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EXHIBIT 5.1
GERMAN MASTER AGREEMENT
DATED NOVEMBER 22, 1999
BETWEEN THE UNDERSIGNED:
VALTECH S.A., a French societe anonyme with a share capital of FRF 4,089,390
having its registered office at Immeuble Lavoisier - Quartier Gambetta, 0 Xxxxx
xxx Xxxxxx, Xx Xxxxxxx X, 00000 Courbevoie, France, registered at the Commercial
and Companies Registry of Nanterre, under the number 389 665 167, represented by
Xx. Xxxxxxx Cavrel, duly authorized for the purposes hereof,
hereinafter referred to as "VALTECH S.A." or the "PURCHASER"
OF THE ONE PART,
AND
OBJECTSHARE, INC., a U.S. corporation with a share capital of 12,470,863 shares,
having its registered office at 00000 Xxxx Xxxxxx, Xxxxx X, Xxxxxx, Xxxxxxxxxx
00000, U.S.A., represented by Xx. Xxxxx-Xxxxxx acting under a power of attorney
a certified copy of which is set out on SCHEDULE (i) as granted by ObjectShare's
Chief Executive Officer, Xx. Xxxxxx Xxxx.
hereinafter referred to as "OBJECTSHARE" or the "SELLER"
OF THE OTHER PART,
Valtech S.A. and ObjectShare shall hereinafter be referred to jointly as the
"PARTIES" and individually a "PARTY".
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WHEREAS
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A. Valtech S.A. is a listed company on the Nouveau Marche and carries out
a business of project management in the computer field and, in
particular, provides training and consulting services.
B. ObjectShare has two wholly-owned European subsidiaries:
- ObjectShare GmbH, a German corporation (hereinafter called the
"Company"), having its registered corporate seat at Munich
with office at Xxxxxxxxx Xxxxxxx 00, X-00000 Xxxxxxxxxxx,
registered with the Commercial Register of the Local Court
Munich under HRB 101275, and which has a registered nominal
share capital of DM 100,000.00 consisting of one share in the
same amount. The Company carries out its business in the
computer field and in particular consulting and training
services in Smalltalk software. The Company has a wholly-owned
subsidiary in Switzerland, ObjectShare AG (hereinafter called
the "Subsidiary"), a Swiss corporation having its registered
office at x/x Xxxxxxx Xxxxxxx, Xxxxxxxxx xxx. 000, XX-0000
Xxxxxx.
- ObjectShare (U.K.) Limited, an English corporation
(hereinafter called the "English Company"), having its
registered office at Waverly House, Farnham Business Park,
Xxxxxx Xxxx, Xxxxxxx, XXXXXX XX0 0XX, and which carries out
its business in the computer field and in particular
consulting and training services in Smalltalk software.
C. ObjectShare wishes to sell (i) the Share to Valtech S.A. and Valtech
S.A. wishes to purchase such Share upon the terms and conditions set
forth herein and (ii) the shares of the English Company to Valtech
(U.K.) Limited (hereinafter called "Valtech U.K."), a wholly-owned
subsidiary of Valtech S.A. and Valtech U.K. wishes to purchase such
shares. These two transactions are interdependent and shall be
performed simultaneously.
D. It is agreed between the Parties that the contemplated sale of the
Share is subject to the simultaneous transfer by ObjectShare of the
whole of its shares in the English Company to Valtech U.K. for a price
of USD 560,000 (the "English Price").
E. The Price referred to in Article 2.1 below and the English Price have
been reduced by an aggregate amount of USD 150,000 representing a bonus
of a total amount of USD 150,000 (the "Bonus") to be shared between the
employees of respectively the Company, the English Company and the
Subsidiary that ObjectShare has undertaken to pay and that will be paid
after Closing by Valtech U.K. and Valtech S.A.
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DEFINITIONS
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For the purposes of this Agreement, the following words and phrases shall have
the following meanings, respectively:
"AGREEMENT" shall mean the present master agreement.
"AUDITOR" shall mean Ernst & Young.
"BALANCE SHEET DATE" shall mean March 31, 1999.
"BONUS" shall mean a bonus of a total amount of USD 150,000 to be shared between
the employees of respectively the Company, the English Company and the
Subsidiary that ObjectShare has undertaken to pay and that will be paid after
Closing by Valtech U.K. and Valtech S.A.
"CLOSING DATE" shall mean the date of the fulfillment of the last of the
conditions precedent referred to in Article 3 below and in any case, no later
than November 24, 1999.
"COMPANY" shall mean ObjectShare GmbH.
"DM" shall mean Deutsche Marks.
"ENCUMBRANCE" shall mean any encumbrance or security interest whatsoever
including (without limitation) any charge, mortgage, floating charge, pledge,
assignment in security, lien, right of Redemption, option, right to acquire,
conversion right, third party right, interest and claim, right of set off, right
of counterclaim, title retention, conditional sale agreement, trust arrangement
and any other preferential right, agreement or arrangement having similar
effect.
"ENGLISH COMPANY" shall mean ObjectShare (U.K.) Limited.
"ENGLISH CONTRACT" shall mean the agreement between ObjectShare and Valtech U.K.
for the acquisition by the latter of the whole of the shares of the English
Company.
"ENGLISH PRICE" shall mean the price agreed by and between ObjectShare and
Valtech U.K. for the purchase and sale of the whole of its shares in the English
Company to Valtech U.K. for a price of USD 560,000 (the "English Price").
"FRF" shall mean French Francs.
"FINANCIAL STATEMENTS" shall mean the balance sheet, profit and loss account,
together with annexed documents of the Company and the Subsidiary as
consolidated on March 31, 1999, and annexed as SCHEDULE 6.1.4.1.
"INTERIM FINANCIAL STATEMENTS" shall mean the balance sheets and profit and loss
statements of the Company and the Subsidiary on October 31, 1999, not audited
nor certified by the Auditors of the Company, and annexed as Schedule 6.1.4.1.
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"MANAGING DIRECTOR" OR "MANAGING DIRECTORS" shall mean the Geschaftsfuhrer of
the Company.
"OBJECTSHARE" shall mean ObjectShare, Inc., a Delaware corporation.
"PRICE" shall mean the price agreed by and between ObjectShare and Valtech S.A.
for the purchase and sale of the Share which shall be USD 1,040,000.
"PURCHASER" shall mean Valtech S.A..
"RIGHTS" shall mean patents, trademarks, trade names, copyrights, logos,
designs, software and other intellectual property rights used by the Company and
the Subsidiary, a list of which is attached on SCHEDULE 6.1.10.1.
"SHARE" shall mean the sole share in the nominal amount of DM 100,000.00 in the
Company.
"SIGNATURE DATE" shall mean the date upon which the Parties hereto enter into
this Agreement.
"SUBSIDIARY" shall mean the Company's wholly-owned Swiss subsidiary, i.e.
ObjectShare A.G..
"TERRITORY" shall mean United Kingdom of Great Britain, Germany and Switzerland.
"USD" shall mean United States Dollars.
"VALTECH U.K." shall mean Valtech (U.K.) Limited.
"YEAR 2000 COMPLIANT" shall mean that neither performance nor functionality is
affected by dates, prior to, during and after the year 2000, for the purposes of
Article 6.1.19.
"POUND STERLING" shall mean Pound Sterling.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. SALE AND PURCHASE
1.1 ObjectShare shall sell and transfer and Valtech S.A. or a nominee shall
purchase and accept transfer of the Share in accordance with the terms
and conditions of this Agreement together with all rights now or
hereafter attaching thereto.
1.2. Valtech S.A. will have title to the Share and all rights and dividends
related thereto and will be subrogated in all rights and obligations
related to the Share as from the Closing Date.
1.3. The Parties are aware that due to the obligation under subArticle 1.1
the whole Agreement is void and unenforceable under German Law until
the transfer of the Share
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has been notarized. The parties therefore will give their best efforts
to conclude the respective share transfer Agreement as soon as possible
and in any event no later than the Closing Date.
2. PRICE
2.1 The sale of the Share is agreed to and accepted for an aggregate
purchase price of USD 1,040,000 (hereafter the " Price").
2.2 The Price shall be paid at the Closing Date by Valtech S.A. by bank
wire transfer to an account specified by ObjectShare which shall
provide good and valid receipt therefore to Valtech S.A.
3. CONDITIONS PRECEDENT
3.1 SALE OF THE SHARE
The obligations of the Parties hereunder are subject to the fulfillment
of the following conditions precedent:
3.1.1 Transfer by ObjectShare of all of its rights, title and
interest in and to the Share to Valtech S.A. for a price of
USD 1,040,000 on the Closing Date at the latest;
3.1.2 N/A
3.1.3 The Representations and Warranties contained in Article 6
hereof are true in all material respect as of the Closing
Date;
3.1.4 N/A
3.1.5 Absence of action or proceeding before any court or
governmental body pending or threatening wherein a judgement,
decree or order which would prevent the acquisition of the
Share or cause such transaction to be unlawful or rescinded;
3.1.6 The obtaining of all necessary consents by governmental or
regulatory agencies that are required for the acquisition of
the Share;
3.1.7 Delivery of an executed agreement Re: Cancellation of
Intercompany Debt (the "Intercompany Debt Agreement") to be
effective on the Closing Date which provides that ObjectShare
shall unconditionally and irrevocably agree that upon the
consummation of this transaction the Company be released and
discharged from each and every liability, obligation and
undertaking of any nature whatsoever (whether actual or
contingent) which the Company owes to ObjectShare on the
Closing Date;
3.1.8 Receipt by ObjectShare of a fairness opinion by Duff & Xxxxxx,
LLC.
3.2 ObjectShare acknowledges that the acquisitions by Valtech S.A. and
Valtech U.K. respectively of (i) the Share and (ii) the shares of the
English Company are integral parts of the same operation which
realization cannot occur without the completion of both.
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3.3 The above conditions are for the benefit solely of Valtech S.A. who may
waive all or any of them in whole or in part.
3.4 The Parties shall use all reasonable endeavors to ensure that the above
conditions are fulfilled as soon as reasonably practicable.
4. CLOSING
4.1 Closing shall take place at the offices of X.X. Xxxxxxxxx, 000 xxxxxx
Xxxxxxx xx Xxxxxx, 00000 Neuilly-sur-Seine Cedex, France simultaneously
in, London and Munich on the Closing Date, provided that on such date
the conditions precedent mentioned in Article 3 above have been
fulfilled.
4.2 On the Signature Date, ObjectShare shall procure that a board meeting
of the Company is held at which the directors:
4.2.1 change the Company's and the Subsidiary's registered office as
Valtech S.A. directs;
4.2.2 revoke all existing mandates of the operation of the bank
accounts of the Company and of the Subsidiary and issue new
mandates giving authority to those persons nominated by
Valtech S.A.;
4.2.3 change the Company's and the Subsidiary's accounting reference
date as Valtech S.A. directs;
4.2.4 appoint the persons nominated by Valtech S.A. as directors of
the Company and of the Subsidiary and the secretary of the
Company and of the Subsidiary with effect from the end of the
meeting;
4.2.5 accept the resignation of the Auditors of the Company and of
the Subsidiary and appoint new auditors as Valtech S.A.
directs.
4.2 On the Signature Date, ObjectShare shall deliver to Valtech S.A.:
4.2.1 a duly notarized share transfer agreement between ObjectShare
and Valtech S.A. in respect of the Share in favor of Valtech
S.A.;
4.2.2 all minutes of shareholders' meetings in the possession of
the Company and the Subsidiary together with all other
documents relating thereto;
4.2.3 the unconditional resignation of the directors and the
dismissal of the managing director except Xx. Xxxxx-Xxxxxx and
Xx. Xxxxx of the Subsidiary and of the Company;
4.2.4 the resignation in the agreed form of the Auditors of the
Company;
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4.2.5 a certificate signed by ObjectShare confirming, in accordance
with Article 3.1.3 hereof, that the Representations and
Warranties contained in Article 6 hereof remain true and
accurate in all material respects as of the Closing Date; and
4.2.6 such other documents or instruments Valtech S.A. may
reasonably request for the valid completion of the operations
provided for in this Agreement.
4.2.7 Receipt by ObjectShare of a fairness opinion from Duff &
Xxxxxx, LLC;
4.2.8 authorization from Silicon Valley Bank relating to the sale of
the Shares and release of the liens;
4.2.9 the executed English Contract;
4.2.10 the executed Intercompany Debt Agreement referred to in
Article 3.1.7 above.
4.4 At the Closing Date, Valtech S.A. shall deliver to ObjectShare
certified copy of the minutes of the board of directors of Valtech S.A.
approving the purchase of the Shares.
4.5. At the Closing Date, Valtech S.A. shall pay to ObjectShare by bank wire
transfer to Silicon Valley Bank, 00 Xxxxxxxxxx Xxxxx, Xxxxx #000,
Xxxxxx, XX 00000, Account #0000000000, ABA #000000000, the Price and
ObjectShare shall give to Valtech S.A. a receipt therefore.
5. OBJECTSHARE'S OBLIGATIONS PENDING CLOSING
5.1 As from the Signature Date and up to and including the Closing Date,
ObjectShare shall ensure Valtech S.A. that:
5.1.1 the businesses of the Company and of the Subsidiary shall be
carried on in the ordinary course and in a prudent and
appropriate manner and that any material adverse change in any
of such businesses shall be forthwith notified to Valtech S.A.
in writing to the extent of the knowledge of the Company or of
the Subsidiary;
5.1.2 the Company and the Subsidiary shall comply with all relevant
laws and regulations and, in particular, but without prejudice
to the generality of the foregoing, with all applicable German
employment law requirements in relation to the subject matter
of this Agreement;
5.1.3 save with the prior written consent of Valtech S.A. the
Company and the Subsidiary shall not modify their articles of
association, undertake any merger, spin-off or other form of
reorganization or propose, declare or pay any dividend or
grant any mortgage, pledge or security, or take any other
measure which may encumber or otherwise affect the free
disposition of their respective assets;
5.1.4 save with the prior written consent of Valtech S.A. there
shall be no increase or undertakings to increase the
compensation payable or other benefits due to any employees of
the Company (such as premiums, profit sharing, pension or
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retirement rights or other similar benefits) nor shall the
Company hire or dismiss any corporate officers or executive
employees;
5.1.5 N/A
5.1.6 save with the prior agreement of Valtech S.A. the Company and
the Subsidiary shall not enter into any contracts which are
subject to unusual or unduly onerous terms, or which are
outside the normal course of business of the Company or of the
Subsidiary;
5.1.7 the Company and the Subsidiary shall not undertake any capital
or non-routine expenditure save where such expenditure is
essential to preserve the value of an asset of the Company or
of the Subsidiary;
5.1.8 the Company and the Subsidiary shall neither grant nor receive
any loan from a third party for an aggregate sum in excess of
DM 30,000.
6. REPRESENTATIONS AND WARRANTIES
6.1. ObjectShare makes the representations and gives the warranties in the
sense of an independent guarantee agreement pursuant to Section 000 XXX
(Xxxxxx Civil Code) (herein called the "Representations and
Warranties") set forth below:
6.1.1.A CORPORATE EXISTENCE AND CAPITALIZATION OF THE COMPANY
6.1.1.A.1 the Company is a German corporation duly organized,
validly existing under the laws of Germany, whose
corporate seat is at Munich, registered with the
Commercial Register of the Local Court Munich at HRB
101275, whose nominal share capital is 100,000.00;
6.1.1.A.2 a certified true and up-to-date copy of the articles
of association of the Company is attached as
SCHEDULE 6.1.1.A.2 hereto; the minutes and other
corporate records of the Company are accurate and
up-to-date; the Company 's filings with the
commercial register are complete and up-to-date in
all respects; the extract from the Commercial
Register of the Local Court Munich dated November
17, 1999 regarding the Company attached hereto as
SCHEDULE 6.1.1.A.2 is true and accurate;
6.1.1.A.3 the Company is not in a state of insolvency or in
suspension of payments and is not and has never been
subject to a judicial reorganization or judicial
liquidation proceedings or any other conciliation or
collective bankruptcy proceedings;
6.1.1.A.4 except for possible minor infringements, the Company
(i) has the corporate power and authority and holds
all governmental and other authorizations and
permits to own all of its properties and other
assets and to carry on its business as it is
currently being conducted, and (ii) is in compliance
with all laws and regulations to which it is
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subject. To its best knowledge, the Company is not
in default with respect to any judgement or order of
any court, arbitral tribunal or government
department or agency;
6.1.1.A.5 the Company is, and has not over the last five years
been, directly or indirectly a member of any
partnership, joint venture, economic interest group
or any other organization or structure having
unlimited liability;
6.1.1.A.6 other than the Subsidiary, the Company has not since
1994 (i) held any shares in any corporation or (ii)
exercised any mandate as board member or manager of
any corporation or (iii) acted as de facto manager
of any corporation.
6.1.1.B CORPORATE EXISTENCE AND CAPITALIZATION OF THE SUBSIDIARY
6.1.1.B.1 the Subsidiary is a Swiss corporation duly
organized, validly existing under the laws of
Switzerland, whose registered office is at x/x
Xxxxxxx Xxxxxxx, Xxxxxxxxx xxx. 000, XX-0000 Xxxxxx.
The Subsidiary has authorized share capital of CHF
100,000 which is divided into 100 registered shares
with a nominal value of CHF 1,000;
6.1.1.B.2 a certified true and up-to-date copy of the articles
of association and by-laws of the Subsidiary is
attached as SCHEDULE 6.1.1.B.2 hereto; the minutes
and other corporate records of the Subsidiary are
accurate and up-to-date; the Subsidiary's filings
with the Handelsregister des Kantonss Zurich are
complete and up-to-date in all respects; the extract
from the Handelsregister des Kantonss Zurich dated
November 4, 1999 regarding the Subsidiary attached
hereto as SCHEDULE 6.1.1.B.2 is true and accurate;
6.1.1.B.3 the Subsidiary is not in a state of insolvency or in
suspension of payments and is not and has never been
subject to a judicial reorganization or judicial
liquidation proceedings or any other conciliation or
collective bankruptcy proceedings;
6.1.1.B.4 except for possible minor infringements and to its
best knowledge, the Subsidiary (i) has the corporate
power and authority and holds all governmental and
other authorizations and permits to own all of its
properties and other assets and to carry on its
business as it is currently being conducted, and
(ii) is in compliance with all laws and regulations
to which it is subject. The Subsidiary is not in
default with respect to any judgement or order of
any court, arbitral tribunal or government
department or agency;
6.1.1.B.5 the Subsidiary is, and has not over the last five
years been, directly or indirectly a member of any
partnership, joint venture, economic interest group
or any other organization or structure having
unlimited liability;
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6.1.1.B.6 the Subsidiary has not since incorporation (i) held
any shares in any corporation or (ii) exercised any
mandate as board member or manager of any
corporation or (iii) acted as de facto manager of
any corporation.
6.1.2 THE SHARE
6.1.2.1 the Share represents the whole of the share capital
of the Company, is fully paid, and is freely
transferable;
6.1.2.2 there exists no agreement or undertaking pursuant to
which any person is or could become entitled to
request the issue of new shares by the Company. The
Company has not issued any securities which could
give rise to a capital increase or the issue of
securities granting the right to any amount which the
Company may distribute or voting rights or which
could result in any limitation of the rights attached
to the Share. The provisions of this Article 6.1.2.2
apply to the Subsidiary;
6.1.2.3 ObjectShare has full and valid title to the Share set
out against its name on SCHEDULE 6.1.2.3 or as
otherwise specified hereto free from any lien charge
or Encumbrance or any other third party rights and at
the Closing Date such title shall be validly
transferred to Valtech S.A. or to such person or
persons as Valtech S.A. may specify. All the
authorizations which must be obtained prior to the
transfer of the Share, in application of the
Company's Articles of Association and the law, have
been or will, at the Closing Date, have been
obtained.
6.1.3 EFFECTS OF THE TRANSFER OF THE SHARE
6.1.3.1 the transfer of the Share to or in accordance with
the instructions of Valtech S.A. will not result in :
(i) save for exceptions provided in SCHEDULE
6.1.3 (I), any breach of any agreement or
undertaking by the Company or the
Subsidiary;
(ii) Except as provided in SCHEDULE 6.1.3 (II),
the legal right for any person having
dealings with the Company or the Subsidiary
(a) to terminate any agreement or contract
or to modify the effects thereof, or (b) to
claim the reimbursement of any subsidy or
grant or loan or advance;
(iii) the modification, cancellation or revocation
of any permit, authorization or license of
any kind whatsoever, necessary or desirable
for the operations of the Company's or of
the Subsidiary's activities or the
modification, cancellation or revocation of
any preferential tax regime or subsidy or
other assistance granted by public or
quasi-public authorities;
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(iv) the possibility for a third party to invoke
any guarantee, surety, letter of comfort or
any other document having an equivalent
effect which may have been granted by or in
favor of the Company or the Subsidiary.
6.1.4 FINANCIAL STATEMENTS OF THE COMPANY AND THE SUBSIDIARY
6.1.4.1 copies of the Financial Statements and of the Interim
Financial Statements dated October 31, 1999 are
annexed as SCHEDULE 6.1.4.1;
6.1.4.2 the Financial Statements were prepared in the same
form as required by law and in accordance with such
accounting standards applicable in Germany for the
Company and in Switzerland for the Subsidiary and
show a true and fair view of, and accurately reflect
the assets and liabilities of the Company at, and its
profit and losses for the financial period ended on,
the Balance Sheet Date;
6.1.4.3 the Financial Statements were prepared and show a
true and fair view of, and accurately reflect the
position of the Company and the Subsidiary at, and
the results of their respective operations for the
financial period ended on, the Balance Sheet Date;
6.1.4.4 The Interim Financial Statements have been prepared
in all material respects on a basis consistent with
the Financial Statements and show a true and fair
view of, and accurately reflect the assets and
liabilities of the Company and the Subsidiary, and
their profits and losses for the financial period
ended October 31, 1999, except that the Interim
Financial Statements (i) may not have the notes
thereto, and (ii) may be subject to nominal
adjustments which will not be materially adverse in
the aggregate;
6.1.4.5 at the Balance Sheet Date the Company and the
Subsidiary had no liabilities or obligations (due,
payable, certain, contingent, conditional or
otherwise and including, without limitation, any
obligation resulting from a factoring or leasing
agreement or from current, pending or threatened
litigation) other than those set out, or for which
adequate provision has been made, in the Interim
Financial Statements, to the extent such liabilities
or obligations should be included in the Financial
Statements;
6.1.4.6 the depreciation appearing in the Financial
Statements has been determined in accordance with
applicable laws and such accounting standards as set
out in Article 6.1.4.2;
6.1.4.7 all the accounts, books and records of the Company
and the Subsidiary have been fully, properly and
accurately kept and completed and record all material
transactions to which the Company and the Subsidiary
have been a party. They give a true, complete and
fair view of the financial, contractual and business
position of the Company and of the Subsidiary, fixed
and current assets and liabilities (actual and
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contingent), debtors, creditors and inventories and
work in progress of the Company and of the
Subsidiary.
6.1.4.8 The Financial Statements include (i) all debts,
prepayments and other current assets at the lower of
cost and net realizable value after making full and
proper provision for all bad debts and doubtful debts
and all other amounts considered to be irrecoverable;
and (ii) all liabilities and commitments of the
Company (whether actual or contingent or deferred and
whether or not disputed) for which the Company is or
may become liable to and including the Balance Sheet
Date and the Financial Statements make full and
proper provision for the same as required to be
included in accordance with all applicable laws and
accounting standards, principles, practices, policies
and conventions generally accepted in Germany. The
accounting reference date of the Company has not been
changed from the same month and day as on the Balance
Sheet Date.
6.1.5 RECEIVABLES
6.1.5.1 the trade and other receivables of the Company and
the Subsidiary as shown in the Financial Statements
and any receivables which have arisen since the
Balance Sheet Date are valid and have been recovered,
or are recoverable in full, within the relevant legal
or contractual time-limits (subject, in the case of
receivables shown in the Financial Statements or the
Interim Financial Statements, to any provision for
bad and/or doubtful debts appearing therein), except
as provided on SCHEDULE 6.1.5. Any receivables which
have arisen since the date of the Interim Financial
Statements will then be recoverable in a manner which
is consistent with the Company's and the Subsidiary's
past practices;
6.1.5.2 none of the debts which are shown in the Financial
Statements, or which have arisen since the Balance
Sheet Date, have been outstanding for more than 60
days from the Company's due date for payment or have
been released such that the debtor has paid, or will
pay, less than the full amount of his debt, and all
debts have realized, or will in the normal course of
collection, realize their full value as set out in
the Financial Statements or in the books of the
Company (subject to any provision made in the
Financial Statements for bad and doubtful debts)
within 120 days of their due date for payment.
6.1.6 STOCK
6.1.6.1 There is no stock in trade.
6.1.7 TAXES
6.1.7.1 the provisions for taxes and the provisions for
social and parafiscal charges (including, but not
limited to, social security contributions, and
contributions to complementary welfare and pension
schemes) which
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appear in the Financial Statements are sufficient for
the payment of all taxes, social and parafiscal
charges due or accrued at the Balance Sheet Date
(regardless of the date of the event which is the
origin of the taxes, social or parafiscal charges and
regardless of the date on which payment thereof is
due). The Company and the Subsidiary have filed all
national, departmental and local tax and social
declarations, including advance filings
(Voranmeldungen) at the required time and have kept
copies of the originals filed. All State,
departmental and local taxes, and duties (including,
but not limited to, corporation tax, value added tax,
trade tax, registration tax, land tax and customs
duties) and all social and parafiscal charges owed by
the Company and/or the Subsidiary or payable at the
date hereof have been paid within the legal time
limits; all related charges for late payment and
penalties, if any, have been paid;
6.1.7.2 the Company and the Subsidiary have withheld all tax
and/or social or parafiscal charges to be withheld by
them in respect of wages, license fees, interest or
any other sum payable by them.
6.1.8 OWNERSHIP OF ASSETS
6.1.8.1 the Company and the Subsidiary have full and
unencumbered title to all their assets. All tangible
assets (both real estate and otherwise) are properly
constructed and in good condition, subject only to
normal wear and tear, and have been consistently and
properly maintained. Except as disclosed on SCHEDULE
6.1.8 none of such tangible assets is out of order or
has any apparent defect which prevents or could
prevent its use in the future in accordance with the
purpose for which it was intended;
6.1.8.2 the carrying on of business and the use by the
Company and the Subsidiary of their respective assets
is in accordance with all material applicable legal
or regulatory requirements, particularly with regard
to health and safety.
6.1.9 LEASES
6.1.9.1 set out in SCHEDULE 6.1.9 are details of all lease
agreements to which the Company and the Subsidiary
are a party whether as lessor or lessee;
6.1.9.2 each of the leases of real or personal property to
which the Company or the Subsidiary is a party,
either as lessor or lessee, is valid and enforceable
in accordance with its terms. Save as mentioned in
SCHEDULE 6.1.9 none of such leases contains any
unusual provisions;
6.1.9.3 no notice to terminate has been given to the Company
or the Subsidiary in respect of any of the leases
referred to in SCHEDULE 6.1.9 and neither the Company
nor the Subsidiary has been responsible for any act
or omission which could justify the lessor in
terminating any such lease;
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6.1.9.4 ObjectShare declares that if required, it has
notified the contracting parties to the leases listed
in SCHEDULE 6.1.9, of the change of control deriving
from the sale of the Share and that these contracting
parties gave their consent to the change of control
if required in the Company and the Subsidiary in
favor of Valtech S.A.
6.1.10 INTELLECTUAL PROPERTY
6.1.10.1 SCHEDULE 6.1.10.1 contains a list of Rights used by
the Company and the Subsidiary in their respective
businesses. The Rights used by the Company and the
Subsidiary in their respective businesses are owned
by the Company and/or the Subsidiary free from any
charge or Encumbrance save as specified in the said
SCHEDULE 6.1.10 or are used pursuant to valid
licenses from third parties of which details as all
of which are given in the said SCHEDULE 6.1.10;
6.1.10.2 To the knowledge of Company or Subsidiary, neither
has infringed, nor does it either currently infringe,
any Right belonging to any third party;
6.1.10.3 none of the directors or employees of the Company or
of the Subsidiary owns, directly or indirectly, in
whole or in part, any patent, trademark or other
intellectual or industrial property right to which
the Company or the Subsidiary has license or which
are necessary or desirable for their commercial
activities as presently carried on;
6.1.10.4 ObjectShare shall, for transitional purposes, permit
the Company to use its current corporate name,
without paying any royalty to a third party, for a
period of not greater than 12 months following the
Closing Date. Subsequent to the 12 month period,
Purchaser and the Company shall not be permitted to
use any name or names identical or similar to, or
including the words "Object" or "Share" or any
distinctive xxxx, style or logo used by the Company
in connection with any activity whatsoever.
6.1.11 CONTRACTS
6.1.11.1 set forth in SCHEDULE 6.1.11.1 hereto is a list of
all the contracts, commitments, agreements and
guarantees or other undertakings or arrangements to
which the Company and the Subsidiary are a party
which (i) account for more than 10 per cent of the
consolidated turnover of the Company and the
Subsidiary for the financial period ended on the
Balance Sheet Date; or (ii) are for a period of more
than 12 months; or (iii) provide for capital
expenditure or the disposal of capital assets for an
aggregate amount in excess of DM 30,000; or (iv)
contain any exclusivity commitment by, or for the
benefit of, the Company or the Subsidiary; or (v)
contain any commitment by any party not to compete
with any other; or (vi) are otherwise material to
assets, liabilities, profits, losses and state of
affairs of the Company or of the Subsidiary and the
management, development and marketing of the Company
or of the Subsidiary (hereinafter called "Material
Contracts" in each case whether written or verbal);
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6.1.11.2 neither the Company, nor the Subsidiary (i) has
entered into any Material Contract which gives rise
to duties or liabilities which are unusual in
relation to the normal rules of proper management of
a commercial enterprise, and (ii) is not in material
breach of any of its obligations under any Material
Contract;
6.1.11.3 except as disclosed on SCHEDULE 6.1.11.3, all
Material Contracts, agreements or arrangements,
whether written or verbal, to which the Company or
the Subsidiary is a party represent valid enforceable
obligations. None has been entered into in violation
of applicable laws or regulations and the Company and
the Subsidiary and the other contracting parties have
respected their obligations thereunder. No such
contract, agreement or arrangement was entered into
outside the normal course of business or is illegal
or liable to be declared null and void;
6.1.11.4 except as set forth in SCHEDULE 6.1.11.4, the
transfer of the Share on the Closing Date will not
result in the accelerated maturity of any loan or
guarantee agreement or any other payment to be made
to any third party under any other contract or
arrangement to which the Company or the Subsidiary is
a party;
6.1.11.5 except as set forth in SCHEDULE 6.1.11.5, the
execution and performance of this Agreement (i) do
not and will not result in the termination of any
Material Contract or any other instrument or
arrangement to which the Company or the Subsidiary is
a party or by which any of them may be bound or
affected, (ii) do not and will not conflict with or
result in any violation or breach by the Company or
the Subsidiary under any Material Contract or other
instrument or arrangement, and (iii) will not grant
to any other contracting party the right to terminate
or modify any such Material Contract or other
instrument or arrangement;
6.1.11.6 to the knowledge of Xxxxxx Xxxx or Xxxxxxx
Xxxxx-Xxxxxx, neither ObjectShare nor the Company has
received any written notice whatsoever pursuant to
which any of the 20 largest customers or suppliers of
the Company listed on SCHEDULE 6.1.11.6 has disclosed
its intention to cease or substantially reduce its
commercial relationship with the Company for any
reason whatsoever including, without limitation, as a
result of the transfer of the Shares to Valtech S.A.;
6.1.11.7 neither the Company nor the Subsidiary is bound by
any contract, commitment or other arrangement
directly or indirectly with ObjectShare's corporate
officers or any of their spouses, parents or children
or any legal entity controlled by any of them.
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6.1.12 PERSONNEL
6.1.12.1 set out in SCHEDULE 6.1.12.1 are:
(i) a list of all the employees and managing
directors of the Company and of the
Subsidiary including their age, seniority
and present annual remuneration (including
any right to bonus, benefits in kind, profit
sharing and any departure or retirement
indemnities) and, for persons having an
employment contract for a definite period,
the date of expiration of the contract;
(ii) a list of all direct and indirect pension
benefits offered by the Company and the
Subsidiary to any of their present or former
employees or corporate officers all of which
benefits are, save as mentioned in SCHEDULE
6.1.12.1 (II), fully funded;
(iii) a list of temporary personnel, of outside
collaborators, of sales representatives and
any other persons who do not have the status
of salaried employees but who regularly
collaborate in the operations of the Company
and of the Subsidiary; and
(iv) a list of the collective bargaining and
other collective agreements applicable to
the personnel of the Company and of the
Subsidiary (including any agreement relating
to bonuses, pensions, deferred remuneration,
profit sharing or share option schemes);
(v) a list of all stock option rights of
employees and managing directors of the
Company;
6.1.12.2 the Company and the Subsidiary have satisfied, and
continue to satisfy all their material obligations
pursuant to applicable labor and social security law
in respect of its employees and its managing
directors;
6.1.12.3 no employee or managing director has any rights
vis-a-vis the Company out of stock-options granted by
the Company and/or ObjectShare, and the Company
and/or ObjectShare have duly fulfilled any claims
connected with or arising out of such rights;
6.1.12.4 none of the employees or corporate officers of the
Company or of the Subsidiary is entitled to any
benefits that are extraordinary in the light of the
prevailing industry standards in the place of
employment of such employee or officer;
6.1.12.5 except as set forth in SCHEDULE 6.1.12.4, none of the
employees of the Company or of the Subsidiary has
made it known that he/she intends to terminate
his/her employment agreement;
6.1.12.6 there have been no strikes, lock-outs, sit-ins or
other industrial action at any of the premises of the
Company or of the Subsidiary during the ten
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months prior to the date hereof and ObjectShare has
no knowledge of any such industrial action being
threatened or pending.
6.1.12.7 Except as provided at SCHEDULE 6.1.12.6, none of the
directors, officers or senior employees of the
Company or of the Subsidiary has ceased to be
employed by the Company or by the Subsidiary (other
than through death or retirement at normal retirement
age) during the 12 month period ending with the date
of this Deed.
Except as provided at SCHEDULE 6.1.12.7 or as
provided herein, none of the directors, officers or
senior employees of the Company or of the Subsidiary
has given or received notice terminating his office
and/or employment and no director, officer or
employee will be entitled to treat his office and/or
employment as terminated as a result of the
provisions of this Agreement nor are there any facts
known to ObjectShare which clearly indicate that any
directors, officers or senior employees intend or are
likely to leave their office and/or employment other
than through normal retirement within the 12 months
following the Closing Date.
6.1.13 INSURANCE
6.1.13.1 set out in SCHEDULE 6.1.13 is a complete list of all
material policies of insurance relating to the
business activities of the Company and all the assets
owned, leased or used by it are, to the knowledge of
ObjectShare, adequately and validly insured with
reputable companies. Brief details of the policies
are set out in SCHEDULE 6.1.13;
6.1.13.2 the Company and the Subsidiary have fulfilled all of
their obligations pursuant to the insurance policies,
in particular with respect to the declarations of
risks and claims and the payment of premiums relating
to such policies. As at the date hereof neither the
Company nor the Subsidiary has received or given any
notice of termination or non-renewal or received any
notice from any of the relevant insurance companies
of their intention substantially to increase the
premiums due, or to raise the franchises or to reduce
the cover provided.
6.1.14 PRODUCT LIABILITY
ObjectShare declares that neither the Company nor the
Subsidiary has incurred any liability regarding product
liability issues.
6.1.15 ENVIRONMENT
ObjectShare declares that the neither the Company nor the
Subsidiary has incurred any liability regarding environmental
issues.
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6.1.16 LITIGATION
6.1.16.1 save for the cases brief details of which are
disclosed in SCHEDULE 6.1.16.1, there is no current,
or pending or, to our knowledge threatened,
litigation, arbitration, claim, judgement, award or
similar order, administrative proceeding,
administrative or tax investigation or any other
action or proceeding pending, submitting or
contemplated whether as plaintiff or defendant in
relation to the Company or the Subsidiary and
ObjectShare is unaware of any facts which might give
rise to any such action or proceeding.
6.1.17 ABSENCE OF CHANGES
6.1.17.1 since the date of the Interim Financial Statements
and pending the Closing Date there has not been and
will not be in relation to the Company and the
Subsidiary:
(i) any material adverse change in the financial
position, the assets, liabilities, business
or operations otherwise than in the normal
course of business (and the Company has
since the date of the Interim Financial
Statements carried on business in the
ordinary course and in the same manner as in
the past as a going concern);
(ii) any modification in the capital of the
Company or of the Subsidiary;
(iii) save with the prior written consent of
Valtech S.A., any declaration or payment of
any dividend or any other distribution of
profits or reserves;
(iv) any damage, destruction or other casualty
loss (whether or not covered by insurance)
materially affecting the business or
financial position of the Company or the
Subsidiary;
(v) any purchase or sale of securities by the
Company or the Subsidiary, no issue by them
of shares or other securities, rights or
options to purchase or subscribe shares in
the Company or the Subsidiary or which are
capable of granting the right to acquire or
subscribe securities which represent a share
in the capital of the Company or of the
Subsidiary;
(vi) any loan incurred, granted, promised or
secured by the Company or by the Subsidiary
in excess of DM 30,000;
(vii) the assumption of an obligation or liability
other than current obligations or
liabilities incurred in the normal course of
business;
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(viii) except as disclosed on SCHEDULE 6.1.17.1
(VIII), any termination, waiver, amendment
of, or default in relation to, any contract,
undertaking or arrangement (including in
relation to any of the employees);
(ix) except as provided on SCHEDULE 6.1.17.1
(IX), any increase or promised increase in
the remuneration of employees, agents, sales
representatives or corporate officers or in
any of their benefits;
(x) except as provided on SCHEDULE 6.1.17.1 (X),
any sale, lease or transfer of any tangible
or intangible assets other than items of
stock in the normal course of business, nor
any cancellation or waiver of any
receivables;
(xi) any guarantee, surety or letter of comfort
in respect of the obligations of third
parties;
(xii) any lien, security interest, pledge,
mortgage, easement, or other charge granted
over any tangible or intangible assets;
(xiii) any social disturbance, conflict, strike,
lock-out, sit-in or similar event.
6.1.18 LISTS
6.1.18.1 set out on SCHEDULE 6.1.18 are lists showing in
relation to the Company and the Subsidiary:
(i) the name and address of each person who has
received general or special powers of
attorney or who is authorized to bind the
Company;
(ii) all real estate, land, facilities or other
property owned, rented, leased or otherwise
occupied;
(iii) banks and bank accounts and credit lines
showing (a) the names of people with power
of signature, (b) the amount of each credit
line and the level of utilization and any
long, medium or short term credit or any
other financing agreement, and (c) the
amount of any borrowing guaranteed by the
Company or by the Subsidiary or any third
party;
(iv) all guarantees, sureties or endorsements
granted in favor of third parties;
(v) the name of each corporate officer and of
the gross annual remuneration (including all
benefits) of each of them;
(vi) all agency, license, distribution or
representation agreements;
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(vii) all grants, subsidies or other public
benefits which the Company or the Subsidiary
is under a contingent liability to repay;
(viii) existing material customers and suppliers.
6.1.19 YEAR 2000 COMPLIANCE UNDERTAKING
6.1.19.1 The information system of the Company, including,
among others, management tools, finance tools,
quality tools, logistics tools, maintenance tools,
data interchange tools, research and development
tools, software development tools, personnel
management tools, is Year 2000 Compliant, or will be
Year 2000 Compliant at the Closing Date .
6.1.19.2 to the knowledge of the Company, the Year 2000 date
change will not generate any logistical security
problem (including, among others, elevators, alarm
systems, automated access control systems), inside
the Company's sites
6.1.19.3 to the knowledge of the Company, the Company will not
suffer any disruption in its activities or damage to
any of its assets or incur any liability in
connection with such passage.
6.1.19.4 Since 1998, the Company has taken all required
measures to provide its clients with Year 2000
Compliant products and services.
6.1.19.5 In case of any likelihood of injury or damage due to
products or services commercialized by the Company,
the Company has taken all required measures in order
to prevent any injury or damage.
6.1.19.6 Since 1998, the Company has informed clients of
possible malfunction due to the Year 2000 date
change, for any product or service that has been
commercialized by the Company and has made available
respective updates.
6.1.20 GENERAL
6.1.20.1 all the information contained in this Agreement
including the recitals and the SCHEDULES hereto is
complete and accurate in all material respects;
6.1.20.2 there is no existing fact or event known to
ObjectShare which is likely to have an adverse effect
on the assets, business or activities of the Company
or of the Subsidiary or which could reasonably be
expected to adversely affect the willingness of
Valtech S.A. to purchase the Share upon the terms of
this Agreement which has not been disclosed to
Valtech S.A. by or on behalf of ObjectShare in
writing;
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6.1.20.3 for the purposes of Article 6.1.20.2 above
ObjectShare shall be deemed to have knowledge of a
fact or event if any of the directors or corporate
officers of the Company or of the Subsidiary had, or
would, having made reasonable inquiry, have had,
knowledge of it.
6.1.21 AUTHORITY RELATIVE TO THIS AGREEMENT
6.1.21.1 the execution and performance of this Agreement by
ObjectShare do not and will not conflict with or
result in any violation or breach of, or any default
under, any law or any obligation of ObjectShare or
any other agreement to which it is a party, nor is
there any litigation current or pending involving
ObjectShare which could prevent or hinder the
execution and performance of this Agreement;
6.1.21.2 ObjectShare has full corporate power, authority and
right to enter into this Agreement and to consummate
the transaction contemplated hereby. The board of
directors of ObjectShare have taken all necessary
corporate action duly to authorize the execution and
performance of this Agreement.
6.2 ObjectShare recognizes and accepts that Valtech S.A. has entered into
this Agreement in reliance on the Representations and Warranties. The
liability of ObjectShare in relation to the Representations and
Warranties shall be in no way limited should it be established that
Valtech S.A. was aware of the inaccuracy of one or more of the
Representations and Warranties either at the date hereof or at the
Closing Date.
6.6 AUTHORITY RELATIVE TO THIS AGREEMENT
The Purchaser has full corporate power, authority and right to enter
into this Agreement and to consumate the transaction contemplated
hereby. The board of directors of the Purchaser has taken all necessary
corporate action duly to authorize yhe execution and performance of
this Agreement.
7. INDEMNIFICATION
7.1 Without prejudice to any other rights Valtech S.A. may have,
ObjectShare undertakes to indemnify Valtech S.A. and/or the Company for
all losses, costs, damages, fees and expenses (hereafter, together with
claims made under Articles 7.2 and 7.3 below, "Damage") incurred or
suffered by Valtech S.A. and/or the Company which arise from:
7.1.1 any material failure of ObjectShare to fulfill its obligations
hereunder;
7.1.2 any breach of the Representations and Warranties;
7.1.3 any material adverse change in the stockholders equity of the
Company, the Subsidiary and the English Company on a
consolidated basis as at the date of the Interim Financial
Statements as compared with such stockholders equity at the
Closing Date.
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7.2 In case of the establishment of distributions, including hidden
distributions, resulting from the Seller being a shareholder of the
Company, the Seller hereby undertakes to indemnify and hold the
Purchaser harmless to the amount of the tax burden, including corporate
tax burden, on these distributions (Ausschuttungsbelastung) and
withholding tax, if levied.
7.3 In case there will in the future be external audits (Aubenprufungen) of
the Company or the Subsidiary regarding taxes, social and parafiscal
charges for periods prior and the period including the Closing Date,
the Seller hereby undertakes to indemnify and hold the Purchaser
harmless from any damages suffered therefrom. For the purposes hereof
the Purchaser's damage including any payment to be made to the tax
authorities service prior to the underlying tax assessment being
non-appealable.
7.4 Save for claims in respect of fiscal, parafiscal or social security
matters which may be made up to the expiry of the relevant legal
prescription period, and for claims in respect of Year 2000 compliance
(Article 6.1.19 ) which may be made up to three years following the
Closing Date, any claim for indemnification pursuant to Article 7.1
must be made not later than three years following the Closing Date by
notice in writing to ObjectShare in accordance with Article 13 hereof.
Such notice shall give brief details of the relevant facts and, so far
as practicable, an estimate of the Damage. Indemnification shall be due
if notice of the relevant facts is given within the relevant period
even if the quantification of the Damage does not take place until
after the expiration of such period.
7.5 In the event that any Damage results from a demand or claim made by a
third party Valtech S.A. shall notify ObjectShare and ObjectShare, or
its counsel, shall have access to all relevant books and other
documents of the Company and of the Subsidiary concerning such a demand
or claim, and these shall be made available at the registered offices
of the Company and/or of the Subsidiary or any other place mutually
agreed upon, subject to reasonable notice, and for a reasonable period.
ObjectShare shall have the right, at its own expense, to join in the
defense or the conclusion, by way of settlement or amicable agreement
of any such demand or claim. However, Valtech S.A. shall, following
consultation with ObjectShare, have an absolute discretion as to
whether and, if so, on what terms, to settle any such demand or claim.
7.6 All payments due under this Article 7 shall be made within one month
from the date on which notice of the Damage is given by Valtech S.A. to
ObjectShare or, if later, from the date on which the Damage is
quantified.
7.7 The total cumulative liability of ObjectShare for any and all Damage
suffered by Valtech S.A. and/or the Company together with any Damage
(as defined in the English Contract) shall be limited to $1,150,000.
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8. NON-COMPETITION
In consideration of the payment by Valtech S.A. of the Price, ObjectShare hereby
agrees that, for a period of one year from the Closing Date, it shall not,
without the prior written consent of Valtech S.A., directly or indirectly, in
any form whatsoever, through any person controlling, controlled by or under
common control with ObjectShare, alone or in association with any other person,
firm, corporation, partnership or other business organization, in the Territory,
except as expressly provided for herein:
8.1 engage in, or own or acquire any interest in (except as the owner for
investment of securities dealt on a recognized stock exchange which
does not exceed 5% in nominal value of the securities of that class) or
create any business which is engaged in the consulting and training
services related to Smalltalk software as conducted by the Company or
the Subsidiary or its/their successor in interest (herein the
"Competitive Business");
8.2 in any way, directly or indirectly, for the purpose of conducting,
engaging in any Competitive Business, (i) call upon, solicit, advise or
otherwise do, or attempt to do, business relating to the Competitive
Business with any former customers of the Company or (ii) take away or
interfere or attempt to interfere with any former customer, trade,
business or patronage of the Company relating to the Competitive
Business;
8.3 N/A
8.4 If any court or regulatory body with jurisdiction in the premises
determines all or any part of such non-competition undertaking to
exceed any authorized legal limits (whether as to duration, geographic
scope or otherwise), the present non-competition undertaking shall be
automatically reduced to its maximum authorized legal limit;
8.5 In any way hold itself out or permit itself to be held out as being
interested in, or in any way connected with, the Company;
8.6 ObjectShare undertakes not to use for any purpose or disclose to a
third party a list of clients or any other confidential information
relating to the activity, business, asset, clients, of the Company or
of the Subsidiary with respect to Small-talk software;
8.7 The non-competition undertaking defined in this Article 8 may be set
aside by obtaining Valtech S.A.'s prior written consent.
8.8 Object Share undertakes not to use, develop or exploit in any manner
whatsoever, directly or indirectly, any of the Company's proprietary
technology, software, or know-how in the Territory with respect to
Smalltalk software;
8.9 The non-competition undertaking defined in this Article 8 may be set
aside by obtaining Valtech U.K.'s prior written consent.
8.10 Object Share acknowledges that the duration, extent and application of
each of the restrictions are no greater than is necessary for the
protection of the goodwill and confidential information of the
respective businesses of the Company and the Subsidiary and the value
of the Share.
8.11 ObjectShare undertakes with Valtech S.A. (for itself and as trustee for
the Company and the Subsidiary) that it will not for the period of 12
months from the Closing Date solicit or endeavor to entice away, offer
employment to, or offer any contract for services to any person who was
a director or employee of the Company or the Subsidiary at the date of
this Agreement with a view to the specific knowledge or skills of such
person being used by, or for the benefit of, any person carrying on
business in competition with the respective businesses carried on by
the Company or the Subsidiary.
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9. SPECIFIC REPRESENTATIONS
9.1 TERMINATION OF CERTAIN FINANCIAL OBLIGATIONS
9.1.1 ObjectShare unconditionally and irrevocably agrees with and
undertakes to the Purchaser (acting for itself and as trustee
for the Company and the English Company that as of the
Closing:
(i) the Company and the English Company shall be hereby
released and discharged from (or agrees to procure
the release and discharge of; and
(ii) ObjectShare hereby waives (or agrees to procure the
waiver of) all rights against the Company and the
English Company against from or in relation to;
each liability, obligation and undertaking of any nature whatsoever (whether
actual or contingent) which the Company and/or the English Company owe(s) or has
or have before or at the Closing Date to an ObjectShare Group Company and/or its
successors.
Without in any way affecting the foregoing, ObjectShare agrees to pay
the Purchaser (acting for itself and as trustee for the Company and the
English Company) on demand an amount equal to the amount of any Damage
suffered or incurred by the Company and/or the English Company with
effect from or after the Closing Date because of or in relation to a
liability, obligation or undertaking or any nature whatsoever (whether
actual or contingent_ which the Company or the English Company owes or
has before or at the Closing Date to an ObjectShare Group Company,
and/or its successors.
9.1.2 ObjectShare hereby agrees to indemnify the Purchaser (acting
for itself and as trustee for the Company) against claims
brought by Cincom Systems, Inc. or any other third party in
relation to, or as a consequence of, the agreement dated 27
August 1999 between ObjectShare Inc. and Cincom Systems,
including losses, costs, fees and expenses reasonably incurred
by ObjectShare S.A. and/or the Company and/or the Subsidiary
related thereto.
It is agreed between the Parties that for such claims:
(i) ObjectShare shall have an absolute discretion as to
whether and, if so, on what terms to settle any such
claim, in so far as it is in the interest of the
Company and the Subsidiary;
(ii) Valtech S.A. and/or the Company and/or the Subsidiary
shall be held harmless in this respect and
consequently the duration and cap provisions of
Article 7 shall not be applicable to this case.
9.1.3 This Agreement shall be binding upon and inure to the benefit
of and shall be enforceable by ObjectShare and Valtech S.A.
and their respective successors and assignee.
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10. ASSIGNMENT
10.1 This Agreement is personal to the Parties and cannot be assigned by any
of them save that (i) Valtech S.A. may assign its rights hereunder to
an Associated Company for which purpose the term "Associated Company"
shall mean any company which, directly or indirectly, controls or is
controlled by or is under the same Control as Valtech S.A.. and the
term "Control" shall mean the ability to exercise or to procure the
exercise, directly or indirectly, of at least 50 percent of the voting
shares of a company; and (ii) Valtech S.A. (or such Associated Company)
may freely assign its rights pursuant to Article 7 hereof to any
person(s) or corporation(s) to whom the Share may be transferred
following the Closing Date. Notwithstanding the foregoing, ObjectShare
may, without the prior consent of Purchaser, assign its rights and
obligations hereunder to the surviving corporation in a merger or
consolidation to which it is a party or to any person that acquires all
or substantially all of its capital stock or assets.
10.2 ObjectShare may only transfer its obligations hereunder if, the party
to whom the obligations are proposed to be transferred is an entity or
entities which by contract or operation of law assumes or assume
ObjectShare's obligations under and in connection with this Agreement
as if originally party to all such documents in place of ObjectShare.
Valtech S.A. shall attorn to any assignee as envisaged under this
Article 10.
11. EXPENSES
11.1 Each of the Parties shall bear all the costs and expenses incurred by
it in connection with this Agreement and its execution including, but
not limited to, the fees and disbursements of any counsel, independent
accountant or any other person whose services may have been used by the
said Party in relation hereto. However, any fees or costs associated
with any routine accountancy performed on behalf of the Company but not
in connection with this Agreement and its execution shall remain with
the Company.
12. CONFIDENTIALITY
12.1 The Parties undertake to hold in confidence and not to disclose to
third parties (except to their professional advisors and, in the case
of Valtech S.A., to any of its Associated Companies without the prior
written consent of the other, the terms and conditions of the
transaction contemplated hereby.
12.2 All announcements by or on behalf of the Parties hereto relating to the
transaction contemplated hereby shall be in terms agreed by the
Parties.
Save that Valtech S.A. and ObjectShare shall be entitled to make such
announcement as it respectively thinks fit to comply with (i) the
regulations of the Paris Stock Exchange on which Valtech S.A. is listed
and (ii) the NASDAQ regulations in the case of ObjectShare. However the
Parties agree that in this case they shall consult with each other
prior to making any such release with respect to the contents of this
Deed or the transactions contemplated thereby.
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12.3 If for any reason the transaction contemplated hereby is not completed,
the obligations of the Parties pursuant to this Article 10 will remain
in force until November 19, 2000.
13. NOTICES
13.1 Any notice required to be given hereunder shall be validly given if
sent by registered letter (with return receipt requested) or by fax,
confirmed by such registered letter, or by hand delivery against
written acknowledgement of receipt to the following addresses or to
such other address as may have been communicated by either of the
Parties to the other in accordance herewith:
for notices to ObjectShare:
---------------------------
ObjectShare, Inc.
00000 Xxxx Xxxxxx, Xxx. X
Xxxxxx, Xxxxxxxxxx 00000 XX
To the attention of the Chief Executive Officer,
Fax: (000) 000-0000
Cc: Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000 XXX
To the attention of Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
for notices to Valtech U.K.:
----------------------------
Valtech (U.K.) Limited
000 Xxxxxxxxx Xxxx
Xxxxxx X0X0XX
to the attention of the Directors/managing Director
Fax:
------------------
cc: Valtech S.A.
To the attention of Xxxx-Xxxx Xxxxx, Chief Executive Officer
Fax: 00 0 00 00 00 00
cc: Xxxxxxxxx Xxxxxxxx,
Attn.: Mr. Xxxx Xxxxxxxxxx and Ms. Celine Maironi-Xxxxxx
Fax: 00 0 00 00 00 00
Notices shall be effective as of the date of receipt.
14. PROPER LAW AND JURISDICTION
14.1 This Agreement shall be governed by and construed in accordance with
the laws of Germany.
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14.2 Any dispute arising in relation to this Agreement, its interpretation
or execution (including, without limitation, its validity, performance
or interpretation) shall be irrevocably submitted to the exclusive
jurisdiction of the German courts.
15. WAIVERS
15.1 The failure by any Party hereto promptly to avail itself in whole or in
part of any right, power or privilege to which such Party is entitled
pursuant to the terms of this Agreement shall not constitute a waiver
of such right, power or privilege which may be exercised at any time.
To be valid, waiver by any Party hereto of any such right, power or
privilege must be in writing and notified to the other Party as
provided herein.
16. HEADINGS
16.1 The descriptive words or phrases at the head of the Articles are
inserted only as a convenience and for reference purposes and are not
intended to in any way define, limit or describe the scope or intent of
the Articles which they precede.
17. WHOLE AGREEMENT
17.1 This Agreement, together with the Exhibits and Schedules, constitutes
the entirety of the agreement between the Parties with regard to the
subject matter hereof and supersedes any previous agreement or
agreements whether verbal or written with regard thereto with the
exception of the transfer Agreement regarding the Share; provided,
however, that any, scheduled exception to a specific article in this
Agreement shall apply only to that specific article and no other
article herein unless expressly provided for therein.
18. INVALIDATION
18.1 Any provision of this Agreement, which is declared illegal or
inapplicable by any jurisdiction, will thus become void but the
illegality or inapplicability of this rule will not affect other
clauses of this Agreement or affect the legality or applicability of
this provision before any jurisdiction.
19. APPLICABILITY
19.1 In case of discrepancy between this Agreement and its Schedules, the
Agreement shall prevail.
SIGNED by the Parties on the day and year first above written, in counterpart.
ObjectShare, Inc. Valtech S.A.
/s/ /s/
------------------------------ ------------------------------
By Xx. Xxxxxx Xxxx By Xx. Xxxx-Xxxx Xxxxx
Chief Executive Officer Chief Executive Officer.
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