Exhibit (b)(6)
SHARE EXCHANGE AGREEMENT
BETWEEN
ENTERO B.V.
AND
VEDIOR HOLDING B.V.
AND
VEDIOR N.V.
MAY * , 2000
CONTENTS
page
Clause 1 -Exchange right
Clause 2 -Representations, warranties and obligations of Entero, VHBV and VNV *
Clause 3 -Accelerated exchange *
Clause 4 -Rights not exclusive; no forfeiture of rights *
Clause 5 -Binding effect and entire agreement; amendment *
Clause 6 -Assignment of rights and obligations *
Clause 7 -Notices; place of residence *
Clause 8 -Governing law; competent court *
Clause 9 -Confidentiality *
SCHEDULES
Schedule 1 -Stock transfer form
Schedule 2 -Exercise notice put option
Schedule 3 -Exercise option call option
SHARE EXCHANGE AGREEMENT
THE UNDERSIGNED:
1. ENTERO B.V., a private company with limited liability under the law of
the Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands (the "ENTERO"),
2. VEDIOR HOLDING B.V., a private company with limited liability under the
law of the Netherlands, with corporate seat and office address in
Amsterdam, the Netherlands (the "VHBV"),
3. VEDIOR N.V., a limited liability company under the law of the
Netherlands, with corporate seat and office address in Amsterdam, the
Netherlands ("VNV"),
WHEREAS:
A. ING Bank Corporate Investments B.V., the sole shareholder of the Lender
("CI"), VNV and VHBV have entered into an agreement in principle, dated
April 13, 2000, as amended on the date hereof (the "AIP") pursuant whereto
CI has agreed to cause Entero to provide financing in the form of equity
and loans to the Borrower and Platform Purchaser Inc., a corporation
organised and existing under the laws of the state of Georgia, United
States of America ("PLATFORM"), in order to enable Platform to acquire
shares of common stock in Acsys, Inc., a company under the laws of the
state of Georgia, United States of America ("ACSYS") pursuant to a tender
offer dated April 27, 2000 (the "OFFER") and upon the Offer having been
consummated, pursuant to the merger of Platform into Acsys in accordance
with and subject to the terms and conditions of an agreement and plan of
merger, dated as of April 16, 2000 (the "PLAN OF MERGER") to which they
each are a party;
B. On the date hereof, (i) Entero has subscribed for ** shares of common stock
(the "COMMON SHARES") and ** shares of cumulative preferred stock (the
"PREFERRED SHARES") in the share capital of ▇▇▇▇▇▇▇ B.V., a private company
with limited liability under the laws of the Netherlands, with corporate
seat and office address in Amsterdam, the Netherlands ("▇▇▇▇▇▇▇"), each
such shares with a par value of Euro 1 ([EURO] 1), (ii) Entero has sold and
transferred the Common Shares to VHBV and VHBV has purchased and acquired
such shares, and (iii) Entero and VHBV have entered into a shareholders
agreement in relation to their shareholdings in ▇▇▇▇▇▇▇, all pursuant to
and in accordance with the AIP;
C. According to the AIP, the Preferred Shares are exchangeable into depositary
receipts to be issued by Stichting Administratiekantoor van gewone aandelen
Vedior, a "STICHTING" under the law of the Netherlands, with seat in
Amsterdam (the "ADMINISTRATOR"), relating to common shares in the issued
share capital of VNV (the "SHARES");
D. In addition to this agreement, Entero N.V., VNV and ▇▇▇▇▇▇▇ will enter
into an exchangeable loan agreement on the date hereof (the "EXCHANGEABLE
LOAN AGREEMENT").
DECLARE TO HAVE AGREED AS FOLLOWS:
EXCHANGE RIGHT
CLAUSE 1
1.1 Entero has the right to sell and assign all of the Preferred Shares to
VNV in which event VNV shall have the obligation to acquire all or such
part of the Preferred Shares at a purchase price payable in depository
receipts ("CERTIFICATEN") to be issued by the Administrator for Shares,
nominal value NLG 0.05 each (the "RECEIPTS"), at an exchange ratio of one
Receipt per each Euro sixteen ([EURO] 16) Exchange Amount (as hereinafter
defined) as calculated on the basis of the Preferred Shares so sold
and transfered to VNV (the "EXCHANGE PRICE"). Entero can exercise this
option at any time by sending a notice in the form of SCHEDULE 2 to VHBV
and VNV with copy to the Administrator. It is expressly agreed that
Entero is only entitled to exercise this exchange right if simultaneously
it or its affiliate exercises the exchange right pursuant to Clause 4.1
of the Exchangeable Loan Agreement.
A transfer of one or more Preferred Shares to VNV against payment in the
form of Receipts, shall constitute a discharge for Entero with respect to
its payment of consideration for the Receipts, a discharge for the
Adminstrator with respect to its obligation to pay up the Shares and a
discharge for VNV in respect of payment of consideration for the transfer
of such Preferred Shares.
1.2 If (a) VNV shall (i) split, re-denominate, consolidate or reclassify the
Shares, (ii) alter any right attaching to the Shares (including voting,
dividend and liquidation distribution rights), (iii) issue, redeem or
repurchase Shares or other shares in its share capital against a price
which is less than fair market value (other than the granting of options
and the issuance of shares pursuant thereto to management and employees
in accordance with customary practice), (iv) engage in a legal merger or
demerger, (v) distribute dividends or make other distributions on the
Shares or other shares in its share capital (other than cash dividends or
stock dividends in accordance with customary practice of VNV), or (vi)
perform any other act having an effect with respect to the Shares similar
to the effect of the acts referred to in (i) to (v), or (b) the
Administrator shall take any of the actions mentioned in (i) to and
including (vi) with respect to the Receipts (except for cash
distributions or issuance of depository receipts in lieu of cash by the
Administrator in accordance with customary practice), VNV shall, within
one month after such action has been taken, agree with Entero such
amendments to this agreement as are necessary to ensure that the economic
and legal effect of Entero's exchange right remains unaffected by such
act.
1.3 If at any time, the price of the Receipts on AEX-stock exchange (or any
successor stock exchange) equals or exceeds Euro twenty ([EURO] 20) for
at least sixty (60) consecutive trading days, the Preferred
Shares must be exchanged into Receipts at the Exchange Price by way of
assignment as referred to in clause 1.1.
1.4 During the month of May 2005 (the "EXERCISE PERIOD"), VNV shall have the
right to purchase and acquire, and in such event Entero shall sell and
transfer to VNV, the Preferred Shares against a consideration equal to
their aggregate par value plus any unpaid dividends in relation to
previous years during which such Preferred Shares were outstanding, plus
any dividends accrued in the year 2005 (the "EXCHANGE AMOUNT"). VNV can
exercise this option by sending the notice in the form of SCHEDULE 2 to
VHBV and VNV, with a copy to the Administrator.
1.5 If VNV does not exercise the option in accordance with clause 1.4, Entero
may during a period of four weeks after the Exercise Period either (i)
sell and transfer the Preferred Shares for Receipts in which event VNV
must purchase and acquire the Preferred Shares at a purchase price
payable in Receipts at an exchange price equal to the average closing
price ("SLOTKOERS") of the Receipts on AEX stock exchange (or its
successor stock exchange) during the five trading days immediately prior
to the day on which Entero exercises this right or (ii) sell, assign and
transfer the shares in Acsys pursuant to the stock transfer form attached
hereto as SCHEDULE 1, duly and validly executed by ▇▇▇▇▇▇▇ (the "STOCK
TRANSFER FORM") and apply the proceeds first against payment of all
amounts due and payable under the Exchangeable Loan Agreement, and
distribute the remaining proceeds to ▇▇▇▇▇▇▇ for distribution on the
Preferred Shares and the Common Shares in that order, with due observance
of the articles of association of ▇▇▇▇▇▇▇.The Stock Transfer Form is to
be used exclusively for the sale, assignment and transfer of the shares
in Acsys contemplated by this Clause 1.5. By countersigning this
agreement ▇▇▇▇▇▇▇ irrevocably undertakes to take or omit to take any
action and to execute any document necessary or desirable to give effect
to Clause 1.
1.6 VNV and VHBV hereby each unconditionally and irrevocably undertakes to
take or omit to take any action and to execute any document necessary or
desirable to give effect to Clause 1.
REPRESENTATIONS, WARRANTIES AND OBLIGATIONS OF ENTERO, VHBV AND VNV
CLAUSE 2
2.1 VHBV and VNV hereby represent and warrant that the following statements
are true and correct as of the date hereof and as of each date on which
action is to be implemented as contemplated by clause 1:
(a) Each of VHBV and VNV is a private company with limited liability
("BESLOTEN VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID") validly
incorporated and existing under the law of the Netherlands.VNV is
a company with limited liability ("NAAMLOZE VENNOOTSCHAP") validly
incorporated and existing under the laws of the Netherlands.
(b) Each of VHBV and VNV has the corporate power to enter into this
agreement, the AIP and the agreements contemplated thereby
(hereinafter the "TRANSACTION DOCUMENTS") to which it is a party
and to perform its obligations thereunder. VNV also represents
that ANT is
empowered to issue Receipts on behalf of the Administrator
pursuant to a valid power of attorney.
(c) Each of VHBV and VNV has taken all corporate action to enable it
to enter into this agreement and the other Transaction Documents
to which it is a party and to ensure that this agreement and any
other Transaction Document to which it is a party is legal, valid
and binding.
(d) The execution and delivery of the Transaction Documents by VHBV
and VNV do not and will not (i) violate or result in a material
violation of any agreement to which VHBV or VNV is a party, (ii)
conflict with any constitutive documents of VHBV or VNV or (iii)
conflict with any applicable law, regulation or official or
judicial order.
2.2 Entero hereby represents and warrants that the following statements are
true and correct as of the date hereof and as of each date on which
action is to be implemented as contemplated by clause 1:
(a) Entero is a private company with limited liability ("BESLOTEN
VENNOOTSCHAP MET BEPERKTE AANSPRAKELIJKHEID") validly incorporated
and existing under the law of the Netherlands.
(b) Entero has the corporate power to enter into this agreement, the
AIP and the agreements contemplated thereby (hereinafter the
"TRANSACTION DOCUMENTS") to which it is a party and to perform its
obligations thereunder.
(c) Entero has taken all corporate action to enable it to enter into
this agreement and the other Transaction Documents to which it is
a party and to ensure that this agreement and any other
Transaction Document to which it is a party is legal, valid and
binding.
(d) The execution and delivery of the Transaction Documents by Entero
does not and will not (i) violate or result in a material
violation of any agreement to which Entero is a party, (ii)
conflict with any constitutive documents of Entero or (iii)
conflict with any applicable law, regulation or official or
judicial order.
ACCELERATED EXCHANGE
CLAUSE 3
3.1. Without prejudice to any of its other rights and obligations, Entero may
demand immediate exchange of the Preferred Shares in accordance with this
agreement by notifying VHBV and VNV, with a copy to the Administrator, if
an "Event of Default" has occurred and is continuing, as defined in the
Exchangeable Loan Agreement, such event qualifying as an Event of Default
under this agreement, together with
a. the Administrator failing to issue Receipts as contemplated by
this agreement; and
b. any of the representations and warranties made by VHBV and VNV in
this agreement being incorrect, incomplete or misleading when
made.
3.2. If an Event of Default or an event which with notice or passage of time
would constitute an Event of Default occurs or threatens to occur, VHBV
and VNV shall immediately notify Entero thereof.
3.3. VHBV and VNV must compensate Entero for all damage suffered by the latter
as a result of the Event of Default occurring or in Entero's reasonable
opinion threatening to occur, irrespective of whether the Event of
Default can be attributed to VHBV or VNV. The duty to compensate shall
also include any reasonable costs made by Entero to prevent the Event of
Default, to prevent or limit damage or to enforce its rights under this
agreement in or out of court.
RIGHTS NOT EXCLUSIVE; NO FORFEITURE OF RIGHTS
CLAUSE 4
Any entitlement of Entero to any right derived from this agreement shall be
without prejudice to any other rights and claims under this agreement and any
rights and claims at law. No right of Entero under this agreement or by law
shall be affected by a failure to invoke that right or to protest against the
VHBV's or VNV's failure to perform an obligation.
BINDING EFFECT AND ENTIRE AGREEMENT; AMENDMENT
CLAUSE 5
5.1. This agreement shall not have any effect until each party has received a
copy of this agreement, validly executed by the other party. The
preceding sentence shall not apply to clause 7 nor to this clause 5.1.
5.2. If part of this agreement becomes invalid or non-binding, the parties
shall remain bound to the remaining part. The parties shall replace the
invalid or non-binding part by provisions which are valid and binding and
the legal effect of which, given the contents and purpose of this
agreement, resembles as much as possible that of the invalid or
non-binding part.
5.3. This agreement may not be rescinded in whole or in part. The mistaken
party shall bear the risk of any mistake made in creating this agreement.
5.4. This agreement together with the AIP and the other Transaction Documents
contains the entire agreement of the parties in relation to its subject
matter. Upon execution of this agreement, all previous agreements and
arrangements made by the parties in relation to its subject matter other
than the AIP and the other Transaction Documents shall end.
5.5. This agreement contains no stipulations for the benefit of a third party
which could be invoked by a third party against a party to this
agreement.
5.6. The schedules to this agreement shall form a part thereof.
5.7. This agreement may only be amended or supplemented in writing.
5.8. Clauses 5.1 up to 5.7 (inclusive) shall apply MUTATIS MUTANDIS to all
agreements connected with this agreement, unless the relevant agreement
expressly provides otherwise.
ASSIGNMENT OF RIGHTS AND OBLIGATIONS
CLAUSE 6
VNV may not assign or procure the assumption of, as the case may be, rights
and obligations under this agreement to or by a third party unless it has
obtained the prior written consent of Entero. Entero may give its consent on
a conditional basis.
Each of Entero and VHBV may assign its rights and
obligations under this agreement only to another entity which forms part of
the same group (within the meaning of Section 2:24b of the Dutch Civil Code)
but only with or without simultaneous transfer of all of its shares in
▇▇▇▇▇▇▇ in accordance with the Shareholders Agreement.
NOTICES; PLACE OF RESIDENCE
CLAUSE 7
7.1. Notices and other statements in connection with this agreement may only
be given by way of a writ or a letter delivered in person or by a courier
against delivery of a receipt or by way of a registered letter with
acknowledgement of receipt or a telex with receipt of the correct code of
receipt, at the recipient's place of residence as most recently nominated
in accordance with clauses 7.2 and 7.3. Each statement must be in the
Dutch or English language. A statement which does not comply with this
clause 7.1 shall have no effect.
7.2. For all matters relating to this agreement, each party nominates the
address referred to below as its place of residence:
(i) Entero
address: Bijlmerplein 888 HG 04.06
PO box: 1800
postal code and city: 1000 BV Amsterdam
country: The Netherlands
for the attention of: J.P.A.M. Vogels
telefax: **
(ii) VHBV
address: Jachthavenweg 112
PO box: 75173
postal code and city: 1070 AD Amsterdam
country: The Netherlands
for the attention of: chairman of the managing board
telefax: **
(iii) VNV
address: Jachthavenweg 112
PO box: 75173
postal code and city: 1070 AD Amsterdam
country: The Netherlands
for the attention of: chairman of the managing board
telefax: **
7.3. A party may nominate a different place of residence from that referred to
in clause 7.2 by notifying the other party of that new place. Nominating
a place of residence outside the Netherlands shall have no effect.
7.4. Clauses 7.1 to 7.3 (inclusive) shall also apply to all matters relating
to agreements which are connected with this agreement, unless the
relevant agreement expressly provides otherwise.
GOVERNING LAW; COMPETENT COURT
CLAUSE 9
9.1. This agreement shall be governed exclusively by Dutch law.
9.2. All disputes arising in connection with this agreement, including
disputes concerning the existence and validity thereof, shall be resolved
in accordance with the Arbitration Rules of the Netherlands Arbitration
Institute ("Nederlands Arbitrage Instituut").
The arbitral panel shall consist of three members. Each party shall
appoint one member within ten (10) business days after the date one of
the parties has given written notice to the other party or parties of the
fact that in its opinion a dispute exists between two or more of the
parties which cannot be resolved through further negotiation.The third
member shall be jointly appointed by the members so appointed. In the
event a party has not appointed a member in time, such member shall be
appointed with due observance of and in accordance with article 14 of the
Arbitration Rules of the Netherlands Arbitration Institute. The place of
arbitration will be Amsterdam, the Netherlands. It is expressly
understood that the foregoing will not preclude the parties from
instituting a summary proceeding ("kort geding").
9.3. Clauses 9.1 and 9.2 shall also apply to agreements which are connected
with this agreement, unless the relevant agreement expressly provides
otherwise.
CLAUSE 10
CONFIDENTIALITY
10.1. Each Party undertakes to the other Party not to disclose the provisions
of this Shareholders Agreement unless with the express written consent of
the other Party.
10.2. Each Party undertakes not to use or disclose any information - except for
information which can be obtained from publicly available sources -
relating to the other Party, the Company and their respective Affiliated
Parties or their activities or products, including information concerning
suppliers and customers and other relationships, ("CONFIDENTIAL
INFORMATION"), unless the performance or enforcement of this agreement so
requires.
10.3. Each Party undertakes to disclose Confidential Information to a third
party under Clause 10.2 only if the third party has committed itself in
writing to use or disclose the Confidential Information only in
accordance with this clause. Each Party shall store Confidential
Information, or procure its storage, in a prudent manner, and shall
ensure that no third party obtains knowledge of it in violation of this
clause.
10.4. This clause shall not apply to the extent that the Party in question is
under an obligation to use or disclose information pursuant to the law,
arbitral decision, a binding decision of a court or another government
authority or any stock exchange. Where possible, however, the disclosing
Party shall consult with the other Party prior to disclosure about the
form and contents of the disclosure.
10.5. If the Shareholders Agreement ends the obligations of each Party under
this clause shall, however, continue to exist.
IN EVIDENCE WHEREOF:
this agreement was signed and countersigned in quadruplicate in the manner
set out below.
1. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
2. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
3. By **,
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
4. By ** [▇▇▇▇▇▇▇]
[[represented by its [managing director][board member] **] [represented
by ** pursuant to a [written] power of attorney [evidenced by an extract
from the trade register attached to this agreement as SCHEDULE **]
[attached to this agreement as SCHEDULE **],]
in ** on **
SCHEDULE 1
STOCK TRANSFER FORM
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇ B.V. hereby sells, assigns and transfers unto
___________________ Shares of Common Stock, no par value per share, of Acsys
Inc., a Georgia corporation, (the "Corporation") standing in the name of ▇▇▇▇▇▇▇
B.V. on the books of the Corporation, represented by Certificate(s) Number(s)
____ herewith and do hereby irrevocably constitute and appoint any officer of
the Corporation as attorney to transfer the said stock on the books of the
Corporation with full power of substitution in the premises.
________________________, ____________
▇▇▇▇▇▇▇ B.V.
By: ____________________
Name:
Title:
SCHEDULE 2
draft
NOTICE
EXERCISE OF OPTION
Entero B.V.
Bijlmerplein 888 HG 04.06
1102 MG Amsterdam
The Netherlands
Vedior N.V.
[--]
Vedior Holding B.V.
[--]
Stichting Administratiekantoor van gewone aandelen Vedior
[--]
Dear Sirs,
Reference is made to the Share Exchange Agreement between Entero B.V.
("ENTERO"), Vedior Holding B.V. ("VHBV") and Vedior N.V. ("VNV") dated May [--],
2000 (the "SHARE EXCHANGE AGREEMENT"). All defined terms used in this letter
shall have the meaning given to such terms in the Share Exchange Agreement.
This is to inform you that the undersigned hereby notifies you of its exercise
of the option set forth in Clause 1.1 of the Share Exchange Agreement in respect
of all Preferred Shares.
The undersigned hereby requests VHBV, VNV and the Administrator to take all
required steps in order to arrange for an issue of -- Receipts to the
undersigned on [date] (two business days) including without limitation
preparation of a description of assets to be contributed and a statement of
contribution required pursuant to the provisions of the Dutch Civil Code
(BURGERLIJK WETBOEK).
Sincerely yours
Entero B.V.
By ___________________________
Name:
Title:
SCHEDULE 3
draft
Entero B.V.
Biljmerplein 888
HG 04.05
Dear Sirs,
Reference is made to the Share Exchange Agreement between Entero B.V.
("ENTERO"), Vedior Holding B.V. ("VHBV") and Vedior N.V. ("VNV") dated May [--],
2000 (the "LOAN AGREEMENT"). All defined terms used in this letter shall have
the meaning given to such terms in the Loan Agreement.
The undersigned hereby informs you that the undersigned hereby exercises the
option set forth in clause 1.4 of the Loan Agreement.
We will provide you with transfer documents and payment information within two
business days following this notice.
Sincerely yours,
Vedior N.V.
By:_______________________
Name: