EXHIBIT 2.2
SHARE PURCHASE AGREEMENT
BETWEEN GLOBAL CAPITAL PARTNERS INC. having its registered office at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
incorporated under the laws of the State of Delaware and
registered under United States Federal ID Nr. ▇▇-▇▇▇▇▇▇▇
(hereinafter referred to as the "SELLER"), represented by ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chairman and Chief Executive Officer and
▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇, Chief Financial Officer, Secretary, Treasurer
of the first part,
AND BEHEER- EN BELEGGINGSMAATSCHAPPIJ ▇▇▇▇▇▇ B.V. a company existing
and incorporated under the laws of the Netherlands having its
official seat in Utrecht and its principal office at ▇▇▇▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ registered with the registry of commerce and
companies of Amsterdam under the number 30001713 (hereinafter
referred to as the "PURCHASER"), represented by its managing
director, the Holland Intertrust Corporation B.V. itself
represented by Mr. Corneliosen and Mr. Geltlink of the second
part.
PREAMBLE:
The EASTBROKERS BETEILIGUNGS AG (Aktiengesellschaft) (the "Company"') is a
company incorporated under the Austrian laws having its registered office at
▇▇▇▇▇▇▇▇▇▇▇▇, ▇, ▇-▇▇▇▇ ▇▇▇▇▇▇ registered with the registry of commerce and
companies of Austria under Nr. 2816D.
The share capital of the Company is divided into 1.200.000 shares, par value ATS
120.000.000.
The share capital of the Company is allocated as follows:
Shares %
Holding 1,148,795 95.73
(Total Seller)
Individuals 51,205 4.27
Total 1,200,000 100.00
The 402,078 (four hundred two thousand seventy eight) shares of the Company held
by the Seller and sold to the Purchaser pursuant this Agreement are hereinafter
referred to collectively as the "Shares" and individually as a "Share".
The Company owns, directly or indirectly, shareholdings in the subsidiaries
listed in Exhibit 2.4. and these subsidiaries own, either directly or
indirectly, shareholdings in such companies as indicated in the same exhibit.
The companies which are defined as the "subsidiaries" in Exhibit 2.4 are
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hereinafter referred to as the "Subsidiaries;" the Company and the Subsidiaries
are hereinafter together referred to as the "Group Companies " and each
individually as a "Group Company."
The Seller wishes to sell, and the Purchaser wishes to purchase, the Shares.
NOW THEREFORE THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE 1 SALE AND PURCHASE OF THE SHARES
1.1 SALE AND PURCHASE OF THE SHARES
Subject to the terms and conditions of this Agreement, the Seller shall sell or
procure to be sold and the Purchaser shall purchase the Shares, free and clear
of all claims, charges, liens, equities, sureties, encumbrances or other
restrictions, limitations or third party rights of any nature whatsoever as well
as all voting and other rights and advantages attached to the Shares. The Seller
shall and shall as relates to any other person procure that all rights of
pre-emption or other restrictions on transfers over any of the Shares conferred
either by the Articles of Association, statutes or bylaws of the Companies or in
any other way are waived.
1.2 PURCHASE PRICE
The purchase price for the Shares shall be a total of USD 9,625,000 (nine
million six hundred twenty five thousand) (the "Purchase Price") allocated as
follows:
- USD 700,000 (seven hundred thousand) shall be payable on the date
hereof by way of delivery and transfer of the ownership to the Seller
of 175,000 (one hundred seventy five thousand) shares of the company
General Partners Immobilienbesitz AG having its registered office at
▇▇▇▇▇▇▇▇▇▇▇▇, ▇, ▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇) incorporated under the laws of
Austria and registered with the registry of commerce and companies of
Austria under the number 77359P;
- the remaining of USD 8,925,000 (eight million nine hundred twenty five
thousand) shall be payable on the date hereof by way of the issue and
the delivery to the Seller of promissory note as set out in Exhibit
1.2.
ARTICLE 2 REPRESENTATIONS OF THE SELLER
The Seller hereby warrants and represents to and undertakes with the Purchaser
as regards each of the Group Companies as follows:
2.1 ORGANIZATION: AUTHORITY AND VALIDITY
(i) The Seller is a corporation duly organized and validly existing under
the laws of the State of Delaware (USA).
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The Seller has full power and authority to enter into and perform this
Agreement and to carry out its obligations hereunder.
(ii) The execution of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by the
competent corporate bodies of the Seller and no other corporate action
on the part of the Seller is necessary to authorize the execution of
this Agreement or the consummation of any of the transactions
contemplated herein.
(iii) This Agreement has been duly executed by the Seller and constitutes a
legal, valid and binding obligation of the Seller in accordance
with its terms.
2.2 NO BREACH
Neither the performance by the Seller of its obligations hereunder nor the
consummation of the transactions contemplated herein:
(i) conflicts with or violates any provision of its bylaws or any of its
corporate governance document;
(ii) violates, conflicts with or results in the breach of any contract to
which it is a party; or
(iii) constitutes a violation by it of any laws or regulations.
2.3 OWNERSHIP OF THE SHARES
The Shares are validly issued and fully paid; the Shares are free and clear of
all claims, charges, liens, sureties, equities and encumbrances and (except as
provided in the relevant articles or statutes or under applicable law) rights of
pre-emption or other equities and no person has the right (whether exercisable
now or in the future and whether contingent or not) to call for allotment,
issue, sale or transfer of any share or loan capital of the Company under any
option or other agreement (including conversion rights and rights of
pre-emption).
2.4 OWNERSHIP OF THE GROUP COMPANIES
(i) The Company owns, either directly or indirectly, shareholdings in the
Subsidiaries as indicated in Exhibit 2.4 hereto; the Company is the
sole beneficial owner of the issued or allotted shares of the
Subsidiaries as mentioned in Exhibit 2.4 and all such shares are
validly issued, fully paid or credited as fully paid and free and clear
of all claims, charges, liens, sureties, equities and encumbrances and
(except as provided in the relevant articles or statutes or under
applicable law) rights of pre-emption or other equities and no person
has the right (whether exercisable now or in the future and whether
contingent or not) to call for allotment, issue, sale or transfer of
any share or loan capital of the Company under any option or other
agreement (including conversion rights and rights of pre-emption);
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(ii) Each of the Group Companies is duly organized and validly existing
under the laws of the jurisdiction of its incorporation;
(iii) Each of the Group Companies has full power and authority to own, lease
and operate the assets held or used by it, and to carry out its
activities in the manner in which they are currently carried out;
(iv) None of the Group Companies is insolvent or the subject of any
voluntary or judicial reorganization proceedings, or is in liquidation,
nor have any such proceedings been threatened;
(v) The corporate bodies of the Group Companies operate in material
compliance with all applicable bylaws, corporate laws and regulations
and, they have operated in the past in the normal and ordinary course;
(vi) All the registers, accounting books and corporate documents of the
Group Companies have been and continue to be regularly maintained, in
accordance with applicable laws and regulations, and they are kept at
the registered office of the Company or of the respective Group
Companies, as the case may be.
2.5 SUPPLY OF INFORMATION
(i) The information contained in all the Exhibits to this Agreement are
true and accurate in all material respects;
(ii) The copies of the Individual and Consolidated Accounts are complete and
true copies; copies of the Articles of Association or statutes or
bylaws of the Group Companies attached hereto in Exhibit 2.5 (ii)
contain full details of the rights and restrictions attached to the
share capital of the Group Companies other than those imposed by the
law.
2.6 ACCOUNTS
(i) The financial statements of each of the Group Companies (balance sheet,
profit and loss statement and notes thereon, including off-balance
sheet liabilities (engagements HORS BILAN") required to be disclosed in
such notes) as of their respective 1998 and 1999 fiscal year-end dates
(the " 1998 and 1999 Individual Accounts") attached hereto as Exhibit
2.6 (i) have been duly audited and prepared in accordance with the
Accounting Principles, standards and practices generally accepted at
the date of their preparation so as to give a true and fair view of the
state of affairs of each of the Group Companies as of their respective
1998 and 1999 fiscal year-end dates and of the profits or losses for
the period concerned except as otherwise noted in Exhibit 2.6 (i);
(ii) The Company's consolidated financial statements (consolidated balance
sheet, consolidated profit and loss statement and the notes thereon,
including the consolidated statement of off-balance sheet liabilities
("ENGAGEMENTS HORS BILAN") required to be disclosed in such notes) as
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of and for the year ended December 31, 1998 (the "1998 Consolidated
Accounts") are attached hereto as Exhibit 2.6 (ii). The 1998
Consolidated Accounts have been duly audited and prepared in accordance
with the Accounting Principles, standards and practices generally
accepted at the date of their preparation so as to give a true and fair
view of the state of affairs of the Group Companies as of December 31,
1998 and of the profits or losses for the period concerned;
(iii) In lieu of the 1999 the provisional unaudited consolidated financial
statements, the 1999 Individual Accounts attached hereto as Exhibit 2.6
(i) have been deemed to be sufficient and acceptable to the Purchaser.
(iv) Full disclosure of and adequate provisions for bad and doubtful debts
and all liabilities, actual, contingent or otherwise and of all
financial commitments in existence in the 1999 Individual Accounts
attached hereto as Exhibit 2.6 (i);
(v) No change in the policies accounting have been made in preparing the
accounts of the Group Companies for each of the three financial periods
of the Group Companies except as stated in the audited balance sheets
and profit and loss accounts for such year.
2.7 REAL ESTATE
(i) A complete list of all real estate owned or leased by the Group
Companies is attached hereto as Exhibit 2.7 (in which all land and
buildings used for purposes of carrying out their activities are
included (all such real estate hereinafter referred to as the
"Buildings"). The Buildings are in a normal condition of use,
maintenance and repair;
(ii) Except as mentioned in Exhibit 2.7 (ii), the Buildings owned by the
Group Companies are exclusively owned by such Group Companies, free and
clear of any mortgages and none of them is subject to any easements,
security arrangements or other third-party rights which may materially
affect their value or use. The Buildings are not the subject of any
expropriation or requisition measures, or of any other administrative
measures, which may materially affect their value or use;
(iii) The Buildings materially comply with all material applicable building,
zoning, urban planning, environmental, safety and health and similar
laws and regulations.
2.8 MOVABLE PROPERTY AND BUSINESSES
All movable property, installations and equipment used by the Group Companies to
conduct their business are either fully owned by the Group Companies and are not
the subject of any liens, pledges or other third-party rights, or are used by
the Group Companies under the terms of a valid lease or finance lease agreement.
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2.9 LOANS
None of the Group Companies has granted loans to any individual or to any legal
entity except as otherwise disclosed in Exhibit 2.9.
2.10 OFF-BALANCE SHEET LIABILITIES
Except as set forth in Exhibit 2.10 or in the 1998 and 1999 Individual Accounts
or Provisional 1999 Consolidated Accounts, none of the Group Companies has any
off-balance sheet liabilities ("ENGAGEMENTS HORS BILAN"), and in particular none
of them has granted any guarantees with regard to the performance of obligations
contracted by third parties
2.11 TAXES
For the purposes of this Agreement, "Tax(es)" means all taxes including without
limitation, any direct or indirect, income, property, sales, value added, stamp
and registration duties, construction taxes, customs duties, municipal rates,
capital, withholding and employees' withholding taxes, and any other tax, duty,
rate, imposition and charges, as well as penalties, late interest and other
payments resulting from an adjustment notified by a public administration or any
other competent entity. Tax(es) also means: any social contributions, including
without limitation, social security contributions; contributions paid to
unemployment insurance agencies, and, in general, any taxes, withholdings, or
contributions assessed in whole or in part on wages and salaries.
(i) Except as indicated in Exhibit 2.11 (i),
- the Group Companies have filed in a timely fashion with the competent
authorities any and all Tax reports and returns they were required to
file, in the manner in which they were thus required and such reports
and returns are true, accurate and correct;
- the Group Companies are up to date with payment of all Taxes payable
by them;
- the reserves for accrued Taxes set forth in the 1998 Consolidated
Accounts and those set forth in the 1999 Individual Accounts are, in
accordance with the Accounting Principles, adequate to pay all taxes
due in connection with any period prior to the date hereof;
- the Group Companies have responded in a timely fashion to any and all
information requests addressed to them by any Tax authority;
(ii) None of the Group Companies is the subject of any inspection or
inquiry, or, has received any request for information from any Tax
authority;
(iii) No transfer tax is due on the sale of the Shares;
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(iv) There are no Tax liens on any assets of any Group Company other than
any liens for current taxes that are not yet due and payable. There are
no agreements in effect to extend the period of limitation for the
assessment or collection of any Taxes for which any of the Group
Companies may become liable, and no requests for any such agreements
are pending. Each Group Company has withheld from its employees and
paid in a timely fashion to the appropriate authority proper and
accurate amounts for all periods through the date hereof in compliance
with all withholding provisions of all applicable laws;
(v) None of the Group Companies have benefited from any Tax deferral,
favorable Tax regime or other Tax advantage or subsidy in exchange for
current or future undertakings and obligations that are not, or will
not be, reflected in the 1998 Accounts or the 1999 Accounts, and all
Tax liabilities whether actual or deferred, have been and will be fully
disclosed in the 1998 and 1999 Accounts attached hereto. None of the
Group Companies has incurred or shall incur any tax burden as a result
of the cessation of any Tax consolidation regime applicable to it on or
prior the date hereof;
(vi) None of the Group Companies shall incur any Tax liability as a result
of the consummation of the transfer of shares provided for in this
Agreement;
(vii) None of the Group Companies' assets have a lower tax basis than their
corresponding book value.
2.12 INSURANCE
(i) A list of the insurance policies subscribed by the Group Companies
identifying the name of the insurance company, the nature of the
insured risks, the amount of coverage and the term of the policy, is
attached hereto as Exhibit 2.12 (i).
(ii) All premiums due have been paid; all the policies in force are not
voidable on account of any act, omission or non-disclosure on the part
on the insured party or the Seller; there are no pending claims or
disputes in connection with such insurance policies.
2.13 CONTRACTS
(i) The sale of the Shares to the Purchaser shall not entitle the other
party to any material agreement to which any of the Group Companies is
a party, to request that such agreement be terminated, modified or
renegotiated, as a result of the sale of the Shares.
(ii) All material contracts or undertakings to which any of the Group
Companies is a party or a beneficiary have been validly signed and have
been validly performed;
2.14 RELATIONS WITH THE SELLER
Except to the extent that the only other party thereto is another Group Company
no Group Company is a party to:
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(i) any contract for hire, lease or rent (excluding those concerning their
properties) hire-purchase or purchase by way of credit sale or
periodical payment (other than contracts for normal office services)
with an annual payment exceeding USD 500,000;
(ii) any contracts for guarantee (including performance guarantee),
indemnity or surety, individually in excess of USD 500,000;
(iii) any power of attorney other than given to its employees or officers or
trademark agents;
(iv) any partnership, joint venture, consortium arrangement or other
unincorporated association; any merger, contribution, spin off or other
type of business combination or has undertaken to be a party to any
merger, contribution, spin off or other type of business combination;
(v) any agreement or arrangement which in accordance with its terms is
liable to be terminated by another party or under the terms of which
rights of any Group Company are liable to be adversely affected in any
way as a result of any change in the control or shareholders of the
Companies;
(vi) any agreement in which any of the directors and/or managing directors
and/or affiliate of the Seller or of any of the Group Companies is
materially interested (directly or indirectly) whatsoever;
(vii) any sale or purchase option or similar contract or arrangement
affecting any asset owned or used by the Group Companies or by which
the Group Companies is bound.
2.15 DISPUTES
There are no judicial, administrative or arbitration proceedings pending,
overtly threatened against any of the Group Companies.
None of the Group Companies is bound by or in default of any order, award, writ,
injunction, decree or judgement of any court, arbitrator or governmental or
supranational authority.
2.16 COMPLIANCE WITH LAW
The Group Companies' activities are in all material respects carried out in
compliance with the permits and consents required for the performance of their
activities and with all legislation and regulations applicable to them.
2.17 ENVIRONMENT
(i) The Group Companies carry out their activities in compliance in all
material respects with environmental legislation and regulations
currently applicable to them. In particular, The Group Companies have
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obtained all environmental authorizations and licenses required for the
performance of their activities, and the Group Companies are complying
in all material respects with said authorizations and licenses.
(ii) (a) there is no material soil or groundwater contamination on or
beneath the Buildings, and there is no material contamination in any
other respect of any Buildings, none of the Buildings, including the
groundwater, are affected by contamination from the surrounding area or
other real estate which could result in any liability for the owner or
occupier of the Buildings and (b) there is no contamination migrating
from the Buildings to other premises.
2.18 MANAGEMENT BETWEEN DECEMBER 31, 1998 AND THE DATE OF THIS AGREEMENT
Between December 31, 1998 and the date hereof as regards each Group Company:
(i) its business has in all material respects been carried on in the
ordinary course and so as to maintain the same as a going concern and
there has been no material adverse change in the financial or trading
position or prospect of the Group Companies;
(ii) it has not entered into any material long-term contracts outside the
ordinary course of business;
(iii) no dividend or other distribution has been declared, made or paid to
its members except as indicated in Exhibit 2.18 (iii)
attached hereto;
(iv) no share or loan capital has been repaid or allotted or issued or
agreed to be issued; no transferable securities of any nature
whatsoever, no warrants have been issued and none of the Group
Companies has undertaken to do so;
(v) none of the Group Companies has assumed or incurred any material
liabilities (actual or contingent) or material expenditure otherwise
than in the ordinary course of carrying on its business;
(vi) none of the amounts secured by the mortgages, charges, liens or
encumbrances disclosed in the 1999 Individual Accounts attached hereto
as Exhibit 2.6 (i) has been increased beyond the amount shown in these
accounts and no mortgage, charge, lien or encumbrance has been created
since January 1, 2000;
(vii) except for the recent capitalization by the Seller of Eastbrokers AG of
USD 300.000 and Eastbrokers Warsaw of USD 260.000 and the purchase of a
certain brokerage by Eastbrokers Slovenia, none of the Group Companies
is a party to any merger, contribution, spin off or other type of
business combination or has undertaken to be a party to any merger,
contribution, spin off or other type of business combination; none of
the Group Companies has made any change to its capital, or issued any
transferable securities, of any nature whatsoever, or any warrants, or
has undertaken to do so except as otherwise disclosed in Exhibit 2.18
(vii);
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(viii) no shareholder's resolutions have been passed (other than ordinary
business conducted at an Annual General Meeting).
2.19 LABOR MATTERS
(i) A copy of the most recent available labor contracts for each of the
Group Companies is set forth in Exhibit 2.19 (i);
(ii) The consummation of the transactions contemplated in this Agreement
will not cause any of the Purchaser or the Group Companies to incur or
suffer any liability relating, to, or obligation to pay, severance,
termination, social security or other similar payments (including
interest, penalties and charges relating thereto) to any person or
entity;
(iii) Exhibit 2.19 (iii) sets forth a list of the collective bargaining
agreements applicable to the Group Companies;
(iv) No employment agreement of any employee of any of the Group Companies
contains provisions for compensation in the event of redundancy or
retirement that are more favorable than those under applicable law
and/or the collective bargaining agreement applicable to such employee;
(v) The Group Companies do not participate in or contribute to any
retirement plans, profit-sharing schemes or other optional employee
plans other than those required by applicable legislation, regulations
and collective bargaining, agreements and no individual entitlements
exist. All such plans and schemes are duly reflected in the books of
the Group Companies in accordance with applicable law and with the
Accounting Principles;
(vi) There is no labor litigation.
2.20 NO MATERIAL MISSTATEMENTS
Each representation or warranty by the Seller made in this Agreement, including
by reference to any information set forth in any Exhibit to which such
representation or warranty refers, is accurate and sincere. Furthermore, the
parties acknowledge that the accuracy and the sincerity of all the statements,
representations and warranties made by the Seller in this Agreement have been
determinant for the Purchaser's decision to enter into this Agreement.
ARTICLE 3 COVENANTS
3.1 COVENANTS OF THE SELLER
On the date hereof the Seller shall deliver to the Purchaser or, in the case of
some of those items referred to in Article 3.1 (v) to 3.1 (viii) held to the
Purchaser's order:
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(i) duly executed transfer of the Shares or such duly executed documents,
declarations and contractual arrangements as are necessary to vest the
Shares in favor of the Purchaser;
(ii) if requested by the Purchaser and subject to local requirements and
local laws, the written resignations of the auditors of each Group
Company to take effect on the date hereof with acknowledgments signed
by them to the effect that they have no claim against any Group Company
except for any accrued fees and disbursements;
(iii) such waivers or consents or other documents reasonably necessary to
vest full legal and beneficial ownership of the Shares in the Purchaser
and to enable the Purchaser to be registered as or become holder of the
Shares;
(iv) the certificates of incorporation, common seals, cheque books,
statutory books and any records, books and other documents required to
be maintained under the laws of the relevant jurisdiction of each Group
Company, duly written up-to-date as at the date hereof;
(v) the share certificates in respect of each Group Company or such
documents as are necessary to vest the shares in those Group Companies;
(vi) the Seller will assign to the Company its rights and obligations for
its receivables and payables attributable to and related to the
European operations through the date of sale;
(vii) the financial and accounting books and records of each Group Company
and the documents of title relating to the freehold and leasehold
properties save to the extent that they are otherwise made available to
the Purchaser in a manner reasonably satisfactory to the Purchaser;
(viii) the cancellation of any power of attorney.
The audited 1999 Consolidated Accounts of the Company shall be delivered by the
Seller to the Purchaser no later than 90 days after the date hereof.
The Seller undertakes to do its best effort to call within seven business days
after the date hereof an extraordinary general meeting of the shareholders of
each Group Company in order to replace all the Directors, Managing Directors and
members of the Supervisory Board in and/or all offices or places of profit under
each Group Company.
3.2 COVENANTS OF THE PURCHASER:
The Purchaser will accept the resignation of the Members of the Board of
Directors of the Company;
The Purchaser will accept the resignation of the Members of the Supervisory
Board of the Company.
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ARTICLE 4 INDEMNIFICATION
4.1 PRINCIPLE
Subject to the provisions of this Agreement, the Seller hereby undertakes to
indemnify the Purchaser, or the relevant Group Company, at the Purchaser's
choice, for one hundred percent (subject to the limits set forth herein) of all
damages, losses and reasonable costs and expenses (for example but without
limitation thereto, attorney's fees, ...) (collectively a "Loss") directly or
indirectly suffered by the Purchaser or by any of the Group Companies as a
result of any inaccuracy or breach of the representations and warranties of the
Seller hereunder.
4.2 CLAIMS
Any claims made by the Purchaser under the terms of this Article (a "Claim")
shall be made in writing as follows:
(i) each Claim shall state, with reasonable detail, the grounds there for
and, to the extent reasonably possible, the foreseeable amount involved
in such Claim;
(ii) each Claim shall include available evidence then in the possession of
the Purchaser or of any of the Group Companies to demonstrate the
soundness thereof, and
(iii) each Claim shall be delivered by the Purchaser to the Seller no later
than sixty (60) days after the Purchaser becomes aware of the
circumstances giving rise to such Claim or, if the circumstances so
require (e.g., in the case of emergency proceedings or when the answer
to a notification must be given within a time period subject to
forfeiting its rights), the Purchaser will send the written
notification to the Seller with sufficient time to permit the Seller to
take the actions referred to in Section 4.4.
(iv) the Purchaser has the right to make a Claim at "TITRE CONSERVATOIRE"
prior to the end of the period provided for under Section 4.3 hereunder
on serious and documented grounds in respect of circumstances, facts or
events then objectively known to exist or have occur-red and as a
result of which a Loss is reasonably likely to be suffered by the
Purchaser or a Group Company, even if some facts, items or
circumstances are not known at the time or if the amount of a Loss
cannot then be established, regardless of whether the final liability
for, and/or amount of, such Loss is ascertained at or after the end of
the period provided for under Section 4.3 hereunder.
4.3 DEADLINES FOR CLAIM
Any Claims may give rise to indemnification only if notified by the Purchaser to
the Seller prior to the second anniversary of the date hereof, or, for Claims
related to tax, social security or customs matters, prior to the end of the
applicable statute of limitations extended by a period of three months.
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4.4 THIRD-PARTY CLAIMS
In the event that a claim is made by a third party against a Group Company, the
Purchaser may defend the interests of the Group Company involved. The Purchaser
presents all arguments, submits all pleadings, takes all actions and files all
counterclaims he considers as necessary or useful. As the case may be, the
Purchaser settle, admit liability or withdraw any claim in connection with said
third-party.
4.5 NATURE OF THE LOSS
(i) Any indemnification due by the Seller shall be calculated taking into
account the effect of any tax liability for the Purchaser or any of the
Group Companies which may arise from the payment of such
indemnification.
(ii) Any indemnification due by the Seller shall be based, USD for USD, on
the amount of the Loss suffered by any one or more of the Group
Companies or by the Purchaser, and shall be computed without regard to
any multiple, price-earnings or equivalent ratio implicit in
negotiating and/or determining the Purchase Price.
(iii) In the event that a Group Company is required to make a payment in
connection with a third-party claim, the Seller shall immediately make
the indemnification payment in connection thereto.
(iv) The Seller shall not be held liable for indemnification of any Loss to
the extent such Loss is covered by a specific provision reflected in
the 1999 Individual Accounts attached hereto as Exhibit 2.6 (i).
4.6 DETERMINATION OF THE INDEMNIFICATION
The amount of the indemnity due by the Seller in connection with a Loss
sustained by a Group Company shall be equal (subject to the limits set forth
herein and irrespective of whether the indemnity shall be paid to the Purchaser
or the relevant Group Company) to the portion of 100% of the damage suffered by
the relevant Group Company on a USD for USD basis corresponding to the direct
and/or indirect interest held by the Purchaser in the share capital of said
Group Company at the time the relevant Claim is notified to the Seller, it being
understood that for the purpose of the determination of this indemnification any
interest held in a Group Company which exposes the holders of such interest to
unlimited liability on account of such Group Company's actions shall be deemed
equal to 100%.
4.7 KNOWLEDGE OF PURCHASER
Except as specifically disclosed in writing in this Agreement or in an Exhibit
thereto, knowledge of Purchaser (including in connection with such information
as may have been made available to Purchaser in the data room organized by
Seller prior to the signing hereof) does not exclude liability of Seller under
this Agreement.
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ARTICLE 5 CLOSING
5.1 DATE AND PLACE OF CLOSING
The closing of the sale and purchase of the Shares takes place at the signature
of present agreement. The date of the closing referred to as the "Closing Date"
shall be June 14, 2000.
5.2 CLOSING OPERATIONS
On the Closing Date:
The Seller shall transfer and deliver to the Purchaser duly completed and signed
transfer orders providing for the transfer of the ownership of all of the Shares
and of the shares of each of the Subsidiaries.
The Purchaser shall issue and deliver to the Seller the Promissory Note as
referred to in Article 1.2 above and transfer instructions for the transfer of
the 175,000 (one hundred seventy five thousand) shares of General Partners
Immobilienbesitz into an account of the Seller.
ARTICLE 6 GENERAL PROVISIONS
6.1 ANNOUNCEMENTS
All announcements made in connection with this Agreement and the transactions
contemplated herein shall be the subject of a consultation between the parties
and, except where such announcement is a legal requirement, a prior agreement
between the Purchaser and the Seller, which agreement shall not be unreasonably
withheld.
6.2 ABSENCE OF THIRD-PARTY RIGHTS - ASSIGNMENT
This Agreement is concluded to the sole benefit of the parties hereto, and shall
not benefit or create any rights whatsoever in favor of any individual or entity
other than the parties hereto. This Agreement shall not be assigned by either
party without the prior written consent of the other parties.
6.3 ENTIRE AGREEMENT
This Agreement (including its Exhibits) represents the entire agreement existing
between the parties relating to the subject matter hereof and supersedes all
prior understandings and agreements of the parties with respect to the subject
matter hereof.
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6.4 WAIVERS AND AMENDMENTS
No modification of or amendment to this Agreement shall be valid unless set
forth in an instrument in writing signed by each of the parties hereto. Any
waiver of any term or condition of this Agreement must be set forth in an
instrument in writing signed by the waiving party and must refer specifically to
the term or condition to be waived and to the circumstances of such waiver. No
such waiver shall be deemed to constitute a waiver applicable either to other
circumstances involving the same term or condition or to any other term or
condition of this Agreement.
6.5 SEVERABILITY
If any provision of this Agreement is held to be invalid in whole or in part,
the validity of the remaining provisions of the Agreement shall not be affected.
In such event, the parties shall, if possible, substitute for such invalid
provision a valid provision corresponding to the spirit and purpose thereof.
6.6 SECTION HEADING
The section headings in this Agreement are for convenience of reference only and
shall not be deemed to have any contractual value or particular interpretation.
Except as indicated otherwise, references made in this Agreement to articles,
sections, subsections and Exhibits are made to articles, sections, subsections
and exhibits of this Agreement.
6.7 NOTICES AND COMMUNICATIONS
All notices and communications provided for herein shall be deemed to have been
duly given if delivered to the following addresses:
- if to the Purchaser, to:
- if to the Seller, to:
Global Capital Partners Inc.
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or to such other addresses as the addressees shall indicate in accordance with
the provisions of this Section. All notices or communications shall be hand
delivered against a receipt signed and dated by the addressee, or sent by
registered mail with return receipt requested, and shall be deemed to have been
received on the date stated on the receipt by the addressee for hand delivery,
or three (3) days after the date of the postmark on the receipt of mailing, for
registered mail.
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6.8 COSTS
All legal fees pertaining to this contract shall be paid by the Seller whether
this contract is consummated or not.
6.9 GOVERNING LAW
This Agreement shall be governed by the laws of the State of Delaware (USA).
6.10 DISPUTES. ARBITRATION
All disputes arising in connection with this Agreement, including its
interpretation or performance, shall be finally settled under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce (the
"ICC") as existing as of the date of commencement of the arbitration proceedings
by three (3) arbitrators appointed as follows.
Each party shall designate one (1) arbitrator and the two arbitrators thus
appointed shall designate the Chairman of the tribunal by mutual agreement
within thirty (30) days after the date on which the appointment of the second
arbitrator is notified to the first arbitrator by the ICC, failing which, upon
the request of either of the parties, the Chairman of the tribunal shall be
designated by the ICC as promptly as practicable. The proceedings shall take
place in Delaware. The language of the arbitration proceedings shall be English.
Executed on June 14, 2000 in two parts.
For Global Capital Partners Inc., For Beheer- en Beleggingsmaatschappij ▇▇▇▇▇▇
B.V.,
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▇▇▇▇▇ ▇▇ ▇▇▇▇.
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