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EXHIBIT 4.03
SOFT MOUNTAIN S.A.
SHARE PURCHASE AGREEMENT
by and between
VERSANT CORPORATION
and
SC FINORIS
RHONE - ALPES CREATION
TRINOVA
▇▇. ▇▇▇▇▇▇▇▇▇ DOUMENC
MRS. ▇▇▇▇ DOUMENC
▇▇. ▇▇▇▇▇ MAY
MME CLAIRE DEMENGEOT
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
dated as of July 30, 1998
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THIS AGREEMENT is made and entered into this 30th day of July 1998, by and
between
VERSANT CORPORATION, a California Corporation having its principal office at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, represented by
Bernhard Woebker, in his capacity as Vice President
(hereinafter referred to as "Buyer")
ON THE ONE HAND,
AND
SC FINORIS, a societe civile with a capital of 20,000 FF with its registered
office at ▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, registered with the Registry of
commerce and Companies of Lyon, under the number D 409 421 484 duly represented
by Messrs Andre May and Guillaume Doumenc, go-gerants
RHONE-ALPES CREATION, with its registered office at Immeuble Midas, registered
with the Registry of Commerce and Companies, under the number B ▇▇▇ ▇▇▇ ▇▇▇,
duly represented by ▇▇▇ ▇▇▇▇▇▇, in his capacity as President du Directoire
TRINOVA, with its registered office at ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
Saint Didier au Mont D'Or, registered with the Registry of Commerce and
Companies of Lyon, under the number 411 877 657 duly represented by
▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in his capacity as President du conseil d'administration
▇▇. ▇▇▇▇▇▇▇▇▇ DOUMENC, domiciled at ▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Dardilly
MRS. ▇▇▇▇ DOUMENC, domiciled at ▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Dardilly
▇▇. ▇▇▇▇▇ MAY, domiciled at ▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇, domaine de castellard,
69370 Saint-Didier au Mont d'Or
MRS. CLAIRE DEMENGEOT, domiciled at ▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ domaine de
castellard, 69370 Saint-Didier au Mont d'Or
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, domiciled at ▇▇, ▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, domiciled at 27, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Le Vesinet
(hereinafter referred to collectively as "Sellers" and individually as a
"Seller")
ON THE OTHER HAND
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WHEREAS
Soft Mountain S.A. was created for the purpose of developing software based on
reactive technology, issued partly from research and developments conducted at
INRIA by founders of Soft Mountain.
Thereafter, Soft Mountain S.A. has developed new technology and software,
which are different from the one previously developed.
This new technology and software has had success on the market, with in
particular great interest from France Telecom, IBM and Lotus.
At the suggestion of France Telecom, Versant showed interest in the acquisition
of Soft Mountain.
In the course of the financial and legal audit conducted by Buyer for the period
from April to June 15, 1998, Buyer has received and reviewed all documents
listed in the Schedules of this agreement.
The shareholders of Soft Mountain had decided that it was a good opportunity to
sell the company to Versant, due to the fact that Soft Mountain under the
ownership of Versant would be well equipped to continue the relationship with
France Telecom, Lotus/IBM and develop the activity of the company, and also due
to the fact that Soft Mountain was in a difficult cash situation, and needed a
strong shareholder to support the company. The Sellers remitted to Buyer the
financial statements of Soft Mountain as of December 31, 1997 (9 months), March
31, 1998 (12 months), and June 15, 1998 (2 months and 15 days) (together, the
"Financial Statements").
Sellers own fourteen thousand two hundred and forty nine (14,249) shares
representing all shares of Soft Mountain S.A. (the "Shares"), a French societe
anonyme with a statutory capital (capital social) of 1,424,900 French francs
with its registered office at Technoparc, 5 allee Moulin ▇▇▇▇▇▇, 69130 Ecully,
and which is registered with the Registry of Commerce and Companies of Lyon
under the number 403 906 092 ("Soft Mountain");
SC Finoris is the owner of nine thousand nine hundred and ninety four (9,994)
Shares.
Rhone-Alpes Creation is the owner of one thousand seven hundred and fifty
(1,750) Shares.
Trinova is the owner of two thousand four hundred and ninety nine Shares
(2,499) Shares.
▇▇. ▇▇▇▇▇▇▇▇▇ Doumenc, Mrs. ▇▇▇▇ Doumenc, ▇▇. ▇▇▇▇▇ May, Mrs. Claire Demengeot,
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ are each the owner of one (1)
Share.
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Sellers having informed Buyer of their wish to sell their Shares and Buyer
having advised Sellers of its interest in such transaction, Buyer and Sellers
entered into a letter agreement, dated June 16, 1998, describing the terms of
the contemplated transaction. Buyer and Sellers agreed in particular that the
transfer of Shares would be effective July 1, 1998.
Since this date both Buyer and Seller have confirmed their wish to enter into a
share purchase agreement, which supersedes and replaces the June 16, 1998
letter agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree
as follows:
SECTION 1 - PURCHASE AND SALE OF SHARES
1.1 Shares transferred. Subject to complete fulfillment of the provisions
of Section 1.9 hereof Sellers sell and transfer the Shares to Buyer,
and Buyer purchases and accepts them from Sellers.
1.2 Purchase Price - Payment of Purchase Price. In a letter agreement
dated June 16, 1998, which is attached hereto as Schedule 1.2, and the
terms of which are superseded and replaced by the present Agreement,
the Parties had decided on a Purchase Price of seven million French
francs (FF. 7,000,000.00), subject to adjustment based on liabilities
of Soft Mountain as of June 15, 1998 in excess to a certain level. As
per the auditors report dated July 10, 1998, a copy of which is also
attached on Schedule 1.2, the parties accept that there is no
adjustment to be done with respect to the June 15, 1998 financials.
The purchase price (the "Purchase Price") for all of the shares of
Soft Mountain S.A. is therefore of seven million French francs (FF.
7,000,000.00). Further to additional negotiation, Buyer has accepted
to waive the escrow clause and to calculate the price of the Versant
shares on the basis of 4.2 US dollars per share.
The Purchase to be paid on Closing (as defined in Section 5) is as follows:
(a) partly in cash, in an amount of eight hundred ten thousand French
francs (FF. 810,000.00),
(b) partly in kind by delivering two hundred forty five thousand
five hundred and eighty six 245,586 shares ("Versant Shares") of
Buyer common stock ("Versant Common Stock"). This number of
Versant Shares has been obtained by dividing six million one
hundred ninety thousand French francs (FF. 6,190,000.00)
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(Purchase Price minus amount paid in cash as provided under section
1.2.a) above by 4.2 converted into French francs, using an exchange
rate of 6.0012 French francs for one US Dollar.
The Purchase Price, in cash and in Versant Shares, shall be allocated among
Sellers as set forth on Schedule 1.2.
1.3 Registration.
(a) Buyer agrees to use reasonable efforts to file a registration
statement on Form S3 (or another appropriate form) with respect to the
resale by Sellers of the Versant Shares (the "Registration Statement")
with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act"), before
September 30, 1998 at the latest and to use reasonable efforts to
cause the Registration Statement to become effective as soon as
practicable thereafter, and at the latest at the first of the
following two dates: (i) date on which the registration statement
based on the equity investment contract presently being negotiated
with Citadel shall become effective, and (ii) December 31, 1998;
provided that Buyer shall not be responsible for any failure to cause
such Registration Statement to become effective that results from the
failure of any Seller to provide to Buyer such information or
documents as Buyer requests in order to comply with the Securities Act
or regulations of the SEC.
(b) Buyer shall use reasonable efforts to keep the Registration Statement
effective and to comply with the provisions of the Securities Act with
respect to the disposition of all of such Versant Shares registered
thereunder until one (1) year from the date the Registration Statement
has become effective.
(c) Notwithstanding anything to the contrary set forth in this Agreement,
Buyer's obligations under this Section 1.3 to file the Registration
Statement and to use its reasonable efforts to cause the Registration
Statement to become effective shall be suspended in the event and
during such period as Versant determines, based upon the advice of
outside counsel, that unforeseen circumstances (including without
limitation pending negotiations relating to, or the consummation of, a
transaction or the occurrence of any other event) would require
additional disclosure of material information by Buyer in the
Registration Statement the confidentiality of which Buyer has a bona
fide business purpose to preserve or which unforeseen circumstances
would render Buyer unable to comply with SEC requirements (in either
case, a "Suspension Event"). The suspension of Buyer's obligations in
accordance with the preceding
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sentence shall exist for only so long as any such suspension
exists for other similarly restricted stockholders of Buyer.
Buyer shall notify Sellers, on a confidential basis, promptly in
writing of the existence of any Suspension Event. In the case of
any Suspension Event occurring prior to the filing of the
Registration Statement, Buyer shall be required to file the
Registration Statement as soon as practicable after the
conclusion of the Suspension Event. In the case of any
Suspension Event occurring after effectiveness of the
Registration Statement, Buyer shall be required to keep the
Registration Statement effective for one (1) year from the date
it has become effective.
(d) Following the effectiveness of the Registration Statement, each
Seller agrees that it will not effect any sales of Versant
Shares at any time after he has received notice from Buyer to
suspend sales as a result of a stop order or the occurrence or
existence of any Suspension Event or so that Buyer may correct
or update the Registration Statement. Sellers may recommence
effecting sales of Versant Shares following further notice to
such effect from Buyer, which notice shall be given by Buyer
promptly after the withdrawal of any stop order or the
conclusion of any such Suspension Event.
(e) Upon the effectiveness of the Registration Statement, Buyer
shall, as promptly as practicable, furnish to each Seller such
number of conformed copies of the Registration Statement and of
each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus
contained in the Registration Statement (including each
preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such
other documents, as any Seller may reasonably request in order
to facilitate the public sale or other disposition of the
Registered Securities owned by Sellers.
(f) Buyer shall bear all registration expenses in connection with
each Registration Statement including legal expenses of Sellers
not to exceed ten thousand dollars (10,000 USD) in the
aggregate, other than (i) any underwriting discounts and
commissions or stock transfer taxes applicable to the Registered
Securities and (ii) any fees or expenses incurred by any Seller
for brokerage, accounting, tax, legal services (except as stated
above) or any other expenses incurred by any Seller in taking
possession of or disposing of the Versant Shares.
(g) In the event that Buyer is unable to register the Versant Shares
by
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December 31, 1998, and if this is due to a reason other than the
failure of any Seller to provide to Buyer such information and
documents as Buyer requests in order to comply with the
Securities Act or regulations of the SEC, then in such event
Buyer has the obligation to pay to Sellers an amount of six
million one hundred ninety thousand French francs (FF.
6,190,000.00) in cash, at the latest on January 31, 1999, and in
return for the shares provided to Sellers. Also, Versant agrees
that until such date on which the Versant Shares shall be
registered, or Versant has paid in cash the price to Sellers,
Versant will pledge the Shares, and will not sell Soft
Mountain's software business activity ("fonds de commerce"). For
clarification purposes, it is expressed that this will not
prevent Soft Mountain from concluding commercial contracts
regarding its software and general activity. Versant will
execute a consulting agreement with Soft Mountain to provide for
payment for all consulting services provided by Soft Mountain as
part of the Primevere contract currently negotiated with France
Telecom and IBM/Lotus to be executed on July 31, 1998.
1.4. Number of Versant Shares. Versant agrees not to increase the number
of Versant Shares by more than twenty per cent (20%) between the
date hereof and September 30, 1998, except under a very remote
possibility under the capital investment deal presently being
entered into between Versant and Citadel, the terms of which have
been presented to the Sellers.
1.5. Sellers' Investment Intent. Each Seller represents that the Versant
Shares being purchased by Seller are being purchased for his or its
own account, for investment for an indefinite period of time, not as
nominee or agent for any other person, firm or corporation and not
for distribution or resale to others in contravention of the
Securities Act and the rules and regulations promulgated thereunder.
Each Seller agrees that he or it will not sell or otherwise transfer
the Versant Shares unless they are registered under the Securities
Act or unless an exemption from such registration is available.
1.6. Securities Legend; Stop Transfer Instructions. Each Seller consents
to the placement of a legend on any certificate or other document
evidencing any of the Versant Shares, stating that such Versant
Shares have not been registered under the Securities Act or any
state securities or "blue sky" laws and setting forth or referring
to the restrictions on transferability and sale thereof, including
the restrictions set forth herein. Each Seller is aware that Buyer
will make a notation in its appropriate records with respect to the
restrictions on the transferability of such Versant Shares. Each
Seller also consents and acknowledges that "stop transfer"
instructions may be noted against the Versant Shares received by any
Seller as consideration thereunder. Buyer hereby undertakes to
remove any legend described in
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this Section 1.6, or to rescind any "stop transfer" instructions described
in this Section 1.6. as to Seller's Versant Shares (a) if such Seller
furnishes Buyer with an opinion of counsel or other written information
satisfactory in form and content to Buyer that such legend or any such
instructions are no longer required (as applicable) to such Seller's
Versant Shares or (b) with respect to and at the time of the disposition
of any such Versant Shares pursuant to an effective registration statement
under the Securities Act, including the Registration Statement.
1.7. Sellers' Letters. To ensure compliance with the Securities Act, each
Seller commits to deliver to Buyer on Closing a letter, in the form
attached hereto as Schedule 1.7. (the "Sellers' Letters"), agreeing, among
other things, that Seller will not sell, pledge, transfer or otherwise
dispose of any of the Versant Shares received as consideration pursuant to
Section 1.2 hereof, except in compliance with Rule 144 under the
Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act or an effective registration statement
under the Securities Act. Sellers who shall be working with Versant or
Soft Mountain shall also be requested to deliver to Buyer on Closing a
letter, in the form attached also as Schedule 1.7 summarizing rules
applicable to employees and consultants.
1.8. INTENTIONALLY LEFT EMPTY
1.9. Deliveries by Sellers.
On or before Closing, Sellers deliver to Buyer the following:
(a) duly executed and completed share transfer orders (ordres de
mouvement) in favor of Buyer for the Shares;
(b) the minutes of a duly held meeting of the Board of Directors of Soft
Mountain, and notice to the statutory auditor (i) approving Buyer and
designees of Buyer listed in Schedule 1.9 b) as new shareholder, and
(ii) calling a shareholders' meeting for August 10, 1998 to elect the
three new directors listed in Schedule 1.9. b); and the minutes of
the shareholders meeting approving the accounts for fiscal year
ending March 31, 1998:
(c) the minutes of duly held meetings of the shareholders of Finoris, the
board of Trinova and of Rhones-Alpes Creation authorizing the
transaction contemplated herein;
(d) duly signed original of the up to date "statuts" of the Company;
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(e) duly completed and signed official Soft Mountain registries
(minutes of shareholders meetings, minutes of Board of Directors
meetings) with the attendance books and attendance sheets,
shareholders account documents and registry of transfers;
original of statutory auditor's reports;
(f) a letter from the Company's statutory auditor confirming that the
financial statements of Soft Mountain as of March 31, 1998 (12
months) are true and correct (sincere et veritable);
(g) the written resignations of all directors of Soft Mountain from
their positions as directors, effective as of August 10, 1998;
and of Mr. Doumenc from his office of Chairman of the board;
(h) an opinion of counsel to Sellers attached on Schedule 1.9.(h)
hereto regarding Soft Mountain's intellectual and industrial
property rights;
(i) a letter from INRIA in the form attached hereto, in Schedule
1.9(i), acknowledging that they do not have any rights over the
technology and the software used by Soft Mountain, listed on
Schedule 1.9.(i) and confirming that they waive their right to
obtain any royalty and to obtain Soft Mountain shares;
(j) the Sellers' Letters described under section 1.7. of the
Agreement;
(k) a resignation letter signed by ▇▇. ▇▇▇▇▇▇▇▇▇ Doumenc for his
duties as employee of Soft Mountain, reflecting the terms of
Section 4.2.b below;
(l) a letter by GDO Sarl providing for termination of the agreement
concluded with Soft Mountain, reflecting the terms of Section
4.2.b below;
(m) such other instruments or documents as may be reasonably
necessary to carry out the transactions contemplated by this
Agreement and to comply with the terms hereof.
1.10. Deliveries by Buyer. On the date hereof, Buyer delivers:
(a) to Sellers (i) stock certificates evidencing two hundred fourty
five thousand five hundred and eighty six (245,586) of the
Versant Shares, issued to the Sellers in accordance with the
percentages on Schedule 1.2; and (ii) checks in the total amounts
of eight hundred ten thousand French Francs (810,000.00 FF),
issued in accordance with the percentages on Schedule 1.2;
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(b) such other instruments or documents as may be reasonably
necessary to carry out the transactions contemplated by this
Agreement and to comply with the terms hereof.
SECTION 2 -- REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby make the representations and warranties set forth in this
Section 2. For the purposes hereof, "knowledge of Seller" shall include matters
known to Sellers or Soft Mountain or which should reasonably be known to them.
When reference is made to any event, change or effect having a Material Adverse
Effect, this reference shall mean that this event, change or effect materially
▇▇▇▇▇ the business, operations, prospects, assets (including intangible
assets), liability (including contingent liabilities), financial situation or
operation profits of Soft Mountain.
2.1 Corporate Organization. Soft Mountain is a societe anonyme duly
organized and validly existing under French law. All transactions
leading to the creation of Soft Mountain and the constitution of
assets and activity have been done in accordance with French law.
Soft Mountain has the corporate power and authority to own or lease
its properties and to carry on its business in the manner in which
it is currently conducted. Soft Mountain does not, directly or
indirectly, have any equity interest or other property interest in
any company, joint venture, partnership, association or other
entity. Complete and correct copies of the certificate of
incorporation and by-laws (the "Constitutive Documents") are
attached on Schedule 2.1. Soft Mountain has not stopped making
payments, declared a moratorium on payments of its debts, is not in
bankruptcy or reorganization or liquidation, has not entered into an
assignment for the benefit of its creditors and has not become
subject to any reorganization procedure. Buyer understands from
Sellers that technically Soft Mountain could be qualified under
French law to be in "cessation des paiements". Buyer waives his
right to ▇▇▇ ▇▇▇▇▇▇▇ on that basis, as long as the Financial
Statements are accurate and that the situation since June 15, 1998
did not deteriorate more than what could be expected on the basis of
the existing trend.
2.2. Authorization. Sellers have the requisite capacity to enter into
this Agreement and the other agreements to be executed and delivered
by the Sellers pursuant hereto and to carry out the transactions
contemplated hereby and thereby. When fully executed and delivered,
this Agreement and all related agreements will constitute the valid
and binding agreements of Sellers, enforceable against Sellers in
accordance with their respective terms.
2.3. Capitalization and Shares. As of the date of this Agreement, the
capital of Soft Mountain is as set forth in the preamble to this
Agreement. All the
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Shares have been validly issued and are fully paid, non assessable and
are free of any lien, preemptive rights or other restrictions with
respect thereto. The Shares are fully owned by Sellers as set out in
the table in the preamble to this Agreement. There is no agreement or
commitment which could result in Soft Mountain having to purchase,
amortize, issue or transfer the Shares in any manner whatsoever. By
signing this contract, Sellers confirm that any and all agreements
existing between the Sellers or part of them, are terminated, and that
none of the Sellers will involve any breach by another Seller of its
obligations under any such agreement.
2.4. Consents and Approvals; Non-Contravention. Neither the execution,
delivery or performance of this Agreement or of any related
documents, nor the consummation by Sellers of the transactions
contemplated hereby or thereby, nor compliance by Sellers with any of
the provisions hereof or thereof:
(a) violates any provision of the Constitutive Documents,
(b) requires on the part of Sellers or Buyer any filing with, or
permit, authorization, consent or approval of, any court,
trustee in bankruptcy ("administrateur judiciaire"),
administrative or other authority (a "Governmental Entity"),
(c) require, in accordance with the terms of any contract, lease or
other agreement to which a Seller or Soft Mountain is a party,
any consent, filing approval or authorization,
(d) violate any judicial or arbitral decision, or any legal
regulatory or contractual provision applicable to Sellers or
Soft Mountain, or
(e) may result in a material violation or material breach of any
agreement or result in the termination, modification,
cancellation, non renewal loss of a material benefit, or result
in the creation or imposition of any lien upon any of the
respective properties or assets of a Seller or Soft Mountain.
2.5. Financial Statements. The Financial Statements, which are attached as
Schedule 2.5 are complete, sincere and true, prepared in accordance
with generally applicable accounting principles in France and under
the same methods, and accurately reflect the asset and liability
situation of Soft Mountain at each of the dates and for each period
indicated.
2.6. Interim Change. Since March 31, 1998, Soft Mountain has not engaged
in any business or transaction other than in the ordinary course of
business. In particular (but without this list being exclusive):
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(a) Soft Mountain has not suffered any change, nor has there arisen
any event, having or which could reasonably be expected to have
a Material Adverse Effect;
(b) Soft Mountain has not forgiven or canceled any debts or claims
or waived, released or relinquished any contract right or any
other rights of its business;
(c) Soft Mountain has not consented to, or has not had imposed on it,
any liens;
(d) Soft Mountain has not suffered any damage, destruction or loss
of property, whether or not covered by insurance, which could
reasonably be expected to have a Material Adverse Effect;
(e) Soft Mountain has not accelerated the collection of, granted any
discounts with respect to or sold or assigned to third parties
any accounts receivable or delayed the payment of any payables
or, other than in the ordinary course of business and consistent
with past practice, had any reason to write off as uncollectable
any accounts receivable or any portion thereof;
(f) Soft Mountain has not assumed any loan, directly or indirectly,
(with the exception of the loan taken from Versant France) or
incurred or guaranteed any obligation with regards to a loan, or
made any loans, advances or capital contributions to, or
investment in, any other individual, corporation, partnership,
joint venture, association, organization or other entity (a
"Person"),
(g) Soft Mountain has not pledged or subjected to any lien, sold,
assigned or transferred any asset except for sales of inventory
in the ordinary course of business and consistent with past
practice;
(h) Soft Mountain has not increased in any manner the wages,
salaries, bonuses, pension plans, retirement allocations or
other allocations of any director, employee or other person,
(i) Soft Mountain has not amended any existing, or entered into, any
additional pension, profit-sharing, bonus, severance pay, or
other schemes relating to retirement of other benefits,
(j) Soft Mountain has not entered into any employment or consulting
agreement with any person, nor modified existing terms of such
agreements,
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(k) Soft Mountain has not made any investment in any business,
company, partnership, association or other entity.
(l) Soft Mountain has not declared, paid or set aside for payment any
dividend or other distribution;
(m) Soft Mountain has not made any change in its accounting
principles or methods, except as may have been required by a
change in generally accepted accounting principles in France;
(n) no employee has notified Soft Mountain or Sellers of its
intention to resign from its position, and no employee has been
terminated with the exception of ▇▇. ▇▇▇▇▇.
2.7. No Undisclosed Liabilities. Except as and to the extent of the
amounts specifically reflected or reserved against in the
Financial Statements, Soft Mountain has not incurred any
liabilities or obligations of any nature (whether or not
accrued). As of the date hereof there exists no shareholder
advances owed by Soft Mountain nor any contract entered into
directly or indirectly with shareholders of Soft Mountain.
2.8. Litigation. There is no claim, action, suit, inquiry or
investigation by or before any judicial entity pending or, to the
knowledge of Sellers, threatened against or involving Soft
Mountain or affecting any of its assets products or activity.
There is no basis known to the Seller for any such claim, action,
suit, inquiry, or investigation. The only two exceptions are the
following:
- (i) the employees of the Company pretend that they are eligible
to obtain shares of Soft Mountain S.A. or proceeds from the sale
of such shares; Sellers have found an agreement with the
employees under which they accept as full and final settlement
for such claim the payment of an amount equal to the value of 4%
of the shares of Soft Mountain. Sellers commit that a cash amount
of two hundred and eighty thousand (280,000) francs will be used
to satisfy the Sellers' obligations to distribute 4% of the
purchase price to the current Soft Mountain's employees and that
such amount shall be paid under Seller's responsibility at the
latest two weeks after Closing.
- (ii) ▇▇. ▇▇▇▇▇ has contested his termination. Upon termination,
▇▇. ▇▇▇▇▇ received the amount to be paid under French law upon
termination and now requests from the Company the payment of an
additional three months of notice and one month of severance
payment. A settlement agreement, a copy of which is in Schedule
2.8, has been signed between Soft Mountain S.A. and ▇▇. ▇▇▇▇▇.
Buyer will make sure that Soft Mountain honors such agreement on
due time.
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2.9. No Violation.
(a) Soft Mountain, its directors and employees have always acted
within the corporate purpose of Soft Mountain and in
accordance with French law, and with contractual obligations.
Soft Mountain's directors have not exceeded their internal
limitations of powers.
(b) Sellers and Soft Mountain have complied with any and all
obligations with regard to any contract or agreement entered
into by Soft Mountain.
(c) Soft Mountain has all authorizations (from Governmental Entity
or other authority) necessary to: (i) enable it conduct its
business as currently conducted and, if necessary (ii) to
enter into all transactions contemplated by this Agreement.
2.10. Title to Assets. Soft Mountain does not own any real property
assets. Soft Mountain has good and marketable title, free and clear
of all liens, any pledge or other security, of all assets, rights,
trademarks, trade names, licenses and properties, which are used in
the conduct of the business conducted by Soft Mountain (the
"Assets"). Soft Mountain has valid and enforceable leases or
licenses, as the case may be, with respect to the Assets consisting
of property that is leased or licensed to Soft Mountain, under which
there does not exist any default, on the part of Soft Mountain.
Since inception, Soft Mountain has validly entered into and, as the
case may be, has validly and legally terminated any lease agreement
used for carrying on its business activities.
2.11. Intellectual Property.
(a) A true and complete list, of all the industrial and
intellectual property rights owned by Soft Mountain (the
"Owned Intellectual Property") and licensed to it (the
"Licensed Intellectual Property") is contained in Schedule
2.11(a). The Intellectual Property described in Schedule
2.11(a) constitutes all Intellectual Property necessary to
operate Soft Mountain's business activity, as currently
planned or as planned to be conducted. The Owned Intellectual
Property is duly and validly registered under Soft Mountain's
name and all fees for recordation or renewal have been timely
paid by Soft Mountain.
(b) Except as described on Schedule 2.11.(b), Soft Mountain is the
owner of, and has the sole and exclusive right to use, sell,
license, dispose of the Owned Intellectual Property, and has
not delegated nor assigned any of such rights with the
exception of the licenses to use granted to customers in
normal course of business.
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(c) Except as described on Schedule 2.11.(c), Soft Mountain has the
exclusive right to bring any actions for any infringement of the
Licensed Intellectual Property.
(d) Except for those listed on Schedule 2.11(d) there are no royalties,
fees or other payments payable by Soft Mountain to any Person by
reason of ownership, use, license, sale or disposition of any Owned
or Licensed Intellectual Property.
(e) The transfer of all Shares to Buyer, will not in any way impair the
right of Soft Mountain to use, sell, license or dispose of, or any
portion thereof, or to bring any action for the infringement of any of
such rights to the Owned or Licensed Intellectual Property.
(f) None of the former or present employees, consultants or directors of
Soft Mountain or their predecessors hold any right, title or
interest, directly or indirectly, in whole or in part, in or to any
Owned Intellectual Property.
(g) There is no pending or threatened claim or litigation challenging or
questioning the validity, ownership or right to use, sell, license or
dispose of any Owned or Licensed Intellectual Property nor, to the
knowledge of Sellers a valid basis for such claim or litigation.
(h) Software presently used and/or commercialized by Soft Mountain S.A.
belongs to Soft Mountain S.A. Neither CMA, nor any other company
(with the exception of France Telecom, as indicated below) has any
right whatsoever with regard to the Software presently used and/or
commercialized by Soft Mountain. CMA has some limited right to the
reactive C software tool which was developed and is not any more used
or commercialized. None of the software on which CMA, or any other
company may have a claim has been or is being used in any of the
software presently used and/or commercialized by Soft Mountain. AS
far as France Telecom, Sellers confirm that the situation did not
change since the date of issuance of the opinion listed in Schedule
1.9.(h).
2.12. Contract and Commitments.
A detailed and exhaustive list of all contracts entered into by Soft Mountain is
attached on Schedule 2.12. Other than those listed on such Schedule 2.12, Soft
Mountain has not:
(a) entered into any collective bargaining agreements or employment
related collective contract or "accord",
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(b) entered into any agreement that contain any specific benefits (i.e.,
providing benefits in excess to those applicable by law and by
applicable regulations), severance liabilities or obligations,
(c) entered into any bonus, deferred compensation, incentive compensation,
pension, profit-sharing or retirement plans, or any other employee
benefit plans or arrangements,
(d) entered into any employment or consulting agreement, contract or
commitment with an employee or individual consultant or sales person
or consulting or sales agreement, contract or commitment with a firm
or other organization, not terminable on the minimum notice periods
permitted under French law, except to the extent general principles of
French employment law may limit Soft Mountain's ability to terminate
employees,
(e) entered into fixed term commercial contract for a duration superior to
one year.
(f) entered into a credit agreement, loan agreement (except the one
entered with Versant Object Technology SARL on July 15, 1998),
financial facility agreement with any financial institution or third
party.
(g) received any financial benefit, investment or subsidy granted by any
public agency or company.
(h) except as required by law, have any pension, profit-sharing, bonus,
severance pay, retirement, hospitalization, insurance, stock purchase,
stock option or other benefit with or for the benefit of any Person (a
"Benefit Plan"). Benefit Plans are for the minimum amount required by
law.
(i) entered into a fixed-term employment agreement nor any on interim
contract.
(j) entered into outstanding loans agreements to Sellers or employee.
(k) guaranteed any obligations of Sellers or any other person. Sellers
have not guaranteed any obligations of Soft Mountain which would still
be in effect after the date hereof.
(l) entered into any contract which is material to its business,
operations or prospects or any other contract, instrument,
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commitment, plan or arrangement which has not been made in
the ordinary course of business.
(m) entered into any contract, which will or can be terminated
or significantly modified by reason of transfer of Shares to
Buyer.
2.13. Customers and Suppliers. There has not been any adverse change in
the business relationship of Soft Mountain with any customer or
supplier since January 1, 1998. All contracts for more than fifty
thousand French francs (50,000.00 FF) are listed on Schedule
2.13.
2.14. Insurance. Soft Mountain has valid insurance policies which
adequately cover all the risks against which it is normal to
insure considering the activities of Soft Mountain. There has
not been any failure to give any notice or present any claim
under any such policy in a timely fashion or in the manner or
detail required by the policy. There are no outstanding past due
premiums or claims, and there are no provisions for retroactive
or retrospective premium adjustments. No notice of cancellation
or non-renewal with respect to, or disallowance of any claim
under, any such policy has been received by Soft Mountain.
2.15. Environmental Matters. Soft Mountain is not in breach of any
environmental regulations.
2.16. Labor Law Matters.
(a) Soft Mountain has been in full compliance with French labor law
legislation and the applicable collective bargaining agreement.
Soft Mountain has complied with the legal obligations relating
to the setting-up and functioning of personnel representative
bodies;
(b) Attached in Schedule 2.16.b is a list of all Soft Mountain
employee as of the date hereof, with an indication of the salary
and all other benefits, the exact position and accrued rights
and benefits (referred to collectively as the "Personnel
Information");
(c) The Personnel Information contains accurate, complete and
updated information as of the date hereof.
(d) No current or past employee of Soft Mountain, with the exception
of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ (see Section 2.8), has any ground to claim
any sum or damage from Soft Mountain.
2.17. Taxes - Social security contributions.
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(a) All tax and social security returns, declarations, reports,
estimates, information returns, and statements (collectively, "Tax
and Social Security Returns") required to be filed by Soft Mountain
on or before the date hereof for all periods ending on or before the
date hereof have been timely filed, and all such Tax and Social
Security Returns are true, correct and complete.
(b) Soft Mountain has timely paid (or accrued in its accounts) all taxes
and social security contributions due or claimed to be due by it by
any taxing or social security authority in respect to periods (or any
portion thereof) ending on or before the date hereof, and no failure
in this regard may be attributed to it.
(c) No audited or other proceeding by any national, local court,
governmental, regulatory, para fiscal, administrative or similar
authority are presently pending with respect to any taxes or social
security contributions of Soft Mountain.
2.18 Accounts Receivable. All receivables of Soft Mountain arose in the
ordinary course of business and the aggregate amounts thereof, are
collectible (except to the extent reserved against as reflected in the
Financial Statements) and are carried at values determined in accordance
with French generally accepted accounting principles. None of the
receivables are subject to any claim of setoff, setoff or counterclaim and
there are no facts or circumstances that would give rise to any such
claim. No person has any lien, charge, pledge, security interest or other
encumbrance on any such receivables and no agreement for deduction or
discount has been made with respect to any of such receivables.
2.19 Minute Books. The fully completed and signed official Soft Mountain
registries (minutes of shareholders meetings, minutes of Board of
Directors meetings) with signed attendance sheets for the shareholders
meetings and attendance documents signed for the board of directors
meetings, shareholders account documents and registry of transfers;
original of statutory auditor's reports made available to Buyer contain
all minutes since Soft Mountain's incorporation as normally kept in
conformance with French law.
2.20 Representations Complete. None of the representations or warranties of
Sellers, nor any statement made in any Schedule, Exhibit or Additional
Sellers Document furnished pursuant to this Agreement, when read in their
entirety, contains or will contain any untrue statement of a material fact
at the date hereof, or omits or will omit to state any material fact
necessary in order to make the statements contained herein or therein, in
the light of the circumstances under which made, not misleading, or not
incomplete.
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2.21 Soft Mountain Products and Technology. All products and technology
sold or licensed by Soft Mountain are free of any defects and comply
with the specifications made available to purchasers or licensees of
such products and/or technology. Soft Mountain has not received any
compliant regarding Soft Mountain's products or technology.
SECTION III - REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Sellers as follows:
3.1. Corporate Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
California.
3.2. Authorization. Buyer has the requisite corporate power and
authority to enter into this Agreement and the other agreements,
documents and instruments to be executed and delivered by Buyer
pursuant hereto (the "Additional Buyer's Documents") and to carry
out the transactions contemplated hereby and thereby. The
execution, delivery and performance of this Agreement and the
Additional Buyer's Documents and the consummation of the
transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors of Buyer, and no other
corporate proceedings on the part of Buyer or its stockholders are
necessary to authorize this Agreement and the Additional Buyer's
Documents and transactions contemplated hereby and thereby. When
fully executed and delivered, this Agreement and each of the
Additional Buyer's Documents will constitute the valid and binding
agreements of Buyer, enforceable against Buyer in accordance with
their respective terms.
3.3. Authorization and Issuance of Versant Shares. The issuance of the
Versant Shares has been duly authorized by Buyer and, upon delivery
to Seller of the certificate or certificates therefor against
receipt of the Shares being purchased by Buyer and the other
deliveries by Sellers pursuant to Section 1.9 hereof, the Versant
Shares will be validly issued, fully paid and non assessable, free
and clear of all Liens and restrictions other than the restrictions
imposed herein, on the certificate or certificates therefor or by
the Rules and Regulations.
3.4. Consents and Approvals; Non-Contravention. Neither the execution,
delivery or performance of this Agreement or any of the Additional
Buyer's Documents by Buyer nor the consummation by Buyer of the
transactions contemplated hereby or thereby nor compliance by Buyer
with any of the provisions hereof or thereof will (a) violate any
provision of the Certificate of Incorporation, or Bylaws of Buyer,
(b) require any filing with, or permit,
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authorization, consent or approval of, any Governmental Entity or
(c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Buyer or any of its properties or assets.
SECTION 4 - CONVENIENCE OF SELLERS AND/OR BUYERS
4.1. Consents and Approvals. Buyer and Sellers agree to take all
reasonable actions (including delivering information, document and
affix signatures) to comply with the legal requirements necessary
to the consummation of the transactions contemplated herein, or the
registration or renewal of Owned and Licensed Intellectual Property
Rights.
4.2. Non-competition.
For a period of eighteen (18) months as from the date hereof:
(a) none of the Sellers shall directly or indirectly, solicit any
of the current or future employees of Soft Mountain or entice
such employees to leave their position with Soft Mountain.
(b) ▇▇. ▇▇▇▇▇▇▇▇▇ Doumenc shall not engage, or continue to
engage, or hold any participation, directly or indirectly, in
the capital, voting rights or rights to profits of any
business, company or firm currently competitive or which may
become competitive with Soft Mountain; as used above, the
term "participation" shall not include an acquisition on an
exchange market of securities representing five percent (5%)
or less of the outstanding capital, voting rights or rights
to profits of a business, company or firm. If and when Buyer
and ▇▇. ▇▇▇▇▇▇▇▇▇ Doumenc, or a company designated by him
sign a consulting agreement, containing a non compete clause,
that non compete clause will replace this clause, from the
date on which the consulting agreement shall become
effective. ▇▇. ▇▇▇▇▇▇▇▇▇ Doumenc, hereby resign from his
duties of employee of Soft Mountain and confirms that the
existing contract between GDO Sarl will be terminated at no
cost to Soft Mountain. Such resignation and termination shall
be effective on the date on which the consulting agreement is
effective, and Soft Mountain will owe no money to either of
them, except the payment for services until the effective
resignation or termination date.
4.3. Confidentially. Except as required by applicable law or regulation,
the Sellers and Buyer undertake not to disclose, and to use their
best efforts to procure that none of their respective Affiliates,
directors, employees, officers or agents shall disclose, to any
Person, at any time for a period of two (2) years from the date
hereof, any confidential information,
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observations, data, written materials, records or documents which
may be disclosed or delivered in the course of the negotiations
of this Agreement or the other agreements referred to herein or
the actions taken pursuant hereto or thereto. In the event that
the transactions contemplated by this Agreement or the other
agreements referred to herein are not completed for any reason,
all such information shall be returned to Sellers or Buyer, as
relevant. This will however not prevent Buyer from using or
disclosing any information obtained with regard to Soft Mountain
and its operations. Sellers however must keep such information
confidential and shall not use it. Notwithstanding the
confidentiality obligation described in this paragraph, Sellers
agree that Versant can disclose the terms of the Agreement to
France Telecom and Lotus.
4.4. Specific assistance from Sellers. It is specifically agreed
that, in order to allow the new management of Soft Mountain to
exploit and use the technology and software of Soft Mountain,
each of ▇▇▇. ▇▇▇▇▇▇▇▇▇ Doumenc, Andre May and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
shall be available for consultation by the management of Soft
Mountain for a period of three months from Closing. This
specific undertaking is given by those individuals in
consideration of the Purchase Price.
SECTION 5 - CLOSING
The closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of ▇▇▇▇ &
Associes, ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, at 10:00
o'clock a.m. on September 15, 1998, (or at such other place or
time as the parties mutually agree) (the "Closing Date"). At the
Closing, Sellers shall deliver to Buyer and Buyer shall deliver
to Sellers (unless delivered previously), the various documents
listed in this Agreement.
SECTION 6 - INDEMNIFICATION
6.1. Duration of the indemnification. The obligation of Sellers to
indemnify Buyer or Soft Mountain pursuant to this Section 6
shall expire on the third anniversary date of this Agreement,
except for such Losses (as defined below) incurred in relation
to taxes and social contribution matters, for which the
obligation of the Sellers to indemnify Buyer or Soft Mountain
thereunder shall only expire thirty (30) days after the
applicable statute of limitation has elapsed.
6.2. Indemnification. Buyer accepts not to have a recourse for
indemnification against any of ▇▇. ▇▇▇▇▇▇▇▇▇ Doumenc, Mrs. ▇▇▇▇
Doumenc, ▇▇. ▇▇▇▇▇ May, Mme Claire Demengeot, ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, taken in their individual
capacity. SC Finoris, ▇▇▇▇▇-
▇▇
▇▇
Alpes Creation and Trinova (the "Indemnifiers") agree to be bound for
the total amount of such indemnification (in the percentage of the
shares they own before the acquisition to the number of shares after
deducting the shares of the six individuals listed above).
Indemnifiers jointly and severally agree to indemnify and hold
harmless Buyer or, at the option of the latter, Soft Mountain, for
the period specified in Section 6.1 above against and in respect of
any direct and consequential loss, liability, damage, deficiency,
cost and expense (collectively, "Losses") incurred or sustained by
any of them as a result of any breach by any Seller of this
Agreement, including any breach or inaccuracy or omission in the
representations, warranties and covenants contained herein or in any
agreement, document or other instrument delivered pursuant hereto or
in connection herewith.
6.3 Threshold and exceptions. Indemnifiers shall not be required to
indemnify Buyer or Soft Mountain under this Section 6 unless and
until the aggregate Losses exceed one hundred thousand French francs
(FF. 100,000) in which case Indemnifiers shall be only responsible for
such Losses in excess of such amount. No investigation made by Buyer
or any of its advisers shall affect any representation or warranty of
Sellers contained in this Agreement or the indemnification obligation
of Indemnifiers set forth herein. Buyer agrees not to request
indemnification from Sellers in case the anticipated research tax
credit (credit d'impot recherche) shown in the Financial Statements,
cannot be recovered from the French tax authorities.
6.4 Procedure for Indemnification.
(a) For the purpose of this section, Indemnifiers hereby appoint
Finoris Societe civile, c/o Me ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇, Avocat a la
Cour, ▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, as their sole agent and
representative (the < Indemnification Representative >)
(b) Buyer or, as the case may be, Soft Mountain, shall give written
notice within 30 days to Indemnification Representative of any
claim or event known to it which does give rise to a claim for
indemnification thereunder, provided that the failure of any of
Buyer or Soft Mountain to give notice as provided in this
Section 6.4 shall not relieve any of the Indemnifiers of its
obligations under this Section 6, except to the extent that such
failure has materially and adversely affected the rights of
Indemnifiers.
(c) In the case of any claim for indemnification thereunder arising
out of a claim, action, suit or proceeding brought by any person
who is not a party to this Agreement (a "Third Party Claim"),
Buyer or Soft Mountain shall also give the Indemnification
Representative copies of any written claims, process or legal
pleadings with respect to such Third Party Claim promptly after
such documents are received
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by Buyer or Soft Mountain.
(d) If the amount of any Losses shall, at any time subsequent to
payment pursuant to this Agreement, be reduced by recovery,
settlement or otherwise, the amount of such reduction, less
any expenses incurred in connection therewith, shall
promptly be repaid by the Buyer or, as the case may be, Soft
Mountain, to the Indemnifiers.
6.5 Remedies Cumulative. Buyer's remedies thereunder are cumulative
with any other remedies available under applicable law.
Indemnifiers hereby acknowledge and agrees that money damages
would not be a sufficient remedy for, and Buyer would be
irreparably harmed by, any breach by Indemnifiers of this
Agreement and that Buyer shall be entitled to such interim or
conservatory measures as may be available under applicable law.
6.6 Payments of amounts due
All amounts claimed by Buyer or Soft Mountain in a claim for
indemnification pursuant to Section 6.4 shall be paid by
Indemnifiers within thirty (30) days from the receipt of such
claim. Payments shall be made directly to Buyer or to Soft
Mountain, at the sole discretion of Buyer.
SECTION 7 - GENERAL PROVISIONS
7.1 Amendment. No amendment of any provision of this Agreement shall
in any event be effective, unless the same shall be in writing
and signed by the parties hereto.
7.2 Dispute Resolution. Any dispute, controversy or claim arising
out of or in connection with this Agreement shall be finally settled by
arbitration in Paris. In case of a dispute, the party deciding to resort to
arbitration shall inform the other by registered letter return receipt
requested, indicating the name of the arbitrator designated by it. The other
party shall have a period of 15 days from receipt of the above-mentioned letter
to proceed with the nomination of a second arbitrator. In the event of failure
to do so within this time period, the President of the Commercial Court of
Paris will do so at the request of the first party to so request, ruling as a
judge in summary proceedings ("refere"). The two arbitrators thus designated
shall name a third arbitrator within a period of 15 days from the date of
appointment of the second arbitrator. In the event of failure of the
arbitrators to agree upon a third arbitrator, this person will be named by the
President of the Commercial Court of Paris, will do so at the request of the
first party to so request, ruling as a judge in summary proceedings. The third
arbitrator thus appointed will chair the arbitral panel. In case an arbitrator
withdraws
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or is otherwise prevented from acting, he will be replaced following the
same method of nomination as that used for the arbitrator who withdraws or
is prevented from acting, and this shall be done within a period of one
month from his being prevented from acting or his withdrawal.
The arbitration shall be conducted in the English language. Each arbitrator
to be appointed must have a sufficient level of English to be able to
conduct this arbitration in the English language.
The arbitrators shall conduct the arbitration in accordance with such
procedural and evidentiary rules as they may determine. The arbitrators
shall give written reasons for their award.
The last hearing shall be held no later than 120 days following the
appointment of the third arbitrator and the award shall be rendered no
later than 30 days following the close of such hearing.
This arbitration provision does not prevent the parties hereto to go before
a court of competent jurisdiction for seeking interim, interlocutory,
injunctions or other provisional relief.
The award shall be final and binding upon the parties hereto, and shall be
the sole and exclusive remedy between the parties regarding any claims,
counterclaims, issues, or accounting presented to the arbitrator. Judgment
upon any award may be entered in any court having jurisdiction. However,
the parties accept that an award can be appealed before the Court of
Appeals of Paris, only if the arbitration award, gives any party damages
above five hundred thousand francs (500,000 FF). For clarification
purposes, the arbitration costs and legal fees are not to be included in
this amount, which means that if the award is 450,000 francs for damages
and 100,000 francs for arbitration costs, there will be no appeal.
Buyer accepts to advance the amount of the advance requested by the
arbitrators, upon the commencement of a arbitration, being however
understood that the final allocation of the costs of arbitration shall be
decided by the arbitrators in their award.
7.3 Expenses and advisers' fees. Each of Sellers and Buyer will bear its own
expenses and advisers' fees. Buyer confirms that Soft Mountain will pay Me
Ravet's fees for the services rendered to Soft Mountain from early April
1998 to end of July 1998 which are around FF 50,000 HT. Buyer acknowledges
that those may not be reflected in the Financial Statements, and will not
allege such violation.
7.4 Notices. All notices, requests and other communications thereunder shall be
in writing and shall be deemed given if delivered personally, facsimiles
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(which is confirmed) or mailed by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by
like notice):
(a) If to Buyer:
Versant Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Attention General Counsel
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇-▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇
Germany
Attention Managing Director
(b) If to Sellers:
Finoris Societe Civile
c/o Me ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
Avocat a la Cour
▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
7.5 Entire Agreement; Binding Effect. This Agreement and the documents
referred to herein constitute the entire agreement and supersede all
other agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof, and in particular the
letter of intent of June 16, 1998 attached hereto on Schedule 1.2.
7.6 Applicable Law. This Agreement shall be governed by and be construed in
accordance with the laws of France.
7.7 Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and their respective
successors, it being specified that the Buyer may also assign this
Agreement to any party it may wish.
7.8 Announcements. Except as required by law or the rules of any national
securities exchange, for so long as this Agreement is in effect, no
announcement of this Agreement or the transactions contemplated hereby
shall be made by any of the parties without the written consent of the
other party or parties, which consent shall not be unreasonably
withheld.
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7.9 Severability. In case any term, provision, covenant or restriction of this
Agreement is held to be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
terms, provisions, covenants or restrictions, or of such term, provision,
covenant or restriction in any other jurisdiction, shall not in any way be
affected or impaired thereby.
7.10 Translation. A translation of this agreement into French shall be prepared
by a French independent translator to be provided on Closing. Buyer agrees
to pay the fees of such translator. For clarification purposes the
translation shall be for information only, and the English signed document
shall be the only one with effect.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement under
the seal as of the date first written above.
/s/ C. DOUMENC /s/ ▇▇▇ ▇▇▇▇▇▇
-------------------------- ------------------------------
SC Finoris Rhone - Alpes Creation
by C. Doumenc by ▇▇▇ ▇▇▇▇▇▇
its Co-Gerant its President du Directoire
/s/ A. MAY /s/ GUILLAUME DOUMENC
-------------------------- ------------------------------
Trinova ▇▇. ▇▇▇▇▇▇▇▇▇ Doumenc
by A. May
its D.C. of Pouvoir
/s/ ▇▇▇▇ DOUMENC /s/ ANDRE MAY
-------------------------- ------------------------------
Mrs. ▇▇▇▇ Doumenc ▇▇. ▇▇▇▇▇ May
/s/ CLAIRE DEMENGEOT
-------------------------- ------------------------------
Mme. Claire Demengeot ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
of Pouvoir
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-------------------------- ------------------------------
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ BERNHARD WOEBKER
--------------------------
Versant Corporation
By Bernhard Woebker
its Vice President Europe
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