EXHIBIT 4.7
AGREEMENT
PURCHASE OF
NOM. DKK 100.000 SHARES IN AGH ▇▇▇▇▇▇ INVEST A/S
Between EuroTrust A/S
Poppelgaardvej 11-13
2860 Soborg
CVR-nr. 10 29 81 48
as buyer
(The "Buyer")
and
Kalodde AS
Kuholmsveien 64 B
N-4631 Kristiansand
Norge
CVR-nr. 982124697
as seller
(the "Seller")
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1. DEFINITIONS
As used in this Agreement the following terms shall have the following
meanings (such meanings to be equally applicable to the singular and
plural forms of such terms):
"Agreement" Shall mean this share purchase agreement
and all exhibits attached hereto, each
of which constitutes an integral part of
this Agreement.
"Assets" Shall have the meaning set out in
Section 4.1.6 below.
"Buyer" Shall have the meaning set out in the
introductory paragraph hereof.
"Company" Shall mean AGH ▇▇▇▇▇▇ Invest A/S,
registration number 28 71 19 48.
"Closing Date" Shall mean the later of (i) may 1, 2006
or (ii) the day on which the last of the
conditions set forth in Section 8 shall
have been satisfied.
"Confidential Information" Shall mean this Agreement and any and
all information of any kind or nature
whatsoever, whether written or oral,
including, without limitation, financial
information, trade secrets, client lists
and other proprietary business
information, regarding the Company, the
Subsidiaries or the Buyer, which
information is not known to the general
public or to persons unaffiliated with
the Company, the Subsidiaries or the
Buyer, as the case may be.
"Intellectual Property Rights" Shall mean trademarks, registered
designs, trade and business names,
rights under licenses, and applications
for any of these as used by the Company
and the Subsidiaries.
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"Material Adverse Effect" Shall mean any effect which gives rise
to or is reasonably likely to give rise
to a material adverse effect on the
assets or financial conditions of the
Company or the Subsidiaries.
"Material Contracts" Shall mean existing contracts of the
Company or the Subsidiaries having an
annual turnover or value excluding VAT
exceeding 50,000 Euro.
"Parties" Shall mean the Seller and the Buyer when
referred to jointly in this Agreement.
"Party" Shall mean the Seller or the Buyer.
"Seller" Shall have the meaning set out in the
introductory paragraph hereof.
"Seller's Knowledge" Shall mean the actual knowledge of the
Key Employees of Seller.
"Shares" Shall mean the 100,000 ordinary shares
nominal value DKK 1 per share equal to
20% of the total shares in the Company,
to be sold by the Seller to the Buyer
pursuant to this Agreement.
"Subsidiaries" Shall mean all the companies mentioned
in exhibit 1.
"Taxes" Shall mean all income tax, value added
tax and any other taxes by any tax
authority including all penalties and
interest.
"Third Party Claim" Shall mean any claim by a third party
(including tax and other authorities)
against the Company.
"Warranties" Shall mean the warranties set out in
Section 4 below.
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2. TRANSFER OF SHARES
2.1 The Shares, including all dividend rights thereto, shall, on the Closing
Date subject to the conditions set forth in this Agreement be
transferred with effect as of the date of signature on this Agreement to
the Buyer, free and clear from any security interest, mortgage, charge,
pledge, lien, option, or encumbrance of any kind.
3. PURCHASE AND SALE
3.1 Upon the terms and subject to the conditions set forth herein, and in
reliance upon the representations, warranties, covenants and
undertakings made herein by each Party hereto to the other Party hereto,
on the Closing Date Seller shall sell the Shares, and the Buyer shall
purchase the Shares on the terms and conditions set out in this
Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
4.1 The Seller hereby makes the following representations and warranties,
each of which are made as of the date hereof.
4.1.1 EXISTENCE
The Company and the Subsidiaries are duly organised and validly existing
under the laws of the jurisdiction of their incorporation and have full
corporate power to carry on their business as conducted. All of the
Company's subsidiaries are as stated in EXHIBIT 1.
4.1.2 CORPORATE RECORDS AND DOCUMENTATION
The corporate documentation of the Company, including, without
limitation, share registers, minutes of the board of directors' meetings
and shareholders' meetings, exists and is safely kept by the Company or
its designated agents.
4.1.3 TITLE AND AUTHORITY TO TRANSFER THE SHARES; CAPITALISATION
(a) The Seller has full ownership to the Shares and has full power,
capacity and authority to sell and transfer such Shares and to
perform all other undertakings set forth in this Agreement,
including, but not limited to, the approval of the Board of
Directors of the Company or any similar organ of the Company. The
Shares are fully transferable to the Buyer and are free and clear of
all restrictions on the ability to vote on the Shares. The
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Shares are not subject to claims, options, liens, charges and other
encumbrances of any kind. The Shares represent 20% of the
outstanding equity capital of the Company.
(b) The Shares have been duly authorised, legally and validly issued and
fully paid in to the Company.
(c) The Seller has the full corporate power, to enter into this
Agreement and to consummate the transactions contemplated hereby and
thereby. The execution of this Agreement, the consummation of the
transactions contemplated herein and the fulfilment of the terms
hereof, will not result in a breach of any judgement, decree or
order of any court or governmental body, any applicable law or the
articles of association applicable to the Seller.
4.1.4 THE ACCOUNTS
(a) The Takeover Accounts have been delivered to Buyer and Buyer has
read, and is familiar with, such Takeover Accounts.
(b) Any debt receivable mentioned in the Takeover Accounts will be paid
when due.
4.1.5 DIVIDENDS, ETC.
The Company has not from the date of incorporation decided, declared or
paid any dividends or made any other distributions of its profits or
assets to its shareholders. Neither the Company nor the Subsidiaries
have received any conditional shareholders' contribution.
4.1.6 TITLE TO ASSETS AND PROPERTIES
The Company or the Subsidiaries have title to all of the personal and
real property and other assets recorded in EXHIBIT 1, except for such
assets which are leased and assets sold, disposed of.
4.1.7 LEASEHOLD PROPERTIES
The Company or the Subsidiaries has not leased real property of any
kind.
4.1.8 CONTRACTS
(a) To the Seller's Knowledge all contracts are part of the ordinary
course of business.
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(b) The Company or the Subsidiaries have not received or given notice of
termination of any Material Contract.
(c) No party to any Material Contract has, to Seller's Knowledge, the
right to terminate or modify its obligations as a result of the
transactions contemplated herein.
(d) To Seller's Knowledge, the Company is not in default under any
Material Contract, which default has a Material Adverse Effect.
4.1.9 INTELLECTUAL PROPERTY RIGHTS
(a) All Intellectual Property Rights which are used in, or are necessary
for, the business of the Company, whether registered or not, are
owned by or licensed to the Company or the Subsidiaries, and the
Intellectual Property will not be affected in any way by the
transfer of ownership pursuant to this Agreement.
(b) Ownership to all Intellectual Property Rights contributed to the
Company or the Subsidiaries in connection with their formation or
included in the Takeover Accounts have been transferred free of any
charges or encumbrances, and no license payments or other payments
are or may in the future become due to the persons or companies
contributing such Intellectual Property Rights.
(c) The Company and the Subsidiaries have not, to Seller's Knowledge,
been given any notice of an infringement by any third party of any
Intellectual Property owned by or licensed to the Company.
(d) The registrations of all registered Intellectual Property are, to
Seller's Knowledge, in force and the renewal fees for all such
registrations have been and will be paid.
(e) There has not, to Sellers Knowledge, been presented to the Company
or the Subsidiaries any Claim, whether for infringement, damages or
otherwise, by any third party which relates to the use of
Intellectual Property or know-how by the Company or the
Subsidiaries.
(f) To Sellers Knowledge, the Company and the Subsidiaries are not in
breach of any license or other agreement relating to the
Intellectual Property or know-how.
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4.1.10 LICENSES
All material licenses, permits and authorizations necessary for the
Company and the Subsidiaries to carry on their business as conducted are
in full force and effect, and there are not currently existing material
violations of any such licenses, permits and authorisations or any
pending action or other proceeding which seeks the revocation of any
such existing licenses, permits or authorisations. True copies of any
such material licenses, permits and authorizations have been provided to
Buyer.
4.1.11 ENVIRONMENTAL MATTERS
(a) The Company and the Subsidiaries comply in all material respects
with all relevant environmental laws and environmental licenses and
all environmental licenses are valid and subsisting and the Company
and the Subsidiaries have not received any notice that any such
environmental license is being revoked, suspended, amended, varied,
withdrawn or not renewed.
(b) No proceedings have been issued or are outstanding against the
Company or the Subsidiaries in respect of any breach of any
legislation concerning the environment.
4.1.12 EMPLOYMENT AND PENSION AGREEMENTS
(a) No employee has announced his or her termination of his or her
position or employment with the Company or the Subsidiaries.
(b) There are no deferred compensation agreements, pensions, profit
sharing, severance pay or retirement plans in force with respect to
any of the employees or former employees.
(c) The Seller has not received notice, which notice remains current,
for any claim that it has not complied with any employment, labour
or related laws.
(d) There is no pending or current and, to Sellers Knowledge, no
threatened (i) claims or labour litigation in respect of the Company
or the Subsidiaries; and (ii) strike or any other material labour
dispute involving the employees.
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4.1.13 POWERS OF ATTORNEY
Only employees of the Company and the Subsidiaries having appropriate
position within the Company or the Subsidiaries are authorised to sign
for the Company or the Subsidiaries and to operate bank accounts.
4.1.14 CLAIMS; LITIGATION
The Company and the Subsidiaries has not been served with any summons or
notice to arbitrate. There is, to Sellers Knowledge, no action or other
proceedings pending or threatened by the Company or the Subsidiaries
against any other person or entity regarding any Material Contracts.
4.1.15 ORDINARY COURSE OF BUSINESS
Up to the date of this agreement, the Company or the Subsidiaries have
neither taken nor shall take any action or measure which is outside the
ordinary course of business and which will have a Material Adverse
Effect, unless the action or measure is directly related to the
transactions contemplated herein.
4.2 TAX WARRANTIES
(a) The Company and the Subsidiaries fulfil all requirements for a VAT
registration with effect as of the date of incorporation of the
Company.
(b) The Company and the Subsidiaries have duly filed with the
appropriate tax authorities all tax returns and reports in respect
of any and all Taxes required to be duly filed with such tax
authorities. The Company and the Subsidiaries have paid to the
appropriate tax authorities all Taxes required to be paid to them
according to filed tax returns or according to orders to pay issued
by tax authorities. The Company and the Subsidiaries are not in
breach or in default in respect of any Taxes.
(c) There are no tax audits currently pending against the Company or the
Subsidiaries.
(d) All Taxes required to have been paid by the Company and the
Subsidiaries have been paid in due time. The Company and the
Subsidiaries have not been given or has been granted by any tax
authority any waiver or extension of any period of limitation
governing the time of assessment or collection of any Taxes.
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5. COVENANTS OF THE SELLER
5.1 NO CLAIMS
The Seller confirms that no party may claim any fees or salaries against
the Company or the Buyer in relation to the transactions contemplated
herein.
5.2 OPERATION OF THE BUSINESS OF THE COMPANY
From and after the date hereof until the Closing Date, the Seller shall
cause the Company to:
(a) operate its business only in the usual, regular and ordinary manner
and, to the extent consistent with such operation, to (i) preserve
the present business organization intact, (ii) use its best efforts
to keep available the services of its present officers and
significant employees, and (iii) use its best efforts to preserve
the present business relationships with customers, suppliers, and
others having business dealings with the Company;
(b) maintain its books, records and accounts in the usual, regular and
ordinary manner on a basis consistent with prior periods;
(c) perform all of its material obligations without material default;
(d) neither (i) merge with or into, consolidate or otherwise combine
with, or acquire all or substantially all of the stock or assets of,
any other entity; nor (ii) sell, lease or otherwise transfer any
significant part of its assets other than in the ordinary course of
business consistent with past practice;
(e) neither (i) change the number of shares of capital stock or other
equity securities issued and outstanding nor (ii) grant any option,
warrant, or other right to purchase or to convert any obligation
into shares of stock; and
(f) neither declare, pay or make any dividend or other distribution or
payment in respect of the outstanding shares of capital stock of the
Company, nor purchase, redeem or otherwise acquire any shares of
capital stock of the Company.
6. PURCHASE PRICE
6.1 AMOUNT
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The total purchase price for the Shares is 1.060.000 ordinary shares
nominal value DKK 7.50 per share in EuroTrust A/S.
Shares will be newly issued shares and buyer is committed to register
the Shares in Vaerdipapircentralen (VP) upon completion.
6.2 SETTLEMENT
The purchase price shall be paid on the Closing Date.
7. BREACH OF CONTRACT
The Purchase price of 1.060.000 shares in EuroTrust A/S is based upon
The Valuation Report, Exhibit 2.
The Buyer has been presented with all necessary information and can
therefore not claim any compensation regarding the purchase price,
unless seller deliberately have withheld or misrepresented material
information. The Buyer and its subsidiary, Aktiv Gruppen Holding A/S
already owns 50% of The Company, and has full access to all informations
regarding The Company.
The Seller has had access to all public information about Buyer,
especially all fillings made by Buyer with United States Securities and
Exchange Commission ("SEC").
8. CONDITIONS
The Purchase is conditioned to the following:
1. Buyer shall acquire an additional 300,000 shares in AGH ▇▇▇▇▇▇
Invest A/S and thereby 50% of AGH ▇▇▇▇▇▇ Invest A/S.
2. Approval of this transaction by a shareholders meeting of Buyer
3. Sellers shall receive approval of tax-free transfer of shares
4. Registration in Vaerdipapircentralen (VP) of shares of Buyer to be
issued to Seller
If conditions are not met by July 31, 2006 each party can terminate this
agreement on 10 days prior written notice.
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9. FINAL CLOSING
When the conditions in Clause 8 are fulfilled the Seller shall transfer
the Shares to the Buyer free of charge.
When the conditions in Clause 8 are fulfilled the Buyer shall transfer
the new shares in EuroTrust A/S, registered in Erhvervs- og
Selskabsstyrelsen, to the Seller's VP account free of charge.
10. CONFIDENTIALITY
The parties agree to maintain in confidence all Confidential
Information. In this regard the parties agree to disclose Confidential
Information only to those of their directors, managers employees,
attorneys, accountants and agents who are directly concerned with the
use of said information, and the parties shall take all necessary and
reasonable precautions to prevent such information from being disclosed
or made public to any unauthorised person, forum or company. Upon
disclosing Confidential Information to its directors, managers,
employees, attorneys, accountants and agents the parties shall advice
such persons of the confidential nature thereof and shall take all
necessary and reasonable precautions to prevent the unauthorised
disclosure of such information by persons.
The aforementioned obligations shall not apply to the extent that the
receiving party can show that the Confidential Information:
a) is or becomes generally available to the public otherwise than by
reason of breach by the receiving party of the provisions of this
Agreement;
b) is known to the receiving party and is at its free disposal (having
been generated independently by the receiving party or a third party
in circumstances where it has not been derived directly or
indirectly from the disclosing party), provided that evidence of
such knowledge is furnished by the receiving party to the disclosing
party within 5 days of receipt of demand for such proof;
c) is subsequently disclosed to the receiving party without obligation
of confidence by a third party owing no such obligations to the
disclosing party in respect of that information;
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d) is required by law to be disclosed; it being understood and
acknowledged by Seller that Buyer shall be required to disclose
this Agreement and certain financial and other information about
the Company in connection with (i) ADRs of Buyer continuing to be
listed on the Nasdaq Small Cap Market and (ii) certain
requirements of the SEC.
11. COSTS
Each of the Parties shall bear all the fees and costs of auditors,
bankers or financial, legal or other advisers retained by them in
connection with the preparation for or consummation of the transaction
contemplated hereunder, and no such fees or costs will be charged to the
Company.
12. ASSIGNMENT
12.1 This Agreement, and the rights resulting there from, shall not be
assignable by any of the Parties without the prior written consent of
the other Party.
13. ENTIRE AGREEMENT
This Agreement represents the entire understanding and agreement between
the Buyer and the Seller relating to the subject matter hereof and
supersedes any and all prior negotiations and understandings, whether
written or oral, relating to the subject matter hereof.
14. AMENDMENTS AND WAIVERS
14.1 No amendment to this Agreement or waiver of any of its provisions shall
be effective unless signed by the Buyer and the Sellers.
15. GOVERNING LAW AND DISPUTES
15.1 This Agreement shall be governed by and construed in accordance with the
laws of Denmark excluding its conflict of laws provisions.
Any dispute, controversy or claim arising out of or in connection with
this Agreement, or the breach, termination or invalidity thereof, shall
be finally settled by arbitration in
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accordance with the rules of Det danske Voldgiftsinstitut (Danish
Arbitration). Arbitration proceedings shall be in Danish although
documents may be produced and witnesses heard in English or Danish
without translations. The arbitration tribunal shall consist of three
arbitrators, all of which shall be appointed by the Institute. The place
of arbitration shall be Copenhagen, Denmark.
16. SEPARABILITY
Any term or provision of the Agreement which is invalid or unenforceable
shall be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement. In the event of any
invalidity or unenforceability, the Parties shall agree on modifying
such term or provisions to the extent necessary to most closely achieve
the meaning of the original term or provision.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed the day and year first above written in two original copies, one being
retained by the Buyer, and one by the Representative on behalf of the Seller.
For and on behalf of
The Seller: The Buyer:
Kristiansand, april 25, 2006 Soborg, april 25, 2006
Kalodde AS: EuroTrust A/S
............................... .................................
EXHIBITS:
Exhibit 1 AGH ▇▇▇▇▇▇ Invest A/S and subsidiaries
Exhibit 2 Valuation report