Exhibit 10.14
Confidential treatment has been requested for portions of this Exhibit 10.14.
The copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [XXXXX]. A complete version of this Exhibit
has been filed with Securities and Exchange Commission.
D-60325 Frankfurt am Main
Bockenheimer Xxxxxxxxxxx 00
Telefon 000-00000 Telefax 069/725773 u. 723983
ACQUISITION AGREEMENT MMPT/MEx
Section 1 The Company 4
Section 2 Sale and Transfer; Effectiveness of Transfer as
from the Closing Date 5
Section 3 Purchase Price 6
Section 4 Payment of the Purchase Price 7
Section 5 Stock Options for Sellers 8
Section 6 Management Services Agreements of Sellers
Section 7 Representations and Warranties 9
Section 8 Liability for breach of representations and warranties 15
Section 9 Taxes 17
Section 10 Merger Control 20
Section 11 Publications, Notices 20
Section 12 Arbitration Clause 21
Section 13 Miscellaneous 23
LIST OF EXHIBITS 25
The persons appearing requested that a notarial deed be drawn up of the
following
Agreement on the Sale and Transfer of Shares
between
1. Xxxxxx Xxxx, address Xxxxxxxxxxxxxx. 0, 00000 Xxxxxxx ("Seller
Funk")
2. Xxxxxx Xxxxxxxx, address Xxxxxxxxxx. 00, 00000 Xxxxxxx ("Seller
Xxxxxxxx")
3. Xxxxxx Xxxxxxx, address Xxxxxxxx. 00, 00000 Xxxxxxx ("Seller
Xxxxxxx")
(Seller Funk, Seller Xxxxxxxx and Seller Xxxxxxx are hereinafter jointly
referred to as the "Sellers")
and
4. MWW Siebzehnte Vermogensverwaltungs GmbH (in the future renamed into
Modem Media Germany Holding GmbH), Frankfurt am Main (in the future
having its seat in Munich)
(hereinafter the "Buyer")
PREAMBLE
A. The Sellers are the sole shareholders of MEx MULTIMEDIA EXPERTS GmbH
Gesellschaft fur Kommunikationstechnologie, having its seat in Munich and
being registered with the commercial register of the local court Munich
under HR B 100011 (hereinafter the "Company")
B. The Company's activities are production, trade and services in the
information and communication technology business, in particular
Multimedia.
C. The Buyer is a direct 100% subsidiary of Modem Media.Xxxxx Xxxxx, Inc.,
Norwalk, Connecticut/USA (hereinafter "MMPT").
Thereupon, the Parties agreed as follows:
1 The Company
(1) The Company is registered with the commercial register of the local
court Munich and has a nominal share capital of DM 100,000 which is
fully paid in.
(2) The Sellers have submitted to the Buyer a copy of the Articles of
Association of the Company dated June 9, 1997; no amendment to the
Articles has been resolved upon since that date.
(3) Sellers are the only shareholders of the Company having the
following shareholdings:
(a) Seller Funk holds a share in the nominal amount of DM 33,400.
(b) Seller Xxxxxxxx holds a share in the nominal amount of DM
33,300.
(c) Seller Xxxxxxx holds a share in the nominal amount of DM
33,300.
2 Sale and Transfer; Effectiveness of Transfer as from the Closing Date
(1) The Sellers hereby sell to the Buyer all shares in the Company
specified in Section 1 (3)(a)-(c). The Buyer hereby accepts this
sale.
(2) With effect as of the Closing Date, the Sellers hereby transfer to
the Buyer all of the Company shares specified in Section 1 sections
(3) (a)- (c). The Buyer hereby accepts such transfer
"Closing Date" shall be October 4, 1999
The transfer of the shares is subject to the condition precedent
that the payment of the Cash Portion (as defined in Section 3(1)(a))
is made in accordance with Section 4 (1). As proof for the
fulfillment of this condition precedent the confirmations of the
banks referred to in Section 4(1), shall be required and sufficient.
(3) The Sellers hereby consent to the transfer of all shares referred to
in Section 1(3) (a)-(c) in their capacity as shareholders.
(4) As a precautionary measure, each Seller hereby waives any and all
rights to sell the shares, any pre-emptive rights or rights of first
refusal to which he is entitled with regard to the shares specified
in Section 1(3) (a)-(c), irrespective on what legal grounds.
(5) The Sellers Funk and Xxxxxxx submit as Exhibits 2.5 the consents of
their spouses.
(6) The annual profits for the current business year, which are to be
attributed to the shares transferred under Section 2(2), shall be
due to the Buyer.
Section 3 Purchase Price
(1) The purchase price for the shares specified in Section 1(3)(a)-(c)
("Purchase Price") consists of
(a) a portion of US$ 3 million to be paid in cash (the "Cash
Portion"), and
(b) MMPT stock with a value of US$ 2.4 million (the "Stock
Portion") in accordance with sub-para (2) hereof.
With respect to the Cash Portion and the Stock Portion, each Seller shall be
entitled to the following share:
Seller Funk: one third
Seller Xxxxxxxx: one third
Seller Xxxxxxx: one third.
(2) The number of shares to be issued to the Sellers in order to pay the
Stock Portion, shall be calculated as follows:
First, MMPT will calculate the average closing price of MMPT's stock price of
its Class A Common Stock for the 10 trading days preceding the Closing Date as
reported by NASDAQ (the "Average Price"). Second, the Stock Portion shall be
equal to that number of shares of MMPT Class A Common Stock which is represented
by dividing US$ 2.4 million by the Average Price. One third of the stock portion
will be kept in Buyer's escrow until (i) all of the invoices which are due to be
built as of Sept., 30 have been built and issued and (ii) 80 % of the amounts
outstanding of these invoices have been collected.
Section 4 Payment of the Purchase Price
The Purchase Price shall be paid as follows:
(1) The Cash Portion shall be paid on the Closing Date as follows:
(a) The DM equivalent of US$ 1,000,000 shall be paid to Seller
Funk on his bank account at [XXXXX]
(b) The DM equivalent of US$ 1,000,000 shall be paid to Seller
Xxxxxxxx on his bank account at [XXXXX]
(c) The DM equivalent of US$ 1,000,000 shall be paid to Seller
Xxxxxxx on his bank account at [XXXXX]
Each of the Sellers shall irrevocably instruct his bank, to immediately upon
receipt of the respective aforementioned amount, confirm by fax to the Buyer
that the respective amount has been received; the respective fax shall be sent
to
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[XXXXX]= Certain information on this page has been omitted and filed separately
with the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
Buyer c/o
TELEFAX No 49-69-72 57 73
Hengeler Xxxxxxx Xxxxxxx Xxxxx
Attn.: Xx. Xxxxxxx Xxxxxxxxxxx
(2) The Stock Portion shall be subject to the following conditions: The
shares issued by MMPT for the purpose of paying the Stock Portion
shall immediately vest in the Sellers but such shares will have
resale restrictions. For the first 12 months following the Closing
Date such shares shall not be eligible to resale pursuant to the
securities laws of the United States. Thereafter, such shares may be
resold as follows: During each of the second, third and fourth 12
months'-periods following the Closing Date, each Seller cannot sell
more than one third of his share of the Stock Portion.
Section 5 Stock Options for Sellers
In accordance with the amended and restated 1997 stock option plan of MMPT, each
of the Sellers will be granted [XXXXX] options to purchase MMPT stock at fair
market value (i.e. closing price as reported by NASDAQ) at the date of grant of
the options. Such stock options will vest according to the current MMPT Vesting
Schedule as follows: 20% at the day of grant and 20% upon each of the next four
anniversaries of the date of grant.
Section 6 Management Services Agreements of Sellers
(1) As from the Closing Date, the employment relationship between Seller
Funk and the Company shall be governed by the employment agreement
and the non-competition covenant which have been signed today.
(2) As from the Closing Date, the employment relationship between Seller
Xxxxxxxx and the Company shall be governed by the employment
agreement and the non-competition covenant which have been signed
today.
(3) As from the Closing Date, the employment relationship between Seller
Xxxxxxx and the Company shall be governed by the employment
agreement and the non-competition covenant which have been signed
today.
Section 7 Representations and Warranties
The Sellers hereby warrant by way of an independent warranty [selbstendiges
Garantieversprechen] the following, and this in relation to the time of
conclusion of this Agreement and as per the Closing Date (if no other point in
time or time period is referred to in the following):
(1) Legal Situation
(a) The statements in Section 1 of this Agreement are correct and
complete.
(b) The capital contributions on the shares sold and transferred
pursuant to Section 2 have been fully paid in and the share capital
has not been reduced by repayments or any comparable processes.
(c) The shares in the Company sold and transferred pursuant to Section 2
are free from any encumbrances and other third party rights.
(d) The Company does not hold any direct or indirect participations in
other companies.
(2) Financial Situation
(a) The following annual accounts of the Company have been prepared or
-as to 1997 accounts - are prepared in accordance with generally
accepted accounting principles in Germany, and having regard to the
principle of continuity of accounting and valuation (taking due
account of the accounting principles applied in
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[XXXXX]= Certain information on this page has been omitted and filed separately
with the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
previous years), and correctly reflect the financial situation of the
Company as to its respective asset, financial and profit situation:
- Audited annual accounts of the Company as per 12/31/1998 ("1998
Accounts");
- audited annual accounts of the Company as per 12/31/1997.
(b) As per December 31, 1998, the Company had no liabilities other than
those shown in the 1998 Accounts; since then, liabilities have only
been incurred in the ordinary course of business, except for those
liabilities listed in Exhibit 7.2(b). It is understood that the
Sellers give no warranty on future revenues or profits.
(3) Assets
(a) Except as set forth in Exhibit 7.3 (a), the Company is the owner of
all assets shown in the 1998 Accounts, free from third party claims
(excepting customary retention of title), except as for assets
disposed of in the ordinary course of business since January 1,
1999.
(b) All assets used by the Company as well as the operation, storage and
handling thereof are effected in accordance with applicable laws and
legal provisions, and this in particular also with regard to
environmental and other public law provisions, regulations and
permits other than the exceptions listed in Exhibit 7.3(b).
(c) As of the date of this Agreement, the Company has no accounts
receivables which are 90 days or more past due, except for those
listed in Exhibit 7.3(c).
(4) Litigation/Compliance with Applicable Law
(a) Except for those proceedings listed in Exhibit 7.4(a) the Company is
- as of the signing of this Agreement - not a party to any legal
action, whether as plaintiff or defendant, (including any
arbitration proceedings) nor are there any other legal, arbitration
or other proceedings in which they are involved. As of the date of
signing of this Agreement, the Sellers have no knowledge of any
administrative proceedings or investigations imminent or pending
against the Company, including any such proceedings under
competition law. Except for claims listed in Exhibit 7.4(a), as of
the signing of this Agreement no claims have been asserted or
threatened against the Company, which would involve a one-off or
annual burden of more than DM 50,000 on the company. As of the date
of signing of this Agreement, the Sellers are not aware of any
factual circumstances on which such claims could be based.
(b) The Company is authorized without restrictions and has been granted
all permits which are necessary to continue its present business
operations, except for those cases listed in Exhibit 7.4(b). There
are no public law authorizations which, due to the sale envisaged
with this Agreement, could be modified, withdrawn or revoked. The
Sellers have no knowledge of the Company being in breach of any
provisions under public law, competition law or laws for the
protection of intellectual property rights, unless listed in Exhibit
7.4(b).
(5) Contracts
Except for those contracts and agreements listed in Exhibit 7.5 (consisting of
parts (a), (b), (d), (h)), the Company is not a party to any written or oral
agreement or contract of the following kind:
(a) any rental or lease agreements or other agreements the contract or
obligation value whereof exceeds in each instance DM 50,000 p.a.,
except for employment contracts;
(b) agreements with sales representatives, commission merchants,
contract dealers or other distributors;
(c) any contracts or other obligations limiting or excluding the right
of the Company to compete;
(d) loan agreements. The terms, interest rates and balances shown in
Exhibit 7.5(d) are complete and accurate;
(e) any agreement granting the respective counterparty a right to
terminate or change the agreement in case shares of the Company are
to be sold;
(f) any guarantee, warranty or other agreements or unilateral
transactions whereby collateral is granted for or the assumption of
third party liabilities, any futures contracts, currency
transactions or swap agreements;
(g) any agreements or contracts which grant to third parties any
rebates, discounts or any other deductions than those previously
granted in the ordinary course of business;
(h) any contracts with employees with an annual salary exceeding DM
100,000 (including any percentage of profits or a bonus paid);
(i) any agreement or obligation outside the scope of the ordinary
business.
(6) Employees
(a) The Company has no more than 21 employees.
(b) Except as shown in Exhibit 7.6(b), the Company is not a party to any
voluntary pension promises or direct insurances, agreements on
commissions or bonuses, employment agreements with extended
termination periods compared with bargaining agreements, agreements
with unions, shop agreements or agreements with professional
associations (e.g. employers' associations).
(7) Intellectual Property Rights/Registrations/Y2K
(a) The business operations of the Company involve the use of the
intellectual property rights listed in Exhibit 7.7(a). This list is
exhaustive and all such intellectual property rights have been
registered for the Company as shown in Exhibit 7.7(a). The Company
is the sole legitimate owner of the respective intellectual property
rights.
(b) The business operations of the Company do not require the use of any
other intellectual property rights other than those listed in
Exhibit 7.7(a).
(c) To the best of Sellers' knowledge the intellectual property rights
listed in Exhibit 7.7(a) are - in their geographical respective area
of validity - not subject to third party objections. There are no
respective legal actions pending or imminent nor to be expected
based on other circumstances. Where applicable, the intellectual
property rights have been duly extended and are actually used,
unless listed otherwise in Exhibit 7.7. (a).
(d) All license agreements regarding intellectual property rights in
respect of which the Company is the licensor or licensee are listed
in Exhibit 7.7(d).
(e) The software provided to clients by the Company is year 2000
compliant, i.e. its use will not cause problems for the clients in
connection with the beginning of the year 2000. This warranty does
not include a warranty for the functionality and Year 2000
compliance of software or software components of third parties.
(8) Agreements between the Sellers and the Company and among Sellers
(a) Except for those contracts listed in Exhibit 7.8(a), there are no
contracts existing between one or several of the Sellers on the one
hand, and the Company on the other hand. The contracts listed in
Exhibit 7.8(a) are entered into under arms' length conditions.
(b) Except for contracts listed in Exhibit 7.8(b), there are no
contracts among the Sellers which relate to the Company.
(c) With the exception of this Agreement, there are no agreements
between Sellers or the Company on the one hand and the Buyer on the
other hand.
(9) Existing Contracts; Insurance
The contracts and agreements to which the Company is a party and which are
to be listed in Exhibit 7.5, are effective. There are no significant
disruptions in the performance thereof. In particular, the Company is not
in default with any of its contractual obligations. The Company maintains
the insurances which are listed in Exhibit 7.9. All premium payments due
have been paid. The insurance contracts are valid and in force and there
currently exist no violations. There exist no open insurance cases other
than those cases listed in Exhibit 7.9.
(10) Transactions since January 1, 1999 until the Closing Date
Within the period between January 1, 1999 and the Closing Date the
following principles will be and have been complied with:
(a) the business of the Company shall be conducted in accordance with
proper business principles and past practice and no extraordinary
transactions shall be effected;
(b) the scope and contents of the business activities shall not be
changed substantially;
(c) except as listed in Exhibit 7.10 (c) no profit distributions shall
be declared or made (including hidden profit distributions);
(d) being understood that Sellers have received pension commitments on
December 14, 1998, no increase in the remuneration, no change of
other employment conditions and no pension commitments or changes
thereof for any of the employees (including managing directors)
shall be effected or promised except for increases of remuneration
under union agreements (tarifvertragliche Erhurhungen) except for
those transactions which are listed in Exhibit 7(10)(d) or elsewhere
in the Exhibits.
(e) the Company shall not (i) conclude or use loans or (ii) enter into
contracts which have a total value of more than DM 20,000 p.a. each,
except for the cases listed in Exhibit 7(10)(e) elsewhere in the
exhibits;
(f) the purchasing and payment practice shall not be changed;
(g) no special discounts shall be granted to customers.
Exceptions to these principles shall only be permissible with the prior written
consent of the Buyer.
Section 8 Liability for breach of representations and warranties
(1) If any of the warranties given by the Sellers under Section 7 is
incorrect, the following shall apply:
The Sellers shall place the Buyer or (at Buyer's choice), if the Company
has incurred the damage, the Company in that position as if the warranty
had been correct. If and to the extent that the Sellers within one month
fail to put the respective party in the position as set forth in the
Agreement, or if it is impossible to put that party in that position, the
Buyer shall be entitled to claim monetary damages. Buyer is not entitled
to damages if and to the extent that the damage is covered by accruals in
the Closing Balance Sheet.
(2) To the extent that the Sellers have represented in this Agreement that the
Company is free of liabilities, the Sellers shall indemnify and hold
harmless the Company from any liabilities (including the cost for legal
advisers), which exist or are asserted contrary to this representation.
(3) Claims under this Section 8 shall be time-barred
(a) in respect of incorrectness of any of the warranties detailed in
Section 7(1) after 4 years from the Closing Date;
(b) in respect of any other claims under this Section 8 on March 31,
2001.
The limitation period shall be suspended by raising a claim in writing
vis-a-vis the Sellers. Should there be a written notice of a claim before
the end of the limitation period, the limitation period for the respective
claim shall be extended by another three months. After such additional
three months, the claim will be time-barred unless the limitation period
is interrupted in accordance with the law.
(4.) Any other warranty claims of the Buyer are excluded, unless there is a
case of wilful misconduct or gross negligence.
(5) Claims under this Section 8 and Section 9 shall be limited to DM 4,32
million in the aggregate. With respect to any claim for a breach of the
warranty under Section 7 (7) (e), the Sellers shall only be liable to the
extent that the damage caused exceeds DM 225,000.
Section 9 Taxes
(a) Sellers warrant that all tax declarations or tax applications which
were to be filed by the Company until the Closing Date, have been
filed and that all statements made therein are correct and complete.
(b) Sellers further warrant: All amounts which, pursuant to these tax
declarations or filings, are to be paid by the Company (including
interest and other ancillary duties) and which relate to the time
period before the Closing Date, have been paid in full and in time.
For unpaid taxes which were to be paid until December 31, 1998,
sufficient liabilities or accruals are shown in the 1998 Accounts.
The Company has, in accordance with statutory provisions, in full
and in time, withheld and paid to the tax authorities, social
security institutions or health insurance institutions, all wage
taxes as well as employees' shares for social security and other
social benefits (hereinafter collectively referred to as "Employment
Charges") for all time periods until the Closing Date. For
Employment Charges relating to the period until December 31, 1998
and which are not paid, appropriate obligations or provisions have
been stated in the 1998 Accounts therefor.
(c) Sellers warrant that all accounts receivable for the repayment of
taxes (Erstattungsanspruche) which are capitalized in the 1998
Accounts, have been or will be honoured.
(2) (a) All tax liabilities of the Company which relate to relevant time
periods before December 31, 1998 and for which sufficient
liabilities or reserves have not been stated in the 1998 Accounts
("Additional Tax Liabilities") shall, independently from the date of
determination by the authorities and the due date, be borne by
Sellers. This applies, in particular, to the additional
determination of hidden profit distributions which have been made
before December 31, 1998.
To the extent that Additional Tax Liabilities are caused by taxes
which result from a change of valuation principles for fixed and
current assets and which correspond to lower tax charges in the
future, then from the Additional Tax Liabilities shall be deducted
the amount of lower taxes for the future, discounted at a rate of
6%; if the time period for the discounting cannot be determined, a
time period of ten years shall be used.
"Tax liabilities" in the above sense are obligations to pay taxes,
provided that it also constitutes a tax liability where the payment
of a tax can be avoided by the set-off with claims for the
repayment of taxes to the extent that those claims for repayment are
shown in the 1998 Accounts and to the extent that these claims for
repayment relate to periods before December 31, 1998. The term
"taxes" includes, in this respect and the following, domestic and
foreign, direct and indirect taxes of Bund, Landern, Gemeinden and
other public law communities; earnings, income, asset and
transaction taxes, real taxes, duties and deductions, VAT, transfer
taxes, consumption taxes and other tax duties of all kinds,
including all add-ons and ancillary duties such as interest, add-ons
for late payment and penalties of fines, no matter how they are
levied or determined.
(c) To the extent that, for the Company previous tax benefits, subsidies
and similar advantages have to be repaid as a result of facts which
occurred prior to December 31, 1998 ("Repayment Obligations"), such
Repayment Obligations shall be borne by the Sellers.
(d) To the extent that accounts receivable for the repayment of taxes
("Claims for Tax Refunds") which are capitalized in the1998
Accounts, should not be honoured at their respective due date,
Sellers shall bear the respective amount.
(3) (a) Sellers shall compensate Buyer by way of reduction of the purchase
price or (at Buyer's choice) the Company, for all disadvantages
which the Company suffers from the non-existence of a warranted
fact. In case of constructive dividends the disadvantage which shall
be compensated by the Sellers does not only comprise the tax burden
caused by the distribution but also, if not yet included, the tax
effect of a used-up corporate tax credit
("Korperschaftsteueranrechnungsguthaben").
In particular, Sellers shall be obligated to indemnify Buyer by way
of purchase price reduction or (at Buyer's choice) the Company, for
Additional Tax Liabilities, Repayment Obligations or Claims for Tax
Refunds which Sellers shall bear in accordance with the above
provisions.
(b) To the extent that the Company has made payments for taxes and
received repayments for previously paid taxes related to periods
prior to January 1, 1999 without a claim to such repayments being
shown in the1998 Accounts, the respective amount shall be paid to
Sellers or shall be deducted from the amounts which Sellers have to
pay in accordance with the above provisions.
(4) Negotiations and administrative proceedings relating to Additional Tax
Liabilities, Repayment Obligations or Claims for Tax Refunds will be held
by Buyer in coordination with Sellers. The parties will support each other
and will give each other access to the respective books and files. Sellers
shall bear the costs of such proceedings.
(5) Claims for indemnification for Additional Tax Liabilities, Repayment
Obligations or Claims for Tax Refunds under this paragraph shall be barred
by statute of limitation three months after tax assessments have become
final or, if no final payment order is made, three months after the
respective tax liability is barred by statute of limitation in accordance
with the law.
Section 10 Merger Control
This agreement is not subject to merger control by the Federal Cartel Office or
any other cartel office.
Section 11 Publications, Notices
(1) The parties will publish the sale of the Company in a joint press release
as of the Closing Date.
(2) Each party is authorized to make, without the consent of the other party,
publications which are required by law (including publication requirements
of the stock exchange rules). In all other cases publications are only
permitted with the consent of the respective other party.
(3) Notices to be made by the Sellers vis-a-vis the Buyer are to be addressed
to:
[Buyer]
c/o Modem Media.Xxxxx Xxxxx, Inc.
Attn.: Xxxxxx Xxxx, Esq.
General Counsel
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Tel.: 000 000 000 0000
Fax.: 000 000 000 0000
Notices to be addressed by Buyer to the Sellers are to be made to each of
the Sellers by registered letter. The addresses set out in the recitals
shall apply until the Buyer has been informed in writing of a new address.
Section 12 Arbitration Clause
(1) Unless provided for otherwise by mandatory law, all disputes arising out
of or in connection with this Agreement shall be referred to and finally
decided by an arbitration board. The arbitration board shall also decide
on the validity of this Agreement.
(2) The arbitration board shall consist of two arbitrators and one chairman.
(3) The procedure to establish the arbitration board shall be initiated by
plaintiff notifying defendant about the alleged claims, giving the name
and address of the arbitrator he has appointed. Defendant shall appoint
his arbitrator within a period of four weeks after having received the
aforesaid notice. It is agreed that those individuals of the Sellers who
are involved in the dispute (no matter whether they are involved as
plaintiff of defendant) shall appoint a joint arbitrator. In case
defendant should not appoint his arbitrator within the period mentioned in
the second sentence, the arbitrator shall be appointed by the President of
the Chamber of Industry and Commerce at Munich.
(4) If the defendants in an arbitration proceeding are two or more persons and
those two or more persons cannot, within a time period of four weeks after
receipt of the notice referred to in subpara (3), first sentence, agree on
the joint appointment of an arbitrator, then the President of the Chamber
of Industry and Commerce Munich, after hearing the parties, shall appoint
two arbitrators, unless the parties agree otherwise. The appointment of
two arbitrators by the President of the Chamber of Industry and Commerce
Munich shall render the previous appointment of an arbitrator by the
plaintiff ineffective.
(5) The arbitrators appointed by the parties or the authority referred to in
subpara (4) shall elect a chairman. The chairman shall be a person
experienced in commercial matters. If the arbitrators cannot agree on the
appointment of a chairman within a period of four weeks after the
appointment of the second arbitrator, the chairman shall be appointed by
the President of the Chamber of Industry and Commerce at Munich.
(6) In case that an arbitrator or the chairman shall become unable to act, the
provisions of subparas 3 to (5) shall apply correspondingly.
(7) The arbitration board shall meet at Munich.
(8) The arbitration board shall make all reasonable attempts to reach an
amicable settlement even before the chairman has been appointed.
(9) As far as not provided for otherwise in this Agreement, the procedure of
the arbitration board shall be conducted in compliance with the provisions
of the 10th Chapter of the German Code of Civil Procedure (ZPO). The rules
of the ZPO shall also apply correspondingly for the costs of the
proceedings.
(10) To the extent that the assistance of State courts is necessary (Section
1062 ZPO), the court of appeal of Munich Bayerisches Oberstes
Landesgericht shall have jurisdiction.
Section 13 Miscellaneous
(1) Sellers shall be liable jointly and severally for all obligations under
this Agreement.
(2) The Sellers have granted to the Company a free license for the use of all
their rights in the "Web Factory" products. This license shall continue.
In addition thereto, the Sellers will grant to MMPT a license for the use
of all their rights in the Web Factory by MMPT or its affiliates; as
compensation, MMPT or the respective affiliate shall pay to the Sellers
50% of the income which MMPT or the respective affiliate generates by
selling Web Factory products or by granting sub-licenses. Details shall be
provided for in separate agreements to be concluded.
(3) Neither Sellers nor Buyer shall be entitled, without the consent of the
respective other party, to assign any rights or obligations under this
Agreement to a third party. This restriction does not apply in case of any
assignment by Buyer to an affiliated company.
(4) The notarial fees in connection with the execution of this Agreement shall
be borne by Buyer. Each party bears the costs of its advisors.
(5) Should any provision of this Agreement be invalid or ineffective in full
or in part, such invalidity or ineffectiveness shall not affect the
validity of the rest of the Agreement. In such event, the ineffective
provision shall be deemed to be replaced by such effective provision which
achieves as much as possible the economic purpose of the ineffective
provision. The same applies to any gaps in this Agreement.
Sellers declared: The Company does not own real estate.
The notary shall notify the Company of the transfer of the shares according to
Section 2 of this Agreement, in accordance with Section 16(1) GmbH (Act on
Companies with Limited Liability).
The above protocol, the List of Exhibits and the Exhibits were read to the
persons appearing by the acting Notary and approved by the persons appearing and
signed by the persons appearing and the notary as follows:
/s/ Xx. Xxxxxx Vossius
Acting Notary
/s/ Xxxxxx Xxxx
/s/ Xxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxx
Sellers Managing Director
Modem Media Holding Company GmbH
LIST OF EXHIBITS
Exhibit 2.5 Consents Spouses
Exhibit 7.2(b) New liabilities outside ordinary course of business
Exhibit 7.3(a) Assets
Exhibit 7.3(b) Compliance with Law
Exhibit 7.3(c) Accounts 90 days or more
Exhibit 7.4(a) Litigation
Exhibit 7.4(b) Permits
Exhibit 7.5(a), (b), (d), (h) Contracts
Exhibit 7.6(b) Pension plans etc.
Exhibit 7.7 (a) Intellectual Property
Exhibit 7.7(d) License Agreement
Exhibit 7.8(a) Agreements between Sellers and the Company
Exhibit 7.8(b) Contracts among Sellers
Exhibit 7.9. Insurances
Exhibit 7.10(c) Profits 1998
Exhibit 7.10(d) Pension commitments/salary increases until Closing Date
Exhibit 7.10(e) Loans and Contracts until Closing Date
22
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English Acquisition Agreement - Modem Media-Mex / 10489994 04.10.99
HENGELER XXXXXXX XXXXXXX XXXXX
RECHTSANWC4LTE
Exhibit 7.2(b)
New liabilities outside ordinary course of business
Investments for the new offices: renovation, office equipment (about 500.000 DM)
Exhibit 7.3(a)
Assets
Not necessary / None
Exhibit 7.3(b)
Compliance with Law
Not necessary / None
Exhibit 7.3(c)
Accounts 90 days or more
[XXXXX]
[XXXXX]= Certain information on this page has been omitted and filed separately
with the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
Exhibit 7.4(a)
Litigation
Not necessary / None
Exhibit 7.4(b)
Permits
Not necessary / None
Exhibit 7.5(a), (b), (d), (h)
Contracts
a)
Office Rental Agreement, dated 1.7.1999, about 23.000 DM p.m.
b)
[XXXXX]
d.)
Open credit by HypoVereinsbank, dated 27.7.1999; amount: 500.000 DM; = actual 9%
p.a. Interest rate Current Status: ca. 600.00 DM minus
h.)
Employment Contracts with:
Managing Directors Funk, Konitzer, Xxxxxxx
Xxxxxx Xxxxxxxx (101.114 DM p.a.)
[XXXXX]= Certain information on this page has been omitted and filed separately
with the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
Exhibit 7.6(b)
Pension plans etc.
Voluntary pension promises, direct insurance and bonus agreements with the three
Managing Directors Funk, Konitzer, Xxxxxxx.
All Employment Agreements have extended termination periods compared with
agreements with unions between 4 to 12 weeks before the end of each annual
quarter).
Exhibit 7.7 (a)
Intellectual Property
Brand and logo "MEX" in written and visual form, dated 19.10.1996 Software
rights and media rights licensed from third parties Domain names
Exhibit 7.7(d)
License Agreement
Co operation Agreement with InfoOffice (formerly Infotip) dated 23.7.1997
Publishers Contract with Ullstein Soft Media GmbH, dated 8.5.1995
Publishers Contract with arsEdition AG, dated 9.11.1994
Licence Contract with Mindscape Int., Xxxxxxx Hill, U.K., dated November 1994
Exhibit 7.8(a)
Agreements between Sellers and the Company
Employment Contracts with Managing Directors Funk, Konitzer, Xxxxxxx
Exhibit 7.8(b)
Contracts among Sellers
Not necessary / None
Exhibit 7.9
Insurance
Car Insurance for three Business cars used by the Managing Directors (Costs are
paid by the company; the contracts are made with each MD)
Life Insurance for Xx. Xxxx, dated 20.3.1996 (Hannoversche Leben)
Corporate Liability Insurance, dated 23.12.1993 (VHV)
Electronic Equipment Insurance: Alte Leipziger, formerly Domcura, dated
15.5.1995
Mixed Insurance (Robbery, Fire, Water, Hurricane, Glas), dated 14.9.1993
(Xxxxxxxxxx)
Accident Insurance for all employees, dated 20.5.1993 (Grosshandels- und
Lagerei-Berufsgenossenschaft)
Voluntary pension promises and direct insurance for the three Managing Directors
Funk, Konitzer, Fickert, dated August 1999, Zurich Leben.
Exhibit 7.10(c)
Profit distribution
The profit distribution for the year 1998 was declared and will be made.
Exhibit 7.10(d)
Pension commitments/salary increases until Closing Date
Increase of renumeration for the Managing Directors in January 1999, 13.000 DM
p.m. Business Cars for the Managing Directors (ordered in February 1999)
Increase of renumeration for various employees: [XXXXX]
[XXXXX]= Certain information on this page has been omitted and filed separately
with the Commission. Confidential Treatment has been requested with respect to
the omitted portions.
Exhibit 7.10(e)
Loans and Contracts until Closing Date
Open credit by HypoVereinsbank, dated 27.7.1999; amount: 500.000 DM; actual 9%
p.a. Interest rate
Office Rental Agreement dated 1.7.1999, about 23.000 DM per month
Employment contracts with Xxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxxxxx, Xxxxxxx
Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx Xxxx
