Sale and Purchase Agreement Regarding the Sale and Purchase of Shares in 12snap AG Munich, Germany
Regarding
the Sale and Purchase of Shares
in
12snap
AG
Munich,
Germany
Page
1
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between
1.
NeoMedia Technologies, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇
-
hereinafter referred to as the "Seller"
-,
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and
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2.
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Am
▇▇▇▇▇ ▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
-
hereinafter referred to as the “Purchaser” -,
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-
the Seller and Purchaser herein collectively
referred
to as the “Parties”, and each of them as a
“Party”-.
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Page
2
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Table
of Contents
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3
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Index
of Annexes
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6
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Recitals
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7
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Section
1
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8
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Corporate
Ownership; Structure of the Acquisition
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8
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1.1
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Particulars
of the Company
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8
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1.2
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Registered
Share Capital of the Company
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8
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1.3
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Subsidiaries
of the Company
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9
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1.4
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Participations
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9
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1.5
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Transfer
Price, Profit and Loss Pooling and other Enterprise
Agreements
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9
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1.6
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Cash
Pooling Agreements
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9
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1.8
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Structure
of the Acquisition
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9
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Section
2
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10
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Sale
and Purchase and Transfer of the Transfer Shares; Company
Name
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10
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2.1
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Sale
and Purchase and Transfer of the Seller Shares
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10
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2.2
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Right
to Companies’ Names
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10
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Section
3
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11
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Closing;
Closing Conditions
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11
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3.1
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Closing;
Closing Date
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11
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3.2
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Closing
Conditions
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11
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3.3
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Waiver
of Closing Conditions
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13
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3.4
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Consequences
of Non-Satisfaction of the Closing Conditions
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14
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Section
4
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14
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Purchase
Price; Conditions of Payment
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14
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4.1
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Purchase
Price
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14
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4.2
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Payments
to Seller
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15
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4.3
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Payments
to Purchaser
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16
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4.4
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Period
and Terms of Escrow
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16
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Section
5
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18
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intentionally
left free
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18
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Section
6
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18
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Seller’s
Guaranties
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18
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6.1
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Title
and Authority of Seller and Companies
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18
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6.2
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Financial
Statements
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20
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6.3
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intentionally
left free
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21
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6.4
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intentionally
left free
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21
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6.5
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intentionally
left free
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21
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6.6
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Customers
and Suppliers; Adverse Reaction on Change of Control
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21
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6.7
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intentionally
left free
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22
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6.8
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intentionally
left free
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22
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6.9
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Taxes and other Public Impositions |
22
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Page
3
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6.10
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intentionally
left free
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22
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6.11
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Legal
Proceedings
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22
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6.12
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intentionally
left free
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23
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6.13
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intentionally
left free
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23
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6.14
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Conduct
of Business
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23
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Section
7
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24
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Remedies
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24
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7.1
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Restitution
in Kind; Damages
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24
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7.2.
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Notice
of Guaranty Claim
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25
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7.3
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Exclusion
of Guaranty Claims
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25
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7.4
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Exclusion
of further Remedies
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26
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7.5
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Best
Knowledge of the Seller
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26
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Section
8
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26
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Defense
of Claims; Duty to Inform
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26
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Section
9
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27
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Tax
Indemnity
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27
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9.1
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Indemnification
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27
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9.2
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Tax
Benefit
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28
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9.3
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Payment/Duty
to Inform
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28
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Section
10
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28
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Limitations
of Liabilities
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28
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10.1
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Time
Limits
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28
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10.2
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De
Minimis
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29
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10.3
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Liability
Cap
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29
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Section
11
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30
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Additional
Undertakings
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30
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Section
12
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30
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Non-Solicitation
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30
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Section
13
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30
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Cooperation
Agreement
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30
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Section
14
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31
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Confidentiality
and Press Releases
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31
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14.1
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Confidentiality
in Relation to the Companies
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31
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14.2
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Confidentiality
in Relation to this Agreement and the Parties
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31
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14.3
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Press
Statements
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31
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Section
15
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32
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Costs
and transfer taxes
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32
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15.1
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Costs
of Advisors
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32
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15.2
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Transfer
Taxes
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32
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Page
4
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Section
16
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32
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Assignments
of Rights and Obligations
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32
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16.1
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No
Assignment without Consent
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32
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Section
17
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32
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INTENTIONALLY
LEFT FREE
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32
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Section
18
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33
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Notices
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33
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18.1
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Form
of Notice
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33
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18.2
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Notices
to Seller
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33
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18.3
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Notices
to Purchaser
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33
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18.4
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Change
of Address
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34
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18.5
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Copies
to Advisors
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34
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Section
19
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34
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Miscellaneous
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34
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19.1
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Governing
Law
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34
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19.2
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Arbitration
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34
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19.3
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Business
Day
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34
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19.4
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Interest
under this Agreement
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35
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19.5
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Amendments,
Supplements, Modifications, Termination
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35
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19.6
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Headings
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35
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19.7
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Language
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35
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19.8
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Annexes
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35
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19.9
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Entire
Agreement
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35
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19.10
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Severability
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36
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19.11
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Effectiveness
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36
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Page
5
Annex
1.2
12snap AG Shares
Annex
1.3
Subsidiaries
Annex
1.5
Transfer Price, Profit and Loss Pooling and Enterprise
Agreements
Annex
3.2.1
Draft ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Waiver Declaration
Annex
3.2.2
Draft ▇▇▇▇▇ ▇▇▇▇▇▇▇ Waiver Declaration
Annex
3.2.4
Draft Shareholder Termination Agreement
Annex
3.2.12
Draft Resignation Letters
Annex
3.2.13
Draft Company Approval Letter
Annex
3.2.15
Draft Option Agreement
Annex
6
Disclosure Letter and Schedules to the Disclosure Letter
Page
6
WHEREAS,
the Seller holds 2,420,339 registered non-par value shares with a portion of
the
share capital of EUR 1.00 each (auf den Namen lautende Stückaktien) of
12snap AG, a German privately held stock corporation with its legal seat in
Munich.
WHEREAS,
12snap AG is active in the mobile marketing industry.
WHEREAS,
the Seller has undertaken a strategic review of its activities and investments
in 12snap and other mobile marketing companies and has taken the strategic
decision to divest from the mobile marketing industry. The Seller has already
disposed on other of its investments in other mobile marketing companies and
has
also initiated a good faith process to dispose of its shares in 12snap
AG.
WHEREAS,
the Seller´s good faith process to dispose of its shares in 12snap AG considers
any creditor and shareholder protection laws.
WHEREAS,
Purchaser is a German private investor.
WHEREAS,
the Seller has selected the Purchaser to exclusively negotiate in good faith
the
sale and transfer of the Seller´s shares in 12snap AG. Before granting
exclusivity to the Purchaser, the Seller had carefully evaluated - not only
but
especially based on the criteria of time to money, transaction mechanics and
retention of a minority stake in 12snap AG similar to other divestments of
Seller in other mobile marketing companies - and turned down a number of other
indicative offers or expressed interests of third parties to acquire all or
parts of the shares of 12snap AG.
WHEREAS,
the Seller now wishes to sell part of its shares in 12snap AG to and the
Purchaser wishes to acquire such shares of the Seller in 12snap AG from the
Seller whereby the Seller shall have the option to sell its remaining shares
to
and the Purchaser shall have the option to buy the remaining shares from the
Seller under certain terms and conditions as agreed between Seller and
Purchaser.
NOW,
THEREFORE, the Parties hereto agree as follows:
Page
7
12snap
AG
(herein referred to as the “Company”) is a stock
corporation (Aktiengesellschaft) duly organized under the
laws of Germany with registered offices at ▇▇▇▇▇▇▇▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
and registered with the Commercial Register of the Lower Court
(Amtsgericht) at Munich under HRB 127322.
The
registered share capital (Grundkapital) of the Company amounts to EUR
4,917,163 (four million nine hundred seventeen thousand one hundred sixty three
Euro) (herein referred to as the “Registered Share Capital”).
The Registered Share Capital is divided into shares which are held by the Seller
(hereinafter collectively referred to as the "Seller Shares")
evidenced by global share certificate No. 5 (Namenssammelaktie Nr. 5 über €
2.420.339, hereinafter referred to as the “Global Certificate
5”), ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (herein referred to as the “▇▇▇▇▇▇
Shares”) evidenced by global share certificate No. 3
(Namenssammelaktie Nr. 3 über € 1.039.572, hereinafter referred to as the
“Global Certificate 3”), ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (herein referred
to as the “Mühlfriedel Shares”) evidenced by global share
certificate No. 4 (Namenssammelaktie Nr. 4 über € 957.301, hereinafter
referred to as the “Global Certificate 4”) and the Company
(herein referred to as the “ CompanyShares”)
as set forth in Annex 1.2.
The
Registered Share Capital has been fully paid and has not been
repaid.
The
Seller Shares shall be divided into 1,928,623 shares which the Seller wishes
to
sell to and the Purchaser wishes to acquire from the Seller upon closing of
this
agreement (hereinafter referred to as the “Transfer Shares”) to
be evidenced by global share certificate No. 6 (Namenssammelaktie Nr. 6 über
€ 1.928.623, hereinafter referred to as the “Global Certificate
6”) and 491,716 shares (hereinafter referred to as the “Option
Shares”) to be evidenced by global share certificate No. 7
(Namenssammelaktie Nr. 7 über € 491.716, hereinafter referred to as the
“Global Certificate 7”). With regard to the Option Shares upon
closing of this agreement Seller and Purchaser will enter into an option
agreement (the “Option Agreement”) pursuant to which Seller has
the right to sell and Purchaser has the right to acquire the Option Shares
under
the terms and conditions of the Option Agreement.
Page
8
Other
than as set forth in Annex 1.3 hereof, the Company is the sole
shareholder, directly or indirectly, of the subsidiaries as set forth in
Annex 1.3 (herein referred to as the “Subsidiaries” and
the shares of the Subsidiaries herein referred to as the “Subsidiaries
Shares”).
The Company and its Subsidiaries are herein collectively referred to as the
“Companies”.
Other than as set forth in section 1.3 hereof, the Company holds, directly
or
indirectly, no majority or minority participations in other companies or
businesses.
1.5
Transfer
Price, Profit and Loss Pooling and other Enterprise
Agreements
Other
than as set forth in Annex 1.5 hereof, the Company and the Subsidiaries
have not entered into any transfer price agreements
(Verrechnungspreisvereinbarungen), profit and loss pooling agreements
(Beherrschungs- und Gewinnabführungsverträge) and other enterprise
agreements (andere Unternehmensverträge iSd § 292 AktG).
The
Company and the Subsidiaries have not entered into any cash pooling
agreements.
TheSeller
will sell, and the Purchaser will purchase, the Transfer Shares in the Company.
The Seller shall have the option to sell to the Purchaser and the Purchaser
shall have the option to purchase from the Seller the Option
Shares.
Page
9
2.1
Sale and Purchase and Transfer of the Seller
Shares
2.1.1
The Seller hereby sells (verkauft), and the Purchaser hereby purchases
(kauft), upon the terms and conditions of this Agreement (herein referred
to as the “Agreement”), the Transfer Shares. The sale and
purchase of the Transfer Shares hereunder shall include any and all rights
pertaining to the Transfer Shares, including, without limitation, the right
to
receive dividends which have not yet been distributed prior to the date of
this
Agreement. The Transfer Shares shall be sold
together with
all rights and obligations attaching thereto with economic effect
(schuldrechtliche Wirkung) as of the closing date.
2.1.2
Subject to the condition precedent (aufschiebende Bedingung) of the
fulfilment of all closing conditions pursuant to Section 3 below (i) the Seller
hereby transfers (▇▇▇▇▇ ▇▇) the Transfer Shares to the Purchaser and (ii)
the Seller hereby transfers the legal title (übereignen) to the Global
Certificate 6 to the Purchaser. The Purchaser hereby accepts such transfers.
The
Sellers shall hand over (übergeben) the Global Certificate 6 to the
Purchaser at the closing.
2.1.3
In the event of a rescission (Rücktritt) of this Agreement the transfers
pursuant to Section 2.1 above shall be null and void (auflösende
Bedingung) and the Purchaser shall be obliged to hand back the Global
Certificate 6 to the Seller.
The
Companies and their successors and assignees shall be
entitled, but in no way obligated, to operate under the name “12snap” in
Germany, UK, Italy, Scandinavia, Austria and the US. The Seller and the Seller´s
Affiliates (in the meaning of § 15 German Stock Corporation Act) are prohibited
from using the name “12snap” or confusingly similar names as from the
closing date for any business in the areas of software, telecom, advertising
or
any confusingly similar area. It is understood that this provision does not
limit the right of the Purchaser, the Companies and their successors to operate
elsewhere under the name “12snap”.
Page
10
The
consummation of the transactions contemplated by this Agreement (herein referred
to as the “Closing”) shall take place on April 4, 2007, 3 pm
German Time but not before the Business Day on which the last of the closing
conditions set forth in section 3.2 has been satisfied, at the offices of
MLawGroup Partnerschaft von Rechtsanwälten Besner ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, or at such other place and at such other time the Seller
and the Purchaser will have agreed upon. The date on which the Closing occurs
shall herein be referred to as the “Closing Date”.
The
Closing shall be subject to the satisfaction of each of the following actions
(herein collectively referred to as the “Closing Conditions”,
and each of them a “Closing Condition”):
3.2.1
Delivery
to Seller of a waiver
declaration of ▇▇. ▇▇▇▇▇ addressed to Seller not to take recourse against Seller
and waive any entitlements against Seller arising or in connection to the
agreement between Seller and ▇▇. ▇▇▇▇▇ dated February 2, 2007 (the
“▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Waiver Declaration”) draft of which is attached
to this Agreement as Annex
3.2.1;
3.2.2
delivery
to Seller of a waiver
declaration of the Purchaser addressed to Seller not to take recourse against
Seller and waive any entitlements against Seller arising or in connection to
the
Purchaser´s Top-Up Amount (the “Purchaser´s Top-Up Amout”)
under Sec. 4.3.3 of the Share Sale and Purchase Agreement among the Seller
and
the Purchaser and other parties dated February 10, 2006 (the “▇▇▇▇▇
▇▇▇▇▇▇▇ Waiver Declaration”) to the extent the Purchaser´s Top-Up
Amount has not been set off against the Purchase Price according to this
Agreement draft of which is attached to this Agreement as Annex
3.2.2;
3.2.3
delivery to Seller of original share certificate No 1411 of Purchaser
representing 2,098,481 fully paid and non-assessable shares of the $.01 par
value common stock of NeoMedia Technologies, Inc. made out to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and of original share certificate No 1412 of Purchaser representing 427,337
fully paid and non-assessable shares of the $.01 par value common stock of
NeoMedia Technologies, Inc. made out to the Purchaser;
Page
11
3.2.4
delivery
to Seller of an agreement
executed by Seller and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ pursuant to
which (i) Seller waives any entitlements against ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ for a (re)transfer and (re)assignment of the ▇▇▇▇▇▇ Shares and the
Mühlfriedel Shares under the shareholder agreement between the Seller, ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ dated February 2, 2007 (the
“Shareholder Agreement”), (ii) in exchange ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ waive any entitlements for their outstanding Top-Up
Amounts under Sec. 4.3.3 of the Share Sale and Purchase Agreement among the
Seller, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and other parties dated February
10, 2006 and (iii) the Seller, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ mutually
terminate the Shareholder Agreement (the “Shareholder Termination
Agreement”). A draft of the Shareholder Termination Agreement is
attached to this Agreement as Annex 3.2.4.
3.2.6
delivery
to Seller of original share
certificate No 1424 of Purchaser representing 2,095,036 fully paid and
non-assessable shares of the $.01 par value common stock of NeoMedia
Technologies, Inc. made out to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and of original share
certificate No 1425 of Purchaser representing 409,847 fully paid and
non-assessable shares of the $.01 par value common stock of NeoMedia
Technologies, Inc. made out to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇;
3.2.7
delivery to ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Global Certificate 3;
3.2.8
delivery to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Global Certificate 4;
3.2.9
delivery
to the Company Global Certificate
5. The Company will destroy Global Certificate 5 after the Seller has confirmed
in writing to the Purchaser that the Purchase Price has been fully paid to
the
Seller´s Account and the Escrow Account;
3.2.10
delivery
to the Purchaser Global Certificate 6. The
Purchaser will hold Global Certificate 6 in escrow for the Seller until the
Seller has confirmed in writing to the Purchaser that the Purchase Price has
been fully paid to the Seller´s Account and the Escrow Account;
Page
12
3.2.11
delivery of Global Certificate 7 in trust for the Seller to Freshfields
Bruckhaus ▇▇▇▇▇▇▇▇, att. of ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, LL.M., ▇▇▇▇▇▇▇▇▇▇. ▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
3.2.12
delivery
to the Company of
resignation letters by all 3 (three) current supervisory board members (the
“Resignation Letters”) draft of which are attached to this
Agreement as Annex 3.2.12;
3.2.13
delivery
to Seller and
Purchaser of an approval letter of the Company to approve the transfer of the
Transfer Shares and potential transfer of the Option Shares under the Option
Agreement to the Purchaser (the “Company Approval Letter”)
draft of which is attached to this Agreement as Annex 3.2.13;
3.2.14
delivery
to Seller of an irrevocable confirmation of
Purchaser´s bank that Purchaser has instructed and Purchaser´s bank has followed
Purchaser´s instruction to pay the cash purchase price to the Seller´s Account
and the Escrow Account according to Section 4 of this Agreement;
3.2.15
Seller
and Purchaser deliver to the other party an
executed version of the share put/call option agreement (the “Option
Agreement”) pursuant to which (i) Seller has the right to sell to the
Purchaser and Purchaser has the right to acquire from the Seller the Option
Shares against a purchase price of USD 750,000 (in words United States Dollars
seven hundred fifty thousand), (ii) whereby any option right can only be
exercised on or after December 31, 2007 and (iii) Seller and Purchaser
understand and agree for the avoidance of doubt that if the Company is sold
to a
third party prior to December 31, 2007 Seller will receive the appropriate
percentage of the proceeds from the third party sale prior to December 31,
2007.
A draft of the Option Agreement is attached to this Agreement as Annex
3.2.15.
The Purchaser shall
be entitled to waive, by written notice to the Seller, any of the conditions
precedent set forth above under Section 3.2.7 – 3.2.10 and 3.2.12.
The Seller shall
be
entitled to waive, by written notice to the Purchaser, the conditions precedent
set forth above under Section 3.2.1 – 3.2.6, 3.2.11 and 3.2.14.
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13
The Parties shall
be
entitled to waive, by written notice to the other party, any of the conditions
precedent set forth above under Section 3.2.13 and 3.2.15.
3.4.1
The
Seller and the Purchaser shall have
the right to rescind (zurücktreten) this Agreement by written notice by
the rescinding Party to the other Parties if the Closing Conditions set forth
above have not been met or waived by the competent Party on or before April
5,
2007.
3.4.2
Any
rescission under this section 3.4
shall be valid only if the recipient Party has received such written notice
of
rescission prior to the date on which the relevant Closing Condition has been
satisfied or waived.
4.1.1
The Purchase Price to be paid by the Purchaser for the Transfer Shares as sold
and purchased hereunder shall be the aggregate of:
an
amount of USD 2,600,000 (in words United States Dollars
two million six hundred thousand)
(herein referred
to
as the "Purchase Price").
4.1.2
The Purchase Price shall be paid in cash at Closing (the “Cash Purchase
Price”)
in
an amount of USD 72,716.76 (in words United States
Dollars seventy two thousand seven hundred and sixteen)
to the Seller´s
Account (as defined in Section 4.2 hereof),
in
an amount of USD 350,676.63 (in words United States
Dollars three hundred fifty thousand six hundred seventy six)
which equals for
the
purpose of this Agreement EUR 262,561.12 to the account of Technologie
Beteiligungsfonds Bayern GmbH & Co. KG, Munich, Bank: HypoVereinsbank AG,
Landshut, Bank Code: 74 320 073, Account: 376 67 56, IBAN:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, BIC-Code: ▇▇▇▇▇▇▇▇▇▇▇,
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14
in an amount
of USD 676,606.61 (in words United States Dollars six hundred seventy six
thousand six hundred and six)
which
equals for the purpose of this Agreement EUR 506,593.75 to
the account of tbg Technologie-Beteiligungs-Gesellschaft mbH, Bonn Bank: KfW
Bankengruppe Frankfurt, Bank Code: 500 204 00, Account: 122 30 80 949, IBAN:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, BIC-Code: ▇▇▇▇▇▇▇▇▇▇▇, ref.: DN 732764+5961511 12snap
AG
KN 23080949 Tilgung+Mindestvergütung, and
in
an amount of USD 500,000 (in words United States Dollars
five hundred thousand)
to the Escrow Account
(as defined in Section 4.4 hereof)(the “Escrow
Amount”).
4.1.3
The remaining amount of the Purchase Price exceeding the Cash Purchase
Price
in
an amount of USD 1,000,000 (in words United States
Dollars one million)
is
set off at Closing against the due claim of the Purchaser
against the Seller for payment of the Purchaser´s Top-Up Amount arising under
Sec. 4.3.3 of the Share Sale and Purchase Agreement among the Seller and the
Purchaser and other parties dated February 10, 2006.
All
payments unless otherwise provided for herein owed by the
Purchaser to the Seller under this Agreement shall be paid by the Purchaser
free
and clear of costs and charges in immediately available funds by wire transfer
to the Seller bank account, at
Account Name:
NeoMedia Technologies, Inc.
Account number:
53301755135
ABA Routing Number:
▇▇▇▇▇▇▇▇▇
Bank Name: ▇▇ ▇▇▇▇▇▇
Chase
Bank Location:
Chicago, IL, USA
(herein referred
to
as the "Seller´s Account").
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15
All
payments owed by the Seller to the Purchaser under this
Agreement shall be paid by the Seller free and clear of costs and charges in
immediately available funds by wire transfer to the Purchaser's bank account
kept with
Bank: Dresdner Bank
AG, Düsseldorf
Account holder: ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Account number: 421
61 92 00
IBAN:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Bank zip code: 300
800 00
SWIFT: DRESDEFF
(herein referred
to
as the "Purchaser's Account").
4.4.1
Prior to the Closing, MLawGroup Partnerschaft von Rechtsanwälten Besner
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the “Escrow
Agent”) has opened trust account No. ▇▇▇▇▇▇▇ 82 USD at Commerzbank AG,
Munich, in joint favor of Seller and Purchaser (the “Escrow
Account”) to receive payment by Purchaser of the Escrow Amount.
Subject
to sections 4.4.3 to 4.4.5 hereof, the Escrow Amount shall be retained from
the
Closing until 90 days after the Closing Date (herein referred to as the
"Escrow Period").
4.4.2
At the end of the Escrow Period (subject to sections 4.4.3 to 4.4.5 hereof)
the
Purchaser shall release the escrow amount balance (including interest and after
reduction of expenses for the Escrow Account and money transfer, the
“Escrow Amount Balance”) to the Seller´s Account.
4.4.3
The Purchaser shall not be obligated to release the Escrow Amount Balance to
the
Seller´s Account if and to the extent that Purchaser has:
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16
(i)
notified
the
Seller in writing and without undue delay of a Guaranty Claim (such notice
to
include a statement of the facts upon which the Guaranty Claim is based and
the
amount of the Guaranty Claim to the extent that such amount can be determined
at
the time when such notice is given) prior to the expiry of the Escrow Period
and
(ii)
commenced arbitration proceedings to pursue such Guaranty Claimwithin four
weeks
as of notification to the Seller in accordance with section 4.4.3 (i) hereof.
For the avoidance of doubt, the Purchaser's right to not release part or all
of
the Escrow Amount pursuant to section 4.4.3 hereof shall be limited to the
amount notified to the Seller and brought in the arbitration proceedings in
accordance with section 4.4.3.
4.4.4
To
the extent that any Guaranty Claim
shall have been agreed by the Parties or determined by an award of the competent
arbitration tribunal, the Seller shall immediately upon such agreement release
the amount of such Guaranty Claim from the Escrow Amount to the Purchaser.
4.4.5
To
the extent that the Purchaser has in
accordance with section 4.4.3 (i) notified the Seller of a Guaranty Claim and
the Escrow Agent therefore continues to hold all or part of the Escrow Amount,
the Purchaser shall owe the Seller interest at the rate of 5 % p.a. on the
amount notified by the Purchaser and held in escrow for the time period starting
on the day after the day of notification per section 4.4.3 (i) and ending
(i)
if
the
Purchaser timely commences arbitration to pursue such Guaranty Claim in
accordance with section 4.4.3 (ii) upon the conclusion of the arbitration
procedure. It being understood that interest shall accrue only if and to the
extent that the Seller prevails in the arbitration proceedings, or
(ii)
the end of the four week filing period per section 4.4.3 (ii) if the Purchaser
not so commences arbitration.
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17
Except
as specifically set forth in the disclosure letter
delivered to the Purchaser by the Seller prior to entering into this Agreement
and attached hereto as Annex 6 (the “Disclosure Letter”)
and except for the Purchaser’s knowledge, the Seller hereby guarantees to the
Purchaser subject to the requirements and limitations provided in Section 7
hereof or otherwise in this Agreement by way of an independent promise of
guaranty in accordance with section 311 Para. 1 of the German Civil Code
(Bürgerliches Gesetzbuch) (selbständiges Garantieversprechen
i.S.d. § 311 Abs. 1 BGB) (herein referred to as the
“Guaranties”) that the statements set forth herein
are true,
complete and accurate as of the date of this Agreement and as of the Closing
Date, it being understood that such statements shall not constitute a quality
guaranty concerning the object of the purchase within the meaning of sections
443, 444 of the German Civil Code (Garantie für die Beschaffenheit der
Sache):
6.1
Title
and Authority of
Seller and
Companies
6.1.1
Seller has been duly established and is validly existing under its respective
jurisdiction. Seller has the unrestricted right, power, authority and capacity
to execute and consummate this Agreement and the transactions contemplated
therein. All required approvals of any corporate bodies of Seller have been
given.
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18
6.1.3
No insolvency or similar proceedings have been, or have been threatened to
be,
opened over the assets of Seller, and there are no circumstances that would
require or justify the opening of or application for such proceedings until
90
days after Closing.
6.1.4
This Agreement constitutes and all other documents executed by Seller under
or
in connection with this Agreement will, when executed, constitute legal, valid
and binding obligations of Seller enforceable in accordance with their
terms.
6.1.5
The execution and consummation of this Agreement and of the transactions
contemplated herein by Seller does not violate the articles of association,
partnership agreement or other corporate documents, as the case may be, or
any
other legal obligations of Seller and is not subject to challenge
(Anfechtung) by any third party on any legal basis, including on the
basis of any creditor protection laws, including but not limited to any
principle of equal treatment of creditors of Seller according to the federal
Bankruptcy Code preference statue or laws to avoid fraudulent conveyance or
fraudulent transfers including but not limited to the Uniform Fraudulent
Transfer Act and the federal Bankruptcy Code.
6.1.6
There is no action, suit, investigation or other proceeding pending or
threatened against or affecting Seller before any court, arbitrator,
governmental body, agency or official that in any manner challenges or seeks
to
prevent, enjoin, alter or materially delay the execution or consummation of
this
Agreement or the transactions contemplated therein, and there are no
circumstances likely to give rise to any of the foregoing.
6.1.7
The Companies are duly organized and validly existing under the laws of their
respective jurisdictions of incorporation. The statements made in the Recitals
with respect to the Companies, the Registered Share Capital and the Shares
are
true, accurate and complete in every respect. The Companies have the corporate
power and authority to carry on their respective businesses as they have been
conducted and will have been conducted up to the Closing Date.
6.1.8
The statements in Section 1.1 through 1.7 are true, complete and accurate in
every respect. The Seller has made available to Purchaser a complete and correct
copy of the Company’s and the Subsidiaries’ articles or certificates of
incorporation and by‑laws, each as amended to date and copies of all
shareholders resolutions. The Company’s and the Subsidiaries’ articles or
certificates of incorporation and by‑laws so delivered are in full force and
effect.
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19
6.1.9
Other
than under the Agreement listed in
Schedule 6.1.9, no bankruptcy, insolvency or judicial composition
proceedings have been initiated or applied for under any applicable law against
the Companies nor have any legal proceedings or other enforcement measures
been
initiated or applied for with respect to any property or other assets of any
of
the Companies. There exist no circumstances which would require the opening
of
such proceedings or justify or require the avoidance of this Agreement in the
future; in particular, none of the Companies is insolvent
(zahlungsunfähig), has ceased or suspended payments (Zahlungen
eingestellt) or is over-indebted (überschuldet) within the meaning of
the German Insolvency Code or other applicable law such that it would have
to
file a petition of bankruptcy (Insolvenzantrag).
6.1.10
The Seller has made available to Purchaser copies of all contracts between
the
Companies and the Seller.
6.1.11
No financial and audit related reporting requirements for
the Company occur if Seller owns less than 20% of the Company´s registered
share capital. The Seller records the remaining stake in the Company as an
investment on Seller´s balance sheet and analyzes it for impairment on an
ongoing basis. The Seller will not report any operations of 12snap AG, nor
will
the Company fall under the Seller´s SOX scope or reporting requirements
under US GAAP. Should there be reporting requirements put on the Company by
the
Seller, the Seller will compensate the Company for any related efforts at arm´s
lengths prices. It is understood that there will be cut off requirements to
be
fulfilled by Seller and Seller will compensate the Company for its efforts
to
assist the Seller under such cut off requirements up to a maximum of EUR
20,000.
6.2.1
The
2006 Financial Statements of the
Companies (Schedule 6.2)(i) have been prepared in accordance with
generally accepted accounting principles under its respective jurisdictions
and
consistently applied with past practice, maintaining the same accounting and
valuation principles, methods and rules; (ii) present a fair view of the assets
and liabilities (Vermögenslage), financial condition (Finanzlage)
and results of operation (Ertragslage) of the Company for the times
and for the periods referenced therein, and (iii) cover all liabilities of
the
Companies as of their date referenced therein (Bilanzstichtag).
6.2.2
Since
their formation, no dividends have
been declared or distributed by the Company or the Subsidiaries. The books,
records and accounts of the Companies (a) have been maintained in accordance
with ordinary business practices of the Companies, and (b) present a fair view
of the assets and liabilities (Vermögenslage), financial condition
(Finanzlage) and results of operation (Ertragslage) of the Company
for the times and for the periods referenced therein.
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20
6.6.1
Other
than under the Agreement listed in
Schedule 6.6.1, to the best knowledge of the Seller none of the customers
or suppliers or other contracting parties of the Companies will materially
reduce the extent of their previous dealings with the Companies as a result
of
the consummation of the transactions contemplated hereunder. The Parties agree
that any such reactions are beyond the control of the Seller and/or the
Companies and that therefore the Seller´s and the Companies´ obligations in this
regard shall be limited to undertaking reasonable efforts to cooperate in good
faith with the Purchaser to eliminate or minimize such reactions. The Seller
and/ or the Companies and the Purchaser shall jointly address any such situation
as it may arise.
6.6.2
Schedule
6.6.2 contains a true,
accurate and complete list of the ten major customers of the Company (the
“Major Customers”) and/or its Affiliates. Whether or not a
customer is considered as a Major Customer shall be determined on the basis
of
the turnover achieved by the Company or the Affiliates in respect of the
respective customer in the calendar year 2006. To the best knowledge of the
Seller no Material Customer Contract has been terminated or its fee has been
materially reduced by the customer because of unsatisfactory performance of
the
Companies under the Material Customer Contract.
6.9.1
The
Companies have duly prepared and duly
and timely filed, in accordance with all applicable laws, all tax returns,
statements, reports and forms required to be filed with respect to any tax
period (Veranlagungszeitraum) ending prior to or on the Closing Date. All
information required to be supplied to any Tax Authority has been or will be
duly and timely supplied. The returns are true and complete and all Taxes due
and payable on the returns or any tax assessment relating to any tax periods
ending prior to or on the Closing Date have been timely and fully paid. Other
than under the Agreement listed in Schedule 6.9.1 there are no
tax-related audits, actions, proceedings, investigations, claims or assessments
pending, proposed or threatened against or with respect to any of the Companies.
None of the Companies has received any tax ruling or entered into any written
and legally binding agreement or is currently under negotiations to enter into
any such agreement with any Tax Authority. No waivers of statutes of limitations
have been given or requested with respect to any Taxes of the Companies.
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21
6.9.2
The
aforesaid shall apply mutatis
mutandis to all social security contributions and other public law dues and
public impositions of any kind (herein collectively referred to as
“Public Impositions”).
Other
than under the Agreement listed in Schedule 6.11
there are no civil, criminal, administrative, judicial or arbitration
proceedings pending or, to the best of the Seller’s knowledge, threatened to
which any of the Companies is a party nor are there, to the best of the Seller’s
knowledge, any facts or circumstances that are likely to result in any civil,
criminal, administrative, judicial or arbitration proceedings against any of
the
Companies (herein referred to as the “Relevant Proceedings”).
From
the beginning of the current fiscal year through the Closing,
the business operations of the Companies have been and will be conducted in
the
ordinary course of business. In particular the Companies have not and will
not
have
6.14.1
other
than under the Agreement listed in Schedule
6.14.1, declared or made any payment of dividends or other distribution to
shareholders or upon or in respect of any shares of their capital stock, or
purchased, redeemed or undertaken to purchase or redeem, any of their shares
of
their capital stock or other securities;
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22
6.14.2
to
best knowledge of the Seller mortgaged, pledged or
subjected to liens, charges, security interests or any other encumbrances or
restrictions any of their property, business or assets, be they tangible or
intangible;
6.14.3
other
than under the Agreement listed in Schedule
6.14.3, to best knowledge of the Seller sold, transferred, agreed to
transfer, leased to others or otherwise disposed of, acquired or agreed to
acquire any assets (including, without limitation, equity interests or other
participations), except for fixed assets and inventory acquired or sold in
the
ordinary course of business, or cancelled or settled any debt or claim, or
waived or released any right of material value;
6.14.4
to
best knowledge of the Seller received any notice
of termination of any contract, lease or other agreement or suffered any damage,
destruction or loss (whether or not covered by insurance) which, in any case
or
in the aggregate, has had a Material Adverse Effect on the assets, operations
or
prospects of any of the Companies;
6.14.5
to
best knowledge of the Seller been subject to or
threatened by any employee strikes, work stoppages, slow-downs or lockouts,
or
had any material change in its relations with its employees;
6.14.6
other than under the Agreement listed in Schedule
6.14.6, to the best knowledge of the Seller transferred or granted any
rights under, or entered into any settlement regarding the breach or
infringement of, any of the intellectual property rights or similar rights,
or
modified any existing rights with respect thereto;
6.14.7
to the best knowledge of the Seller instituted, settled or
agreed to settle any litigation, action or proceeding before any court,
arbitration tribunal or governmental body which had a Material Adverse Effect
on
the business of the Companies; or
6.14.8
to
the best knowledge of the Seller made any changes
or amendments of the articles, statutes and by laws of the Company and will
not
pass any shareholders´ resolutions without express written approval of the
Purchaser.
6.14.9
To
the best knowledge of the Seller all orders
accepted by customers have been calculated according to the regular calculation
principles of the company allowing reasonable profits and the cost budgets
of
these orders will not be exceeded assuming the absence of unexpected
circumstances beyond the control of the Companies.
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23
6.14.10From
December 31, 2006 until the execution of this
Agreement to the best knowledge of the Seller no liability has arisen other
than
in the ordinary course of business.
7.1.1
If
any of the Guaranties set forth in
Section 6 hereof is not true, complete and accurate (Guaranty
Claim) the Seller shall put the Purchaser or the Companies in such
position as the Purchaser or the Companies would have been had the Guaranties
given by the Seller been true, complete and accurate (restitution in kind;
Naturalrestitution).
7.1.2
Should
the Purchaser be able to show that
restitution in kind as contemplated in Section 7.1.1 hereof is insufficient
to
compensate the Purchaser for losses suffered as a consequence of the breach
of
Guaranty, the Purchaser shall have the right (i) to deduct monetary damages
from
the Escrow Amount or (ii) to the extent that prior deductions from the Escrow
Amount in accordance with this Agreement have amounted to or exceeded the Escrow
Amount to demand that the Seller in the limitations of liabilities as set forth
in Section 10 below, in addition to providing restitution in kind, pay monetary
damages (Schadensersatz in Geld) to the Purchaser or to the Companies,
all of this in such amount as necessary to cover such insufficiency. In case
of
Section 7.1.2 (ii), Section 4.4.3 (i) and (ii) shall apply mutatis
mutandis.
7.1.3
Any
Guaranty Claim of the Purchaser shall
be limited pro rata the percentage of shares in the Company sold by the Seller
under this Agreement. This shall not apply for Guaranty Claims of the Purchaser
arising out of or in connection with Guaranties of the Seller under Sections
6.1.1 – 6.1.6 and 6.1.11 of this Agreement.
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24
In the event of a
Guaranty Claim, the Purchaser without undue delay shall give notice of the
Guaranty Claim to the Seller in accordance with Section 4.4.3 (i) and
(ii).
The Seller shall
not
be liable for, and the Purchaser shall not be entitled to bring, any Guaranty
Claim in connection with this Agreement, if and to the extent that:
7.3.1
the
amount of the Guaranty Claim in
relation to the incident giving rise to the Guaranty Claim has been recovered
or
can be recovered under any insurance policy of any of the Companies which exists
at Closing or could have been so recovered had Purchaser timely filed a
respective claim under such insurance policy; or
7.3.2
the Guaranty Claim results from a failure of the Purchaser or the Company to
mitigate damages pursuant to section 254 of the German Civil Code;
7.3.3
the limitations of liabilities under Section 10 hereof apply;
7.3.4
the substantial facts underlying a Guaranty Claim were known or could have
been
known by Purchaser; or
7.3.5
the Companies losses arising out of a breach of a Guaranty have already been
accounted for in the 2006 Financial Statements.
The
Seller and the Purchaser agree that the remedies the Purchaser
or the Companies may have against the Seller in case of a Guaranty Claim set
forth in this Agreement are solely governed by this Agreement, and the remedies
provided for by this Agreement shall be the exclusive remedies available to
the
Purchaser or the Companies, provided that the Purchaser shall not be barred
from
resorting to other remedies against the Seller if a claim of the Purchaser
against the Seller is arising as a result of willful or intentional breach
of
the Seller´s obligations under this Agreement. The Seller and the Purchaser
further agree that under no circumstances shall the Guaranties be construed
as
representations of the Seller with respect to the quality of the object of
the
purchase within the meaning of section 443 of the German Civil Code
(Garantie für die Beschaffenheit der Sache) and therefore, the Purchaser
expressly waives the application of section 444 of the German Civil Code.
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25
For the purposes
of
this Agreement, any fact or circumstance shall be deemed to exist to the “best
knowledge of the Seller” whenever it can be shown that the Seller is consciously
aware or could have been aware of such fact or circumstance after due inquiry
with any of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (herein
referred to collectively as the
“ManagementTeam”).
8.1
If
a claim under Section 7
hereof arises in connection with any civil, administrative, judicial or
arbitration proceeding to which any of the Companies or the Purchaser is or
is
likely to become a party or the Purchaser otherwise becomes aware that such
a
claim is likely to arise the Purchaser shall immediately notify the Seller
in
writing of such actual or anticipated proceedings and such claim or potential
claim, and the following provisions shall apply:
8.1.1
The
Seller has the right - but not the
obligation - at any time and at its cost to conduct and assume full control
of
all or any part of such proceedings or otherwise defend, resist, appeal, settle
or contest or take any other action which the Seller reasonably considers
necessary or beneficial – whether in the course of such proceeding or otherwise
- for the defense against such claim or potential claim. Unless and until the
Seller assumes conduct by notice in writing to the Purchaser, the Purchaser
shall have conduct of such proceedings and defense against such claim or
potential claim. The Seller shall not have the right, however, to enter into
binding settlement agreements without prior approval in writing of the
Purchaser.
8.1.2
In
any event the Seller shall keep the
Purchaser fully informed of and shall allow the Purchaser to comment at any
time
on the progress of such proceedings or such defense.
8.2
If
the Purchaser should
elect to conduct such proceedings and defends himself – from which he is not
precluded – or the Purchaser refuses to consent to a binding settlement proposed
by the Seller, the Purchaser´s failure to allow the Seller to participate in the
above procedure or to so settle the claim will have the consequence that in
case
the Seller can demonstrate that as a result thereof the liability for the Seller
is higher, Seller will not have to indemnify the Purchaser for such excess
liability.
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26
The
Seller shall indemnify and hold harmless the Purchaser from
and against (i) any and all Taxes unpaid that are imposed on or will be imposed
on and payable by the Companies for the period up to and including, or resulting
from action taken on or prior to, the Closing Date or with respect to any rights
or obligations of the Companyon the Closing Date, and (ii) any liability arising
from a breach of any tax Guaranty contained in Section 6 hereof.
"Tax" or "Taxes" shall mean any taxes,
charges, duties and levies of any kind including Public Impositions imposed
by
any federal, state, local or foreign governmental authority competent for the
imposition of any such Tax (herein referred to as the "Tax
Authority") together with any interest and any penalties, additions to
tax or additional amounts imposed by such Tax Authority with respect to such
amounts.
Any claim of the
Purchaser under this Section 9.1 shall be limited pro rata the percentage of
shares in the Company sold by the Seller under this Agreement.
If
any payment giving rise to a claim for indemnification of Taxes
under this Agreement actually has resulted in a benefit by refund, set-off
or
reduction of Taxes (herein referred to as the
"TaxBenefit") which would not otherwise have
arisen then, if and when the liability of the Companies to make an actual
payment of or in respect of Tax is reduced by reason of that Tax Benefit, and
after taking account of the effect of all other Tax Benefits that are available
(including any Tax Benefit derived from a subsequent accounting period), the
amount by which that liability is so reduced (herein referred to as the
"Relevant Amount") shall first be set off from any other
payments which become due in the future on a claim for indemnification or a
Guarantee Claim or any other claim against Seller under this Agreement. Where
any determination of a Relevant Amount has been made, the Purchaser or the
Companies, as the case may be, may request the Companies´ Auditor to review such
determination in the light of all relevant circumstances, including any facts
which have become known only since such determination, and to certify whether
such determination remains correct or whether, in the light of those
circumstances, the amount that was the subject of such determination should
be
amended.
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27
Section 8 hereof
shall apply mutatis mutandis.
All
Guaranty-, indemnification-, hold harmless- and similar claims
arising under this Agreement shall be time-barred either (i) with expiration
of
the Escrow Period provided that the Purchaser has not notified the Seller of
such claims on or prior to the expiration of the Escrow Period or (ii) with
the
Purchaser´s failure to commence arbitration proceedings within the time limit
provided in Sections 4.4.3 (ii) and 7.1.2, last sentence, above.
No
liability shall arise for the Seller under this Agreement to
the extent that the aggregate amount of all claims of the Purchaser does not
exceed EUR 100,000 (in words: Euro one hundred thousand) (herein referred to
as
the "De Minimis Claims"). In case the aggregate amount of all
claims of the Purchaser is greater than EUR 100,000 (in words: Euro one hundred
thousand) the Seller´s liability shall be, subject to any further
limitations under this Agreement, the aggregate amount of all claims including
the De Minimis Claims. This limitation shall not apply to all claims of the
Purchaser arising as a result of willful or intentional breaches of the Seller´s
obligations under this Agreement or for other matters referred to in Section
10.3 hereof for which the liability cap is the aggregate purchase price
paid.
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10.3.1
The aggregate liability of the Seller under this Agreement shall not exceed
the
Escrow Amount.
10.3.2
The
limitation per Section 10.3.1 shall not apply and
the aggregate liability of the Seller under this Agreement shall be limited
to
the sum of the Purchase Price it received hereunder (hereinafter referred to
as
the „Purchase Price Liability Cap“), for claims of the
Purchaser arising as a result of breaches of the Seller´s representations and
warranties under Sections 6.1.1 to 6.1.6 of this Agreement.
10.3.3
The
limitations per Section 10.3.1 and 10.3.2 shall
not apply and the liability of the Seller under this Agreement shall be
unlimited in case of all claims of the Purchaser arising as a result of willful
or intentional breaches of the Seller´s obligations under this Agreement.
11.1 Post Closing Corporate
Actions
Promptly
after Closing the Purchaser will appoint new members of
the Supervisory Board of the Company. Under due consideration of the
independence of the new members of the Supervisory Board, the Purchaser will
have the new members of the Supervisory Board appoint ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as member of the Management Board
(Vorstand) of the Company and issue offer letters to ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
11.2 Release of Silent
Partners
Promptly
after Closing the Parties will use best efforts to obtain
a written release from Technologie Beteiligungsfonds Bayern GmbH & Co. KG,
Munich, and from tbg Technologie-Beteiligungs-Gesellschaft mbH, Bonn (jointly
the „Silent Partners“) pursuant to which the Silent Partners confirm (i) receipt
of payments to them as set forth under Section 4.1.2 of this Agreement and
(ii)
release of all claims of Silent Partners against Seller and the Company.
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The
Seller undertakes for a period of two years after the Closing
not to solicit or entice away from the Company or to offer employment to or
employ, or to offer or conclude any contract for services with any person who
was employed by the Company at the Closing Date.
Seller will and Purchaser
will use best efforts to have the Company sign a cooperation agreement pursuant
to which the Company will remain a Seller´s preferred partner and enjoy most
favored prices for all of Seller´s and Seller´s affiliates products and services
whereas the Company will perform the development of qode/lavasphere as specified
and proposed on the 15th December 2006 for free, except for the purchasing
costs
for the testphones as specified in Chapter C, Sec. 2 (cost estimate) in such
specification and proposal of 15th December 2006.
The
Seller shall keep strictly confidential all information it has
in relation to the Companies and their business operations and shall not use
such confidential information for itself or for any third party except to the
extent that the relevant facts are publicly known or disclosure is required
by
law.
The
Parties to this Agreement shall keep strictly confidential any
information obtained by them in connection with the negotiation and conclusion
of this Agreement with respect to this Agreement, the transactions contemplated
herein and the respective other Parties and its affiliated entities except
to
the extent that the relevant facts are publicly known or disclosure is required
by law. The Parties shall, however, have the right to submit any information
to
any of its affiliated entities or any third party for the purposes of and to
the
extent reasonably required for the execution and consummation of this Agreement
and the transactions contemplated herein.
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Before making any
press release or similar voluntary announcement with respect to the transactions
contemplated herein, the Parties and the Company shall (or, in the case of
public announcements required by applicable law or stock exchange regulations,
use their best efforts to) reach an agreement on the content of such press
release or similar voluntary announcement.
Each Party shall
bear
its own costs and expenses in connection with the preparation, execution and
consummation of this Agreement, including, without limitation, any and all
professional fees and charges of its advisors.
Any transfer taxes,
stamp duty and similar taxes or charges resulting from the execution and
consummation of this Agreement shall be borne by the Purchaser and the Seller
in
equal amounts.
This Agreement and
any rights and obligations hereunder cannot be transferred or assigned in whole
or in part without the prior written consent of the other Parties hereto.
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Any notice or other declaration hereunder shall be in writing
(including by telefax), unless notarization or any other specific form is
required, and shall become effective upon receipt by the recipient Party.
Any notice or other
declaration to be given to the Seller hereunder shall be addressed to the Seller
as follows:
NeoMedia
Technologies, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇.▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Telefax:
▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇
Copy
to: Freshfields Bruckhaus ▇▇▇▇▇▇▇▇, att. of ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, LL.M.,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Telefax ▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇.
Any
notice or other declaration to be given to the Purchaser hereunder shall be
addressed as follows:
Name:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
Am ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Telefax:
▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇
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Copy
to: MLawGroup Partnerschaft von Rechtsanwälten Besner ▇▇▇▇▇▇▇▇, att. of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Telefax ▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇.
The Parties shall
communicate any change of their respective addresses set forth in Sections
18.2.
through 18.3 as soon as possible in writing to the respective other Parties
and
their advisors.
The receipt of copies of notices or other declarations hereunder by the Parties’
advisors shall not constitute or substitute the receipt of such notices or
other
declarations by the Parties themselves.
This
Agreement shall be governed by and construed in accordance
with the laws of Germany, excluding its provisions on conflict of laws and
the
United Nations Convention on Contracts for the International Sale of Goods
(CISG).
19.2.1
Any
dispute, controversy or claim arising from or in
connection with this Agreement and its execution shall be finally settled by
three arbitrators in accordance with the Arbitration Rules of the German
Institution of Arbitration e.V. (DIS) without recourse to the courts of
law. The venue of the arbitration shall be Munich, Germany. The language of
the
arbitral proceedings shall be English.
19.2.2
In
the event that mandatory applicable law requires
any matter arising from or in connection with this Agreement and its execution
to be decided upon by a court of law, the competent courts in and for Munich
shall have the jurisdiction thereupon.
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33
Herein,
“Business
Day” means a day (other than a Saturday or Sunday) on
which banks are open for business in Munich.
Except
as otherwise provided herein, each Party shall pay interest
on any amounts becoming due and payable to the other Party, as the case may
be,
under this Agreement as from the respective due dates until, but not including,
the day of payment at the rate of 0.25 % p.a. over the
basic interest rate (Basiszinssatz) within the meaning of
section 247 para. 1 of the German Civil Code on the basis of actual days
elapsed and a 360-day year.
Any
amendment or supplement to or modification or termination of
this Agreement, including this provision, shall be valid only if made in
writing, except where a stricter form (e.g. notarization) is required under
applicable law.
The
headings and sub-headings of the sections contained herein are
for convenience and reference purposes only and shall not affect the meaning
or
construction of any of the provisions hereof.
This
Agreement is written in the English language (except that
Annexes may be in the German language). Terms to which a German translation
has
been added shall be interpreted throughout this Agreement in the meaning
assigned to them by the German translation.
All Annexes attached
hereto form an integral part of this Agreement.
This
Agreement constitutes the entire agreement among and between
the Parties with respect to the subject matter hereof and shall substitute
and
supersede any negotiations, agreements and understandings, oral or
written, heretofore made between the Parties with respect to the subject
matter hereof. Side agreements to this Agreement do not exist.
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34
Should
any provision of this Agreement be or become invalid,
ineffective or unenforceable as a whole or in part, the validity, effectiveness
and enforceability of the remaining provisions shall not be affected thereby.
Any such invalid, ineffective or unenforceable provision shall, to the extent
permitted by law, be deemed replaced by such valid, effective and enforceable
provision as comes closest to the economic intent and purpose of such invalid,
ineffective or unenforceable provision. The aforesaid shall apply mutatis
mutandis to any gap in this Agreement.
This
Agreement shall be countersigned in two (2) originals and
shall be binding upon all parties having signed this Agreement irrespective
of
whether the respective party has received an original hereof. The parties agree
that exchange of signatures by fax to the other party is sufficient.
In
witness whereof, the Parties hereto have caused this Agreement to be executed
by
their duly authorized representatives, all as of this April 4, 2007, in
Munich.
| Seller: | Purchaser: | ||
| /s/ ▇▇▇▇▇▇ O´▇▇▇▇▇ | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
|
NeoMedia Technologies, Inc. |
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
||
| ▇▇. ▇▇▇▇▇▇ O´▇▇▇▇▇ |
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