EXHIBIT A
EXECUTION COPY
OFFER AGREEMENT
between
INVENSYS PLC,
INVENSYS HOLDINGS B.V. I.O.,
INVENSYS B.V. I.O.
and
BAAN COMPANY N.V.
Dated as of May 31, 2000
TABLE OF CONTENTS
Page
ARTICLE 1....................................................................2
1. The Offer.............................................................2
1.1. The Offer....................................................2
1.2. Actions by Purchaser and Offer Sub...........................3
1.3. Actions by the Company.......................................4
1.4. Board Representation.........................................6
ARTICLE 2....................................................................7
2. Post Closing..........................................................7
2.1. Post Closing Restructuring...................................7
2.2. Further Agreements...........................................7
ARTICLE 3....................................................................8
3. Representations and Warranties of the Company.........................8
ARTICLE 4....................................................................8
4. Representations and Warranties of Purchaser and Offer Sub.............8
ARTICLE 5....................................................................8
5. Covenants.............................................................8
5.1. Alternative Proposals........................................8
5.2. Interim Operations..........................................10
5.3. Company Shareholder Approval; Proxy Statement...............12
5.4. Filings; Other Action.......................................12
5.5. Access to Information.......................................13
5.6. Publicity...................................................13
5.7. Employee Share Purchase Plan................................14
5.8. Board Member and Officer Liability..........................14
5.9. Works Councils..............................................15
5.10. Standstill and Termination Agreement.......................16
5.11. Interim Financing..........................................16
ARTICLE 6...................................................................16
6. Termination..........................................................16
6.1. Termination.................................................16
6.2. Effect of Termination and Abandonment.......................17
6.3. Amendment...................................................18
6.4. Extension; Waiver...........................................18
ARTICLE 7...................................................................19
7. General Provisions...................................................19
7.1. Nonsurvival of Representations and Warranties...............19
7.2. Notices.....................................................19
7.3. Assignment; Binding Effect..................................20
7.4. Entire Agreement............................................20
7.5. Governing Law; Submission to Jurisdiction...................20
7.6. Fee and Expenses............................................21
7.7. Certain Definitions.........................................21
7.8. Headings....................................................21
7.9. Interpretation..............................................22
7.10. Waivers....................................................22
7.11. Severability...............................................22
7.12. Counterparts...............................................22
EXHIBIT A CONDITIONS OF THE OFFER............................................1
EXHIBIT B REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................1
3.1. Existence; Good Standing; Corporate Authority................1
3.2. Authorization, Validity and Effect of Agreements.............1
3.3. Compliance with Laws.........................................2
3.4. Capitalization, etc..........................................2
3.5. Subsidiaries.................................................3
3.6. No Violation.................................................3
3.7. Company Reports; Offer Documents.............................4
3.8. Litigation...................................................6
3.9. Absence of Certain Changes...................................7
3.10. Taxes.......................................................7
3.11. Employee Benefit Plans......................................8
3.12. Labor and Employment Matters...............................11
3.13. Brokers....................................................11
3.14. Intellectual Property Rights...............................12
3.15. Permits....................................................13
3.16. Environmental Matters......................................13
3.17. Title to Assets............................................15
3.18. Insurance Policies.........................................15
3.19. Material Contracts.........................................16
3.20. Opinion of Financial Advisor...............................17
3.21. State Takeover Statutes....................................17
3.22. Required Vote of Company Shareholders......................17
3.23. Year 2000 Compliance, Euro Compliance......................17
EXHIBIT C REPRESENTATIONS AND WARRANTIES OF PARENT,
PURCHASER AND OFFER SUB............................................1
4.1. Existence; Good Standing; Corporate Authority................1
4.2. Authorization, Validity and Effect of Agreements.............1
4.3. No Violation.................................................1
4.4. Operations of Purchaser and Offer Sub........................2
4.5. Financing....................................................2
4.6. Offer Documents..............................................2
INDEX OF DEFINED TERMS
affiliate.................................................................8.7
Agreement............................................................Preamble
Alternative Proposal......................................................5.1
Ancillary Documents.......................................................3.2
ASE.......................................................................1.1
Balance Sheet.............................................................3.7
Biedingsbericht...........................................................1.2
Board.....................................................................1.3
Code.....................................................................3.11
Common Shares........................................................Recitals
Company..............................................................Preamble
Company Disclosure Letter............................................3.3. 4.3
Company Employee Benefit Plans...........................................3.11
Company Intellectual Property............................................3.14
Company Permits..........................................................4.15
Company Reports...........................................................3.7
Conditional Purchase of Shares Agreement.............................Recitals
Confidentiality Agreement.................................................5.5
Continuing Members........................................................1.3
Contract..................................................................3.6
D&O Insurance.............................................................5.8
Dutch Law.................................................................8.7
Dutch Merger Code.........................................................1.1
Encumbrances..............................................................3.5
Environmental Claim......................................................3.16
Environmental Laws.......................................................3.16
Environmental Permits....................................................3.16
ERISA....................................................................3.11
Euro Compliant...........................................................3.23
Exchange Act..............................................................1.1
Fairness Opinion..........................................................1.3
FIL..................................................................Recitals
Financial Advisor.........................................................1.3
Governmental Entity.......................................................3.3
Hazardous Materials......................................................3.16
HSR.......................................................................3.6
Indemnified Parties.......................................................5.8
Informational Meeting.....................................................5.3
Intellectual Property....................................................3.14
knowledge.................................................................8.7
Law.......................................................................8.7
Litigation................................................................3.8
Material Adverse Effect...................................................3.1
Minimum Condition...................................................Exhibit A
Multiemployer Plan.......................................................3.11
New York Courts...........................................................7.5
Notice of Offer...........................................................1.2
Offer.....................................................................1.1
Offer Conditions..........................................................1.1
Offer Documents...........................................................1.2
Offer Sub............................................................Preamble
Option....................................................................3.4
Parent...............................................................Preamble
Person....................................................................8.7
Principal Operating Subsidiaries..........................................3.5
Purchaser............................................................Preamble
Representatives...........................................................5.1
Schedule 14D-9............................................................1.3
Schedule TO...............................................................1.2
SEC.......................................................................1.1
Securities Act............................................................3.7
Standstill and Termination Agreement.................................Recitals
Stichting Toezicht Effectenverkeer........................................3.7
Subsidiary................................................................8.7
Tax Return...............................................................3.10
Tax......................................................................3.10
Termination Fee...........................................................6.2
US Offer Documents........................................................1.2
Vanenburg Group B.V.........................................................1
Vast bod.............................................................Recitals
Year 2000 Compliant......................................................3.23
OFFER AGREEMENT
OFFER AGREEMENT (this "Agreement"), dated as of May 31, 2000,
between Invensys plc, a public limited company organized under the laws of
England and Wales ("Parent"), Invensys Holdings B.V. i.o., a corporation
organized under the laws of The Netherlands and a wholly owned subsidiary
of Parent ("Purchaser"), Invensys B.V. i.o., a corporation organized under
the laws of The Netherlands and a wholly owned subsidiary of Purchaser
("Offer Sub"), and Baan Company N.V., a corporation organized under the
laws of The Netherlands (the "Company").
RECITALS
WHEREAS, the board of directors of Parent and the Board of
Management of the Company, with the approval of the Supervisory Board of
the Company, have authorized the execution, delivery and performance of
this Agreement;
WHEREAS, the Board of Management of the Company, with the
approval of the Supervisory Board of the Company, recommends that
shareholders accept the Offer by Parent for all of the outstanding common
shares, par value NLG 0.06 per share (the "Common Shares"), of the Company
at a price of 2.85 euros per share, net to the seller in cash by means of a
"firm offer" ("Vast bod") as such term is used in the SER--Besluit
Fusiegedragsregels 1975 (the "Dutch Merger Code");
WHEREAS, the Offer Sub and Vanenburg Group B.V. ("Vanenburg")
have entered into a conditional purchase of shares agreement (the
"Conditional Purchase of Shares Agreement") whereby Vanenburg has, among
other things, agreed to sell, and Offer Sub has agreed to buy Common
Shares, conditional upon the announcement of the Offer.
WHEREAS, the Company and Xxxxxxxx International, Ltd. ("FIL")
have entered into a standstill and termination agreement dated, as of May
30, 2000 (the "Standstill and Termination Agreement"), whereby FIL has,
among other things, agreed to sell and the Company, or its assignee, has
agreed to buy 8,121,236 Common Shares and terminate that certain share
rights agreement, dated as of December 31, 1998, as amended; and
WHEREAS, the Company and Parent have entered into an assignment
and assumption agreement dated as of May 30, 2000, whereby the Company has
agreed to transfer and assign the Company's right to buy 8,121,236 Common
Shares from FIL under the Standstill and Termination Agreement to Parent.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
1. The Offer.
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1.1. The Offer. (a) Subject to the provisions of this Agreement,
Offer Sub shall in accordance with the applicable provisions of the Dutch
Merger Code, the rules and regulations of the Amsterdam Stock Exchange (the
"ASE"), the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act") and otherwise in compliance with applicable Law (as defined
in Section 7.7) commence, and Parent and Purchaser shall cause Offer Sub to
so commence, an offer to purchase all of the outstanding Common Shares, at
a price of 2.85 euros per Common Share, net to the seller in cash (it being
understood that Offer Sub shall cause the U.S. depositary for Offer Sub to
make payments in U.S. dollars (calculated at prevailing exchange rates at
the time that funds for consummating the Offer are made available) to
holders of U.S. registered Common Shares unless such holders elect to
receive euros) (the "Offer"). The obligation of Offer Sub, and of Parent
and Purchaser to cause Offer Sub, to commence the Offer and to accept for
payment, and to pay for any Common Shares tendered pursuant to the Offer
shall be subject only to the conditions set forth in Exhibit A (including
the condition that at least 95% of the outstanding Common Shares be validly
tendered and not withdrawn prior to the expiration of the Offer) and the
terms and conditions of this Agreement (the "Offer Conditions"). Subject to
the provisions of this Agreement, the Offer shall initially expire on the
20th business day from and after the date the Offer is commenced, including
the date of the commencement of the Offer as the first business day in
accordance with Rule 14d-2 under the Exchange Act and the Dutch Merger
Code, unless this Agreement is terminated in accordance with Article 6, in
which case the Offer (whether or not previously extended in accordance with
the terms hereof) shall expire on such date of termination.
(b) Without the prior written consent of the Company, Offer Sub
shall not (i) reduce the price per share of Common Shares to be paid
pursuant to the Offer, (ii) extend the Offer if all of the Offer Conditions
are satisfied or waived, or (iii) add to the Offer Conditions in any manner
adverse to the holders of Common Shares or which makes the successful
completion of the Offer less likely. Notwithstanding the foregoing, Offer
Sub may, without the consent of the Company, extend the Offer at any time
and from time to time: (i) if, at the scheduled or extended expiration date
of the Offer, any of the Offer Conditions shall not have been satisfied or
waived, until such conditions are satisfied or waived; provided that if any
Offer Condition is, or Offer Conditions are, not satisfied or waived on any
scheduled expiration date of the Offer, Parent, Purchaser and Offer Sub
shall extend the Offer on one or more occasions, if such Offer Condition or
Offer Conditions, as the case may be, could reasonably be expected to be
satisfied within thirty days following the scheduled or extended expiration
date of the Offer; (ii) for any period required by the Dutch Merger Code or
any statute or rule, regulation, interpretation or position of the ASE or
the Securities and Exchange Commission (the "SEC") or its staff applicable
to the Offer; and (iii) for any period required by applicable Law in
connection with an increase in the consideration to be paid pursuant to the
Offer. In addition to the foregoing, Offer Sub may provide for a
"subsequent offering period" as provided in Rule 14d-11 under the Exchange
Act after the purchase of Common Shares pursuant to the Offer.
1.2. Actions by Parent, Purchaser and Offer Sub. (a) As soon as
reasonably practicable following execution of this Agreement, Purchaser and
Offer Sub shall file with the SEC a Tender Offer Statement on Schedule TO,
including all exhibits thereto (together with all amendments and
supplements thereto, the "Schedule TO") with respect to the Offer and the
other transactions contemplated hereby. The Schedule TO shall comply in all
material respects with applicable provisions of the Exchange Act, and shall
contain or incorporate by reference an offer to purchase and a related
letter of transmittal (such Schedule TO and the documents therein pursuant
to which the Offer will be made, together with any supplements or
amendments thereto, the "US Offer Documents"). Each of Parent, Purchaser,
Offer Sub and the Company agrees promptly to correct any information
supplied by it for use in the US Offer Documents to the extent that such
information becomes false or misleading in any material respect. Parent,
Purchaser and Offer Sub agree to take all steps necessary to cause the US
Offer Documents as so corrected or supplemented to be filed with the SEC
and be disseminated to holders of Common Shares, in each case, as and to
the extent required by applicable Laws. The Company and its counsel shall
be given an opportunity to review and comment on the US Offer Documents
prior to their being filed with the SEC. Parent, Purchaser and Offer Sub
agree to provide to the Company and its counsel any comments or other
communications, written or oral, which Parent, Offer Sub or their counsel
may receive from the SEC with respect to the US Offer Documents promptly
after receipt thereof.
(b) On or before the date that the Offer is commenced, Offer Sub
and the Company shall make generally available a notice of offer
("Biedingsbericht") (together with all amendments and supplements thereto,
the "Notice of Offer") and shall announce the making available of the
Notice of Offer in at least one national daily newspaper in The
Netherlands. The Notice of Offer shall contain all the information required
by the Dutch Merger Code, including the information referred to in Article
6, Article 9, paragraph 2 and Article 10 thereof, and shall also contain a
written opinion of Lazard Freres & Co. LLC, dated as of May 30, 2000,
addressed to the Company that the proposed consideration to be received by
the holders of Common Shares pursuant to the Offer is, in the opinion of
such advisor, fair to the holders of the Common Shares, from a financial
point of view. Offer Sub and the Company shall invite the ASE to review
drafts of the Notice of Offer and provide any comments they may have. The
Notice of Offer shall comply as to form and substance in all respects with
the requirements of the Dutch Merger Code and the applicable rules and
regulations of the ASE and shall be consistent with Dutch commercial
practice and all applicable rules and regulations of the SEC. Purchaser and
Offer Sub, on the one hand, and the Company, on the other hand, agree to
provide each other and their respective counsel in writing any comments
they may receive from the ASE with respect to the Notice of Offer promptly
after receipt of such comments. Parent, Purchaser, Offer Sub and the
Company agree to use their reasonable best efforts, after consultation with
each other, to respond promptly to all such comments of and requests by the
ASE. Each of Purchaser, Offer Sub and the Company shall provide each other
copies of any written responses and telephonic notification of any verbal
responses to the ASE by it or its counsel. The US Offer Documents and the
Notice of Offer are herein collectively referred to as the "Offer
Documents." The Offer Documents, including the Notice of Offer, shall state
that, subsequent to being tendered, tendered shares (including Shareholder
Shares) may be withdrawn prior to any subsequently scheduled expiration
date to the extent required under the Exchange Act and the rules and
regulations promulgated thereunder.
(c) Parent shall provide or cause to be provided to Offer Sub all
of the funds necessary to (i) purchase any Common Shares that Offer Sub
becomes obligated to purchase pursuant to the Offer and (ii) comply with
its obligations under this Agreement and any of the Ancillary Documents.
1.3. Actions by the Company. (a) The Company hereby approves this
Agreement and recommends and consents to the Offer and represents and
warrants that the Company's Supervisory Board and the Company's Board of
Management (each, a "Board"), at meetings duly called and held, have duly
adopted resolutions: (i) (1) by the Board of Management agreeing to this
Agreement and the other transactions contemplated hereby and (2) by the
Supervisory Board approving the Board of Management's resolution to agree
to enter into this Agreement and the other transactions contemplated hereby
and to recommend the Offer, (ii) determining that this Agreement is
advisable and that the terms of the Offer are fair to, and in the best
interests of, the Company's shareholders and other relevant constituencies,
its Subsidiaries and the enterprises carried on by itself and its
Subsidiaries and (iii) recommending that the Company's shareholders accept
the Offer. The Company further represents, warrants and confirms that the
Boards have received the written opinion of Lazard Freres & Co. LLC (the
"Financial Advisor") that the proposed consideration to be received by the
holders of Common Shares pursuant to the Offer is fair to such holders from
a financial point of view (the "Fairness Opinion"). The Company hereby
represents and warrants that it has been authorized by the Financial
Advisor to permit the inclusion of the Fairness Opinion and references
thereto, subject to prior review and consent by the Financial Advisor in
the Company's Schedule 14D-9. In consultation with the Parent, the Company
shall inform the Trade Unions and request the advice of the Works Councils.
(b) On the date the Offer Documents are filed with the SEC, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended
from time to time, the "Schedule 14D-9") containing the recommendations
described in Section 1.3(a) and shall mail the Schedule 14D-9 to the
shareholders of the Company to the extent required by the Exchange Act. To
the extent practicable, the Company shall cooperate with Purchaser in
mailing or otherwise disseminating the Schedule 14D-9 with the appropriate
Offer Documents to the Company's shareholders. Purchaser and its counsel
shall be given an opportunity to review and comment upon the Schedule 14D-9
prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply
in all material respects with the requirements of the Exchange Act. On the
date filed with the SEC and on the date first published, sent or given to
the Company's shareholders, the Schedule 14D-9 shall not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
except that no representation is made by the Company with respect to
information supplied by Parent, Purchaser or Offer Sub for inclusion in the
Schedule 14D-9. The Company agrees to correct promptly, and each of Parent,
Purchaser and Offer Sub agrees to notify the Company promptly as to, any
information provided by it for use in the Schedule 14D-9 if and to the
extent such information shall have become false or misleading in any
material respect, and the Company further agrees to take all steps
necessary to cause the Schedule 14D-9 as so corrected to be filed with the
SEC and to be disseminated to all of the holders of Common Shares, in each
case as and to the extent required by applicable federal securities Laws.
The Company agrees to provide Purchaser and Offer Sub and their counsel in
writing any comments the Company or its counsel may receive from the SEC or
its staff with respect to the Schedule 14D-9 promptly after the receipt of
such comments. The Company agrees to use its reasonable best efforts, after
consultation with Purchaser, to respond promptly to all such comments of
and requests by the SEC. The Company shall provide Purchaser copies of any
written responses and telephonic notification of any verbal responses by
the Company and its counsel.
(c) In connection with the Offer, the Company shall cause its
transfer agent to furnish, to the extent available, Offer Sub with mailing
labels containing the names and addresses of the record holders of Common
Shares as of a recent date and of those persons becoming record holders
subsequent to such date, together with copies of all lists of shareholders
and security position listings and all other information in the Company's
possession or control regarding the beneficial owners of Common Shares, and
shall furnish to Offer Sub such information and assistance (including
updated lists of shareholders, security position listings and computer
files) as Offer Sub may reasonably request in communicating the Offer to
the Company's shareholders.
1.4. Board Representation. (a) Promptly upon the purchase of
Common Shares representing not less than 51% of the outstanding Common
Shares pursuant to the Offer, the Company shall convene an extraordinary
general meeting of shareholders in accordance with applicable Law for the
election of such number of directors, rounded up to the next whole number,
to serve on the Supervisory Board and the Board of Management of the
Company as will give Offer Sub, subject to compliance with Section 14(f) of
the Exchange Act, representation on the Supervisory Board and the Board of
Management of the Company equal to the product of (i) the total number of
members of each of the Supervisory Board and the Board of Management
(giving effect to the election of any additional members pursuant to this
section) and (ii) the percentage that the number of Common Shares
beneficially owned by Parent, Purchaser and/or Offer Sub (including Common
Shares accepted for payment) bears to the number of Common Shares
outstanding. The Company shall exercise its best efforts to secure the
resignations of such number of members of such Boards as is necessary to
enable Purchaser's designees to be elected and shall cause Purchaser's
designees to be so elected. The Company shall take all action required
pursuant to Section 14(f) of the Exchange Act and Rule 14(f)-1 under the
Exchange Act in order to fulfill its obligations under this Section 1.4 and
shall include in the Schedule 14D-9 or otherwise timely mail to its
shareholders all necessary information to comply therewith. Prior to the
mailing of the Schedule 14D-9 to the Company's shareholders, Parent will
supply to the Company in writing and be solely responsible for any
information with respect to itself and its nominees, officers, directors
and affiliates required by Section 14(f) and Rule 14(f)-1.
(b) Following the election or appointment of Parent's designees
pursuant to Section 1.4(a) and until Parent, directly or indirectly, owns
at least 95% of the outstanding Common Shares of the Company, each of the
Company's Supervisory Board and the Board of Management shall have at least
six members of which at least two members shall be Persons who are members
on the date of this Agreement (the "Continuing Members"); provided that in
the event that the number of Continuing Members shall be reduced below two
for any reason whatsoever, the remaining Continuing Member shall be
entitled to designate persons to fill such vacancies who shall be deemed to
be Continuing Members for purposes of this Agreement. The approval of the
Continuing Members shall be required to authorize (and such authorization
shall constitute the authorization of the respective Boards on which such
Continuing Members serve and no other action on the part of the Company,
including any action by any other Board member of the Company, shall be
required to authorize) any termination of this Agreement by the Company,
any amendment of this Agreement requiring action by the Supervisory Board
and/or the Board of Management, any amendment of the governing instruments
of the Company which would adversely effect the rights of the Company or
its shareholders under the Agreement, any extension of time for performance
of any obligation or action hereunder by Parent, Purchaser or Offer Sub and
any enforcement of or any waiver of compliance with any of the agreements
or conditions contained herein for the benefit of the Company.
ARTICLE 2
2. Post Closing.
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2.1 Post Closing Intentions. Purchaser and Offer Sub intend,
simultaneously with or as soon as possible after the consummation of the
Offer, to effectuate: (i) the commencement of a compulsory acquisition by
Offer Sub of shares of the Company from any remaining minority shareholder
in accordance with Section 2:92a of the Dutch Civil Code (the "DCC") and
(ii) the effectuation by the Company and one or more Dutch Subsidiaries of
Purchaser of a legal merger within the meaning of Section 2:309 of the DCC;
provided that the merger consideration if not payable in cash at the same
price per share as is payable pursuant to the Offer shall provide
equivalent value to such cash amount, and such valuation shall be
supported, if requested by any member of the Board of Management or
Supervisory Board of the Company, by a fairness opinion from an independent
investment banking firm.
2.2. Further Agreements. The Company hereby agrees with Purchaser
that it shall take, effective no earlier than the consummation of the Offer
(but only if upon consummation of the Offer Purchaser will own at least 51%
of the outstanding Common Shares), all actions reasonably necessary or
desirable to accomplish any of the actions referred to in Section 2.1,
including, without limitation, (a) the convening of the necessary meetings
of the shareholders, Board of Management or Supervisory Board of the
Company, (b) the consideration of any and all necessary or desirable
resolutions by the Board of Management or the Supervisory Board of the
Company for the purpose of effectuating any of the transactions
contemplated by Section 2.1 or other transactions contemplated hereby and
(c) the execution of any and all reasonably requested documents, agreements
or deeds that are necessary or desirable to effectuate any of the
transactions contemplated by Section 2.1 or the other transactions
contemplated hereby and the filing or registration of any or all of such
documents, agreements or deeds with the appropriate authorities or
agencies.
ARTICLE 3
3. Representations and Warranties of the Company. The Company
hereby makes the representations, warranties and agreements as are set
forth in Exhibit B to this Agreement (which exhibit is incorporated herein
by reference) to Parent, Purchaser and Offer Sub as of the date of this
Agreement.
ARTICLE 4
4. Representations and Warranties of Parent, Purchaser and Offer
Sub. Parent, Purchaser and Offer Sub hereby jointly and severally make the
representations, warranties and agreements as are set forth in Exhibit C to
this Agreement (which exhibit is hereby incorporated herein by reference)
to the Company as of the date of this Agreement.
ARTICLE 5
5. Covenants.
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5.1. Alternative Proposals. The Company agrees (a) that, between
the date hereof and the consummation of the Offer, neither it nor any of
its Subsidiaries shall, and it shall direct and use its best efforts to
cause its officers, directors, managing directors, employees, agents and
representatives (including, without limitation, any investment banker,
attorney or accountant retained by it or any of its Subsidiaries)
(collectively, "Representatives") not to, initiate, solicit or encourage,
directly or indirectly, any inquiries or the making or implementation of
any proposal or offer (including, without limitation, any proposal or offer
to its shareholders), (i) with respect to a merger, acquisition,
consolidation, recapitalization, business combination or similar
transaction involving, or any purchase of all or any significant portion of
the assets or any equity securities of, the Company or any of its
Subsidiaries (any such proposal or offer being hereinafter referred to as
an "Alternative Proposal") or engage in any negotiations concerning, or
provide any confidential information or data to, afford access to the
properties, books or records of the Company or any of its Subsidiaries to,
or have any discussions with, any Person relating to an Alternative
Proposal, or otherwise facilitate any effort or attempt to make or
implement an Alternative Proposal or any agreement or arrangement requiring
the Company to abandon, terminate or delay the consummation of the Offer or
other transactions contemplated by this Agreement; (b) that it will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with
respect to any of the foregoing, and it will take the necessary steps to
inform such parties of the obligations undertaken in this Section 5.1; and
(c) that it will notify Purchaser promptly of the identity of the potential
acquiror and the terms of such Person's proposal if any such inquiries or
proposals are received by, any such information is requested from, or any
such negotiations or discussions are sought to be initiated or continued
with, the Company; provided, however, that nothing contained in this
Section 5.1 shall prohibit the Company's Supervisory Board or Board of
Management from (i) prior to the acceptance for payment of Common Shares by
Offer Sub pursuant to the Offer, furnishing information to, or entering
into discussions or negotiations with, any Person that makes an unsolicited
bona fide proposal to acquire the Company pursuant to a merger,
consolidation, share exchange, purchase of substantially all of the assets
of the Company, a business combination or other similar transaction, if,
and only to the extent that, (A) such proposal was not initially solicited,
encouraged or knowingly facilitated by the Company, its Subsidiaries or
their Representatives in violation of this Section 5.1, (B) if each Board
determines in good faith, after receiving the advice of its outside
advisors, including outside counsel and others, (i) that such Alternative
Proposal is more favorable from a financial point of view as compared to
the Offer and (ii) failure to furnish such information or enter into such
discussions or negotiations with such Person would violate the Boards'
fiduciary duties, (C) the Boards of the Company determine in good faith in
the exercise of reasonable business judgment that such proposal is likely
to be successfully financed if accepted by shareholders, and (D) prior to
furnishing information to, or entering into discussions or negotiations
with, such person or entity, the Company enters into a confidentiality
agreement with the Person or entity with terms no less favorable to the
Company than the Confidentiality Agreement between Parent and the Company
and provides written notice to Purchaser to the effect that it is
furnishing information to, or entering into discussions or negotiations
with, such Person. The Company shall keep Purchaser reasonably informed of
the status of any such discussions or negotiations (including the identity
of such Person and the terms of any proposal); and (ii) to the extent
applicable, complying with Rule 14e-2(a) promulgated under the Exchange Act
or with applicable Dutch Law with regard to an Alternative Proposal.
Nothing in this Section 5.1 shall (x) permit the Company to terminate this
Agreement (except as specifically provided in Article 6 hereof), (y) permit
the Company to enter into any agreement with respect to an Alternative
Proposal during the term of this Agreement, or (z) affect any other
obligation of the Company under this Agreement.
5.2. Interim Operations. (a) From the date of this Agreement
until the earlier of (x) the date of initial purchase by Offer Sub of
Common Shares pursuant to the Offer and (y) the date of termination of this
Agreement pursuant to Section 6.1 hereof, except as set forth in Section
5.2 of the Company Disclosure Letter, unless Purchaser has consented
thereto (which consent shall not be unreasonably withheld or delayed), the
Company shall, and shall cause its Subsidiaries to, (i) to the extent not
inconsistent with the Company's obligations under any other section of this
Agreement or under any Ancillary Document, conduct its operations according
to its ordinary course of business consistent with past practice; (ii) to
the extent not inconsistent with the Company's obligations under any other
section of this Agreement or under any Ancillary Document, use commercially
reasonable efforts to preserve intact its business organizations and
goodwill, keep available the services of its officers and employees, and
maintain satisfactory relationships with those persons having business
relationships with them; (iii) upon the discovery thereof, promptly notify
Purchaser of the existence of any breach of any representation or warranty
contained herein (or, in the case of any representation or warranty that
makes no reference to Material Adverse Effect, any breach of such
representation or warranty in any material respect) or the occurrence of
any event that would cause any representation or warranty contained herein
no longer to be true and correct (or, in the case of any representation or
warranty that makes no reference to Material Adverse Effect, to no longer
be true and correct in any material respect); (iv) promptly deliver to
Purchaser true and correct copies of any report, statement or schedule
filed with the SEC subsequent to the date of this Agreement; and (v) prior
to the consummation of the Offer cause (x) all outstanding indebtedness for
borrowed money due and payable to the Company or any of the Subsidiaries
from any officers, directors or affiliates thereof to be repaid and (y) all
related notes and instruments of indebtedness to be canceled and terminated
without any cost or penalty to the Company or the Subsidiaries.
(b) From and after the date of this Agreement until the earlier
of (x) the date of initial purchase by Offer Sub of Common Shares pursuant
to the Offer, and (y) the date of termination of this Agreement pursuant to
Section 6.1 hereof, except as set forth in Section 5.2 of the Company
Disclosure Letter or as otherwise required in order for the Company to
comply with its obligations under this Agreement and the Ancillary
Documents, unless Purchaser has consented thereto (which consent shall not
be unreasonably withheld or delayed), the Company shall not, and shall not
permit its Subsidiaries to, (i) amend its articles of association,
certificate of incorporation, bylaws or other organizational documents;
(ii) issue, sell or pledge any shares of its capital shares or other
ownership interest in the Company (other than issuances of Common Shares in
respect of any exercise of share options or conversion of convertible
notes, in either case, outstanding on the date hereof and issuances
disclosed in Section 3.4 of the Company Disclosure Letter) or its
Subsidiaries, or any securities convertible into or exchangeable for any
such shares or ownership interest, or any rights, warrants or options to
acquire or with respect to any such shares of capital shares, ownership
interest, or convertible or exchangeable securities (or derivative
instruments in respect of the foregoing); (iii) effect any share split or
otherwise change its capitalization as it exists on the date hereof; (iv)
grant, confer or award any option, warrant, convertible security or other
right to acquire any shares of its capital shares or take any action to
cause to be exercisable any otherwise unexercisable option under any
existing share option plan (except as otherwise required by the terms of
such unexercisable options); (v) declare, set aside or pay any dividend or
make any other distribution or payment with respect to any shares of its
capital shares or other ownership interests (other than such payments by
any Subsidiary of the Company to another Subsidiary of the Company or to
the Company); (vi) directly or indirectly redeem, purchase or otherwise
acquire any of the Company's capital shares or capital shares of its
Subsidiaries which are not owned by the Company or any Subsidiary of the
Company; (vii) sell, lease or otherwise dispose of any of its assets
(including capital shares of its Subsidiaries), other than the sale or
disposition of inventory or the license of the Company's products, in each
case in the ordinary course of business or the sale, lease or other
disposition of assets which, individually or in the aggregate, are obsolete
or not material to the Company and its Subsidiaries taken as a whole;
(viii) (x) acquire by merger, purchase or any other manner, any business or
entity or (y) otherwise acquire any assets which would be material,
individually or in the aggregate, to the Company and its Subsidiaries taken
as a whole, except for purchases of inventory, supplies or capital
equipment in the ordinary course of business consistent with past practice;
(ix) incur or assume any long-term or short-term debt aggregating in excess
of $1,000,000; (x) assume, guarantee or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the debt or
other obligations of any other Person, other than obligations of its
Subsidiaries or parent entity incurred in the ordinary course of business;
(xi) make or forgive any loans, advances or capital contributions to, or
investments in, any Person other than its Subsidiary or any parent entity;
(xii) grant any share-related or equity performance awards; (xiii) except
as contractually obligated on the date hereof (but only to the extent a
copy of such contract, if written, or a written summary of such contract,
if oral, has previously been provided to Parent) or as otherwise required
under applicable Law, enter into any new employment, severance, consulting
or salary continuation agreements with any officers, directors or employees
or except as contractually obligated on the date hereof (but only to the
extent a copy of such contractual commitment, if written, or a written
summary of such contractual commitment, if oral, has previously been
provided to Parent) or as otherwise required under applicable Law grant any
increases in compensation, benefits to employees or non-equity performance
awards, except for normal merit bonuses or salary increases for non-officer
employees consistent with past practices; (xiv) except to the extent
required by Law, adopt or amend in any material respect any material
employee benefit plan or arrangement; (xv) permit any material insurance
policy naming the Company or any Subsidiary as a beneficiary or a loss
payee to be canceled or terminated other than in the ordinary course of
business; (xvi) settle or compromise any pending or threatened Litigation
for an amount in excess of $1,000,000 for any single matter of Litigation,
or $5,000,000 in the aggregate for all such matters settled or compromised;
(xvii) make any Tax election or settle any Tax liability other than
settlements involving solely the payment of money (without admission of
liability) not to exceed $1,000,000; and (xviii) agree in writing or
otherwise to take any of the foregoing actions; provided, however, that
nothing set forth herein shall prohibit or be deemed to prohibit the
Company or any Subsidiary from agreeing to take any of the foregoing if
such agreement's effectiveness is contingent upon termination of this
Agreement pursuant to Section 6.1 hereof.
5.3. Company Shareholder Approval. Promptly after commencement of
the Offer and publishing of the Notice of Offer, the Company, in accordance
with Chapter 1 of the Dutch Merger Code, shall convene an informational
meeting of shareholders of the Company (the "Informational Meeting") (which
meeting may be combined with the Company's annual general meeting to be
held on June 29, 2000). At the Informational Meeting the Company shall
present a report on the terms and conditions of the Offer, together with
the recommendation of the Company's Boards to shareholders with respect to
the Offer, as required by the Dutch Merger Code.
(b) Purchaser agrees to cause all Common Shares purchased by
Offer Sub pursuant to the Offer and all other Common Shares owned by
Purchaser, Offer Sub or any other Subsidiary or affiliate of Purchaser to
be voted in favor of the approval of any transactions contemplated by this
Agreement.
5.4. Filings; Other Action. Subject to the terms and conditions
herein provided, the Company, Parent, Purchaser, and Offer Sub shall: (a)
use their reasonable best efforts to cooperate with one another in (i)
determining which filings other than under the Exchange Act and under HSR
are required to be made prior to the expiration of the Offer with, and
which consents, approvals, permits or authorizations are required to be
obtained prior to the expiration of the Offer, from Governmental Entities
or other third parties in connection with the execution and delivery of
this Agreement and any other Ancillary Documents and the consummation of
the transactions contemplated hereby and thereby and (ii) timely making all
filings under the Exchange Act and under HSR and all such other filings and
timely seek all required consents, approvals, permits, authorizations and
waivers; and (b) use their reasonable best efforts to take, or cause to be
taken, all other action and do, or cause to be done, all other things
necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement.
5.5. Access to Information. (a) From the date of this Agreement
until the consummation of the Offer, the Company shall, and shall cause its
Subsidiaries to, upon reasonable advance notice to the Company, during
ordinary business hours, to the extent legally permitted (i) give Purchaser
and its authorized Representatives full access to all books, records,
personnel, offices and other facilities and properties of the Company and
its Subsidiaries and their accountants and accountants' work papers, (ii)
permit Purchaser to make such copies and inspections thereof as Purchaser
may reasonably request and (iii) furnish Purchaser with such financial and
operating data and other information with respect to the business and
properties of the Company and its Subsidiaries as Purchaser may from time
to time reasonably request; provided that no investigation or information
furnished pursuant to this Section 5.5 shall affect any representation or
warranty made herein by the Company or the conditions to the obligations of
Purchaser to consummate the transactions contemplated by this Agreement.
Purchaser shall notify the Company without delay if it becomes aware of a
breach of any representation or warranty. Notwithstanding the foregoing,
the Company shall not be required to provide any information which it
reasonably believes it may not provide to Purchaser by reason of applicable
Law, which constitutes information protected by attorney/client privilege,
or which the Company or any Subsidiary is required to keep confidential by
reason of contract, agreement or understanding with third parties entered
into prior to the date hereof; provided that the Company gives the
Purchaser notice of the fact that it is withholding information pursuant to
this Section 5.5(a).
(b) All information provided pursuant to Section 5.5(a) shall be
subject to the terms and conditions of the letter agreement, dated as of
March 24, 2000, between Parent and the Company (the "Confidentiality
Agreement").
5.6. Publicity. The initial press release relating to this
Agreement shall be issued jointly by the Company and Parent pursuant to the
Dutch Merger Code. Thereafter, subject to their respective legal
obligations, the Company and Parent shall consult with each other, and use
reasonable efforts to agree upon the text of any press release, before
issuing any such press release or otherwise making public statements with
respect to the transactions contemplated hereby and in making any filings
with any Governmental Entity or with any national securities exchange with
respect thereto.
5.7. Employee Share Purchase Plan. The Company shall take such
permitted actions as are reasonably necessary to prohibit any additional
offerings or sales of Common Shares under the Company's employee share
purchase plans after the date hereof.
5.8. Board Member and Officer Liability. (a) Following the
consummation of the Offer, Parent, Purchaser and Offer Sub shall cause the
governing instruments of the Company to contain provisions with respect to
indemnification substantially to the same effect as those set forth in the
governing instruments of the Company on the date hereof, which provisions
shall not be amended, modified or otherwise repealed for a period of six
years after the consummation of the Offer in any manner that would
adversely affect the rights thereunder as of the date of consummation of
the Offer of individuals who on the date of consummation of the Offer were
members of the Boards, officers, employees or agents of the Company, unless
such modification is required after the date of consummation of the Offer
by applicable Law.
(b) Parent shall cause the Company, to the fullest extent
permitted under applicable Law or under the Company's governing instruments
or any indemnification agreement in effect as of the date hereof, to
indemnify and hold harmless, each present and former member of the Boards,
officer or employee of the Company or any of its Subsidiaries
(collectively, the "Indemnified Parties") against any costs or expenses
(including attorneys' fees), judgments, fines, losses, claims, damages,
liabilities and amounts paid in settlement in connection with any claim,
action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, (x) arising out of or pertaining to the
transactions contemplated by this Agreement or (y) otherwise with respect
to any acts or omissions occurring at or prior to the date of consummation
of the Offer, to the same extent as provided in the Company's governing
instruments or any applicable contract or agreement as in effect on the
date hereof, in each case for a period of six years after the date hereof.
In the event of any such claim, action, suit, proceeding or investigation
(whether arising before or after the date of consummation of the Offer) and
subject to the specific terms of any indemnification contract, (i) after
the date of consummation of the Offer, the Company shall pay the reasonable
fees and expenses of any counsel retained by the Indemnified Parties,
promptly after statements therefore are received and (ii) the Company shall
cooperate in the defense of any such matter; provided, however, that in the
event that any claim or claims for indemnification are asserted or made
within such six-year period, all rights to indemnification in respect of
any such claim or claims shall continue until the disposition of any and
all such claims; and, provided, further, that any determination to be made
with respect to whether an Indemnified Party's conduct complies with the
standards set forth under the applicable Law, the Company's governing
instruments or any such agreement, as the case may be, shall be made by
independent legal counsel, which shall be selected by such Indemnified
Party and reasonably acceptable to Parent.
(c) In addition, the Company shall provide, for a period of not
less than six years after the date of consummation of the Offer, the
Company's current directors and officers insurance and indemnification
policy that provides coverage for events occurring at or prior to the date
of consummation of the Offer (the "D&O Insurance") that is no less
favorable than the existing policy or, if substantially equivalent
insurance coverage is unavailable, the best available coverage; provided,
however, that the Company shall not be required to pay an annual premium
for the D&O Insurance in excess of one hundred seventy-five percent (175%)
of the annual premium currently paid by the Company for such insurance, but
in the case the Company is required to expend amounts for annual premiums
in excess of the Company's current expenditures, it shall, subject to such
175% limitation, purchase as much of such coverage as possible for such
amount; in no event, however, shall the Company be required to provide
coverage in excess of current coverage.
(d) This Section shall survive the consummation of the Offer, is
intended to benefit the Indemnified Parties, shall be binding on all
successors and assigns of the Parent, Purchaser, Offer Sub and the Company
and shall be enforceable by the Indemnified Parties. Purchaser shall cause
the Company to comply with the provisions of Section 5.8.
5.9. Works Councils. In the event the negative advice referred to
in clause (i) of Exhibit A is given, Parent and the Company shall use good
faith efforts for a period of one month to convert the Works Councils'
negative advice to a positive advice. In the event that the Works Councils
shall not have so converted their advice to positive advice during such one
month period, the Company shall be entitled to withdraw or modify its
approval or recommendation in favor of this Agreement and so advise the
Company's shareholders and to terminate this Agreement; provided, however,
that nothing contained in this Section 5.9 shall limit Purchaser's rights
under Article 6 after such one-month period expires.
5.10. Standstill and Termination Agreement. The Company hereby
acknowledges and agrees that the Standstill and Termination Agreement has
served as a significant inducement to each of Parent, Purchaser and Offer
Sub to enter into this Agreement and to undertake the transactions
contemplated herein. Accordingly, the Company agrees that it will not
modify, amend or waive any provision of the Standstill and Termination
Agreement or otherwise release FIL from any provision or obligation
thereunder (or, prior to December 31, 2000, enter into any understanding,
commitment or undertaking to do the same), without in all cases, the
express prior written consent of Parent. The provisions of this Section
5.10 shall survive the expiration or termination of this Agreement and
shall remain in effect until December 31, 2000, unless this Agreement is
terminated for any reason other than pursuant to (a) Section 6.1(c) or (b)
Section 5.9, so long, in the case of this clause (b), as the Offer remains
outstanding.
5.11 Interim Financing.
-----------------
Parent, Purchaser and Offer Sub hereby agree that if prior to the
consummation of the Offer the Company requests permission to incur new
indebtedness, Parent, Purchaser and Offer Sub will consider such request in
good faith.
ARTICLE 6
6. Termination.
-----------
6.1. Termination. This Agreement may be terminated at any time
prior to the consummation of the Offer:
(a) by mutual written consent of the Company and Purchaser;
(b) by Purchaser or the Company:
(i) if the consummation of the Offer shall not have occurred
on or before December 31, 2000 (provided that the right to
terminate this Agreement pursuant to this clause (i) shall not be
available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of or resulted in the
failure of the consummation of the Offer to occur on or before
such date);
(ii) if there shall be any Law that makes consummation of
the Offer illegal or prohibited, or if any court of competent
jurisdiction or other Governmental Entity shall have issued an
order, judgment, decree or ruling, or taken any other action
restraining, enjoining or otherwise prohibiting consummation of
the Offer and such order, judgment, decree, ruling or other
action shall have become final and non-appealable; or
(iii) if the Offer terminates or expires on account of the
failure of any condition specified in Exhibit A without Offer Sub
having purchased any Common Shares thereunder (provided that the
right to terminate this Agreement pursuant to this clause (iii)
shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of or resulted
in the failure of any such condition);
(c) by the Company if there is an Alternative Proposal which each
Board determines, in good faith after receiving the advice of its outside
advisors, including outside counsel and others that, (i) such Alternative
Proposal is more favorable from a financial point of view as compared to
the Offer and (ii) the failure to accept such Offer and terminate this
Agreement would violate each Board's fiduciary duties; provided, however,
that the right to terminate this Agreement pursuant to this Section 6.1(c)
shall not be available (i) if the Company has breached in any material
respect its obligations under Section 5.1, or (ii) if, prior to or
concurrently with any purported termination pursuant to this Section
6.1(c), the Company shall not have paid the Termination Fee contemplated by
Section 6.2, or (iii) if the Company has not provided Purchaser and Offer
Sub with five business days prior written notice of its intent to so
terminate this Agreement and delivered to Purchaser and Offer Sub a copy of
the written agreement embodying the Alternative Proposal in its then most
definitive form; and provided further that the Company may not approve or
recommend approval of an Alternative Proposal unless it complies with its
obligations hereunder and terminates this Agreement pursuant to this clause
(c); and
(d) by Purchaser if either of the Management and Supervisory
Boards shall have failed to recommend, or shall have withdrawn, modified or
amended its approval or recommendation of the Offer, or shall have approved
or recommended acceptance of any Alternative Proposal, or shall have
resolved to do any of the foregoing.
6.2. Effect of Termination and Abandonment. In the event of
termination of this Agreement and the abandonment of the Offer pursuant to
this Article 6, all obligations of the parties hereto shall terminate,
except the obligations of the parties pursuant to this Section 6.2 and
Sections 5.5(b), 5.6, 5.10 (to the extent provided for therein), 7.5 and
7.6. If this Agreement is terminated pursuant to Section 6.1(b)(iii) as a
result of the occurrence of the condition set forth in paragraph (e) of
Exhibit A, or pursuant to Section 6.1(c), then the Company shall
concurrently with any such termination, (a) pay to Purchaser a fee equal to
22,800,000 euros (the "Termination Fee"). In addition, if an Alternative
Proposal shall have been made known to the Company or shall have been made
directly to the shareholders of the Company generally or shall have
otherwise become publicly known or any Person shall have publicly announced
an intention (whether or not conditional) to make an Alternative Proposal
and thereafter this Agreement is terminated:
(i) by Purchaser pursuant to Section 6.1(d), or
(ii) by either Purchaser or the Company pursuant to (x) Section
6.1(b)(i) or (y) Section 6.1(b)(iii) as a result of the failure
of the Minimum Condition to be satisfied prior to the expiration
of the Offer (unless, in each case, more than 51% of the
outstanding Common Shares have been tendered and not withdrawn),
or
(iii) by the Company pursuant to Section 5.9.
then the Company shall pay the Termination Fee; provided, however, that the
Termination Fee shall not be payable to Purchaser pursuant to this
sentence, unless, and until, within 12 months of such termination any
Alternative Proposal is consummated, in which event the Termination Fee
shall be payable upon such consummation. The parties agree that if this
Agreement is terminated in circumstances under which Purchaser is entitled
to the Termination Fee, and such Termination Fee is in fact paid, such
Termination Fee shall be Parent's, Purchaser's and Offer Sub's exclusive
remedy for any loss, liability, damage or claim arising out of or in
connection with any such termination of this Agreement. If the Agreement is
terminated for any other reason, the parties shall be entitled to legal or
equitable relief to the extent allowed by Law. The Company acknowledges
that the agreements contained in this Section 6.2 are an integral part of
the transactions contemplated by this Agreement, and that, without these
agreements, Parent, Purchaser and Offer Sub would not enter into this
Agreement.
6.3. Amendment. To the extent permitted by applicable Law, this
Agreement may be amended by action taken by or on behalf of its Supervisory
Board and Board of Management of the Company and Parent and Purchaser
jointly at any time. This Agreement may not be amended except by an
instrument in writing signed on behalf of all of the parties.
6.4. Extension; Waiver. At any time prior to the consummation of
the Offer, any party hereto, by action taken by its Board of Management,
Supervisory Board or board of directors, may, to the extent legally
allowed, (a) extend the time for the performance of any of the obligations
or other acts of the other parties hereto (except that the Offer may be
extended only in accordance with its terms), (b) waive any inaccuracies in
the representations and warranties made to such party contained herein or
in any document delivered pursuant hereto and (c) waive compliance with any
of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension
or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
ARTICLE 7
7. General Provisions.
------------------
7.1. Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement, or in any instrument
delivered pursuant to this Agreement, shall survive the initial purchase by
Offer Sub of Common Shares pursuant to the Offer.
7.2. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date of receipt and shall be delivered personally
or mailed by registered or certified mail (postage prepaid, return receipt
requested), sent by overnight courier or sent by facsimile, to the
applicable party at the following addresses or facsimile numbers (or at
such other address or telecopy number for a party as shall be specified by
like notice):
If to Parent, Purchaser or Offer Sub: If to the Company:
Invensys plc Baan Company N.V.
Carlisle Place 2191 Xxx Xxxx Xxxx
Xxxxxx, XX0X 0XX Xxxxx 000
Xxxxxx Xxxxxxx Xxxxxxx, XX 00000
Facsimile: 00 000 000-0000 Facsimile: (000) 000-0000
Attention: General Counsel Attention: General Counsel
With a copy to: With a copy to:
Xxxxx, Xxxxx, Harris, Paul, Weiss, Rifkind, Xxxxxxx
Xxxxxxx & Xxxxxxxx & Xxxxxxxx
One New York Plaza 1285 Avenue of the Americas
New York, New York 10004-1980 Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx Attention: Xxxxxx X. Xxxxxxx
7.3. Assignment; Binding Effect. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto (whether by operation of Law or otherwise) without
the prior written consent of the other parties; provided, however, that
either Purchaser or Offer Sub (or both) may assign its rights hereunder
(including, without limitation, the right to make the Offer and/or to
purchase Common Shares pursuant to the Offer) to a wholly owned Subsidiary
of Purchaser; and, provided further, that nothing shall relieve the
assignor from its obligations hereunder. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this
Agreement, expressed or implied, is intended to confer on any Person other
than the parties hereto or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
7.4. Entire Agreement. This Agreement, the Confidentiality
Agreement, the Company Disclosure Letter, the exhibits, the Ancillary
Documents and any other documents delivered by the parties in connection
herewith constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and
understandings among the parties with respect thereto.
7.5. Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the Laws of the State
of New York without regard to its rules of conflict of Laws. Each of the
Company, Parent, Purchaser and Offer Sub hereby irrevocably and
unconditionally consents to submit to the jurisdiction and venue of the
United States District Court for the Southern District of New York or any
court of the State of New York located in the County of New York (the "New
York Courts") for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to
commence any litigation relating thereto except in such courts), waives any
objection to the laying of venue of any such litigation in the New York
Courts and agrees not to plead or claim in any New York Court that such
litigation brought therein has been brought in an inconvenient forum.
7.6. Fees and Expenses. Whether or not the Offer is consummated,
all fees, costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring
such fees, costs and expenses.
7.7. Certain Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "affiliate" of a Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, the first mentioned Person.
(b) "Dutch Law" means the laws of The Netherlands, including
the Dutch Merger Code, and the notes and regulations of the ASE.
(c) "knowledge" of any party hereto shall mean the actual
knowledge of any of the executive officers of that party.
(d) "Law" means any law, statute, ordinance, rule,
regulation, order, judgment or decree, whether promulgated by The
Netherlands, the United States or another country or by any Governmental
Entity.
(e) "Person" means an individual, corporation, partnership,
limited liability company, association, trust, unincorporated organization,
entity or group (as defined in the Exchange Act).
(f) "Subsidiary" when used with respect to any Person means
any corporation or other organization or entity, whether incorporated or
unincorporated, (i) of which such Person or any other Subsidiary of such
party is a general partner or (ii) at least a majority of the securities or
other interests of which having by their terms ordinary voting power to
elect a majority of the board or directors, management board or supervisory
board or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or
controlled by such Person or by any one or more of its Subsidiaries, or by
such Person and one or more of its Subsidiaries.
7.8. Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given
no substantive or interpretive effect whatsoever. The table of contents
contained in this Agreement is for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
7.9. Interpretation. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all
genders and words denoting natural persons shall include corporations and
partnerships and vice versa. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be understood to be
followed by the words "without limitation."
7.10. Waivers. No action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking such
action of compliance with any representations, warranties, covenants or
agreements contained in this Agreement or in any of the Ancillary
Documents. The waiver by any party hereto of a breach of any provision
hereunder shall not operate or be construed as a waiver of any prior or
subsequent breach of the same or any other provision hereunder.
7.11. Severability. If any of the provisions of this Agreement
are incapable of being performed as a result of applicable Dutch Law, the
rules of the ASE or Dutch commercial practice, the parties shall in good
faith negotiate alternative provisions that reflect the intent of the
parties in entering into this Agreement, provided, that the parties agree
to amend this Agreement to the extent necessary to comply with applicable
Dutch Law or the rules of the ASE.
7.12. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which, when so executed and
delivered, shall be an original. All such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a
number of copies hereof, each signed by less than all, but together signed
by all, of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement and
caused the same to be duly delivered on their behalf on the day and year
first written above.
INVENSYS PLC
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Attorney in Fact
INVENSYS HOLDINGS B.V. I.O.
By: INVENSYS PLC, its intended owner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Attorney in Fact
INVENSYS B.V. I.O.
By: INVENSYS PLC, its intended owner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Attorney in Fact
BAAN COMPANY N.V.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Interim CEO
EXHIBIT A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer, Offer Sub shall not
be required to accept for payment or pay for, subject to any applicable
rules and regulations of the SEC, including Rule 14e-1(c) of the Exchange
Act, any Common Shares not theretofore accepted for payment or paid for and
may terminate or amend the Offer as to such Common Shares unless (i) there
shall have been validly tendered and not withdrawn prior to the expiration
of the Offer that number of Common Shares which would represent at least
95% of the outstanding Common Shares (the "Minimum Condition") and (ii) any
waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and any applicable mandatory waiting periods under any
applicable non-U.S. Laws, in each case, applicable to the purchase of
Common Shares pursuant to the Offer shall have expired or been terminated.
Furthermore, notwithstanding any other term of the Offer or this Agreement,
Offer Sub shall not be required to accept for payment or, subject as
aforesaid, to pay for any Common Shares not theretofore accepted for
payment or paid for, and may terminate or amend the Offer if at any time on
or after the date of this Agreement and before the acceptance of such
Common Shares for payment or the payment therefor, any of the following
conditions shall exist or occur and remain in effect:
(a) there shall have been instituted and pending any
litigation by any Governmental Entity or Person (other than, with
respect to any litigation brought by a Person (other than a
Governmental Entity), any such action or proceeding in which a motion
for a temporary restraining order, a preliminary injunction or a
permanent injunction shall have been denied or shall have expired, or
a judicial order granting any such temporary restraining order,
preliminary injunction or permanent injunction shall have been
reversed on appeal and not reinstated), that seeks to: (i) challenge
the acquisition by Purchaser or Offer Sub (or any of its affiliates)
of Common Shares pursuant to the Offer or restrain, prohibit the
making or consummation of the Offer, (ii) impose limitations on the
ability of Purchaser or Offer Sub (or any of their affiliates)
effectively to acquire or hold, or to require Purchaser, Offer Sub or
the Company or any of their respective affiliates or Subsidiaries to
dispose of or hold separate, any material portion of their assets or
the business of any one of them, (iii) impose limitations on the
ability of Purchaser, Offer Sub or their affiliates to exercise full
rights of ownership of the Common Shares purchased by it, including,
without limitation, the right to vote the shares purchased by it on
all matters properly presented to the shareholders of the Company;
provided, that, if such litigation is by a Person other than a
Governmental Entity, such litigation is reasonably likely to have a
Material Adverse Effect or of materially and adversely affecting the
likelihood of consummation of the Offer; or
(b) there shall have been promulgated, enacted, entered,
enforced or deemed applicable to the Offer, by any Governmental Entity
any Law that would reasonably be expected to result in any of the
consequences referred to in subsection (a) above; or
(c) this Agreement shall have been terminated in accordance
with its terms; or
(d) (i) any of the representations and warranties made by
the Company in this Agreement (which shall for purposes of this clause
(d) be interpreted without giving effect to any materiality or
Material Adverse Effect qualification contained in such representation
or warranty) shall not have been true and correct in all respects when
made, or shall thereafter have ceased to be true and correct in all
respects as if made at the scheduled or extended expiration of the
Offer (except to the extent that any such representation or warranty
refers specifically to another date, in which case such representation
or warranty shall be true and correct in all respects as of such other
date), except to the extent that any such failure to be true and
correct, individually and in the aggregate with all such other
failures, would not have a Material Adverse Effect or (ii) the Company
shall have materially breached or failed to comply in any material
respect with any of its material obligations under this Agreement
except to the extent that any such breach or failure to comply,
individually or in the aggregate with all such other breaches or
failures, would not have a Material Adverse Effect; or
(e) any corporation, entity, "group" or "person" (as defined
in the Exchange Act), other than Purchaser or Offer Sub, shall have
acquired beneficial ownership of a majority of the outstanding Common
Shares; or
(f) the Company's Supervisory Board or Board of Management
shall have modified or amended its recommendation of the Offer in any
manner adverse to Purchaser or Offer Sub or shall have withdrawn its
recommendation of the Offer or shall have approved or recommended
acceptance of any Alternative Proposal or shall have resolved to do
any of the foregoing; or
(g) since the date of the Offer Agreement, any change or
event shall have occurred which, individually or in the aggregate, has
had, or is reasonably likely to have, a Material Adverse Effect; or
(h) the parties shall have not received clearance of the
European Union Merger Task Force; or
(i) the Works Councils of the Company and/or its
Subsidiaries shall have given a negative advice with respect to the
recommendation of the Boards in connection with the Offer contemplated
by this Agreement and has initiated legal proceedings in the relevant
Dutch courts to prevent the consummation of the transactions
contemplated by this Agreement.
The parties agree that the foregoing conditions may be asserted
by Purchaser or Offer Sub regardless of the circumstances (excluding any
action or inaction by Parent, Purchaser or Offer Sub) giving rise to any
such condition and may be waived by Purchaser or Offer Sub, in whole or in
part, at any time and from time to time, in the reasonable discretion of
Purchaser. The failure by Purchaser or Offer Sub at any time to exercise
any of the foregoing rights will not be deemed a waiver of any right, the
waiver of such right with respect to any particular facts or circumstances
shall not be deemed a waiver with respect to any other facts or
circumstances, and each right will be deemed an ongoing right which may be
asserted at any time and from time to time.
Should the Offer be terminated pursuant to the foregoing
provisions, all tendered shares of Common Share not theretofore accepted
for payment shall promptly be returned by the depositary to the tendering
Shareholders.
EXHIBIT B
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
3.1. Existence; Good Standing; Corporate Authority. The Company
and each of its Subsidiaries is (i) a corporation or other entity duly
organized, validly existing and in good standing under the Laws of its
jurisdiction of incorporation or organization and (ii) is duly licensed or
qualified to do business as a foreign corporation and is in good standing
under the Laws of any jurisdiction in which the character of the properties
owned or leased by it or in which the transaction of its business makes
such qualification necessary, except where the failure to be so qualified
or to be in good standing would not have and would not be likely to have,
individually or in the aggregate, a material adverse effect on the
business, operations, results of operations, assets, or financial condition
of the Company and its Subsidiaries taken as a whole (the foregoing, other
than those which are the result of general conditions in the economy as a
whole or generally present in the industry of the Company and its
Subsidiaries and those resulting from the matters set forth in the Company
Disclosure Letter or previously disclosed in writing to Parent, being a
"Material Adverse Effect"). Each of the Company and each of its
Subsidiaries has all requisite corporate or other power and authority to
own or lease and operate its properties and carry on its business as now
conducted. The copy of the articles of association of the Company included
in Section 3.1 of the disclosure letter, dated as of the date hereof,
delivered by the Company to Purchaser (the "Company Disclosure Letter") is
a true, complete and correct copy of the Company's articles of association
as currently in effect. The Company's principal place of business is: Baron
Xxx Xxxxxxxxxxxx 00, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx. The articles of
association last amended on April 20, 1999 and included in Section 3.1 of
the Disclosure Letter have not been modified or amended since that date.
3.2. Authorization, Validity and Effect of Agreements. The
Company has the requisite corporate power and authority to execute and
deliver this Agreement and all agreements and documents contemplated hereby
(the "Ancillary Documents") and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated hereby and thereby have been duly and validly authorized by
the Company's Supervising Board and Board of Management, and no other
corporate proceedings on the part of the Company are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby (other
than the holding of the Informational Meeting prior to the closing of the
Offer or any Shareholder vote required by a transaction contemplated under
Section 2.2). This Agreement has been, and any Ancillary Document at the
time of execution will have been, duly and validly executed and delivered
by the Company, and (assuming this Agreement and such Ancillary Documents
each constitutes a valid and binding obligation of Parent, Purchaser and
Offer Sub) constitutes and will constitute the valid and binding
obligations of the Company, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium or other
similar Laws relating to creditors' rights and general principles of
equity.
3.3. Compliance with Laws. Except as set forth in Section 3.3 of
the Company Disclosure Letter, neither the Company nor any of its
Subsidiaries is in violation of any order of any national, federal,
provincial, state or local judicial, legislative, executive, administrative
or regulatory body or authority or any court, arbitration board or
tribunal, whether of The Netherlands, the United States, or another country
("Governmental Entity"), or any Law applicable to the Company or its
Subsidiaries or any of their respective properties or assets, except where
the failure to be in compliance, individually or in the aggregate, would
not have or be likely to have a Material Adverse Effect.
3.4. Capitalization, etc. The authorized capital shares of the
Company consists of 700,000,000 Common Shares. As of the date hereof, (a)
267,337,252 Common Shares are outstanding, (b) no Common Shares and no
preferred shares are held by the Company in its treasury, (c) no Common
Shares or preferred shares of the Company are held by the Company's
Subsidiaries, and (d) no preferred shares of the Company are outstanding.
Section 3.4 of the Company Disclosure Letter sets forth a complete and
accurate list, as of the date hereof, of (i) the number of outstanding
options (individually, an "Option" and collectively the "Options")
outstanding under any share option plan adopted or assumed by the Company
or otherwise outstanding and issued to an employee, director, consultant or
advisor of the Company or any of its Subsidiaries, (ii) the number of
Common Shares which can be acquired upon the exercise of all outstanding
Options, (iii) the number of Common Shares and preferred shares which are
reserved for issuance upon the exercise of outstanding Options and the
number of shares which are reserved for future grants under any share
option plan adopted or assumed by the Company, and (iv) the exercise price
of each outstanding Option. Except as set forth in Section 3.4 of the
Company Disclosure Letter, the Company has no outstanding bonds,
debentures, notes or other obligations entitling the holders thereof to
vote (or which are convertible into or exercisable for securities having
the right to vote) with the shareholders of the Company on any matter.
Except as set forth in Section 3.4 of the Company Disclosure Letter, since
March 31, 2000, the Company (i) has not issued any Common Shares other than
upon the exercise of Options, (ii) has granted no Options to purchase
Common Shares under share option plans, or (iii) has not split, combined or
reclassified any of its shares of capital shares. All issued and
outstanding Common Shares are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights. Except as set forth above in
this Section 3.4 or in Section 3.4 of the Company Disclosure Letter, there
are no other shares of capital shares or voting securities of the Company,
and no existing options, warrants, calls, subscriptions, convertible
securities, and no share appreciation rights or limited share appreciation
rights or other rights (including rights of first refusal), agreements or
commitments which obligate the Company or any of its Subsidiaries to issue,
transfer or sell any shares of capital shares of, or equity interests in,
or any material assets of, the Company or any of its Subsidiaries. There
are no outstanding obligations of the Company or any Subsidiaries to
repurchase, redeem or otherwise acquire any shares of capital shares of the
Company and there are no performance awards outstanding under the share
option plan or any other outstanding shares related awards. There are no
voting trusts or other agreements or understandings to which the Company or
any of its Subsidiaries is a party with respect to the voting of capital
shares of the Company or any of its Subsidiaries.
3.5. Subsidiaries. Except as set forth in Section 3.5 of the
Company Disclosure Letter, the Company owns, directly or indirectly, all of
the outstanding shares of capital shares or other equity interest of each
Subsidiary of the Company. All of the outstanding shares of capital shares
or other equity interests of each Subsidiary are duly authorized, validly
issued, fully paid and nonassessable, and are owned, directly or
indirectly, by the Company free and clear of all liens, pledges, security
interests, claims or other encumbrances ("Encumbrances"). Section 3.5 of
the Company Disclosure Letter sets forth for each of the Company's
principal operating Subsidiaries (the "Principal Operating Subsidiaries")
and each non-wholly owned Subsidiary: its name and jurisdiction of
incorporation or organization and the Company's, direct or indirect,
ownership interest in each Principal Operating Subsidiary and non-wholly
owned Subsidiary. Except for the Company's direct or indirect interests in
the Subsidiaries or as set forth in Section 3.5 of the Company Disclosure
Letter, neither the Company nor any of its Subsidiaries owns directly or
indirectly any interest or investment (whether equity or debt) in any
Person, joint venture, or business.
3.6. No Violation. Except as set forth in Section 3.6 of the
Company Disclosure Letter, neither the execution and delivery by the
Company of this Agreement nor the consummation by the Company of the
transactions contemplated hereby or thereby will: (i) violate, conflict
with or result in a breach of any provision of the articles of association,
certificate of incorporation, or other organizational document of the
Company or any Principal Operating Subsidiary; (ii) violate, conflict with,
result in a breach of any provision of, constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default)
under, result in the termination or in a right of termination of,
accelerate the performance required by or benefit obtainable under, result
in the triggering of any payment or other obligations pursuant to, result
in the creation of any Encumbrance upon any of the properties of the
Company or any of its Subsidiaries under, or result in there being declared
void, voidable, or without further binding effect, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of
trust or any license, franchise, permit, lease, contract, agreement or
other instrument, commitment or obligation to which the Company or any of
its Subsidiaries is a party, or by which the Company or any of its
Subsidiaries or any of their respective properties is bound (each, a
"Contract" and, collectively, "Contracts"), except for any of the foregoing
matters specified in this clause (ii) which, individually or in the
aggregate, would not have or be likely to have a Material Adverse Effect or
prevent or delay or be likely to prevent or delay the consummation of the
transactions contemplated hereby; (iii) other than (a) the filings provided
for in Section 1.3, (b) the filings required under the Exchange Act and
under the Xxxx-Xxxxx Xxxxxx Antitrust Improvements Act of 1976, as amended,
and the rules and regulations thereunder ("HSR"), and (c) European Union
competition law, require any consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Entity, the lack
of which, individually or in the aggregate, would have or be likely to have
a Material Adverse Effect or, prevent or delay the consummation of the
transactions contemplated hereby; or (iv) violate any Laws applicable to
the Company, any of its Subsidiaries or any of their respective assets,
except for violations which individually or in the aggregate would not have
or be likely to have a Material Adverse Effect or materially adversely
affect or be likely to materially adversely affect the ability of the
Company to consummate the transactions contemplated hereby.
3.7. Company Reports; Offer Documents. (a) The Company has filed
all required reports, schedules, forms, statements (information,
registration or otherwise) and documents required to be filed by it with
the SEC since June 30, 1998 (including exhibits and any amendments thereto
and any voluntary reports on Form 6-K, the "Company Reports"). As of their
respective dates, and except as set forth in Section 3.7 of the Company
Disclosure Letter or as previously disclosed in writing to Parent, the
Company Reports (i) complied as to form in all material respects with the
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the Exchange Act, and the rules and regulations
thereunder and (ii) did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements made therein, in the light of the circumstances
under which they were made, not misleading, and except as set forth in
Section 3.7 of the Company Disclosure Letter or as previously disclosed in
writing to Parent, as of the date hereof there is no fact not disclosed in
the Company Reports which is related to the Company and which individually
or in the aggregate has or is likely to have a Material Adverse Effect.
Each of the consolidated balance sheets of the Company included in the
Company Reports filed by the Company with the SEC on Form 6-K on April 26,
2000, and Form 20-F on June 2, 1999 (including the related notes and
schedules) fairly presented the consolidated financial position of the
Company and its Subsidiaries as of its date, and each of the consolidated
statements of operations, cash flows and shareholders' equity of the
Company included in or incorporated by reference into the Company Reports
(including the related notes and schedules) fairly presented the results of
operations, cash flows and shareholders' equity of the Company and its
Subsidiaries for the periods set forth therein, in each case in accordance
with generally accepted accounting principles as applied in the United
States consistently applied during the periods involved, except as may be
noted therein and except that the unaudited interim financial statements
(x) are subject to normal year-end adjustments that have not been and are
not expected to be material in amount and (y) do not contain all of the
footnote disclosures required by generally accepted accounting principles.
Except as set forth in Section 3.7 of the Company Disclosure Letter or as
previously disclosed in writing to Parent, neither the Company nor any of
its Subsidiaries has any material liabilities or obligations, contingent or
otherwise, except (i) liabilities and obligations in the respective amounts
reflected or reserved against in the Company's consolidated balance sheet
as of March 31, 2000 included in the Company Reports (the "Balance Sheet")
or (ii) liabilities and obligations incurred in the ordinary course of
business since March 31, 2000 which individually or in the aggregate would
not have or be likely to have a Material Adverse Effect.
(b) None of the Schedule 14D-9 or any schedule required to be
filed by the Company with SEC or the Stichting Toezicht Effectenverkeer
("STE") or any amendment or supplement thereto, at the respective times
such documents are filed with the SEC or STE or are first published, sent
or given to the Company's shareholders, will contain any untrue statement
of a material fact or will omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading except
that no representation is made by the Company with respect to information
supplied by Parent, Purchaser or Offer Sub specifically for inclusion in
any such schedule or report or any amendment or supplement. None of the
information supplied or to be supplied by the Company in writing
specifically for inclusion or incorporation by reference in the Offer
Documents will, at the date of filing with the SEC, or at the date first
published, sent or given to the Company's shareholders or STE, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. If at any time prior to the consummation of the Offer the
Company shall obtain knowledge of any facts with respect to itself, any of
its officers and directors or any of its Subsidiaries that would require
the supplement or amendment to any of the foregoing documents filed by the
Company in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or to comply with
applicable Laws, such amendment or supplement shall be promptly filed with
the SEC and STE and, as required by Law, disseminated to the shareholders
of the Company, and in the event Purchaser shall advise the Company as to
its obtaining knowledge of any facts that would make it necessary to
supplement or amend any of the foregoing documents filed by the Company,
the Company shall promptly amend or supplement such document as required
and distribute the same to its shareholders. The Company will promptly
notify the Purchaser if it obtains knowledge of any facts with respect to
the Company, any of its officers or officials or any of its Subsidiaries
that would require the supplement or amendment of any Offer Document
prepared or filed by Purchaser or Offer Sub.
(c) The Company is a "foreign private issuer" within the meaning
of Rule 3b-4 of the Exchange Act and, to the Company's knowledge after
making appropriate inquiry, "U.S. holders" within the meaning of Rule
14d-1(d) do not hold more than 40% of the Common Shares.
3.8. Litigation. Except as set forth in the Company Reports or as
previously disclosed in writing to Parent or in Section 3.8 of the Company
Disclosure Letter, there are no claims, actions, suits, proceedings,
arbitrations, investigations or audits (collectively, "Litigation") pending
or, to the knowledge of the Company, threatened against the Company or any
of its Subsidiaries, at Law or in equity, or before or by any Governmental
Entity, other than those in the ordinary course of business that,
individually or in the aggregate, would not have or be likely to have a
Material Adverse Effect nor does the Company or any of its Subsidiaries
have knowledge of any facts or circumstances that it believes would be
likely to form the basis for any such claims, actions, suits, proceedings,
arbitrations, investigations or audits. Except as set forth in the Company
Reports or as previously disclosed in writing to Parent or in Section 3.8
of the Company Disclosure Letter, no Governmental Entity has indicated in
writing an intention to conduct any audit, investigation or other review
with respect to the Company or any of its Subsidiaries which investigation
or review, if adversely determined, individually or in the aggregate, would
have or be likely to have a Material Adverse Effect.
3.9. Absence of Certain Changes. Except as set forth in the
Company Reports or in Section 3.9 of the Company Disclosure Letter, since
March 31, 2000, the Company and its Subsidiaries have conducted their
business only in the ordinary course of such business consistent with past
practices, and there has not been (i) any event or state of fact that,
individually or in the aggregate, would have or be likely to have a
Material Adverse Effect; (ii) any declaration, setting aside or payment of
any dividend or other distribution with respect to its capital share or any
repurchase, redemption or any other acquisition by the Company or its
Subsidiaries of any outstanding shares of capital share or other securities
of, or other ownership interests in, the Company or any of its
Subsidiaries; (iii) any change in accounting principles, practices or
methods; (iv) any entry into any employment agreement with, or any increase
in the rate or terms (including, without limitation, any acceleration of
the right to receive payment) of compensation payable or to become payable
by the Company or any of its Subsidiaries to, their respective directors,
officers or employees, except (x) increases occurring in the ordinary
course of business in accordance with their customary practices or (y)
employment agreements entered into in the ordinary course of business
which, in either case, would be permitted under Section 5.2 of this
Agreement if effected or entered into the date hereof; (v) any increase in
the rate or terms (including, without limitation, any acceleration of the
right to receive payment) of any bonus, insurance, pension or other
employee benefit plan or arrangement covering any such directors, officers
or employees, except as set forth in the employment contracts, copies of
which have been previously provided to Parent and except increases
occurring in the ordinary course of business in accordance with its
customary practices or which would be permitted under Section 5.2 of this
Agreement if granted after the date hereof; (vi) any entry into any
Contracts or transaction by the Company or any Subsidiary which is material
to the Company and its Subsidiaries taken as a whole not in the ordinary
course of business; or (vii) any revaluation by the Company or any of its
Subsidiaries of any of their respective assets, including, without
limitation, write-downs of inventory or write-offs of accounts receivable
other than in the ordinary course of business consistent with past
practices.
3.10. Taxes. The Company and its Subsidiaries have timely
filed (taking into account extensions) all material Tax Returns required to
be filed by any of them. All such Tax Returns are true, correct and
complete, except for such instances which individually or in the aggregate
would not have or be likely to have a Material Adverse Effect. Except as
would not have a Material Adverse Effect and except for those Taxes being
contested in good faith and for which adequate reserves have been
established in the financial statements included in the Company Reports in
accordance with generally accepted accounting principles as applied in the
United States, the Company and its Subsidiaries have paid all Taxes
required to be paid by any of them or claimed or asserted by any taxing
authority to be due. There is no action, suit, claim or assessment pending
with respect to Taxes which, if upheld, would, individually or in the
aggregate, have a Material Adverse Effect. The Company and its Subsidiaries
have withheld and paid over to the relevant taxing authority all Taxes
required to have been withheld and paid in connection with payments to
employees, independent contractors, creditors, shareholders or other third
parties, except for such Taxes which, individually or in the aggregate,
would not have a Material Adverse Effect.
For purposes of this Agreement, (A) "Tax" (and, with correlative meaning,
"Taxes") means any federal, state, local or foreign income, gross receipts,
property, sales, use, license, excise, franchise, employment, payroll,
premium, withholding, alternative or added minimum, ad valorem, transfer or
excise tax, or any other tax, custom, duty, governmental fee or other like
assessment or charge of any kind whatsoever, together with any interest or
penalty, imposed by any Governmental Entity, and (B) "Tax Return" means any
return, report or similar statement required to be filed with respect to
any Tax (including any attached schedules), including, without limitation,
any information return, claim for refund, amended return or declaration of
estimated Tax.
3.11. Employee Benefit Plans.
----------------------
(a) Dutch Plans.
-----------
(i) Since March 31, 2000, the terms of employment of
the Company's and its Subsidiaries' key employees have not changed, except
for such changes which would not individually or in the aggregate have a
Material Adverse Effect. The Company is under no obligation to change, the
terms of employment of any employees and has not announced any such change,
except for such changes which would not individually or in the aggregate
have a Material Adverse Effect.
(ii) The Company and its Subsidiaries have joined one
or more pension funds, or have taken insurance, or have made a provision
which is reflected in the 1999 Balance Sheet in accordance with applicable
Dutch Law, from which the Company's and its Subsidiaries' obligations
vis-a-vis their present or former employees in respect of pensions
including early retirement can be fully paid, such payment, where it
concerns pension funds or insurance, being based on premiums paid prior to
the date of this Agreement, except to the extent that failure to do so
would not have a Material Adverse Effect.
(b) U.S. Plans. The representations set forth in this
Section 3.11(b) are true, complete and accurate statements of the facts and
circumstances addressed therein, except for such omitted or inaccurate
facts or circumstances which, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect.
(i) Section 3.11 of the Company Disclosure Letter sets
forth a list of all "employee benefit plans," as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and all other material employee benefit or compensation arrangements,
including, without limitation, any such arrangements providing severance
pay, sick leave, vacation pay, salary continuation for disability,
retirement benefits, deferred compensation, bonus pay, incentive pay, share
options (including those held by directors, employees, and consultants),
hospitalization insurance, medical insurance, life insurance, scholarships
or tuition reimbursements (and including any commitment or obligation
arising under the Laws of any U.S. or non-U.S. jurisdiction, whether or not
subject to ERISA), that are maintained by the Company or any of its
Subsidiaries or to which the Company or of its Subsidiaries is obligated to
contribute thereunder for current or former U.S. directors, U.S. employees,
U.S. independent contractors, U.S. consultants and U.S. leased employees of
the Company or any Company Subsidiary (the "Company Employee Benefit
Plans").
(ii) None of the Company Employee Benefit Plans is a
"multiemployer plan," as defined in Section 4001(a)(3) of ERISA (a
"Multiemployer Plan") or a plan subject to Title IV of ERISA, and neither
the Company nor any of its Subsidiaries presently maintains or has
maintained any such plan, or has any liability, contingent or otherwise,
with respect to any such plan.
(iii) Neither the Company nor its Subsidiaries maintain
or contribute to any plan or arrangement which provides or has any
liability to provide life insurance or medical or other employee welfare
benefits to any employee or former employee upon his retirement or
termination of employment, and neither the Company nor its Subsidiaries has
ever represented, promised or contracted (whether in oral or written form)
to any employee or former employee that such benefits would be provided.
(iv) The execution of, and performance of the
transactions contemplated in, this Agreement will not, either alone or upon
the occurrence of subsequent events, result in any payment (whether of
severance pay or otherwise), acceleration, forgiveness of indebtedness,
vesting, distribution, increase in benefits or obligation to fund benefits
with respect to any employee, and there are no severance agreements or
severance policies applicable to the Company or any of its Subsidiaries. No
payment or benefit which will or may be made by the Company, Parent or any
of their Subsidiaries or affiliates with respect to any employee of the
Company or any of its Subsidiaries will be characterized as an "excess
parachute payment" within the meaning of Section 280G(b)(1) of the Code.
(v) (A) Each Company Employee Benefit Plan that is
intended to qualify under Section 401 of the Internal Revenue Code of 1986,
as amended (the "Code"), and each trust maintained pursuant thereto, has
been determined to be exempt from federal income taxation under Section 501
of the Code by the Internal Revenue Service, and to the Company's
knowledge, nothing has occurred with respect to the operation or
organization of any such Company Employee Benefit Plan that would cause the
loss of such qualification or exemption or the imposition of any material
liability, penalty or tax under ERISA or the Code, (B) there are no pending
material actions, claims, investigations or lawsuits which have been
asserted, instituted or, to the Company's knowledge, threatened, in
connection with the Company Employee Benefit Plans, (C) no "prohibited
transaction" involving the Company or any Subsidiary (within the meaning of
Section 4975 of the Code or Section 406 of ERISA) has occurred with respect
to any Company Employee Benefit Plan, and (D) the Company Employee Benefit
Plans have been maintained in all material respects in accordance with
their terms and with all provisions of ERISA and the Code (including rules
and regulations thereunder) and all other applicable federal and state Laws
and regulations.
(vi) Neither the Company nor any of its Subsidiaries
has made any payment or is obligated to make any payment that is not or
will not be fully deductible under Section 162(m) of the Code, nor is the
Company or any of its Subsidiaries a party to any agreement that could
result in any such payment.
(vii) Section 3.11 of the Company Disclosure Letter
sets forth a complete list of plans or arrangements providing for payments
or other awards to any of the 10 most highly compensated officers or
employees of the Company in connection with a "change of control" of the
Company.
(viii) Other than the Subsidiaries, there is no
business or entity which is a member of the same "controlled group of
corporations," under "common control" or an "affiliated service group" with
the Company within the meanings of Sections 414(b), (c) or (m) of the Code,
or required to be aggregated with the Company under Section 414(o) of the
Code, or is under "common control" with the Company, within the meaning of
Section 4001(a)(14) of ERISA, or any regulations promulgated or proposed
under any of the foregoing Sections.
3.12. Labor and Employment Matters.
----------------------------
(a) Dutch Matters.
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(i) Section 3.12 of the Company Disclosure Letter lists
all collective agreements which apply to the Company or its employees. The
Company has, at all times, duly performed all of its obligations vis-a-vis
any employee, party to a collective agreement or works council or other
employee-representation body and arising from Dutch Law or any collective
agreement or employment contract except to the extent that failure to have
so performed would not, individually or in the aggregate, have a Material
Adverse Effect.
(ii) Section 3.12 of the Company Disclosure Letter sets
forth all works councils and other employee-representation bodies which, by
Dutch Law or under any collective agreement, have the right to be informed
or consulted on subjects which affect the Company's and its Subsidiaries'
employees.
(b) U.S. Matters. Except as set forth in Section 3.12
of the Company Disclosure Letter, neither the Company nor any of its
Subsidiaries is a party to, or bound by, any collective bargaining
agreement or other Contracts or understanding with a United States based
labor union or United States based labor organization. Except for such
matters which, individually or in the aggregate, would not have or be
reasonably likely to have a Material Adverse Effect and, there is no (i)
unfair labor practice, labor dispute (other than routine individual
grievances) or labor arbitration proceeding pending or, to the knowledge of
the Company, threatened against the Company or any of its Subsidiaries
relating to their business, (ii) activity or proceeding by a labor union or
representative thereof to organize any employees of the Company or any of
its Subsidiaries, or (iii) lockouts, strikes, slowdowns, work stoppages or
threats thereof by or with respect to such employees. The Company is in
compliance with all Laws regarding employment, employment practices, terms
and conditions of employment and wages and Laws, except for such
noncompliance which, either individually or in the aggregate, would not
have or be likely to have a Material Adverse Effect.
3.13. Brokers. Except for the Financial Advisor and except as
disclosed in Section 3.13 of the Company Disclosure Letter, no broker,
finder or financial advisor is entitled to any brokerage, finder's or other
fee or commission in connection with the transactions contemplated by this
Agreement that is based upon any arrangement made by or on behalf of the
Company. The Company's fee arrangements with the Financial Advisor have
been disclosed to Purchaser.
3.14. Intellectual Property Rights. Each item of Company
Intellectual Property which is a material patent, patent application,
trademark, trademark application, copyright registration, mask work
registration, mask work application, license, sublicense, agreement or
permission is set forth in Section 3.14 of the Company Disclosure Letter.
Except as set forth in Section 3.14 of the Company Disclosure Letter or
except as would not have a Material Adverse Effect, (i) except for licenses
and sublicenses in the ordinary course of business of the Company and the
Subsidiaries, the Company and its Subsidiaries possess sufficient right, or
all title and interest in and to the Company Intellectual Property used in
the conduct of the business as currently conducted, free and clear of any
Encumbrance, license or other restriction, and all registered patents,
trademarks, service marks and copyrights listed in Section 3.14 of the
Company Disclosure Letter are valid and subsisting and in full force and
effect; (ii) Company Intellectual Property is all the Intellectual Property
that is necessary for the ownership, maintenance and operation of the
properties and assets of the Company and its Subsidiaries necessary for the
conduct of the business of the Company and the Subsidiaries as currently
conducted, and the consummation of the transactions contemplated hereby
will not alter or impair any such rights; (iii) to the knowledge of the
Company, the operations of the business of the Company and its Subsidiaries
have not, and the continued operation of their businesses as presently
conducted and as presently proposed to be conducted do not and will not,
interfere with, infringe upon, misappropriate or otherwise come into
conflict with any Intellectual Property rights of third parties, and the
Company and its Subsidiaries have not received any written charge,
complaint, claim, demand or notice so alleging (including any claim that
the Company or any of its Subsidiaries must license or refrain from using
any Intellectual Property rights of any third party); (iv) to the knowledge
of the Company, no third party has interfered with, infringed upon,
misappropriated or otherwise come into conflict with any Company
Intellectual Property; and (v) during the last 3 years, the Company has not
been a party to any action, suit, proceeding or hearing, nor to the
knowledge of the Company, is any such action, suit, proceeding or hearing
threatened which challenges the legality, validity, enforceability, use or
ownership of any Company Intellectual Property.
"Company Intellectual Property" means (a) all inventions (whether
patentable or unpatentable and whether or not reduced to practice), all
improvements thereon, and all patents, patent applications and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions and reexaminations thereof,
(b) all trademarks, service marks, trade dress, logos, trade names, domain
names, and corporate names, together with all translations, adaptations,
derivations and combinations thereof and including all goodwill associated
therewith, and all applications, registrations and renewals in connection
therewith, (c) all copyrightable works, all copyrights and all
applications, registrations and renewals in connection therewith, (d) all
mask works and all applications, registrations and renewals in connection
therewith, (e) all trade secrets and confidential business information
(including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques,
methods, schematics, technology, technical data, designs, drawings,
flowcharts, block diagrams, specifications, customer and supplier lists,
pricing and cost information and business and marketing plans and
proposals), (f) all computer software (including data and related
documentation), (g) all other proprietary rights, (h) all copies and
tangible embodiments of the foregoing categories of intellectual property
listed in subsections (a) through (g) herein (in whatever form or medium),
and (i) all licenses, sublicenses, agreements, or permissions related to
the foregoing categories of intellectual property listed in subsections (a)
through (g) herein (categories (a) through (i) herein are collectively
referred to as "Intellectual Property") which is used, has been used, or is
proposed to be used in connection with the business of the Company and its
Subsidiaries.
3.15. Permits. The Company and its Subsidiaries are in possession
of all franchises, grants, authorizations, licenses, permits, easements,
variances, exceptions, consents, certificates, approvals and orders of any
court, governmental or regulatory authority necessary for the Company and
its Subsidiaries to own, lease and operate its properties or to lawfully
conduct their respective businesses as presently conducted (the "Company
Permits"), except where the failure to have any of the Company Permits,
individually or in the aggregate, would not have or be likely to have a
Material Adverse Effect. As of the date hereof, no suspension or
cancellation of any of the Company Permits is pending or, to the knowledge
of the Company threatened, except where the suspension or cancellation of
any of the Company Permits, individually or in the aggregate, would not
have or be likely to have a Material Adverse Effect.
3.16. Environmental Matters. (a) Except as set forth in the
Company Reports filed prior to the date hereof and as would not,
individually or in the aggregate, have a Material Adverse Effect:
(i) the Company and each of its Subsidiaries has at all
times been operated, and is, in compliance with all applicable
Environmental Laws, and neither the Company nor any of its Subsidiaries, to
its knowledge, has received any written communication from any Person or
Governmental Entity that alleges that the Company or any of its
Subsidiaries is not in compliance with applicable Environmental Laws;
(ii) the Company and each of its Subsidiaries has obtained
or has applied for all applicable environmental, health and safety permits,
licenses, variances, approvals and authorizations required under
Environmental Laws (collectively, "Environmental Permits") necessary for
the conduct of its operations, and such Environmental Permits are in effect
or, where applicable, a renewal application has been timely filed, and the
Company and its Subsidiaries are in compliance with all terms and
conditions of such Environmental Permits;
(iii) there is no Environmental Claim pending or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries;
(iv) to the knowledge of the Company, there have been no
Releases of any Hazardous Materials that would be reasonably likely to form
the basis of any Environmental Claim against the Company, any of its
Subsidiaries or any predecessor thereof; and
(v) none of the properties currently owned, leased or
operated, or, to the knowledge of the Company, formerly owned, leased or
operated, by the Company, its Subsidiaries or any predecessor thereof, are
now, or were in the past, listed on the National Priorities List of
Superfund Sites, any analogous state list or any database listing sites for
the purpose of investigation under Environmental Laws.
(b) For purposes of this Agreement:
(i) "Environmental Claim" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, information
requests, directives, claims, liens, investigations, proceedings or notices
of noncompliance, violation or status as a potentially responsible Person
or otherwise liable party by any Person (including any Governmental Entity)
relating to or alleging potential liability (including, without limitation,
potential responsibility for or liability for enforcement, investigatory
costs, cleanup costs, response costs, removal costs, natural resources
damages, property damages, personal injuries or penalties) relating to (A)
the presence, or Release or threatened Release into the environment, of any
Hazardous Materials at any location; or (B) circumstances forming the basis
of any violation or alleged violation of any Environmental Law; or (C) any
and all claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief relating
to any Environmental Laws.
(ii) "Environmental Laws" means all applicable Laws, rules,
requirements, regulations and judicial or administrative opinions, orders
or decrees, and any common Law causes of action, in each case relating to
pollution, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or
protection of human or employee health or safety including, without
limitation, Laws and regulations relating to Releases of Hazardous
Materials.
(iii) "Hazardous Materials" means (A) any petroleum or any
by-products or fractions thereof, asbestos or asbestos-containing
materials, urea formaldehyde foam insulation, any form of natural gas,
explosives, polychlorinated biphenyls, radioactive materials, ionizing
radiation or electromagnetic field radiation; (B) any chemicals, materials
or substances which are included in the definition of "wastes," "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely
hazardous substances," "toxic substances," "toxic pollutants,"
"pollutants," "contaminants," or words of similar import under any
Environmental Law; and (C) any other chemical, material or substance,
regulated under any Environmental Law.
(iv) "Release" means any release, spill, emission, leaking,
injection, deposit, disposal, discharge, dispersal, leaching or migration
into the environment (including without limitation ambient air, atmosphere,
soil, surface water, groundwater or property).
3.17. Title to Assets. The Company and its Subsidiaries have good
and marketable title to all of their real and personal properties and
assets reflected in the 1999 Balance Sheet (other than assets disposed of
since March 31, 2000 in the ordinary course of business, and properties and
assets acquired since March 31, 2000), in each case free and clear of all
Encumbrances except for (i) liens for Taxes accrued but not yet payable;
(ii) liens arising as a matter of Law in the ordinary course of business
with respect to obligations incurred after the date of the Balance Sheet,
provided that the obligations secured by such liens are not delinquent; and
(iii) such imperfections of title and Encumbrances, if any, as would not
have or be likely to have a Material Adverse Effect. The Company and its
Subsidiaries own, or have valid leasehold interests in, all properties and
assets used in the conduct of their business except where the failure to
have any such interest would not, individually or in the aggregate, have a
Material Adverse Effect. Any real property and other assets held under
lease by the Company or any of its Subsidiaries are held under valid,
subsisting and enforceable leases with such exceptions which, individually
or in the aggregate, would not and would not be likely to have a Material
Adverse Effect.
3.18. Insurance Policies. The Company and its Subsidiaries have
obtained and maintained in full force and effect insurance with insurance
companies or associations in such amounts, on such terms and covering such
risks, as is customarily carried by reasonably prudent persons conducting
businesses or owning or leasing assets similar to those conducted, owned or
leased by the Company, except where the failure to obtain or maintain such
insurance, individually or in the aggregate, would not have or be likely to
have a Material Adverse Effect.
3.19. Material Contracts. Section 3.19 of the Company Disclosure
Letter sets forth a list of all Contracts
(a) for borrowed money or guarantees thereof involving a
current outstanding principal amount in excess of $1,000,000 (or any other
currency equivalent);
(b) containing non-compete covenants by the Company or its
Subsidiaries except for those non-compete covenants that individually or in
the aggregate are not material to the conduct of the business of the
Company and its Subsidiaries taken as a whole as currently conducted;
(c) with any of (i) FIL, (ii) any holder of 5% or more of
the Common Shares, (iii) any affiliate of the foregoing and (iv) any
officer, director or affiliate of the Company, other than, in the case of
Persons covered by clauses (ii), (iii) and (iv), wholly owned Subsidiaries
or Persons covered by clause (d) of this Section 3.19;
(d) with any of Blizzard Brothers, Vanenburg Group B.V.
(f.k.a., Vanenburg Ventures B.V.), or Vanenburg Business Systems or any of
their affiliates, except for any such contracts that individually or in the
aggregate are not material to the Company or copies of which, if written,
or written summaries of which, if oral, have previously been delivered to
Parent; and
(e) with 10 of the most significant customers of the Company
(measured by fiscal 1999 revenues), or
(f) relating to or providing for the issuance of any equity
securities which equity securities were not issued as of March 31, 2000
(other than option agreements with employees). Schedule 3.19(f) lists all
of the Company's option plans, as amended to the date hereof, all of which
have been previously delivered to Parent. No grant under the plans listed
on Schedule 3.19(f) materially differs from the standard terms of the plan
under which such grant was made or from the form of option agreement
attached to the plan under which such grant was made, except for such
grants and deviations as set forth on Schedule 3.19(f).
All Contracts to which the Company or any of its Subsidiaries is a party,
or by which any of their respective assets are bound, are valid and
binding, in full force and effect and, to the Company's knowledge,
enforceable against the parties thereto in accordance with their respective
terms, except where the failure to be so valid and binding, in full force
and effect or enforceable, individually or in the aggregate, would not have
or be likely to have a Material Adverse Effect. There is not under any such
Contract, any existing default, or event, which after notice or lapse of
time, or both, would constitute a default, by the Company or any of its
Subsidiaries, or to the Company's knowledge, any other party, other than
any such defaults or events which, individually or in the aggregate, would
not have or be likely to have a Material Adverse Effect.
3.20. Opinion of Financial Advisor. The Company has received the
written opinion of the Financial Advisor to the effect that, as of the date
hereof, the consideration to be received by the holders of Common Shares
pursuant to the Offer is fair to such holders from a financial point of
view.
3.21. Anti-Takeover Statutes. The Board of Management of the
Company has authorized the execution, delivery and performance of this
Agreement and the Board of Management of the Company, with the approval of
the Supervisory Board of the Company has recommended that shareholders
accept the Offer by Parent for all of the outstanding Common Shares. To the
Company's knowledge, no statute or regulation intended to prohibit or
restrict "takeovers" applies to the Offer or the transactions contemplated
hereby.
3.22. Required Vote of Company Shareholders. No vote of the
shareholders of the Company is required to adopt this Agreement, and to
approve the Offer.
3.23. Year 2000 Compliance; Euro Compliance. (a) The computer
systems of the Company and its Subsidiaries are Year 2000 Compliant and
Euro Compliant except where the failure to be so compliant would not have a
Material Adverse Effect. All inventory, products and independently
developed applications of the Company and its Subsidiaries that is,
consists of, includes or uses computer software is Year 2000 Compliant and
Euro Compliant except where the failure to be so compliant would not have a
Material Adverse Effect. To the knowledge of the Company, any failure on
the part of the customers of and suppliers to the Company and its
Subsidiaries to be Year 2000 Compliant will not have or be likely to have a
Material Adverse Effect.
(b) The term "Year 2000 Compliant", with respect to a computer
system or software program, means that such computer system or program: (i)
is capable of recognizing, processing, managing, representing, interpreting
and manipulating correctly date-related data for dates earlier and later
than January 1, 2000; (ii) has the ability to provide date recognition for
any data element without limitation; (iii) has the ability to function
automatically into and beyond the year 2000 without human intervention and
without any change in operations associated with the advent of the year
2000; (iv) has the ability to interpret data, dates and time correctly into
and beyond the year 2000; (v) has the ability not to produce noncompliance
in existing data, nor otherwise corrupt such data, into and beyond the year
2000; (vi) has the ability to process correctly after January 1, 2000, data
containing dates before that date; and (vii) has the ability to recognize
all "leap year" dates, including February 29, 2000.
(c) The term "Euro Compliant", with respect to a computer system
or software program, means that such computer system or program contain
Euro functionality enabling companies to process multiple currencies and
address the requirements of Euro compliance.
EXHIBIT C
REPRESENTATIONS AND WARRANTIES
OF PARENT, PURCHASER AND OFFER SUB
4.1. Existence; Good Standing; Corporate Authority. Parent is and
each of Purchaser and Offer Sub upon organization will be, a corporation
duly incorporated, validly existing and in good standing under the Laws of
its jurisdiction of incorporation with all requisite corporate power and
authority to own, operate and lease its properties and carry on its
business as now conducted, except where the failure to have such power and
authority, individually or in the aggregate, would not materially adversely
affect the ability of Parent, Purchaser and Offer Sub to consummate the
transactions contemplated hereby and by the Ancillary Documents.
4.2. Authorization, Validity and Effect of Agreements. Parent has
and each of Purchaser and Offer Sub will have the requisite corporate power
and authority to execute and deliver this Agreement and the Ancillary
Documents and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the Ancillary
Documents and the consummation by Parent, Purchaser and Offer Sub of the
transactions contemplated hereby and thereby have been (or in the case of
Purchaser and Offer Sub will be) duly and validly authorized by the
respective boards of directors of Parent and the Boards of Purchaser and
Offer Sub and by Purchaser as the sole shareholder of Offer Sub and no
other corporate proceedings on the part of Parent, Purchaser or Offer Sub
are (or in the case of Purchaser and Offer Sub will be) necessary to
authorize this Agreement and the Ancillary Documents or to consummate the
transactions contemplated hereby and thereby. This Agreement has been, and
any Ancillary Documents to which Parent, Purchaser or Offer Sub is a party
at the time of execution will have been (or in the case of Purchaser and
Offer Sub will be), duly and validly executed and delivered by Parent,
Purchaser or Offer Sub, as applicable, and (assuming this Agreement and
such Ancillary Documents each constitutes a valid and binding obligation of
the Company) constitutes and will constitute the valid and binding
obligations of Parent, Purchaser or Offer Sub, as applicable, enforceable
in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar Laws relating to
creditors' rights and general principles of equity.
4.3. No Violation. Neither the execution and delivery of this
Agreement or any of the Ancillary Documents by Parent, Purchaser or Offer
Sub, nor the consummation by them of the transactions contemplated hereby
or thereby, will (i) violate, conflict with or result in any breach of any
provision of the respective memorandum and articles of association or the
articles of association of Parent, Purchaser or Offer Sub; (ii) other than
(a) the filings required under the Exchange Act and HSR, and (b) European
Union competition law, require any consent, approval or authorization of,
or declaration, filing or registration with, any Governmental Entity, the
lack of which, individually or in the aggregate, would have or be likely to
have a material adverse effect on the ability of Parent, Purchaser or Offer
Sub to consummate the transactions contemplated hereby, or (iii) violate
any Laws applicable to Parent, Purchaser or Offer Sub or any of their
respective assets, except for violations which, individually or in the
aggregate, would not have or be likely to have a material adverse effect on
the ability of Parent, Purchaser or Offer Sub to consummate the
transactions contemplated hereby.
4.4. Operations of Purchaser and Offer Sub. Each of Purchaser and
Offer Sub will be formed solely for the purpose of engaging in the
transactions contemplated hereby and has engaged in no other business
activities.
4.5. Financing. At the consummation of the Offer, Parent will
cause Offer Sub to have funds available to it sufficient to consummate the
Offer on the terms contemplated hereby and Parent shall cause Purchaser and
Offer Sub to perform all their obligations hereunder.
4.6. Offer Documents. None of the Offer Documents, at the
respective times such documents are filed with the SEC or are first
published, sent or given to the Company's shareholders, will contain any
untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading except that no representation is made by the Parent, Purchaser,
and Offer Sub with respect to information supplied by the Company
specifically for inclusion in the Offer Documents. None of the information
supplied or to be supplied by Parent, Purchaser, and Offer Sub in writing
specifically for inclusion or incorporation by reference in the Schedule
14D-9 will, at the date of filing with the SEC, or at the date first
published, sent or given to the Company's shareholders, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
