EXHIBIT 10.20
3 MARCH 1995
SOCOTEC SA
SOCOTEC INDUSTRIE SA
MR JACKY TALET
▇▇ ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇
TSW INTERNATIONAL INC
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SHARE PURCHASE AGREEMENT
IN RELATION TO
SOCOTEC MAINTENANCE SERVICES
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CONTENTS
Clause Page
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SALE AND PURCHASE OF THE SHARES AND CURRENT ACCOUNT BALANCE. . . . . . . . . 3
CONSIDERATION AND PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 3
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
COMPLETION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
OBLIGATIONS OF THE VENDORS . . . . . . . . . . . . . . . . . . . . . . . . . 5
PURCHASER'S OBLIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
PUT AND CALL OPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
NON-COMPETITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . .10
INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
PROCEDURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
DURATION OF THE WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . .14
CONFIDENTIALITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
VARIATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
COSTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
INVALIDITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
FURTHER ASSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
APPLICABLE LAW - SUBMISSION TO JURISDICTION. . . . . . . . . . . . . . . . .17
APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
LIST OF APPENDICES TO THE AGREEMENT
APPENDIX 1 SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX 2 WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX 3 1993 ACCOUNTS. . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX 4 INTELLECTUAL PROPERTY. . . . . . . . . . . . . . . . . . . . .
APPENDIX 5 INTELLECTUAL PROPERTY LICENSES . . . . . . . . . . . . . . . .
APPENDIX 6 PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX 7 LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX 8 EMPLOYMENT TERMS . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX 9 INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX 10 SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX 11 VENDORS' GUARANTEES. . . . . . . . . . . . . . . . . . . . . .
A SHARE PURCHASE AGREEMENT dated 3 March 1995
BETWEEN
SOCOTEC SA (SSA) whose registered office is at ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ and which is registered at the Company and Commercial Registry
of Paris under number B 542 016 654, represented by Mr B Quetier who is duly
authorised to execute this Agreement;
SOCOTEC INDUSTRIE SA (SI) whose registered office is at ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ and which is registered at the Company and
Commercial Registry of Paris under number B 315 587 659 represented by
Mr J Talet who is duly authorised to execute this Agreement;
MR JACKY TALET of ▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇;
▇▇ ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, Cernay la
Ville (▇▇ ▇▇▇▇);
(together the Vendors)
TSW INTERNATIONAL, INC whose registered office is at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and which is organised under the laws of the State of
Georgia, represented by Mr C Lane who is duly authorised to execute this
agreement (THE PURCHASER)
WHEREAS
(A) The Vendors together own the entire issued share capital of SOCOTEC
MAINTENANCE SERVICES, a societe anonyme incorporated under French law, whose
registered office is at ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ and
which is registered on the Commercial and Companies Register of Paris under
number B 34 7726 556 and which has a share capital of FRF 2 250 000 divided into
22.500 shares of FRF 100 each (THE COMPANY).
(B) The Vendors have agreed to sell eighty percent (80 %) of the shares
constituting the share capital of the Company, details of which are set out in
Appendix 1, to the Purchaser and the Purchaser has agreed to buy the said shares
on the terms and conditions set out hereafter.
(C) In addition, SI, and the Purchaser have agreed to enter into a promesse de
vente and a promesse d'achat (a call option and a put option) in respect of the
nineteen per cent (19 %) of the issued share capital of which SI will remain the
holder.
IT IS HEREBY AGREED as follows
DEFINITIONS
1.1 For the application and interpretation of this Agreement, the following
terms and expressions shall, unless the context requires otherwise, have the
following meaning:
1993 ACCOUNTS means the audited accounts of the Company for the financial year
ending 31 December 1993 appearing in Appendix 3a;
1994 ACCOUNTS means the audited accounts of the Company for the financial year
ending 31 December 1994 appearing in Appendix 3b;
ACCOUNTING PRINCIPLES means the principles arising under article 8 et seq. of
the Commercial Code (CODE DU COMMERCE);
ALGERIAN CONTRACT means the contract between Entreprise Nationale Sonatrach,
Digital Equipment France and the Company dated 15 May 1993 (as amended)
BUSINESS DAY means any day, other than Saturday or Sunday, on which banks are
open for business in Atlanta, Georgia and Paris, France
CLAIM means any claim under article 12 against the Vendors;
COMPANY has the meaning given to it in recital A;
COMPLETION means the realisation of the steps set out in article 5.2;
COMPLETION DATE means 30 June 1995 or any other date agreed in writing between
the parties after the date of this agreement;
CURRENT ACCOUNT BALANCE means the balance of the current account advance made
by SSA to the Company appearing on the Company's books at Completion;
EXPERT means a firm of chartered accountants of international standing appointed
for the purposes of article 13 by agreement between the parties or, in the
absence of such agreement within ten days of either party proposing the
appointment of an Expert, the person nominated by the PRESIDENT of the TRIBUNAL
DE COMMERCE, Paris, upon the application of the first party to take action;
INTELLECTUAL PROPERTY RIGHTS means trademarks, patents, commercial names,
software source codes, know-how or other industrial or intellectual property
rights (whether registered or unregistered);
NET ASSETS means the CAPITAUX PROPRES of the Company for the financial year
ending 31 December 1994 as required to be set out in line DL of the liasse
fiscale (tax return accounts);
RETAINED EARNINGS means the non-distributed profit reserve of the Company;
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SHARES means the shares constituting eighty per cent of the entire capital of
the Company, described in further detail in Appendix 1;
TAXATION includes without limitation TVA, PRECOMPTE and IMPOT SUR LES SOCIETES;
TAX GUARANTEE means the bank guarantee given by Credit Lyonnais in the principal
sum of FRF 2,220,154 in respect of the potential obligations of the Company to
the French tax authorities in respect of the research tax credit claimed by the
Company in 1989 and 1990;
VENDORS' Guarantees means the obligations of SSA and SI under certain
performance bonds, details of which are set out in Appendix 11;
WARRANTED ACCOUNTS means the 1993 Accounts and the 1994 Accounts;
WARRANTIES means the warranties contained in Appendix 2;
1.2 Reference to a document as being IN THE AGREED FORM is a reference to the
form of that document agreed between the parties and initialed by them or on
their behalf.
SALE AND PURCHASE OF THE SHARES AND CURRENT ACCOUNT BALANCE
TRANSFER
2. The Vendors shall transfer or procure the transfer of and the Purchaser
shall acquire the Shares and the Current Account Balance free from all liens,
pledges or charges in favour of a third party and together with all rights which
are or might at any time hereafter become attached to them.
CONSIDERATION AND PAYMENT
SALE PRICE
3.1 The purchase price for the Shares and the Current Account Balance will be
FRF 4 600 000 apportioned as between the Vendors and as between the Shares and
the Current Account Balance as set out in Appendix 1. Subject to article 4, it
shall become due and payable by the Purchaser to the Vendors in full on
Completion.
DISCHARGE
3.2 The Vendors hereby acknowledge that delivery to each of the Vendors against
his receipt shall constitute a good and valid discharge to the Purchaser for all
payments which it is required to make to the Vendors and will discharge the
Purchaser for all liability as to their distribution.
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CONDITIONS PRECEDENT
CONDITIONS
4.1 The sale of the Shares by the Vendors and their purchase by the Purchaser
is subject to the following conditions precedent:
(a) The receipt by the Purchaser of a letter from the Treasury Department of
the Ministry for the Economy and Finances (Direction du Tresor du Ministere
de l'Economie et des Finances) indicating that the Treasury Department has
no objection concerning the acquisition of the Shares by the Purchaser; the
Treasury Department not having replied within fifteen days following the
filing of the prior notification relating to direct foreign investments in
France required by the regulations in force will be considered as being
such an indication;
(b) The Vendors supplying evidence satisfactory to the Purchaser that the
Company has complied in all respects with its obligations in relation to
the maintenance of capital, pursuant to article 241 of the law of 24 July
1966;
(c) the 1994 Accounts shall have been certified by the Company's auditors and
approved by the Company in general meeting.
CO-OPERATION
4.2 The Vendors and the Purchaser will co-operate in order that the conditions
precedent provided for in article 4.1 are satisfied as soon as possible.
TERMINATION
4.3 If the condition precedent provided for in article 4.1 (a) is not satisfied
by the Completion Date, or either of the conditions precedent provided for in
article 4.1 (b) and (c) is not satisfied or has not been waived by the
Purchaser in writing by the Completion Date, this Agreement (except for
articles 15, 17, 19 and 23) will automatically become null and void.
COMPLETION
PLACE
5.1 Completion will take place in Paris on the Completion Date in the offices
of Freshfields, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
DELIVERY OF DOCUMENTS
5.2(a) On the Completion Date, the Vendors shall deliver to the Purchaser:
(i) the share transfer forms (ordres de mouvement) for all the Shares duly
completed and signed in favour of the Purchaser or such other person
as it may designate;
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(ii) call option in respect of one share held by SI as a director
remaining in office and the share transfer form relating thereto;
(iii) register of share-transfers of the Company, the individual accounts
of the shareholders, the minutes of the general meetings and the
minutes of the proceedings of the board of directors, in both cases
including the attendance register;
(iv) letters of resignation in the agreed form, if their respective
mandates have not otherwise ended prior to their replacement, of
Georges Weassels, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ Talet and SSA as directors
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Scorex SA as titular and supplementary
auditors of the Company;
(v) minutes of one or more meetings of the board of directors of the
Company, held at least fifteen days prior to the Completion Date,
approving the transfer of shares to the Purchaser, noting the
resignations of the auditors and the directors resigning pursuant to
the letters required to be delivered under article 5.2(a) (iv) above
and duly convening the general meetings of the Company necessary to
appoint ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and SI as directors of the
Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ Frinault & Associes as
auditors and to resolve to restructure the capital of the Company in
order to comply with its obligations under article 241 of the law of
24 July 1966;
(vi) minutes of one or more general meetings of the Company adopting the
resolutions referred to at articlea 5.2(a)(v);
(vii) evidence that the payables and receivables appearing in the
Company's books in relation to SSA's subsidiary, IGC, have been
settled in full, whether by set off or otherwise;
(viii) an original, executed by SSA, SI and/or any other company supplying
the premises or services, of the contracts in the agreed form
relating to the obligations undertaken in articles 6.5 and 6.6
(b) The Purchaser shall deliver to each of the Vendors cheques for the purchase
price payable for the Shares pursuant to article 3.
OBLIGATIONS OF THE VENDORS
MANAGEMENT
6.1 From the date hereof until Completion, the Vendors undertake:
(a) to manage the Company in a responsible and reasonable manner (EN BON PERE
DE FAMILLE);
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(b) to ensure that the Company does not transfer more than FRF 100 000 per
month in respect of the months of January to April 1995 in reimbursement of
the shareholders' current account advances in existence at the date of
signature of this Agreement, and to ensure that the Company makes no other
transfers in reimbursement of Shareholder's current account advances;
(c) to ensure that no agreement or obligation is entered into by the Company
other than in the ordinary course of its business, and without limitation
to the generality of the foregoing, for the purposes of this sub-paragraph,
any sale of assets having an aggregate value or for an aggregate price in
excess of FRF 10,000, the conclusion of contracts involving expenditure in
aggregate in excess of FRF 100,000, or the grant of any guarantee or
security shall be deemed to be outside the ordinary course of business;
(d) to ensure that the Company takes all reasonable steps to preserve and
protect its assets;
(e) to ensure that no action is taken which is inconsistent with the provisions
of this Agreement or the consummation of the transactions contemplated
hereunder;
(f) to ensure that no distribution or dividend is approved or made and no
shares or other securities are issued or agreed to be issued by the
Company;
(g) to ensure that no change is made to the STATUTS of the Company;
WAIVER OF RE-CONSTITUTION OF DEBT
6.2 SSA hereby waives any actual or potential rights it may have to the
reconstitution of the current account advance made to the Company in the sum of
FRF 1 000 000 forgiven by it by decision of the board of directors of 4 May 1993
whether by virtue of any agreement with the Company relating to a return to
solvability (retour a la meilleure fortune) or otherwise.
COUNTERGUARANTEES
6.3 SSA and SI hereby undertake to maintain in force the Vendors' Guarantees
and the counter-guarantees given in respect of the Tax Guarantee until such time
as the Company has no further liability thereunder.
ACCESS
6.4 Following the signature of this Agreement, the Vendors shall continue to
provide the Purchaser, its advisers and its auditors with any information
reasonably required by the Purchaser, its auditors and advisers, in the context
of investigations made by the Purchaser into the financial and legal situation,
the activity, management, assets and liabilities of the Company.
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SOCOTEC NAME
6.5 SSA hereby agree to permit the Company to continue to use without charge
the name Socotec in its company name and logo as part of its trading identity
until the first anniversary of Completion upon the terms and conditions set out
in Appendix 12
PREMISES AND SERVICES
6.6 SSA and/or SI hereby agrees to continue to permit the Company or to procure
that the Company is permitted to occupy and use the premises described in
Appendix 6 on the terms set out in that appendix and agrees, to the extent of
their abilities and possibilities, to provide or procure that the Company be
provided with those administrative and other services listed in Appendix 10 at
the cost reasonably incurred by SSA (or, in the event that the service is
provided by a company controlled by SSA, at the cost reasonably incurred by that
company) and to make available to the Purchaser the office facilities of SSA and
SI in Europe together with logistical support including for translations of
software, on normal market terms, in all cases until the first anniversary of
Completion.
CONTRACTORS' WAIVER
6.7 The Vendors undertake to procure that the Company uses its best efforts to
obtain prior to Completion from each independent contractor involved in the
creation, development, production or improvement of the CIMIX software a
contractually binding, written waiver of any actual or potential right such
contractor may have in or over (whether arising by contract, operation of law or
otherwise) such software, its source code and component elements and in the
event that any such waiver is obtained promptly to supply a copy of it to the
Purchaser.
PURCHASER'S OBLIGATION
7.1 The Purchaser undertakes to obtain the release (by counter-guarantee or
otherwise) of the Vendors from their obligations (including costs) as soon as
practicable following Completion under the Vendors' Guarantees it being agreed
that SI shall continue to be liable for part of the Vendors' Guarantees in an
amount of FRF 500,000 and that any claim under the Vendors' Guarantee shall
first be paid from that part of the liabilities retained by the Vendors. The
Purchaser further undertakes to indemnify the Vendors against any liability
arising under the Vendors' Guarantees in respect of any period after Completion
and prior to such release being effected. It is further agreed that in the
event that any part of the Vendors' Guarantees are released, such release shall
be deemed to take effect first over the part of the Vendors' Guarantees for
which the Vendors retain liability, until that part is extinguished.
7.2 The Purchaser undertakes that, following Completion and for as long as SI
holds at least 19% of the share capital of the Company and the Purchaser
controls the majority of the voting rights attaching to the shares of the
Company, the Purchaser shall procure that SI may nominate one director of the
Company for appointment and may require the removal of that director and the
appointment of another in its place, from time to time. For the avoidance of
doubt, SI hereby undertakes to procure the resignation
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of any director nominated by it upon its ceasing to hold at least 19% of the
share capital of the Company and to indemnify the Company against any claim of
any such director arising out his loss of office.
PUT AND CALL OPTION
8.1 SI hereby grants to the Purchaser the option to acquire the 4 275
shares which SI shall hold in the capital of the Company following Completion
for a price of FRF 1 425 000, being FRF 333.33 per share, payable on
transfer. SI also grants to the Purchaser the option to purchase any
additional shares which it may have acquired at the date of exercise of the
option subject to article 8.3 below. Both options shall be exercisable at
the Purchaser's sole election by notice in writing addressed to SSA in
accordance with article 22 at any time on or prior to the fifth anniversary
of Completion. SI undertakes to transfer those shares in accordance with the
conditions set out at article 8.3 below to the Purchaser within five Business
Days of SI's receipt of notice exercising the option.
8.2 The Purchaser hereby grants to SI the option to acquire the 4 275
shares which SI shall hold in the Company following Completion for a price of
FRF 950 000, being FRF 222.22 per share, payable on transfer. The Purchaser
also grants to SI the option to sell any additional shares which it may have
acquired at the date of exercise of the option. Both options shall be
exercisable at SI's sole election by notice in writing addressed to the
Purchaser in accordance with article 22 at any time in the period of six
months immediately following the second anniversary of
Completion[, to cause the Purchaser]. SI undertakes to transfer those
shares, to the Purchaser, within fifteen Business Days of the Purchaser's
receipt of notice exercising the option.
8.3(a)The options granted under articles 8.1 and 8.2 above are subject to the
following conditions. Upon any transfer of shares in accordance
with article 8.1 or article 8.2, SI shall warrant to the Purchaser
in the terms of paragraphs 2(c), (d) and (e) of Appendix 2;
(b) The Shares shall be free transferred from all liens, pledges or
charges in favour of a third party and together with all rights
attaching to them;
(c) In the case of merger by absorption of the Company by another
Company, and in the case of demerger or restructuration prior to the
exercise of the option, the options shall be transferred to those
shares of the absorbing or new company which will have been issued
to SI in return for the Shares referred to in articles 8.1 and 8.2;
(d) In the event of an increase in capital of the Company by
capitalisation of reserves, profits or share premium and by the
issue of additional shares, before the exercise of the option, the
additional shares which will have been allotted to SI shall be
included in the option without any increase in the price provided
for in article 8.1 and 8.2 (as the case may be) above;
(e) In the event of an increase in capital for cash, the options will
extend to the new shares which have been subscribed by SI prior to
the exercise of the option, the
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option exercise price for those shares being equal to their paid-up
nominal amount, including any share premium;
(f) In the event of a reduction of capital and cancellation of shares by
reason of losses, the options will apply without any reduction in
the agreed exercise price, to the number of shares of which SI
remains the owner at the time of exercise.
8.4 SI undertakes that, whilst either of the put or the call option set
out at articles 8.1 and 8.2 above remains in force, it shall not transfer any of
its shares in the Company to any person.
8.5 In the event that the Vendors are liable to pay an indemnity to the
Purchaser pursuant to article 12, the option exercise price shall be reduced by
an amount equivalent to 23.75 % of the indemnity in question.
8.6 In the event that the put option is exercised by SI and the
Purchaser does not pay the option exercise price within thirty days of its
receipt of the notification of exercise of the option, SI shall be released from
its obligations under this article 8 and shall be free to sell the shares to a
third party.
NON-COMPETITION
9.1 Each of the Vendors irrevocably undertakes not, directly or
indirectly, by way of investment, employment or otherwise, to establish, carry
on or participate in any business in competition with the activity of the
provision of software programmes in connection with the management of asset care
and maintenance systems and ancillary products and services, with the exception
of the provision of BATENT and ANTILOPE software (and any developments of that
software), used in the context of building maintenance.
DURATION AND EXTENT
9.2 This non-competition undertaking shall remain in force for four
years commencing on the Completion Date in relation to France and for two years
in relation to the other member states of the European Union.
SOLICITATION OF CLIENTS AND EMPLOYEES
9.3 For a period of four years from the Completion Date, the Vendors
irrevocably undertake not directly or indirectly to solicit or seek to entice
away from the Company any person who is, at the Completion Date, a client, in
the context of the activities of the Company set out in article 9.1, of or
employed by the Company, the Purchaser or a company affiliated with the
Purchaser.
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USE OF CONFIDENTIAL INFORMATION
9.4 Each of the Vendors irrevocably undertakes not to disclose or use,
whether prior to or following Completion, any confidential information in its
possession relating to the Company or its business to the detriment (actual or
potential) of the Company, its business or the Purchaser.
TERMINATION
TERMINATION BY THE PURCHASER
10.1 If any of the Vendors fails, or has given notice that it is unable,
on the Completion Date to respect any of its obligations arising from articles
5.2 and 6 or if, at the Completion Date, any of the Warranties are untrue,
misleading or inaccurate, in whole or in part as a result of a matter which may
have a material adverse effect on the financial or trading position of the
Company, the Purchaser will have the right to terminate this Agreement (except
for articles 15, 17, 19 and 23) with immediate effect, by written notice to the
Vendors, and without incurring any liability.
RIGHT NOT TO BUY
10.2 The Purchaser will have the right not to buy the Shares at the
agreed price, without incurring any liability, if, on the Completion Date, all
of the Shares are not transferred to it in one tranche.
TERMINATION BY THE VENDORS
10.3 If the Purchaser fails, or has given notice that it is unable, on
the Completion Date to fulfil its obligations under article 5.2(b), the Vendors
shall have the right, acting jointly, to terminate this Agreement (except for
articles 15, 17, 19 and 23) with immediate effect, by written notice to the
Vendors, and without incurring any liability.
REPRESENTATIONS AND WARRANTIES
11. The Vendors jointly and severally represent and warrant to the
Purchaser with effect at the date of this Agreement and at Completion in the
terms of the Warranties.
INDEMNITY
GROUNDS
12.1 The Vendors agree jointly and severally to indemnify the
Purchaser for eighty per cent (80%) of any liabilities, losses, damages,
costs (including legal costs) and associated expenses sustained directly or
indirectly by the Purchaser or the Company resulting from or in connection
with:
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(a) notwithstanding any disclosure made by the Vendors to the Purchaser, or any
knowledge which the Purchaser has or may have, of any facts relating to
such matters:
(i) any liability of the Company to make any payment in respect of
claims for non-performance of the Algerian Contract covered by the
part of the Vendors Guarantees retained by the Vendors, as set out
in article 7.1;
(ii) any dispute in relation to the Company's copyright in the source
code and related software of the CIMIX product involving any present
or former employee of, or any independent contractor contracted to,
the Company;
(iii) any payment to Credit Lyonnais in respect of claims under the Tax
Guarantee or to the tax authorities in relation to the research tax
credit claimed by the Company in 1989 and 1990;
(iv) the action brought by ▇▇ ▇▇▇ Said in connection with his claim for
unfair dismissal by the Company;
(v) any penalty payable to the tax authorities in respect of the
non-reporting of interest payments made by SMS to SSA.
(b) any reduction of the book value of assets or increase in liabilities
compared with those appearing in the 1994 Accounts which has its origin,
source or cause in matters arising prior to Completion; or
(c) any matter constituting a breach of the Warranties.
PROFITS
12.2 The Vendors acknowledge that the purchase price of the shares
payable pursuant to article 3 was calculated on the basis of a valuation of
100% of the capital of the Company as a multiple of 11.5 times the estimated
pre-tax profit for the 1994 financial year of FRF 500 000. Thus, in the
event of any Claim arising out of a recurring matter which reduces the
profits of the Company, the loss to the Purchaser shall be calculated by
reference to the total price paid by the Purchaser for the Company and, in
particular but without limitation, this multiple of 11.5 times, and not
merely the reduction in the profits of the Company in a single financial
year. Any factor on which an indemnity claim is established under this
article 12.2 cannot serve as a basis for any other indemnity.
THRESHOLD
12.3 The Vendors shall not be obliged to indemnify the Purchaser
unless the aggregate amount of the losses suffered by the Purchaser or the
Company prior to any adjustment of the Vendors' liability for them under
article 12.5, exceeds FRF 100 000. If this condition is fulfilled, all
amounts due by the Vendors from the first franc without exception shall be
the Vendor's liability subject only to the limit provided in article 12.4 and
any set-off under article 12.5. This article 12.3 shall not apply to any
Claim which
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relates to those indemnities appearing in article 12.1(a) or which concerns
taxation or social security contributions.
CEILING
12.4 The aggregate amount of the indemnity which may be payable by the
Vendors to the Purchaser under this Agreement may not exceed the purchase
price payable pursuant to article 3.1. The amount of indemnity which Mr
Talet and ▇▇ ▇▇▇▇ may be required to pay under this Agreement shall not
exceed in the case of Mr Talet FRF 221 875 and in the case of ▇▇ ▇▇▇▇ FRF 177
500.
SETOFF
12.5 The Vendors' liability for the aggregate of the Claims shall be
reduced by the amount by which any provision or reserve (including any
provision or reserve taken into account in calculating the net value of an
asset) in the 1994 Accounts has been established in the most recent audited
accounts prior to the date of the Claim to have been unnecessary or excessive.
PAYEE
12.6 The Purchaser may call upon the Vendors to pay any amounts which
may become due to it due under the terms of this Agreement, either to itself
or to the Company or to the Company's creditors.
TAX SAVING
12.7 `No liability shall attach to the Vendors in respect of any Claim
if the Claim relates to a liability of the Company to taxation to the extent
that any other taxation liability for which the Company is liable is reduced
or extinguished as a result of payment being made by or on behalf of the
Company in respect of any such Claim or liability.
PROCEDURE
NOTIFICATION
13.1 The Purchaser, in accordance with the provisions contained in
article 22, will notify the Vendors of matters of which it becomes aware, and
which, in the Purchaser's opinion, amount to a substantial risk of a Claim,
within ninety (90) days from the date on which it reached that opinion in
respect of the relevant matter and promptly if a fixed period is imposed by
law. Failure to notify the Vendors within that period of a potential Claim
shall not limit the Vendors' liability in respect of that Claim except to the
extent that the Vendors prove that the failure to notify prevented them from
defending the Claim.
-12-
TAX DEFICIT PROCEEDINGS
13.2 The Vendors and their advisers shall have the conduct of the
proceedings currently in progress relating to the claims of the tax authorities
concerning the research tax credit, at the expense of the Vendors and provided
that the proceedings are conducted so that the interests of the Company will not
be prejudiced by their actions. The Purchaser undertakes to procure that the
Company shall make available to the Vendors at their request all information
reasonably necessary for the conduct of the those proceedings and shall provide
the Vendors with reasonable access to those of its personnel having knowledge of
the matters relating to the proceedings and in particular ▇▇ ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇,
provided always that such personnel are still employed by the Company.
SETTLEMENT
13.3 The Company may not recognise, accept, compromise, negotiate or pay
(except if it is obliged by an order for performance which does not permit a
delay in payment or execution or if the Vendors have not made their position
known within the periods laid down by law in which to challenge the demand or
claim or if the claim is one for which the Vendors would not be responsible by
reason of any limitation on their liability), any demand or claim from a third
party without the prior consent of the Vendors. The Vendors shall not refuse to
give their consent without a valid reason. Any refusal must be specified in
writing within ten (10) days following notification of the Purchaser's request
to this effect, subject to any shorter period laid down by law.
CONDUCT
13.4 At the Vendors' direction and at its expense, the Company shall take
any reasonable steps open to it reasonably requested by the Vendors, within
thirty (30) days following notification by the Purchaser under the terms of
article 13.1, in order to dispute a claim and/or to mitigate its consequences.
CLAIM FOR INDEMNITY
13.5 Any Claim must be notified to each of the Vendors by letter (LETTER
NO. 1) in accordance with the provisions of article 22 containing details of the
Claim.
DISPUTES
13.6 Any Warrantor who does not send to the Purchaser within thirty (30)
days after the receipt of Letter No. 1, a letter by registered post with
acknowledgement of service (LETTER NO. 2) setting and justifying out any
disagreement shall be deemed to have accepted the Claim.
EXPERT
13.7(a) Notification of Expert: If any Warrantor does not dispute the
validity of a Claim but only its amount under article 13.6 above, or
if a disagreement arises as to the implementation of article 12.1,
the Purchaser shall submit to the
-13-
Expert, for his decision, within five (5) days of his appointment,
as the case may be, either copies of Letters No. 1 and No. 2 or a
resume of the points of disagreement relating to the application of
article 12.1. The Expert shall be entitled to receive from the
Vendors and the Purchaser such information as may be necessary to
enable him to reach his decision, upon his requesting it.
(b) MISSION OF THE EXPERT: The Expert's decision shall be given within
thirty (30) days of his notification, be certified by him (the
EXPERT'S CERTIFICATE), shall set out the amount (if any) to be paid
by the Vendors, shall be sent by the Expert to both parties; the
parties agree that the decision of the Expert in relation to an
amount shall be binding on the parties in accordance with article
1592 of the CODE CIVIL. The expenses and fees of the Expert will be
paid by the Vendors, except if the Expert were to judge that (i) no
loss had been suffered by the Purchaser or the Company or (ii) were
to award the Purchaser less than the amount claimed by it, in which
case they shall be borne in the first case by the Purchaser in their
entirety, and, in the second case, by the Purchaser in that
proportion which the amount claimed by it less the amount awarded to
it bears to the amount claimed by it.
DURATION OF THE WARRANTIES
14. The Vendors shall not be liable for any Claim unless they receive
from the Purchaser written notice in accordance with article 13.4
(i) on or before the third anniversary of the Completion Date, in the
case of a Claim other than a Claim covered by paragraph (ii) below;
(ii) in respect of any Claim relating to taxation or social security
contributions, on or before the expiry of thirty (30) days after the
expiry of the legal prescription period applicable to the subject
matter of the Claim, or, if any proceedings have been commenced by
the competent authorities prior to the expiry of that legal
prescription period, on or before the expiry of 30 days following a
definitive decision or judgement, not subject to appeal, on such
proceedings.
CONFIDENTIALITY
15.1 If the sale of the Shares does not take place for any reason
whatsoever, the Purchaser will not use or disclose, to the detriment of the
Vendors or the Company, information relating to the Company obtained from the
Vendors during the negotiations leading to the execution of this Agreement or
during the investigations carried out pursuant to article 6.3. The Purchaser
shall, at the request of the Vendors, redeliver to the Vendors all documents
relating to the Company, as well as any document appended to this Agreement.
15.2 Subject to the provisions of law and the applicable regulations
of any relevant Stock Exchange, no announcement or distribution of any
information concerning this Agreement or its subject-matter shall be made
before or after the Completion Date by any party without the consent of the
Purchaser and the Vendors.
-14-
ENTIRE AGREEMENT
16. This Agreement constitutes the entire agreement and understanding
between the parties in connection with its subject matter and supersedes any
documents exchanged between any of the parties in connection with its subject
matter.
VARIATION
17. No variation of the Agreement (or any document entered into
pursuant to this Agreement) shall be valid unless it is in writing and signed
by or on behalf of each of the parties hereto.
ASSIGNMENT
18. The Vendors shall not be entitled to assign the benefit of any
provision of this Agreement.
COSTS
COSTS AND EXPENSES
19.1 Each of the parties to this Agreement shall bear its own costs,
fees and other expenses (including, without limitation, of a legal or
accounting nature) arising from the negotiation, preparation and putting into
effect of this Agreement.
REGISTRATION FEES
19.2 All registration fees which may become payable as a result of this
Agreement or the transfer of the Shares shall be borne by the Purchaser.
INVALIDITY
20. If any provision of this Agreement is held to be invalid or
unenforceable, then such provision shall (so far as invalid or unenforceable)
be given no effect and shall be deemed not to be included in this Agreement
but without invalidating any of the remaining provisions of this Agreement
and the parties undertake to negotiate in good faith in order to agree a
valid and enforceable alternative provision as close as possible in purpose
and effect to the original provision.
FURTHER ASSURANCE
21. Each of the Vendors shall do or procure to be done all such
further acts and things, and execute or procure the execution of all such
documents, as the Purchaser may from time to time reasonably require, whether
on or after Completion for the purpose of giving to the Purchaser the full
benefit of all of the provisions of this Agreement.
-15-
NOTICES
22.1 Any notice under this Agreement shall be in writing and signed by
or on behalf of the party giving it and may be served by leaving it or
sending it by fax or prepaid recorded delivery to the address and for the
attention of the relevant party set out in article 22.2 (or as otherwise
notified from time to time hereunder). Any notice so served by fax or post
shall be deemed to have been received:
(a) in the case of fax, twelve (12) hours after the time of despatch, provided
that it is confirmed in writing left or sent by prepaid recorded delivery,
in each case received within five (5) days of despatch of the fax;
(b) in the case of recorded delivery, at the time of delivery recorded by the
postal service.
22.2 The addresses of the parties for the purpose of article 22.1 are as
follows:
THE VENDORS: SOCOTEC SA,
▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇
FOR THE ATTENTION OF: President
FAX: 45 38 67 18
SOCOTEC INDUSTRIE SA
▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇
FOR THE ATTENTION OF: President
FAX: 30 44 19 73
Monsieur JACKY TALET
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
Monsieur ▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ Cottages
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ la Ville
FAX: 34 85 16 49
THE PURCHASER: TSW International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
FOR THE ATTENTION OF: Chief Financial Officer
FAX: 19 1 404 989 4461
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APPLICABLE LAW - SUBMISSION TO JURISDICTION
LAW
23.1 This contract is subject to, and shall be interpreted according to,
French law.
ARBITRATION
23.2 Any dispute, controversy or claim arising out of or in connection
with this contract, including any question regarding its existence, validity
or termination, shall be resolved by arbitration under the Rules of the ICC
in force at the date of the arbitration, which Rules are deemed to be
incorporated by reference into this clause. The tribunal shall consist of
three arbitrators. The place of arbitration shall be Paris. The language of
the arbitration shall be French. The parties hereby agree that the decision
of the arbitrators shall be final and binding upon them and shall not be
subject to appeal.
APPENDICES
24. Each of the appendices shall form an integral part of this Agreement.
Executed in three originals
On 3 March 1995
In Paris
The Vendors The Purchaser
[illegible] [illegible]
-------------------- -----------------------
Socotec SA TSW International, Inc.
by by
[illegible]
--------------------
Socotec Industrie SA
by
/s/ J. Talet
--------------------
Mr J. Talet
/s/ ▇▇ ▇▇▇▇
--------------------
▇▇ ▇▇ ▇▇▇▇
-17-
APPENDIX I
Shares
SHAREHOLDER NUMBER OF PRICE/SHARE TOTAL PRICE
SHARES (FRF)
SOCOTEC SA 11 206 197.222 2 210 070.00
SOCOTEC
INDUSTRIE SA 4 769 197.222 940 552.00
M. Jacky TALET 1 125 197.222 221 875.00
▇. ▇▇▇▇ 900 197.222 177 500.00
CURRENT ACCOUNT BALANCE
SHAREHOLDER PRICE
(FRF)
SOCOTEC SA 1 050 000
-18-
APPENDIX 2
WARRANTIES
CONSTITUTION AND CORPORATE AFFAIRS
1.(a) DUE CONSTITUTION AND CAPACITY: The Company has been duly
constituted and exists in accordance with French law; it has title
to its goods and assets and has the right (including all licences
and consents) to operate its businesses as currently carried on.
(b) CONFORMITY WITH THE LAW: The Company has been duly registered and
its registration has been kept up to date in accordance with all
applicable laws and regulations. The EXTRAITS K-BIS and the STATUTS
and the company books of the Company are in compliance with current
law and regulations, contain all amendments made to date and are
correct and complete as at the date hereof.
(c) SHAREHOLDERS' AGREEMENTS: There are no agreements or undertakings
whatsoever, other than the STATUTS, entered into by any of the
Vendors in relation to the shares of the Company.
(d) DECISIONS OF BOARD AND GENERAL MEETING: All decisions of the
management bodies of the Company (in particular, the Board of
Directors and General Assembly) have been taken in accordance with
the statuts and all applicable current laws and regulations.
(e) AUTHORISATIONS OF BOARD: All decisions in respect of the Company
which are subject to an authorisation or ratification by the Board
of Directors or the General Assembly, and in particular the
agreements subject to article 101 et seq of the law of 24 July 1966
have been brought to the attention of the statutory auditor, and
have been duly authorised.
SHARES
2.(a) ISSUE OF SHARES. The Company has not issued any equity securities
other than the Shares and 4,275 shares held by SI and the 225 shares
held by ▇▇ ▇▇▇▇, which together comprise the entire capital of the
Company. The share capital of the Company at Completion will be
fully paid up and the Company has complied in all material respects
with its obligations in respect of maintenance of capital pursuant
to article 241 of the law of 24 July 1966.
(b) OPTIONS AND SUBSCRIPTION RIGHTS: No right, option, guarantee,
subscription right, offer, commitment, conversion right, arrangement
or other agreement of any nature exists, which might or would result
in the allotment or issue of any securities by the Company.
(c) FULL TITLE: The delivery by the Vendors of duly signed share
transfer forms in respect of the Shares will transfer the entire
title (NUE -PROPRIETE and USUFRUIT) to
-19-
the Shares and the direct or indirect control of at least eighty per
cent of the dividend and voting rights attaching to the capital of
the Company.
(d) CHARGES: The Shares will be free of all liens, pledges, charges or
other rights in favour of a third party at Completion including
without limitation any rights arising under a written or oral
contract of sale.
(e) CAPACITY OF THE VENDORS: The Vendors have full capacity to sell the
Shares to the Purchaser and have obtained all necessary
authorisations in this respect. The sale of the Shares to the
Purchaser by the Vendors as well as all transactions which might be
required prior to this sale do not breach any applicable legislative
or regulatory requirement nor any provision of the STATUTS or any
other corporate documents of the Company or of any contract or act
whatsoever to which any of the Vendors or the Company is party or to
any administrative or legal decision whatsoever to which it may be
subject.
OPERATION
3.(a) CONFORMITY WITH THE LAW: The Company operates and has always
operated its business and its assets in compliance with all
applicable laws and regulations in force.
(b) VALIDITY OF CONTRACTS: All the current contracts of whatever nature
of the Company, have been entered into and performed at arm's length
under normal market conditions and in conformity with all applicable
laws and regulations.
(c) AUTHORISATIONS: The Company possesses all authorisations necessary
to carry out its activities is and is not aware of any violation,
whether contested or not, which could have a prejudicial effect on
the business of the Company.
(d) NORMAL MANAGEMENT: The business of the Company has been managed
only in a way that is normal for the sector of industry in question
and in the ordinary course of business.
(e) ADVERSE EFFECT: There is currently in existence no event, agreement
or contract which might directly or indirectly have an adverse
effect on the Company in respect of the terms on which it does
business with its clients.
CHANGE OF CONTROL
4. The Company is not a party to any contract containing a provision
permitting the other party to terminate, or modify the terms of the contract, in
the case of a change in the direct or indirect control of the Company.
-20-
FINANCIAL POSITION
5.(a) WARRANTED ACCOUNTS: The Warranted Accounts have been drawn up in
accordance with the Accounting Principles. The Warranted Accounts
are correct and genuine and give a true and fair view of the general
situation, the financial situation and the results of the Company
for the periods to which they relate.
(b) NET ASSETS: The Net Assets of the Company at Completion are not
less than the amount in respect thereof appearing in the 1994
Accounts, subject to any reduction arising in the ordinary course of
business determined by reference to the business of the Company for
the financial years 1991, 1992 and 1993 and, which does result from
a material adverse change on the financial or commercial position of
the Company.
(c) RETAINED EARNINGS: The Retained Earnings of the Company at
Completion are not less than the amount in respect thereof appearing
in the 1994 Accounts.
(d) CURRENT ACCOUNT BALANCE: The Current Account Balance at Completion
shall be FRF 1 050 000.
POSITION SINCE 31 DECEMBER 1994
6.(a) Since 31 December 1994 there has been no material change in the
financial or trading position of the Company or which affects the
composition of the Company's assets and liabilities and which should
have been disclosed to the Purchaser in order to faithfully reflect
the situation of the Company and during that period, the business of
the Company has been carried on in its ordinary and usual course.
(b) Since 31 December 1994:
(i) no contract, liability or commitment (whether in respect of
capital expenditure or otherwise) has been entered into by
the Company which is of a long term or unusual nature or
which involved or could involve an obligation of a material
nature or magnitude (an individual liability for expenditure
in excess of FRF 100 000 and any liabilities having an
aggregate value in excess of FRF 500 000 being included as
MATERIAL for this purpose) or which is otherwise outside the
ordinary course of its business;
(ii) the Company has not (whether in the ordinary and usual
course of business or otherwise) acquired or disposed of, or
agreed to acquire or dispose of, any business or any asset
having, individually, a value in excess of FRF 10 000 or any
businesses and/or assets having an aggregate value in excess
of FRF 50 000;
(iii) no debtor has been released by the Company on terms that it
pays less than the book value of its debt and no individual
debt in excess of FRF 10 000 owing to the Company has been
deferred, subordinated or written off or has proved to any
extent irrecoverable and the sum of the debts which
-21-
have been deferred, subordinated or written off or proved to
any extent irrecoverable does not exceed FRF 50 000;
(iv) the Company has not repaid any borrowing or indebtedness in
advance of its stated maturity;
(v) the Company has not entered into any contract, liability or
commitment of an off-balance sheet nature
ACCOUNTING AND OTHER RECORDS
7. (a) The statutory books, books of account and other records of the
Company are up-to-date and have been maintained in accordance with
all applicable laws and the Accounting Principles.
(b) All the records and Systems (including but not limited to computer
Systems) and all data and information of Company are recorded,
stored, maintained or operated or otherwise held by the Company and
are not wholly or partly dependent on any facilities which are not
under the exclusive ownership or control of the Company, with the
exception of the computer Systems used for the management of the
accounts of the Company which belong to SSA and which will be made
available to the Company from Completion in the context of the
agreement to provide services set out in article 6.6 of this
Agreement.
(c) The Company or, in relation to the accounting system, SSA is
licensed to use all software necessary to enable it to continue to
use its computerised records for the foreseeable future in the same
manner in which they have been used prior to the date of this
Agreement and the Company is not dependent on any software which is
not the property or under the exclusive control of the Company or
which will not be made available to the Company in the context of
the agreement to provide services set out in article 6.6 of this
Agreement.
DEBTS OWED TO THE COMPANY
8. There are no debts owing to the Company other than trade debts incurred in
the ordinary and usual course of business.
DEBTS OWED BY THE COMPANY
9. (a) The Company does not have outstanding any financial debt or other
indebtedness other than trade debts arising in the ordinary course
of business;
(b) The Company has not received any notice to repay under any agreement
relating to any borrowing or indebtedness which is repayable on
demand.
CORPORATE NAME - INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS
10.(a) OWNERSHIP: The Company has full and valid ownership of the
Intellectual Property Rights acquired or developed by it or on its
behalf in the course of its business and these rights are listed in
Appendix 4 and are duly protected in so
-22-
far as they are capable of protection in accordance with industrial
or intellectual property laws and are not, so far as the Vendors are
aware, being infringed by, any third party.
(b) EMPLOYEE CLAIMS: No claims have been made or threatened by
employees or ex-employees under any statutory inventor compensation
provision, or like employee compensation provision, in any
jurisdiction.
(c) INTELLECTUAL PROPERTY LICENCES: A list of all licences granted to
or by the Company in respect of any Intellectual Property Rights are
set out in Appendix 5. For those licences in respect of Intellectual
Property Rights which were not concluded on normal market terms and
for those licences relating to products used as a basis for the
CIMIX software, further details are set out in appendix 5 in
particular details of royalties payable and any limit as to time or
right of termination affecting the use of the Intellectual Property
Right. The Company is not in default under any licence, sub-licence
or assignment granted to it in respect of any Intellectual Property
Rights.
(d) LOSS OF RIGHTS: No Intellectual Property Rights owned or used by
the Company and no licence of Intellectual Property Rights of which
the Company has the benefit will be lost, or rendered liable to any
right of termination or cessation by any third party, by virtue of
the acquisition by the Purchaser of the Shares.
(e) FEES AND DUTIES: The Company is not liable to pay any fees or duties
on account of any right relating to the use of Intellectual Property
Right not owned by it other than as detailed in Appendix 5.
(f) THIRD PARTY RIGHTS: There are no Intellectual Property Rights
belonging to or used and enjoyed by the Company which have been the
object of any dispute or action by a third party and the Company is
not infringing any Intellectual Property Rights of any third party.
(g) SOURCE CODES: The Company holds the source code of and each of the
elements necessary for the development, the copying and the
commercialisation of its software products.
COMPUTER SYSTEMS
11. The computers, hardware and software used by the Company, other than
those mentioned in paragraphs 7(b) and (c) above, are owned by it or are subject
to licences, authorisations or rights to use for the benefit of the Company. No
person is entitled to receive any royalty in respect of or to prevent or
otherwise control the use, development and exploitation by the Company or its
licensees of the software owned by the Company.
PROPERTY RIGHTS OVER GOODS AND ASSETS
12.(a) OWNERSHIP RIGHTS: The Company has full title to all goods and
rights appearing as assets in the Warranted Accounts or acquired
since the dates to which the Warranted Accounts were made up other
than the assets disposed of
-23-
since the relevant date in the normal course of business on
market terms, and to all goods and rights which are used in its
business but which do not appear in the Warranted Accounts.
(b) NO CHARGES: The assets referred to in 12(a) are not the subject of
any security interest or any assignment, equity, option, right of
pre-emption, royalty, factoring arrangement, leasing or hiring
agreement, hire purchase agreement, conditional sale or credit sale
agreement, agreement for payment on deferred terms or any similar
agreement or arrangement (or any agreement or obligation, including
a conditional obligation, to create or enter into any of the
foregoing) except for:
(i) any individual hire or lease agreement in the ordinary
course of business involving expenditure of less than FRF 10
000 per annum (where the aggregate expenditure under all
such agreements is less than FRF 100 000);
(ii) title retention provisions in respect of goods and materials
supplied to the Company in the ordinary course of business;
(iii) security interests, if any, reflected in the Warranted Accounts
and liens arising in the ordinary course of business by operation
of law;
(c) THIRD PARTY ASSETS: The Company does not use any asset in the case
of its business to which it does not have full title (by ownership
or hire) which is desirable to permit the Company to continue to
operate in its business activities following the Completion Date in
the manner in which they are currently carried on, with the
exception of those assets specifically mentioned in appendices 6 and
10.
PROPERTY
13.(a) RIGHTS OF OCCUPATION: The Company has a valid right of occupation
of the premises where it carries out its activities on the terms set
out in Appendix 6, which right may not be terminated without the
consent of the Company prior to the first anniversary of Completion.
(b) PREMISES: All premises occupied or used by the Company are fit for
the purpose for which they are currently used and the Company has
complied in all material respects with all health and safety and
planning laws relating thereto.
HOLDINGS
14.(a) UNDERTAKINGS TO CONTRIBUTE TO CAPITAL: The Company has not
undertaken to contribute to the capital of any other company or
entity.
(b) UNINCORPORATED ASSOCIATIONS ETC.: The Company is not an associate
(associa) or a manager (gerant) of any unincorporated associations,
unlimited liability companies, economic interest groups or
partnerships.
-24-
(c) OPTIONS: The Company has not given or taken any put or call options
relating to the shares of any other company.
TAX
15.(a) The Company has not entered into any agreements providing for a
deferral of the payment of any tax or duty whatsoever. The Company
has in a timely fashion and in accordance with all applicable
regulations filed all national, regional or local tax returns and
all statements or other information required in respect of social
security charges.
(b) The Warranted Accounts faithfully reflect all liability to tax,
duties or social security charges arising out of any event on or
before 31 December 1994.
(c) There will be no liability to tax, duties or social security charges
which may be imposed on the Company arising out of any event, other
than the ordinary course of trading of the Company, between 31
December 1994 and Completion.
LITIGATION
16. No legal, arbitral or conciliation procedure involving the Company,
other than as set out in Appendix 7, nor any procedure of a contentious nature
is in progress against the Company, and the Company has no knowledge of any
threat of proceedings against the Company.
EMPLOYEES
17.(a) REPRESENTATIVE BODIES: The Company has respected all employment
legislation, in particular relating to employee and union
representation.
(b) COLLECTIVE AGREEMENTS: The Company has respected the terms of all
applicable collective agreements and schemes and the terms of all
its employment contracts. It has complied with the requirements of
insurance policies, pension, and retirement schemes relating to
employees.
(c) TERMS OF EMPLOYMENT: Details of the terms of employment of all
employees and cadres of the Company (including bonuses and profit
sharing) are set out in Appendix 8.
(d) EMPLOYEE BENEFITS: There are no non-mandatory pension plans,
profit-sharing schemes, retirement bonus plans, life or health
insurance or other employee benefit schemes of whatever nature in
existence or proposed nor any contractual or moral obligation to
create or provide the same, other than as set Out in Appendix 8.
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INSURANCE
18.(a) BUSINESS OPERATIONS: The Company is, and will be until Completion,
validly insured against the risks shown in Appendix 9 which lists
the policies taken out by the Company, the risks covered, the
maximum indemnity amounts together with the applicable excesses.
(b) EXPIRY OF INSURANCES: Each insurance policy may be terminated by
the Company and the Company shall be entitled to recover that
proportion of any premium paid PRO RATA TEMPORIS for the unexpired
period of the policy.
(c) PAYMENT OF PREMIUMS: The Company has paid all premiums due under
the relevant policies and has respected its obligations of
disclosure in respect of the said policies.
(d) CLAIMS: There are no material claims pending or likely to be made
under the said policies.
SECURITY - GUARANTEES - ENDORSEMENTS - OFF BALANCE SHEET LIABILITIES
19.(a) SECURITIES: The Company has not granted any guarantee, security,
promissory note or comfort letter relating to the performance of
obligations of third parties which is still in force.
(b) OFF BALANCE SHEET LIABILITIES: The appendices to the Warranted
Accounts set out the off balance sheet liabilities which are
required to be recorded pursuant to the Accounting Principles. The
Company has not incurred any off balance sheet liabilities since 31
December 1994.
UNFAVOURABLE EVENTS OR CONDITIONS TO DATE
20. Other than the facts set out in this Agreement, neither the Vendors
nor the Company is aware of any other event or matter of whatever nature,
affecting the Company and which has or which could have a material adverse
effect on the financial situation, the assets, the obligations or the running of
the Company.
THE ENTIRETY OF THE DECLARATIONS
21.(a) INFORMATION: All information which has been provided to the
Purchaser and its advisers by the Vendors or the Company and their
respective advisers is true and accurate.
(b) NO OMISSIONS: The Vendors' declarations in this Agreement or its
Appendices and the information which has been provided to the
Purchaser and its advisers by the Vendors or the Company or their
respective advisers do not contain any omission, the disclosure of
which might be significant or change the meaning of all or part of
the declarations in this Agreement.
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(c) LIMITATIONS: An Appendix shall limit a representation or warranty
made by the Vendors only to the extent that the information is
accurate and complete in that Appendix.
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