholders who request
it. They will be reimbursed for the costs if the come along lapses.
If a shareholder refuses to join in signing the corresponding agreement
within a period of at least 30 days set by the Sellers, then the Sellers
shall be entitled to buy the shares of the corresponding shareholder at the
price offered by the third party (right of purchase).
8. B2B Media Corp.
The rights of first refusal, rights of co-sale and come along described
above shall not apply if the shareholders bring all shares of the Company
into B2B Media Corp. Clause 11 of the ABV applies (share swap).
9. Interim Financing - December 2000
Claims against Xxx-xxxxxxx.xxx AG amounting to CHF 138,455.85 became due in
December 2000. Xxx-xxxxxxx.xxx AG was not able to pay these claims because
of the delay in executing the ABV. Artificial Life agrees to pay half this
amount, i.e., CHF 69,000, rounded off. The amount will be settled along
with ALIFE's claim for repayment of a loan, pursuant to Clause 7 letter a
ABV. In all other respects, this interim financing does not result in a
change in the amount of the claim agreed between the Old Shareholders and
the Company in Clause 7 of the ABV.
Zurich, January 17, 2001
Artificial Life, Inc. e-tail Holding AG
[signature] [signature] [signature]
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Xxxxxx Xxxxx
BC Medien Holding AG Hans Xxxx Xxxxxx
[signature] [signature]
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Dr. Beat Xxxxx
Page 5
Artificial Life Schweiz AG Xxxxxx Xxxxxx
[signature] [signature]
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Xxxxxx Xxxxx
Xxx-xxxxxxx.xxx AG
[signature] [signature]
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