Exhibit 10.21
[LOGO] PICTORIS ACQUISITION AGREEMENT
Pictoris Interactive Acquisition Agreement (hereinafter referred to as "this
AGREEMENT") dated October 23, 1999
by and between
▇▇▇▇▇▇.▇▇▇ LTD. (hereinafter referred to as the "PURCHASER"), a corporation
organized under the laws of the State of Delaware, whose head office is located
▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, represented by ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
Vice-President;
and
▇▇▇▇▇▇▇▇ PIE, a French national, born on December 14, 1964 in L'Hay-les-Roses
(F-9424O) and residing at ▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
Carine BARBELIVIEN, a French national, born on March 13, 1967 in Caen (F-14000)
and residing at ▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a French national, born on February 2, 1968 in Nogent-sur-Marne
(F-94130) and residing at ▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
(▇▇▇▇▇▇▇▇ PIE, Carine BARBELIVIEN and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ are hereinafter
collectively referred to as the "NON CORPORATE SELLERS"),
and
IN-COM, a joint stock company established under French law, with shareholder's
equity totaling 128,756,200 French Francs, with its head office located at Tour
Maine Montparnasse, ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ CEDEX 15, registered with
the Paris R.C.S. (registration number B 335 040 838), and represented by
▇▇▇▇▇▇▇▇▇▇ VIET ▇▇▇▇▇ ▇▇▇▇, who is duly empowered to enter into this AGREEMENT,
GALILEO PARTNERS, (hereinafter referred to as "Galileo") acting on behalf of the
venture capital investment fund F. C. P. R. ▇▇▇▇▇▇▇ ▇▇, a joint stock company
established under French law, with shareholder's equity totaling 1,850,000
French Francs, with its head office located at ▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
registered with the Paris R.C.S. (registration number B 419 765 128), and
represented by ▇▇▇▇▇▇▇▇▇▇ VIET ▇▇▇▇▇ ▇▇▇▇, who is duly empowered to enter into
this AGREEMENT,
(IN-COM and GALILEO are hereinafter collectively referred to as the "CORPORATE
SELLERS"; the CORPORATE SELLERS are acting severally -- sans solidarite entre
eux, ni solidarite avec les NON CORPORATE SELLERS -- unless hereinafter
otherwise stipulated).
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
Witnesseth:
Whereas Pictoris Interactive is a joint stock company established under
French law, with shareholder's equity totaling 1,547,000 French Francs, with its
head office located at ▇▇/▇▇, ▇▇▇ ▇'▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, registered with the
Paris R.C.S. (registration number B 404 135 709) (hereinafter referred to as the
"COMPANY").
Whereas, at the date of execution of this AGREEMENT, the NON CORPORATE
SELLERS are the owners of all of the outstanding Category "1" shares of the
COMPANY, and the CORPORATE SELLERS are the owners of all of the outstanding
Category "2" shares of the COMPANY;
Whereas, the NON CORPORATE SELLERS and the CORPORATE SELLERS (hereinafter
collectively referred to as the "SELLERS" and individually as a "SELLER") desire
to have the right to sell all of the shareholders equity of the COMPANY, and the
PURCHASER desires to purchase a small percentage of the shares of the COMPANY at
the date of execution of this AGREEMENT, and wishes to have the right to acquire
the entirety of the shares of the COMPANY;
Whereas, the SELLERS and the PURCHASER are convinced that the ultimate
control of the COMPANY by the PURCHASER is in the COMPANY'S best interest, as
the combined resources of the two corporations will create a high potential for
expansion for the COMPANY;
Whereas, S. R. C. LOCALISATION a subsidiary of the PURCHASER (hereafter
referred to as "▇▇▇▇▇▇.▇▇▇ : Paris"), and the COMPANY had already, prior to the
signing of this AGREEMENT, taken concrete steps to commence their cooperation;
Whereas, at the time of the CLOSING DATE, ▇▇▇▇▇▇.▇▇▇ : PARIS is in the
process of being restructured;
Now, therefore, in consideration of the mutual covenants and agreements
set forth in this AGREEMENT, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
PRELIMINARY ARTICLE
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth
below. Unless the context indicates otherwise, the use of the singular shall
include the plural, and vice versa; the use of the word any shall include and
encompass the word all and vice versa; the use of any gender includes all other
genders.
Section 0.1 AFFILIATES shall mean and include all PERSONS (as defined in Section
0.41) that directly or indirectly through one or more intermediaries, control,
or are controlled by, or are under common control with another PERSON.
Section 0.2 AFFILIATION SHARES shall mean 11,146 shares of the COMPANY STOCK (as
defined in Section 0.18).
Section 0.3 AFFILIATION SHARES CALL RIGHT (promesse unilaterale de vente des
AFFILIATION SHARES) shall mean an irrevocable promise on the part of the
PURCHASER to sell the AFFILIATION SHARES to the SELLERS, under the provisions of
Part III of this AGREEMENT.
Section 0.4 AFFILIATION SHARES PURCHASE PRICE shall mean the price paid in full
consideration for the purchase or the buy-back of the AFFILIATION SHARES.
Section 0.5 AFFILIATION SHARES PUT RIGHT (promesse unilaterale d'achat des
AFFILIATION SHARES) shall mean an irrevocable promise on the part of the SELLERS
to acquire the AFFILIATION SHARES from the PURCHASER, under the provisions of
Part Ill of this AGREEMENT.
Section 0.6 ASSERTED LIABILITIES shall mean all LIABILITIES (as defined in
Section 0.32), demands, claims and circumstances which (i) an INDEMNIFIED PARTY
(as defined in Section 0.27) reasonably believes give rise, or (ii), in good
faith, with the lapse of time would or might give rise to a claim or the
commencement (or threatened commencement) of any action, proceeding or
investigation that may result in any Loss (as defined in Section 0.35).
Section 0.7 BALANCE SHARES shall mean the COMPANY STOCK minus the AFFILIATION
SHARES and minus the 12,090 shares which correspond to the employee's purchase
rights under the stock option plan (B.S.P.C.E.) agreed upon by the shareholders
of the COMPANY.
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
Section 0.8 BALANCE SHARES CALL RIGHT (promesse unilaterale de vent des BALANCE
SHARES) shall mean an irrevocable promise on the part of all of the SELLERS to
sell the BALANCE SHARES to the PURCHASER, under the provisions of Part II of
this AGREEMENT.
Section 0.9 BALANCE SHARES EXERCISE NOTICE shall mean the notice by the SELLERS,
ACTING TOGETHER, to the PURCHASER of the exercise of the BALANCE SHARES PUT
RIGHT or the notice by the PURCHASER to all of the SELLERS of the exercise of
the BALANCE SHARES CALL RIGHT.
Section 0.10 BALANCE SHARES PURCHASE PRICE shall mean the price to be paid by
the PURCHASER in full consideration for the purchase of the BALANCE SHARES, in
two installments, the FIRST INSTALLMENT and the FINAL INSTALLMENT (as defined in
Sections 0.24 and 0.23).
Section 0.11 BALANCE SHARES PUT RIGHT (promesse unilaterale d'achat des BALANCE
SHARES) shall mean an irrevocable promise on the part of the PURCHASER to
acquire the BALANCE SHARES from all of the SELLERS, under the provisions of Part
II of this AGREEMENT.
Section 0.12 BUY-BACK EXERCISE NOTICE shall mean the notice by the SELLERS,
ACTING TOGETHER, to the PURCHASER of the exercise of the AFFILIATION SHARES CALL
RIGHT or the notice by the PURCHASER to all the SELLERS of the exercise of the
AFFILIATION SHARES PUT RIGHT.
Section 0.13 CALL RIGHT (promesse unilaterale de vente) shall mean an
irrevocable promise to sell shares of the stock of the COMPANY, which may not be
withdrawn, reneged, retracted nor repudiated. Upon the execution of this
AGREEMENT, all parties shall consider each and every CALL RIGHT as a promise and
accept them as such.
Section 0.14 CLAIMS NOTICE shall mean the notice to an INDEMNIFYING PARTY (as
defined in Section 0.28), given by an INDEMNIFIED PARTY, of an ASSERTED
LIABILITY.
Section 0.15 CLOSING shall mean the closing of this AGREEMENT.
Section 0.16 CLOSING DATE shall mean the date on which the CLOSING takes place.
Section 0.17 CLOSING PRICE PER SHARE shall mean, for each day, the last reported
sales price regular way for the SHARES OF PURCHASER STOCK on the national
securities exchange on which the greatest number of said shares
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
has been traded during 30 (thirty) consecutive business days or, if there is no
transaction on any such day, the average of the bid and asked prices regular way
on such day.
Section 0.18 COMPANY STOCK shall mean the aggregate of the 154,700 existing
shares of the COMPANY at the CLOSING DATE and the 56,126 shares soon to be
issued to the bearers of the bonds redeemable in shares issued by the COMPANY
(or said 1J30 bonds insofar as they will not have been timely redeemed in
shares) and the 12090 shares which correspond to the employee's purchase rights
under the stock option plans (B.S.P.C.E.) agreed upon by the shareholders of the
COMPANY.
Section 0.19 CONFIDENTIAL INFORMATION shall mean and include any confidential or
proprietary information about any party, its AFFILIATES or their clients,
including but not limited to, trade secrets, methods, models) passwords, access
to computer files, financial information and records, computer software
programs, agreements or contracts between any party and its clients or between
any party's AFFILIATES and their clients, the party's or the parts AFFILIATES'
client contacts, the party's or the party's AFFILIATES' planning, marketing or
creative policies, research and polling techniques, methods, formats and
results, and budgets, practices, concepts, strategies, and methods of
operations, financial or business projections, and information about or received
from clients and other companies with which any party or its AFFILIATES does
business, whether any indication of confidentiality is given or not. The term
"CONFIDENTIAL INFORMATION" docs not include information which becomes generally
available to the public other than by breach of this AGREEMENT.
Section 0.20 DETERMINATION shall mean a report containing an audited balance
sheet of the COMPANY, and a related audited statement of income of the COMPANY
for calendar year 1999, together with a statement from the reporting auditor
(the COMPANY'S auditors (commissaire aux comptes) or the FRENCH INDEPENDANT
AUDITOR, as the case may be) which confirms that said balance sheet and
statement of income has been prepared in accordance with FRENCH GAAP and in
accordance with this AGREEMENT and provides, for calendar year 1999, the
calculation of REVENUE and all other adjustments to be made to such audited
financial statements, in accordance with FRENCH GAAP and in accordance with this
AGREEMENT, in order to determine whether or not the COMPANY has met the REVENUE
TARGET 1999 and/or the PERFORMANCE TARGET 1999.
Section 0.21 EXERCISE shall mean the exercise of either a put right or a call
right originating in this AGREEMENT, as applicable.
Section 0.22 EXERCISE DATE shall mean the date of an Exercise.
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
Section 0.23 FINAL INSTALLMENT shall mean the portion of the BALANCE SHARES
PURCHASE PRICE the SELLERS will be entitled to, in addition to the FIRST
INSTALLMENT, depending on whether or not the COMPANY has met the PERFORMANCE
TARGET 1999, if either the BALANCE SHARES CALL RIGHT or the BALANCE SHARES PUT
RIGHT is exercised.
Section 0.24 FIRST INSTALLMENT shall mean the portion of the BALANCE SHARES
PURCHASE PRICE the SELLERS will be entitled to, irrespective of whether or not
the COMPANY has met the PERFORMANCE TARGET 1999, if either the BALANCE SHARES
CALL RIGHT or the BALANCE SHARES PUT RIGHT is exercised.
Section 0.25 FRENCH GAAP shall mean and include all generally accepted
accounting principles consistently applied in France.
Section 0.26 FRENCH INDEPENDENT AUDITORS shall mean a certified public
accountant agreed upon by the parties or, failing such agreement, a certified
public accountant appointed by the President of the Paris Commercial Court
(President du tribunal de commerce etc Paris) upon request of the most
expeditious party.
Section 0.27 INDEMNIFIED PARTIES shall mean the party or parties entitled to
receive any amount in respect of LOSSES.
Section 0.28 INDEMNIFYING PARTY shall mean the party or parties required to pay
any amount in respect of LOSSES.
Section 0.29 INSTRUMENTS shall mean and include all notes, bonds, mortgages,
security agreements, indentures, licenses, franchises, permits, concessions,
contracts, leases and other instruments, obligations or agreements of any kind.
Section 0.30 KNOWLEDGE shall mean the knowledge that a party would have had, had
it made such due and diligent inquiry as to the matters that are the subject of
any representation or warranty contained in this AGREEMENT as was reasonable
under the circumstances, in light of said representations or warranties.
Whatever the case may be, any information provided to the COMPANY in writing is
deemed to be known by the NON CORPORATE SELLERS.
Section 0.31 LAWS shall mean and include any statute, law, rule, regulation or
ordinance.
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
Section 0.32 LIABILITIES shall mean and include all outstanding claims,
liabilities -- including, but not limited to, liabilities for TAXES (as defined
in Section 0.49) -- or indebtedness of any nature whatsoever, whether accrued,
fixed, absolute or contingent, determined or undetermined, asserted or
unasserted, and whether due or to become due.
Section 0.33 LICENSES shall mean and include all licenses and permits and other
governmental certificates, authorizations and approvals.
Section 0.34 LIENS shall mean and include all mortgages, liens, security
interests, encumbrances, claims, charges and restrictions of any kind or
character.
Section 0.35 LOSSES shall mean payments of any or all LIABILITIES, obligations,
losses, damages, penalties, claims, actions, suits, judgments, settlements,
out-of-pocket costs, reasonable expenses and disbursements (including, but not
limited to, reasonable costs of investigation, and reasonable attorneys',
accountants' and expert witnesses' fees) of whatever kind and nature, to the
extent not covered by insurance, the benefits of which will inure to the
appropriate INDEMNIFIED PARTIES. As used in this AGREEMENT, "LOSSES" is not
limited to matters asserted by third parties against the PURCHASER or the
COMPANY but includes LOSSES incurred or sustained by the PURCHASER or the
COMPANY in the absence of third party claims.
Section 0.36 MATERIAL ADVERSE EFFECT shall mean a material adverse effect on the
financial condition, assets, property or business of the COMPANY.
Section 0.37 OPTIONS shall mean and include all outstanding options, warrants,
rights, calls, commitments or arrangements of any kind, conversion, swap, or
exchange rights, plans or other agreements of any character.
Section 0.38 ORDERS shall mean and include any judgment, decree, order, writ,
permit or license.
Section 0.39 PAYMENT DATE shall mean a date on which a payment is due under this
Agreement as a result of an Exercise.
Section 0.40 PERFORMANCE TARGET 1999 shall mean a Revenue of 25,000,000 (twenty
five million French Francs) for calendar year 1999.
Section 0.41 PERSONS shall mean and include all individuals, companies, joint
ventures, corporations, limited liability companies, limited liability
partnerships, trusts, unincorporated organizations, or REGULATORY AUTHORITIES.
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
Section 0.42 PURCHASE PRICE shall mean the aggregate of the AFFILIATION SHARES
PURCHASE PRICE and the BALANCE SHARES PURCHASE PRICE.
Section 0.43 PUT RIGHT (promesse unilaterale d'achat) shall mean an irrevocable
promise to acquire shares of the stock of the COMPANY, which may not be
withdrawn, reneged, retracted nor repudiated. Upon the execution of this
AGREEMENT, all parties shall consider each and every PUT RIGHT as a promise and
accept them as such.
Section 0.44 REGULATORY AUTHORITIES shall mean and include all governmental, non
governmental, international, regulatory or other authorities, including but not
limited to courts, tribunals, arbitrators, agencies, departments, commissions,
official and other instrumentalities or bodies of the United States of America,
France, the European Union or foreign countries and all domestic and foreign
states, counties, cities and other political subdivisions.
Section 0.45 REVENUE TARGET 1999 shall mean a Revenue of FF 20,000,000 (twenty
million French Francs) for calendar year 1999.
Section 0.46 REVENUE shall mean the revenue of the COMPANY that must be declared
on line FL of form 2052 of the annual tax return package (liasse fiscale), along
with the revenue of ▇▇▇▇▇▇.▇▇▇: PARIS, calculated according to FRENCH GAAP with
the exception of revenue derived from ▇▇▇▇▇▇.▇▇▇ : PARIS' localization work
during the first three quarters of 1999 (but including such revenue earned
during the last quarter of 1999).
Section 0.47 SHARES OP PURCHASER STOCK shall mean shares of the PURCHASERS
common stock, at a par value of US$ 0,001 per share.
Section 0.48 SELLERS, ACTING TOGETHER, shall mean the most diligent among
▇▇▇▇▇▇▇▇ PIE (acting on his behalf and in the name of Carine BARBELIVIEN and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇), Galileo and In-Com, each one acting on behalf and in the name
of all the other SELLERS, each one being duly and irrevocably empowered to
represent all the other SELLERS, all of them being bound severally
(conjointement, et non solidairement); that being the case, a revocation of the
powers of attorney so given, in breach of Section 0.48 hereunder shall only be
effective for the PURCHASER following notification to it thereof;
Section 0.49 TAXES shall mean and include all taxes, duties, charges or levies
of any nature imposed by any REGULATORY AUTHORITY including, but not limited to,
income, gains, capital gains, surtax, capital, franchise, capital stock,
value-added taxes, taxes required to be deducted from payments made by the payor
and accounted for to any tax authority, employees' income withholding, back-up
withholding, withholding on payments to third parties, social security, national
insurance, unemployment, worker's compensation, payroll, disability, real
property, personal property, sales, use, goods and services or
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
other commodity taxes, business, occupancy, excise, customs and import duties,
transfer, stamp and other taxes (including, but not limited to, interest,
penalties or additions to tax in respect of the foregoing), and includes all
taxes payable by the COMPANY pursuant to any applicable provision of French,
European Union or any other LAWS or ORDERS.
Section 0.50 US GAAP shall mean all generally accepted accounting principles
consistently applied and as applied in the United States of America.
Section 0.51 US INDEPENDENT AUDITORS shall mean a US certified public accountant
agreed upon by the parties or, failing such agreement, the largest accounting
firm in the United States of America in terms of gross revenue, willing to
perform said services, excluding ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP.
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
PART I
AFFILIATION SHARES PURCHASE
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
ARTICLE I
PURCHASE OF THE AFFILIATION SHARES
Section 1.1 Sale of the AFFILIATION SHARES. Subject to the terms and conditions
herein stated, each SELLER agrees to sell, assign, transfer and deliver to the
PURCHASER on the CLOSING DATE, and the PURCHASER agrees to purchase from the
SELLERS on the CLOSING DATE, 11,146 shares of the stock of the COMPANY, broken
down as follows:
7,306 Category "1" shares
▇▇▇▇▇▇▇▇ PIE ..................................................... 3,942 shares
Carine BARBELIVIEN ............................................... 1,687 shares
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ .................................................. 1,677 shares
3,840 Category "2" shares
GALILEO .......................................................... 2,285 shares
IN-COM ........................................................... 1,555 shares
Section 1.2 Property Transfer. The payment of the AFFILIATION SHARES PURCHASE
PRICE shall give rise to the immediate and automatic transfer of ownership of
the AFFILATION SHARES to the PURCHASER.
Section 1.3 Transfer Recording. The presentation to the COMPANY of both a copy
of this AGREEMENT and the PURCHASER'S bank's confirmation of the transfer of the
AFFILIATION SHARES PURCHASE PRICE to the SELLERS shall be deemed tantamount to a
transfer instruction in order to record the change in ownership of the
AFFILIATION SHARES in the stock transfer ledger of the COMPANY.
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
ARTICLE II
AFFILIATION SHARES PURCHASE PRICE AND CLOSING
Section 2.1 Purchase Price. The AFFILIATION SHARES PURCHASE PRICE shall be an
aggregate of US$ 500,000 (five hundred thousand U.S. Dollars).
Section 2.2 PURCHASE PRICE Allocation. The AFFILIATION SHARES PURCHASE PRICE
shall be allocated and paid among the SELLERS as set forth below:
▇▇▇▇▇▇▇▇ PIE ..................................................... US$ 176,835
Carine BARBELIVIEN ............................................... US$ 75,677
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ .................................................. US$ 75,229
GALILEO .......................................................... US$ 102,503
IN-COM ........................................................... US$ 69,756
Section 2.3 Payment. The AFFILIATION SHARES PURCHASE PRICE shall be paid by an
irrevocable order, made on the CLOSING DATE, for a bank transfer. The PURCHASER
shall wire US$ 500,000 in the aggregate, to be converted to French Francs at the
conversion rate at the date of the transfer.
Section 2.4 Closing. The CLOSING is taking place simultaneously with the
execution and delivery of this AGREEMENT, in Paris, France.
Section 2.5 Registration. This AGREEMENT must be registered in accordance with
French law, which gives rise to transfer taxes set at a rate of 1% of the
acquisition price (or a maximum of 20,000 French Francs) for each transaction,
to be borne by the PURCHASER.
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
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PART II
BALANCE SHARES PURCHASE
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ARTICLE III
OPTIONAL PURCHASE OF THE BALANCE SHARES
Section 3.1 BALANCE SHARES CALL RIGHT. The PURCHASER shall have the
unconditional right, until October 15, 2000, to exercise a BALANCE SHARES CALL
RIGHT and thereby demand the delivery by the SELLERS of the BALANCE SHARES,
provided that such exercise shall encompass all of the BALANCE SHARES.
Section 3.2 BALANCE SHARES PUT RIGHT. The SELLERS, ACTING TOGETHER, shall have
the right, until October 15, 2000 to exercise a BALANCE SHARES PUT RIGHT and
thereby demand the payment by the PURCHASER of the BALANCE SHARES PURCHASE
PRICE, provided that the COMPANY has met the REVENUE TARGET 1999 and provided
that such exercise shall encompass all of the BALANCE SHARES.
Section 3.3 DETERMINATION. In order to determine whether or not the REVENUE
TARGET 1999 has been met, (a) the amount of ▇▇▇▇▇▇.▇▇▇ : PARIS' revenues from
non-localization work during the first three quarters of 1999, used for the
calculation of the 1999 revenue, shall be either (i) FF 800,000 (eight hundred
thousand French Francs) if the actual revenue is lower than this amount, or (ii)
the actual revenue, if it is greater than or equal to FF 800,000 (eight hundred
thousand French Francs) and (b) the amount of ▇▇▇▇▇▇.▇▇▇ : PARIS' revenues from
localization work as well as from non-localization work during the last quarter
of 1999 used for the calculation of the 1999 revenue shall be either (i) FF
3,360,000 (three million three hundred and sixty thousand French Francs) if the
actual revenue is lower than this amount, or (ii) the actual revenue, if it is
greater than or equal to FF 3,360,000 (three million three hundred and sixty
thousand French Francs). An internal DETERMINATION shall be notified to the
parties by the COMPANY'S Auditors no later than June 30, 2000. If (a) the
COMPANY'S Auditors refuse to establish the DETERMINATION, (b) the COMPANY'S
Auditors fail to provide the DETERMINATION before June 30, 2000, or (c) either
the SELLERS, ACTING TOGETHER, or the PURCHASER do not agree that this internal
DETERMINATION correctly states whether or not the REVENUE TARGET 1999 has been
met, the SELLERS, ACTING TOGETHER, or the PURCHASER, as the case may be, may,
within 45 (forty five) days of (a) said refusal, (b) June 30, 2000 or (c) the
notification of the internal DETERMINATION, as the case may be, request an
external DETERMINATION from the FRENCH INDEPENDANT AUDITORS, based on the
principles mentioned hereabove regarding the amounts of FF 800,000 (eight
hundred thousand French Francs) and FF 3,360,000 (three million three hundred
and sixty thousand French Francs). The FRENCH INDEPENDENT AUDITORS will
determine which of the parties has asserted REVENUE figures for the period being
examined by the FRENCH INDEPENDANT AUDITORS, which are closest to those in the
external DETERMINATION established by the latter. The non-prevailing party shall
be liable for all of the FRENCH INDEPENDANT AUDITORS' fees and expenses (in the
case in which the SELLERS are the non prevailing
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party, such fees and expenses shall be divided amongst them on a pro rata
basis). In the event that the reporting auditors are unable to establish the
amount of ▇▇▇▇▇▇.▇▇▇ : PARIS' revenues from non-localization work during the
first three quarters of 1999 or the amount of ▇▇▇▇▇▇.▇▇▇ : PARIS' revenues from
localization work as well as non-localization work during the last quarter of
1999, and if this were to prevent the reporting auditors from delivering their
DETERMINATION, the SELLERS may choose to use the amounts of FF 800,000 (eight
hundred thousand French Francs) and FF 3,360,000 (three million three hundred
and sixty thousand French Francs) stipulated hereabove.
Section 3.4 Property Transfer. The payment of the BALANCE SHARES PURCHASE PRICE
following a BALANCE SHARES EXERCISE NOTICE given in accordance with the
provisions of this AGREEMENT shall give rise to the immediate and automatic
transfer of ownership of the BALANCE SHARES to the PURCHASER.
Section 3.5 Transfer Recording. The presentation to the COMPANY of both a copy
of a BALANCE SHARES EXERCISE NOTICE and the PURCHASER'S bank's confirmation of
the transfer of the BALANCE SHARES PURCHASE PRICE to the SELLERS shall be deemed
tantamount to a transfer instruction in order to record the change in ownership
of the BALANCE SHARES in the stock transfer ledger of the COMPANY.
Section 3.6 Registration. The BALANCE SHARES EXERCISE NOTICE must be registered
in accordance with French law, which gives rise to transfer taxes to be borne by
the exercising party.
Section 3.7 FIRST INSTALLMENT. The FIRST INSTALLMENT shall be an aggregate of
US$ 11,650,000 (eleven million six hundred fifty thousand U.S. Dollars).
Section 3.8 FIRST INSTALLMENT Allocation. The FIRST INSTALLMENT shall be
allocated and paid among the SELLERS based on an agreement among them notified
to the PURCHASER on the payment date at the very latest and, failing such
notification, as a prorata of the shares registered to the SELLERS in the stock
transfer ledger of the COMPANY as it stands on any day within the last 5 (five)
business days prior to the payment date and at the time that the PURCHASER
consults said ledger. If the PURCHASER is unable to consult the ledger for
reasons beyond his control, it will have the option of paying the PURCHASE PRICE
to the CAISSE DES DEPOTS ET CONSIGNATIONS, in full performance of its
obligations.
Section 3.9 FINAL INSTALLMENT (Earn Out). The FINAL INSTALLMENT, shall be an
aggregate amount of US$ 1,350,000 (one million three hundred and fifty thousand
U.S. Dollars) if (i) the COMPANY meets the PERFORMANCE
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TARGET 1999, or (ii) the PURCHASER, after the EXERCISE of the BALANCE SHARES
CALL RIGHT or the EXERCISE of the BALANCE SHARES PUT RIGHT and before January 1,
2000, removes the President of the COMPANY from office without any wrongdoing on
the part of the latter to justify such removal. Otherwise, the FINAL INSTALLMENT
shall be nil.
Section 3.10 FINAL INSTALLMENT Allocation. Except for the case in which the
FINAL INSTALLMENT is nil, it shall be allocated and paid to the SELLERS based on
an agreement among them notified to the PURCHASER on the payment date at the
very latest and, failing such notification, as a prorata of the shares
registered to the SELLERS in the stock transfer ledger of the COMPANY as it
stands on any day within the last 5 (five) business days prior to the payment
date and at the time that the PURCHASER consults said ledger. If the PURCHASER
is unable to consult the ledger for reasons beyond his control, it will have the
option of paying the PURCHASE PRICE to the CAISSE DES DEPOTS ET CONSIGNATIONS,
in full performance of its obligations.
ARTICLE IV
BALANCE SHARES PURCHASE PRICE PAYMENT
Section 4.1 SELLERS Prerogative. If, on the date of the EXERCISE of the BALANCE
SHARES CALL RIGHT or the date of the EXERCISE of the BALANCE SHARES PUT RIGHT,
as applicable, the SHARES OF PURCHASER STOCK (a) have been publicly traded for
more than a month before said date, the CORPORATE SELLERS shall have the
possibility to give notice to the PURCHASER of their wish (to be expressed in US
Dollars and not as a percentage of shares) to have their allocated share of the
BALANCE SHARES PURCHASE PRICE paid partially or fully in cash or in SHARES OF
PURCHASER STOCK and their choice shall be binding upon the PURCHASER, or (b)
have not been publicly traded for more than a month before said date, the
CORPORATE SELLERS shall have the possibility to give notice to the PURCHASER of
their wish (to be expressed in US Dollars and not as a percentage of shares) to
have their allocated share of the BALANCE SHARES PURCHASE PRICE paid partially
or fully in cash or in SHARES OF PURCHASER STOCK and their choice shall be
binding upon the PURCHASER, the only limitation being the percentage of the
price that the PURCHASER is willing to pay in SHARES OF PURCHASER STOCK insofar
as the PURCHASER cannot be obliged to pay a higher amount than it is willing in
stock; in any event, the CORPORATE SELLERS may demand a full cash payment. If on
the date of the EXERCISE of the BALANCE SHARES CALL RIGHT or the date of the
EXERCISE of the BALANCE SHARES PUT RIGHT, as applicable, the SHARES OF PURCHASER
STOCK (a) have been publicly traded for more than a month before said date, the
NON CORPORATE SELLERS shall have the possibility to give notice to the PURCHASER
of their wish to receive payment for up to 75% (seventy five percent) of the
total amount of their allocated share of the BALANCE SHARES PURCHASE PRICE in
cash or in SHARES OF
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[LOGO] PICTORIS ACQUISITION AGREEMENT
PURCHASER STOCK and their choice shall be binding upon the PURCHASER, or (b)
have not been publicly traded for more than a month before said date, the NON
CORPORATE SELLERS shall have the possibility to give notice to the PURCHASER of
their wish to receive payment for up to 75% (seventy five percent) of the total
amount of their allocated share of the BALANCE SHARES PURCHASE PRICE in cash or
in SHARES OF PURCHASER STOCK and their choice shall be binding upon the
PURCHASER, the only limitation being the percentage of the price that the
PURCHASER is willing to pay in SHARES OF PURCHASER STOCK, insofar as the
PURCHASER cannot be obliged to pay a higher amount than it is willing in stock;
in any event, the NON CORPORATES SELLERS may demand up to 75% (seventy five
percent) of the payment in cash.
Section 4.2 Investment Letter. Each SELLER shall execute an Investment Letter as
exhibited in Schedule 4.2 relating to the SHARES OF PURCHASER STOCK which may be
issuable to him, her or it, if necessary. An Investment letter is set forth in
Exhibit F to this AGREEMENT, along with an excerpt of the PURCHASER'S S1
describing rule 144 as well as short memorandum from ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
General Counsel of the Purchaser, on the same subject.
Section 4.3 Lock-Up Letter. The SELLERS agree that they will not sell any of the
SHARES OF PURCHASER STOCK that they have received, be it under the FIRST
INSTALLMENT or under the FINAL INSTALLMENT, for a period of six months following
the date of an IPO for the PURCHASER, and shall each submit a Lock-Up Letter to
the PURCHASER so stating.
Section 4.4 DETERMINATION. In order to determine whether or not the PERFORMANCE
TARGET 1999 has been met, (a) the amount of ▇▇▇▇▇▇.▇▇▇ : PARIS'S revenues from
non-localization work during the first three quarters of 1999, used for the
calculation of the 1999 revenue, shall be either (i) FF 1,000,000 (one million
French Francs) if the actual revenue is lower than this amount, or (ii) the
actual revenue, if it is greater than or equal to FF 1,000,000 (one million
French Francs) and (b) the amount of ▇▇▇▇▇▇.▇▇▇ : PARIS' revenues from
localization work as well as from non-localization work during the last quarter
of 1999 used for the calculation of the 1999 revenue shall be either (i) FF
4,200,000 (four million two hundred thousand French Francs) if the actual
revenue is lower than this amount, or (ii) the actual revenue, if it is greater
than or equal to FF 4,200,000 (four million two hundred thousand French Francs).
An internal DETERMINATION shall be notified to the parties by the COMPANY'S
Auditors no later than June 30, 2000. If (a) the COMPANY'S Auditors refuse to
establish the DETERMINATION, (b) the COMPANY'S Auditors fail to provide the
DETERMINATION before June 30, 2000, or (c) either the Sellers, Acting Together,
or the PURCHASER do not agree that this internal DETERMINATION correctly states
whether or not the PERFORMANCE TARGET 1999 has been met, the Sellers, Acting
Together, or the PURCHASER, as the case may be, may, within 45 (forty five) days
of (a) said refusal, (b) June 30, 2000 or (c) the notification of the internal
DETERMINATION, as the case may be, request an external DETERMINATION
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
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[LOGO] PICTORIS ACQUISITION AGREEMENT
from the FRENCH INDEPENDANT AUDITORS, based on the principles mentioned
hereabove regarding the amounts of FF 1,000,000 (one million French Francs) and
FF 4,200,000 (four million two hundred thousand French Francs). The FRENCH
INDEPENDENT AUDITORS will determine which of the parties has asserted REVENUE
figures for the period being examined by the FRENCH INDEPENDANT AUDITORS, which
are closest to those in the external DETERMINATION established by the latter.
The non-prevailing party shall be liable for all of the FRENCH INDEPENDANT
AUDITORS' fees and expenses (in the case in which the SELLERS are the non
prevailing party, such fees and expenses shall be divided amongst them on a
prorata basis). In the event that the reporting auditors are unable to establish
the amount of ▇▇▇▇▇▇.▇▇▇ : PARIS' revenues from non-localization work during the
first three quarters of 1999 or the amount of ▇▇▇▇▇▇.▇▇▇ : PARIS' revenues from
localization work as well as non-localization work during the last quarter of
1999, and if this were to prevent the reporting auditors from delivering their
DETERMINATION, the SELLERS may choose to use the amounts of FF 1,000,000 (one
million French Francs) and FF 4,200,000 (four million two hundred thousand
French Francs) stipulated hereabove.
Section 4.5 First Valuation. If, on the date of the EXERCISE of the BALANCE
SHARES CALL RIGHT or the date of the EXERCISE of the BALANCE SHARES PUT RIGHT,
as applicable, the SHARES OF PURCHASER STOCK (i) have been publicly traded for
more than a month before said date, the SHARES OF PURCHASER STOCK shall be
valued at 90% (ninety percent) of the average of the CLOSING PRICES PER SHARE
for the 30 (thirty) consecutive trading days ending said date or (ii) have not
been publicly traded for more than a month before said date, in which case the
price of the SHARES OF PURCHASER STOCK shall be set by the PURCHASER, within one
month (of the EXERCISE DATE), if it were to decide that the payment of the FIRST
INSTALLMENT might not be made entirely in cash, the PURCHASER shall notify the
SELLERS of the allocation of such payment between cash and SHARES OF PURCHASER
STOCK (subject to the SELLERS prerogative contained in Section 4.1) and shall
provide the SELLERS with all of the information that a public corporation is
required to make available to the public, in accordance with US Stock Market
regulations; if the SELLERS are not satisfied with the price proposed by the
PURCHASER, and unless the PURCHASER has received a formal valuation from an
independant third party in the 3 (three) months preceding the EXERCISE DATE, in
which case the PURCHASER shall have the right to rely on said valuation, the
SELLERS may, within a period of 2 (two) weeks (from the notification of the
price of the SHARES OF PURCHASER STOCK set by the PURCHASER), request the US
INDEPENDANT AUDITORS to calculate, within a 30 (thirty) day deadline, the value
of the SHARES OF PURCHASER STOCK on the date of the EXERCISE of the BALANCE
SHARES CALL RIGHT or the date of the EXERCISE of the BALANCE SHARES PUT RIGHT,
as applicable.
Section 4.6 Final Valuation. If, on the date the DETERMINATION mentioned in
Section 4.4 has become final, the SHARES OF PURCHASER STOCK (i) have been
publicly traded for more than a month before said date, the SHARES OF PURCHASER
STOCK shall be valued at 90% (ninety percent) of the average of the CLOSING
PRICES PER SHARE for the 30 (thirty) consecutive
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trading days ending said date or (ii) have not been publicly traded for more
than a month before said date, in which case the price of the SHARES OF
PURCHASER STOCK shall be set by the PURCHASER, within one month (of the date the
DETERMINATION has become final), if it were to decide that the payment of the
FINAL INSTALLMENT might not be made entirely in cash, the PURCHASER shall notify
the SELLERS of the allocation of such payment between cash and SHARES OF
PURCHASER STOCK (subject to the SELLERS prerogative contained in Section 4.1)
and shall provide the SELLERS with all of the information that a public
corporation is required to make available to the public, in accordance with US
Stock Market regulations; if the SELLERS are not satisfied with the price
proposed by the PURCHASER, and unless the PURCHASER has received a formal
valuation from an independant third party in the 3 (three) months preceding the
date the DETERMINATION has become final, in which case the PURCHASER shall have
the right to rely on said valuation, the SELLERS may, within a period of 2 (two)
weeks (from the notification of the price of the SHARES OF PURCHASER STOCK set
by the PURCHASER), request the US INDEPENDANT AUDITORS to calculate, within a 30
(thirty) day deadline, the value of the SHARES OF PURCHASER STOCK on the date
the DETERMINATION has become final.
Section 4.7 Sellers Prerogative Exercise. The SELLERS Prerogative shall be
exercised within 5 (five) business days after the BALANCE SHARES EXERCISE NOTICE
or the DETERMINATION referred to in Section 4.4 has become final, as applicable.
Failing such notice, the payment shall be made entirely in cash to the CORPORATE
SELLERS and for 75% to the NON CORPORATE SELLERS.
Section 4.8 FIRST INSTALLMENT Payment Date. The FIRST INSTALLMENT shall be paid
by the PURCHASER to the SELLERS on a date agreed upon by the parties and,
failing such agreement (a) no later than 20 (twenty) business days after the
date of the BALANCE SHARES EXERCISE NOTICE, if the SHARES OF PURCHASER STOCK
have been publicly traded for more than a month before said date or (b)
otherwise, no later than 30 (thirty) business days after the date on which the
first valuation has become final. Nevertheless, the CORPORATE SELLERS shall have
the right, if the SHARES OF PURCHASER STOCK have not been publicly traded for
more than a month before said date, to receive the portion of cash they are
entitled to within 30 (thirty) business days after the BALANCE SHARES EXERCISE
NOTICE.
Section 4.9 FINAL INSTALLMENT Payment Date. The FINAL INSTALLMENT shall be paid
by the PURCHASER to the SELLERS on a date agreed upon by the parties and,
failing such agreement (a) no later than 20 (twenty) business days after the
date of the BALANCE SHARES EXERCISE NOTICE, if the SHARES OF PURCHASER STOCK
have been publicly traded for more than a month before said date or (b)
otherwise, no later than 30 (thirty) business days after the date on which the
final valuation has become final. Nevertheless, the CORPORATE SELLERS shall have
the right, if the
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SHARES OF PURCHASER STOCK have not been publicly traded for more than a month
before said date, to receive the portion of cash they are entitled to within 30
(thirty) business days after the BALANCE SHARES EXERCISE NOTICE.
Section 4.10 Restricted Shares program to employees. Upon the BALANCE SHARES
EXERCISE NOTICE, employees of Pictoris will receive restricted SHARES OF
PURCHASER STOCK (common stock), issued on a fully diluted basis of Pictoris
common stock, bonds and B. S. P. C. E. as a prorata of their participation in
the 5.43 percent that the COMPANY board has approved. The valuation of said
restricted SHARES OF PURCHASER STOCK shall be same as that used the Balance
Shares under Section 4.5 of this AGREEMENT. The vesting period for the vast
majority of employees will be 1/3 six months after issuance, 1/3 eighteen months
after issuance and the final 1/3 thirty months after issuance. The vesting
period for ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Luc SAINT ELIE will be 1/3 six months after
issuance, 1/3 twelve months after issuance and the final 1/3 twenty four months
after issuance. In the event that an employee leaves prior to the vesting period
being completed, their shares will return to the pool to be redistributed to the
remaining employees.
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PART III
AFFILIATION SHARES BUY-BACK
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ARTICLE V
CONDITIONAL BUY-BACK OF THE AFFILIATION SHARES
Section 5.1 AFFILIATION SHARES CALL RIGHT. In the event that neither the
PURCHASER nor the SELLERS exercise their respective BALANCE SHARES CALL RIGHT or
BALANCE SHARES PUT RIGHT prior to the expiration of these rights, then the
Sellers, Acting Together, shall have the right, exercisable as of October 16,
2000 and no later than March 31, 2001, to exercise an AFFILIATION SHARES CALL
RIGHT, provided that such exercise shall encompass all of the AFFILIATION
SHARES.
Section 5.2 AFFILIATION SHARES PUT RIGHT. In the event that neither the
PURCHASER nor the SELLERS exercise their respective BALANCE SHARES CALL RIGHT or
BALANCE SHARES PUT RIGHT prior to the expiration of these rights, then the
PURCHASER shall have the right, exercisable as of October 16, 2000 and no later
than March 31, 2001, to exercise an AFFILIATION SHARES PUT RIGHT, provided that
such exercise shall encompass all of the AFFILIATION SHARES.
Section 5.3 Pro rata Buy-back. The PURCHASER shall deliver to each of the
SELLERS both his, hers or its pro rata share of the AFFILIATION SHARES and the
related transfer order and each of the SELLERS shall pay to the PURCHASER its
pro rata share of the AFFILIATION SHARES PURCHASE PRICE, as set forth in Article
I and II of this AGREEMENT, unless otherwise specified in writing by the
Sellers, Acting Together.
Section 5.4 Substitution. In the event that one or more of the SELLERS fails to
pay his, her or its pro rata share of the AFFILIATION SHARES PURCHASE PRICE, the
other SELLERS shall have the right to pay, on a pro rata basis, the remainder of
the AFFILIATION SHARES PURCHASE PRICE and receive accordingly the shares of the
defaulting Seller, in order to enable the other Sellers to exercise such right,
the PURCHASER gives notice of the fact that one or more of the SELLERS hasn't
paid his, her or its share of the AFFILIATION SHARES PURCHASE PRICE. Within 15
(fifteen) days of said notice, the other SELLERS may notify to the PURCHASER
their whish to buy and pay the remainder of the AFFILIATION SHARES. The
allocation between the Sellers whishing to buy the shares shall be determined by
a common agreement and failing such agreement, on a pro rata basis.
Section 5.5 Buy-back Exercise Notice. The AFFILIATION SHARES PUT RIGHT may be
exercised by the PURCHASER by giving an Exercise Notice to the SELLERS. The
AFFILIATION SHARES CALL RIGHT may be exercised by the SELLERS by giving an
Exercise Notice to the PURCHASER.
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
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Section 5.6 Property Transfer. The payment of the AFFILIATION SHARES PURCHASE
PRICE following a BUY-BACK EXERCISE NOTICE given in accordance with the
provisions of this AGREEMENT shall give rise to the immediate and automatic
retransfer of ownership of the AFFILATION SHARES to the SELLERS.
Section 5.7 Transfert recording. The presentation to the COMPANY of both a copy
of a BUY-BACK EXERCISE NOTICE and the SELLERS' banks' confirmation of the
transfer of the AFFILIATION SHARES PURCHASE PRICE to the PURCHASER shall be
deemed tantamount to a transfer instruction in order to record the change in
ownership of the AFFILIATION SHARES in the stock transfer ledger of the COMPANY.
Section 5.8 Registration. A BUY-BACK EXERCISE NOTICE must be registered in
accordance with French law, which gives rise to transfer taxes to be borne by
the exercising party.
Section 5.9 Buy-back price of the AFFILIATION SHARES. The aggregate purchase
price to be paid to the PURCHASER upon the exercise of the AFFILIATION SHARES
PUT RIGHT or the AFFILIATION SHARES CALL RIGHT shall be an amount equal to US$
500,000 (five hundred thousand US Dollars) paid by the SELLERS according to the
same breakdown set forth in Section 2.2, subject to the provisions of Section
5.4.
Section 5.10 Payment date. The payment date for the buy-back of the AFFILIATION
SHARES under the provisions of this Article shall be within 30 (thirty) business
days following the exercise of the AFFILIATION SHARES PUT RIGHT or the
AFFILIATION SHARES CALL RIGHT. At that date, the SELLERS shall pay the
AFFILIATION SHARES PURCHASE PRICE in full, and the obligation of the NON
CORPORATE SELLERS to make such payment shall be joint.
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PART IV
TRANSFORMATION OF THE COMPANY
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ARTICLE VI
AMENDMENT OF THE CHARTER DOCUMENTS
Section 6.1 Societe par actions simplifiee. The PURCHASER and the SELLERS
undertake to amend the charter documents of the COMPANY in order to transform,
within 35 (thirty five) business days from the date of this AGREEMENT, the
COMPANY into a societe par actions simplifiee, governed by the specific
provisions set out in Sections 6.2 to 6.6 below, as well as, but only insofar
they are compatible with said provisions, (i) by the provisions of law governing
joint stock corporations, (societe anonyme et societe par actions simplifiee)
including particularly Articles 89 to 177-1 of Law no. 66-537 of July 24, 1966
(ii) by the provisions of the by-laws that are presently in force and (iii) by
the provisions of the shareholder's covenants executed November 26, 1998. It is
understood and agreed between the parties that, (i) upon the execution of this
AGREEMENT; the provisions under Article I (preemptive right--droit de
preemption) of said shareholder's covenants shall now be limited to transfers of
shares of COMPANY STOCK in favor of third parties (ii) the provisions of said
shareholder's covenants not integrated in the by-laws of the COMPANY shall
remain in full force.
Section 6.2 President. The COMPANY's by-laws shall stipulate that the latter
shall be managed and represented by its President. The President shall be
nominated by the shareholders unanimously. The President may be either a
shareholder or an employee of the COMPANY or both. The President may be removed
from office, but only on valid grounds, by the unanimous decision of the
shareholders, or, in the event that the President is himself a shareholder, by
the unanimous decision of the other shareholders.
Section 6.3 Board of Directors. The COMPANY'S by-laws shall provide for the
creation of a Board of Directors (conseil de direction). The maximum number of
Directors shall be equal to the number of shareholders in the COMPANY (or one
less, if the President is a shareholder himself), each shareholder (except the
President if he is a shareholder himself) having the right to freely nominate
one member of the Board and to freely remove the same.
Section 6.4 Unanimous Decisions by Shareholders. The COMPANY'S by-laws shall
stipulate that, in addition to those decisions for which unanimous agreement is
required by law, the following decisions, depending on whether they fall under
the authority of the COMPANY's Shareholders' Meetings or its President, shall
require either (a) the unanimous agreement of the shareholders, all of whom must
be present or represented, or (b) the unanimous agreement of the Board of
Directors: (i) the sale, lease or other disposition of all or substantially all
of the COMPANY's assets or business; (ii) the creation of, or the modification
of any of the terms of, any of the following financial arrangements: any
security interest on any of the COMPANY's material assets or property other than
in the ordinary course of the COMPANY'S business and in the ordinary and usual
manner; any guarantee by the COMPANY of the
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obligations of any third party, whether a shareholder, a director or employee of
the COMPANY or otherwise; or any indebtedness for borrowed money except
indebtedness incurred in the ordinary course of the Company's business and in
the ordinary and usual manner and not in excess of FF 600,000 (six hundred
thousand French Francs); (iii) entering into any business other than, or into
any transaction outside, the normal business activities of the COMPANY and
related activities, provided that the normal business activities of the COMPANY
are understood to include, but not be limited to, communications, marketing and
related activities in any media whatsoever; (iv) the amendment of the COMPANY's
charter documents, except amendments required by the reimbursement of already
issued bonds; (v) any increase or decrease in the capitalization of the COMPANY,
including any creation of or increase in the COMPANY's bond indebtedness but
with the exception of the 1,330 bonds redeemable in shares mentioned in Section
0.20; (vi) any acquisition by the COMPANY of the stock, assets or business of
another corporation or entity or any investment by the COMPANY of corporate
funds in another corporation or entity, with the exception of investments of a
purely financial nature and made in order to ensure appropriate cash management
in the ordinary course of business and in the ordinary and usual manner,
consistent with past practice; (vii) the merger, consolidation or amalgamation
of the COMPANY with and into another corporation or entity, or of any other
corporation or entity with and into the COMPANY; (viii) the adoption of the
annual profit and capital expenditure plans (ix) any capital expenditure
relating to property, plant, equipment and intangibles, or commitment therefor,
involving an amount in excess of FF 300,000 (three hundred thousand French
Francs) for each related expenditure or commitment, or aggregating more than FF
1,500,000 (one million five hundred thousand French Francs) during any calendar
year, except when said expenditures or commitments do not exceed the levels set
forth in the annual profit and capital expenditure plan; (x) the liquidation or
dissolution of the COMPANY; (xi) the making of any loans by the COMPANY
exceeding FF 150,000 (one hundred and fifty thousand French Francs) to any
employee, other than travel and business expense advances to employees in the
ordinary course of business and in the ordinary and usual manner, up to a total
of FF 600,000 (six hundred thousand French Francs) in such loans outstanding at
any time; (xii) with the exception of the Employment Agreements executed on the
same date as, and in connection with, this AGREEMENT and hereby attached,
entering into any transaction with any shareholder who beneficially owns,
directly or indirectly, 10% or more of the COMPANY STOCK or any entity
controlled by any shareholder who beneficially owns, directly or indirectly, 10%
or more of the COMPANY STOCK, or any other officer or director of the COMPANY;
(xiii) any increase in the compensation payable to any shareholder who
beneficially owns, directly or indirectly, 10% or more of the COMPANY STOCK or
to any other executive officer or director of the COMPANY, as well as the
adoption or amendment of any profit sharing or other employee benefit plan other
than as included in an annual profit or capital expenditure plan previously;
(xiv) any termination of employment of a manager of the COMPANY.
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Section 6.5 Restrictions on Stock Transfers. THE COMPANY's by-laws shall provide
that, as long as transfer of the tide of the BALANCE SHARES under the provisions
of this AGREEMENT is enforceable, the shares of COMPANY'S stock shall be
non-transferable to third parties, except in cases in which a waiver is
unanimously given by the shareholders. Any transfers of such stock to the
PURCHASER other than those stipulated in this AGREEMENT are prohibited.
Section 6.6 Financial reports The COMPANY's by-laws shall stipulate the
COMPANY's obligation to complete US financial reporting packages on a quarterly
basis and to comply with the US reporting procedures and practices (the
PURCHASER agrees, in order to enable the COMPANY to comply with the US financial
reporting requirements, to provide the COMPANY with all of the accounting tools
and explanations that are necessary).
Section 6.7 Shareholders' convention. The provisions in Sections 6.3 to 6.6
hereabove shall be binding upon the parties as of the CLOSING DATE and shall
immediately take effect; thus, they shall govern all relationships between the
parties on any and all matters relating to the COMPANY, as applicable. The above
mentioned provisions shall be binding even during the period before the
transformation of the COMPANY has become legally effective. In the interim, the
provisions applicable to the conseil de direction under Section 6.3 shall be
applicable, mutatis mutandis, to the conseil de administration of the COMPANY
and the PURCHASER shall have a seat thereon as from the date of this AGREEMENT.
Section 6.8 Return to Status Quo Ante. The COMPANY by-laws shall provide that,
failing EXERCISE of a BALANCE SHARES CALL RIGHT or a BALANCE SHARES Put RIGHT as
of October 15, 2000, the President of the COMPANY shall be removable ad nutum
upon a decision of a simple majority of the shareholders and that the decisions
mentioned in section 6.4. hereabove shall be subject to the majority rules as
applicable before the execution of this AGREEMENT, notably as provided for under
the shareholder's covenants and the by-laws in force before the transformation
of the COMPANY. The Purchaser agrees that, on the date of transfer of all the
AFFILIATION SHARES to the Sellers, it shall resign from its position on the
Board of Directors.
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PART V
REPRESENTATIONS & WARRANTIES
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ARTICLE VII
REPRESENTATIONS OF THE SELLERS
The SELLERS, severally (conjointement, et non solidairement), and each one
individually acting on his, hers or its own behalf hereby represent, warrant and
agree to and with the PURCHASER as follows:
Section 7.1 Capital Stock. At the CLOSING DATE, to the Knowledge of the Sellers,
the COMPANY has shareholder's equity of 1,547,000 French Francs, consisting of
154,700 fully paid shares, owned by the SELLERS. To the Knowledge of the
Sellers, all shares of COMPANY STOCK which have been issued and are outstanding
have been validly issued and have not been issued in violation of any preemptive
rights of any stockholder. To the Knowledge of the Sellers, all issued and
outstanding category "I" shares and all issued and outstanding category "2"
shares are fully paid and no other class of capital stock of the COMPANY is
authorized or outstanding, excluding the shares to which the employee should be
entitled under the Stock option plan (B. S. P. C. E.). To the Knowledge of the
Sellers, with the exception of the bonds redeemable in shares mentioned in
Section 0.18 and whith the exception of the shares to which the employee should
be entitled under the Stock option plan (B. S. P. C. E.) there are no OPTIONS
providing for the purchase, issuance or sale of any shares of the capital stock
of the COMPANY to the benefit of third parties. To the KNOWLEDGE of the SELLERS,
all repurchases or redemptions of shares of the capital stock of the COMPANY
were properly completed in compliance with all applicable regulations and
corporate requirements; and no further monies or other obligations will be due
by the COMPANY in respect thereof with the exception of the bonds redeemable in
shares mentioned in Section 0.18 and whith the exception of the shares to which
the employee should be entitled under the Stock option plan (B. S. P. C. E.).
Section 7.2 Stock Ownership. The SELLERS are, at the CLOSING DATE, the true and
lawful owners of the COMPANY STOCK and, to the Knowledge of the Sellers, the
COMPANY STOCK has been duly and validly authorized and issued and fully paid.
Section 7.3 NO LIENS. The shares of the COMPANY's stock held by the SELLERS are
free of preemptive rights and options to the benefit of third parties, with no
personal liability attaching to the ownership thereof, and such ownership is
free and clear of any mortgages, liens, security interests, emcumbrances or
claims and free of any charges and restrictions of any kind or character to the
benefit of third parties.
Section 7.4 NO OPTIONS. This AGREEMENT notwithstanding, and with the exception
of 1,330 bonds redeemable in shares owned by the CORPORATE SELLERS, and with the
exception of the shares to which the employee should be entitled under the Stock
option plan (B. S. P. C. E.), there
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are no OPTIONS to the benefit of third parties to acquire any of the shares of
the COMPANY's stock held by the SELLERS and there are no agreements or
understandings with respect to the sale or transfer of any of the shares of the
COMPANY's stock held by the SELLERS to the benefit of third parties.
Section 7.5 Execution and Validity. Each of the NON CORPORATE SELLERS has the
full power and capacity and each of the CORPORATE SELLERS has the full corporate
power and authority to enter into this AGREEMENT and to perform its obligations
hereunder. The execution and delivery of this AGREEMENT and the performance of
the transactions contemplated hereby have been duly authorized by all required
corporate action on behalf of each of the CORPORATE SELLERS. This AGREEMENT has
been duly and validly executed and delivered by each SELLER and, assuming due
authorization, execution and delivery by the PURCHASER, constitutes a legal,
valid and binding obligation upon each of the SELLERS, enforceable against each
of them in accordance with its terms.
Section 7.6 Non-Contravention. The execution, delivery and performance by the
SELLERS of their respective obligations hereunder and the consummation of the
transactions contemplated hereby, will not (a) violate, conflict with or result
in the breach of any provision of the by-laws or other corporate charter
documents of the CORPORATE SELLERS (b) result in the violation by any SELLER of
any LAW or ORDER of any French or European Union REGULATORY AUTHORITY applicable
to any SELLER, (c) to the KNOWLEDGE of the SELLERS, result in the violation by
any SELLER of any LAW or ORDER of any foreign REGULATORY AUTHORITY applicable to
any SELLER.
Section 7.7 Approvals and Consents. All consents, approvals or actions of,
filing with or notices to any REGULATORY AUTHORITY or any PERSON necessary or
required under any of the terms, conditions or provisions of any LAW or ORDER of
any REGULATORY AUTHORITY or any INSTRUMENT to which any SELLER is a party for
the execution and delivery of this AGREEMENT by the SELLERS, the performance by
the SELLERS of their obligations hereunder or the consummation of the
transactions contemplated hereby, if any, have been obtained or given by the
SELLERS, at no expense to the PURCHASER, and none has been withdrawn or
modified.
Section 7.8 No Restrictions. There is no suit, action, claim, investigation or
inquiry by any REGULATORY AUTHORITY, and no legal, administrative or arbitration
proceeding pending or, to the KNOWLEDGE of the SELLERS, threatened against the
SELLERS, with respect to the execution, delivery and performance of this
AGREEMENT by the SELLERS or the transactions contemplated hereby or any other
agreement entered into by the SELLERS in connection with the transactions
contemplated hereby.
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Section 7.9 No Litigation. There are no actions, suits, proceedings at law or in
equity by any PERSON, or any arbitrations or any administrative or other
proceedings by or before (or to the KNOWLEDGE of the SELLERS, any investigations
by) any REGULATORY AUTHORITY, pending or, to the KNOWLEDGE of the SELLERS,
threatened, against any of the SELLERS with respect to this AGREEMENT or the
transactions contemplated hereby.
Section 7.10 No Brokers. No broker, finder, agent or similar intermediary has
acted on behalf of the SELLERS or the COMPANY in connection with this AGREEMENT
or the transactions contemplated hereby, and no brokerage commissions, finder's
fees or similar fees, commissions or payments are due by the COMPANY or the
SELLERS in connection therewith based on any agreement, arrangement or
understanding with any of them.
ARTICLE VIII
REPRESENTATIONS OF THE PURCHASER
The PURCHASER, represents, warrants and agrees to and with the SELLERS as
follows:
Section 8.1 Existence and Good Standing. The PURCHASER is a corporation duly
organized, validly existing under and in good standing with the laws of the
State of Delaware, with full corporate power and authority to own its property
and to carry on its business, all as and in the places where such property are
now owned or operated or such business is now being conducted.
Section 8.2 Execution and Validity. The PURCHASER his the full corporate power
and authority to enter into this AGREEMENT and to perform its obligations
hereunder. The execution and delivery of this AGREEMENT and the performance of
the transactions contemplated hereby have been duly authorized by all required
corporate action on behalf of the PURCHASER. This AGREEMENT has been duly and
validly executed and delivered by the PURCHASER and, assuming due authorization,
execution and delivery by the SELLERS, constitutes a legal, valid and binding
obligation of the PURCHASER, enforceable against it in accordance with its
terms.
Section 8.3 Non-Contravention. The execution, delivery and performance by the
PURCHASER of its obligations hereunder and the consummation of the transactions
contemplated hereby, will not (a) violate, conflict with or result in the breach
of any provision of the certificate of incorporation or by-laws or other
corporate charter documents of the PURCHASER (b) result in the violation by the
PURCHASER of any LAW or ORDER of any United States REGULATORY AUTHORITY
applicable to the PURCHASER, (c) to the
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KNOWLEDGE of the PURCHASER, result in the violation by the PURCHASER of any LAW
or ORDER of any foreign REGULATORY AUTHORITY applicable to the PURCHASER.
Section 8.4 Approvals and Consents. All consents, approvals or actions of,
filing with or notices to any REGULATORY AUTHORITY or any PERSON, necessary or
required under any of the terms, conditions or provisions of any LAW or ORDER of
any REGULATORY AUTHORITY or any INSTRUMENT to which the PURCHASER is a party or
by which any of the assets or the property of the PURCHASER is bound, for the
execution and delivery of this AGREEMENT by the PURCHASER, the performance by
the PURCHASER of its obligations hereunder or the consummation of the
transactions contemplated hereby, if any, have been obtained or given by the
PURCHASER, at no expense to the SELLERS, and none has been withdrawn or
modified.
Section 8.5 No Restrictions. There is no suit, action, claim, investigation or
inquiry by any REGULATORY AUTHORITY, and no legal, administrative or arbitration
proceeding pending or, to the KNOWLEDGE of the PURCHASER, threatened against the
PURCHASER, with respect to the execution, delivery and performance of this
AGREEMENT or the transactions contemplated hereby or any other agreement entered
into by the PURCHASER in connection with the transactions contemplated hereby.
Section 8.6 No Litigation. At the CLOSING DATE, there are no actions, suits,
proceedings at law or in equity by any PERSON, or any arbitrations or any
administrative or other proceedings by or before (or to the KNOWLEDGE of the
PURCHASER, any investigations by) any REGULATORY AUTHORITY, pending or, to the
KNOWLEDGE of the PURCHASER, threatened, against the PURCHASER with respect to
this AGREEMENT or the transactions contemplated hereby.
Section 8.7 No Brokers. No broker, finder, agent or similar intermediary has
acted on behalf of the Purchaser or its Affiliates in connection with this
Agreement or the transactions contemplated hereby, and no brokerage commissions,
finders' fees or similar fees, commissions or payments are due by the Purchaser
or its Affliates in connection therewith based on any agreement, arrangement or
understanding with any of them.
ARTICLE IX
WARRANTY
Section 9.1 Reliability. Notwithstanding any right that the PURCHASER may have
to fully investigate the affairs of any SELLER, and notwithstanding any
knowledge of facts determined or determinable pursuant to such investigation or
right of investigation, the PURCHASER shall have the right
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to rely fully upon the representations, warranties, covenants and agreements of
any SELLER contained in this AGREEMENT. Notwithstanding any right that any
SELLER may have to fully investigate the affairs of the PURCHASER, and
notwithstanding any knowledge of facts determined or determinable pursuant to
such investigation or right of investigation, each SELLER shall have the right
to rely fully upon the representations, warranties, covenants and agreements of
the PURCHASER contained in this AGREEMENT and the Schedules furnished by the
PURCHASER pursuant to this AGREEMENT, or in any certificate delivered at the
CLOSING by the PURCHASER.
Section 9.2 Sellers' Indemnification Obligations. Subject to the limitations
contained in Section 9.6 hereof, the Sellers hereby agree to indemnify severally
(conjointement) the Purchaser for) to protect, save and keep harmless the
Purchaser from, and to assume liability for any Losses that may be imposed on or
incurred by the Purchaser or the Company as a consequence of or in connection
with (i) any inaccuracy or breach of any representations or warranties contained
in ARTICLE VII herein or (ii) any breach of or failure by him, her or it to
comply with or perform any agreement, covenant and obligation contained in this
Agreement.
Section 9.3 PURCHASER'S Indemnification Obligations. Subject to the limitations
set forth in Section 9.6 hereof, the PURCHASER hereby agrees to indemnify the
SELLERS for, to protect, save and keep harmless the SELLERS from and to assume
liability for any LOSSES that may be imposed on or incurred by the SELLERS as a
consequence of or in connection with (i) any inaccuracy or breach of any
representations or warranties contained in ARTICLE VIII herein or (ii) any
breach of or failure by the PURCHASER to comply with or perform any agreement,
covenant and obligation contained or referred to in this AGREEMENT.
Section 9.4 Tax benefit. In the event of a Loss, the evaluation thereof shall be
net of any tax benefit actually realized by the INDEMNIFIED PARTY (it being
understood that any such benefit shall be paid in the first instance by the
INDEMNIFYING PARTY and reimbursed by the INDEMNIFIED PARTY upon the realization
of the benefit). Notwithstanding the general nature of the foregoing, it is
understood and agreed that (a) any VAT reassessment shall be paid by the
INDEMNIFYING PARTY only to the extent that the amount resulting from such
reassessment shall not be deductible or reimbursable the following month; (b)
any VAT reassessment shall be paid by the INDEMNIFYING PARTY and, if the amount
of such reassessment can be collected from a third parties or otherwise
reimbursed, shall be refunded by the INDEMNIFIED PARTY (c) any tax reassessment
which represent a mere rescheduling of the amount due (such as reversal of
provision or capitalization of overhead or administrative costs) shall not be
included in the Loss, provided that said tax reassessment gives rise to an
equivalent tax cut for the following fiscal year or years. Any amounts due by
the Indemnifying Party to the Indemnified Party shall be paid in the first
instance by the former to the latter under this AGREEMENT and should such
amounts be covered under an insurance policy or any other
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guarantee granted by a third party, the INDEMNIFIED PARTY shall, after having
actually received such amounts, reimburse the INDEMNIFYING PARTY. In all cases
in which the INDEMNIFYING PARTY makes a prior payment to the INDEMNIFIED PARTY
which is to be later reimbursed, the rights of the latter shall enure to the
former under the principle of subrogation (paiement subrogatoire). In addition,
any and all amounts due by the INDEMNIFYING PARTY to the INDEMNIFIED PARTY under
this AGREEMENT shall be set off against any and all amounts resulting out of any
decrease in the liabilities or any increase in the assets of the COMPANY as
shown in the accounts of the COMPANY at the time of the CLAIMS NOTICE.
Section 9.5 Indemnification Procedures.
9.5.1 Notice of Asserted Liability. The INDEMNIFIED PARTY shall
promptly and within 45 (forty five) days, give a CLAIMS NOTICE which shall
describe the ASSERTED LIABILITY in reasonable detail and indicate the amount
(estimated, if necessary, and to the extent feasible) of the LOSSES that have
been or may be suffered by said INDEMNIFIED PARTY.
9.5.2 Defense of Asserted Liability. The INDEMNIFYING PARTY may elect to
compromise, settle or defend, at its own expense and through its own counsel
(said counsel to be reasonably satisfactory to the INDEMNIFIED PARTY), any
ASSERTED LIABILITY. If the INDEMNIFYING PARTY elects to compromise, settle or
defend such ASSERTED LIABILITY it shall within 30 days (thirty days) from the
CLAIMS NOTICE (or sooner, if the nature of the ASSERTED LIABILITY so requires),
notify the INDEMNIFIED PARTY in writing of its intent to do so and the
INDEMNIFIED PARTY shall cooperate, at the request and expense of the
INDEMNIFYING PARTY (the disbursement shall be made in advance by the INDEMNIFIED
PARTY to be later reimbursed, a posteriori, by the INDEMNIFYING PARTY if calling
the warranty was justified and to the extent that such disbursment does not
exceed reasonable fees), in the settlement or compromise of, or defense against,
such ASSERTED LIABILITY. If the INDEMNIFYING PARTY elects not to compromise,
settle or defend the ASSERTED LIABILITY, or fails to notify the INDEMNIFIED
PARTY of its election as herein provided, the INDEMNIFIED PARTY may pay,
compromise, settle or defend said ASSERTED LIABILITY at the expense of the
INDEMNIFYING PARTY (the disbursment shall be made in advance by the INDEMNIFIED
PARTY to be later reimbursed, a posteriori, by the INDEMNIFYING PARTY if calling
the warranty was justified and to the extent that such disbursement does nor
exceed reasonable fees) and the INDEMNIFYING PARTY shall be bound by the results
obtained by the INDEMNIFIED PARTY with respect to said ASSERTED LIABILITY.
Notwithstanding the foregoing, the INDEMNIFYING PARTY may not settle or
compromise any ASSERTED LIABILITY without the prior written consent of the
INDEMNIFIED PARTY, if such settlement or compromise does not include an
unconditional release from all liability without future obligation or
prohibition on the part of the INDEMNIFIED PARTY. If an INDEMNIFIED PARTY
objects to a bona fide settlement offer which provides solely for a monetary
payment and includes an unconditional release from all liability without future
obligation or prohibition on the part of the INDEMNIFIED PARTY, which the
INDEMNIFYING PARTY
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
wishes to accept, the INDEMNIFIED PARTY may continue to pursue the matter, free
of any participation by the INDEMNIFYING PARTY, at the expense of the
INDEMNIFIED PARTY. Were this to occur, the obligation of the INDEMNIFYING PARTY
would be limited to the amount of the settlement offer which the INDEMNIFIED
PARTY refused to accept plus the costs and expenses of the INDEMNIFIED PARTY
incurred prior to the date on which the INDEMNIFYING PARTY notified the
INDEMNIFIED PARTY of the settlement offer. Whatever the case may be, the
INDEMNIFIED PARTY shall have the right to employ its own counsel with respect to
an ASSERTED LIABILITY--the fees and expenses of said counsel shall be borne by
the INDEMNIFIED PARTY unless the employment of such counsel has been authorized
in writing by the INDEMNIFYING PARTY in connection with the defense of such
action--and the INDEMNIFYING PARTY shall not have the right to effect the
defense of such action on behalf of the INDEMNIFIED PARTY. If the INDEMNIFYING
PARTY chooses to defend any ASSERTED LIABILITY, the INDEMNIFIED PARTY shall make
available to the INDEMNIFYING PARTY any books, records or other documents within
its control that are necessary or appropriate for such defense. The parties
hereto agree to cooperate fully with one another in the defense, compromise or
settlement of any ASSERTED LIABILITY. The disbursment shall be made in advance
by the INDEMNIFIED PARTY to be later reimbursed, a posteriori, by the
INDEMNIFYING PARTY if calling the warranty was justified.
Section 9.6 Limitations on Indemnification.
9.6.1 Termination of the SELLERS' Indemnification Obligations. The
obligation of the SELLERS to indemnify under ARTICLE II hereof shall terminate
on October 15, 2002 except for matters regarding which the PURCHASER has made a
claim for indemnification or given a CLAIMS NOTICE on or prior to this date, in
which case the right to indemnification with respect thereto shall survive until
the related claim for indemnification has been finally resolved and all
obligations with respect thereto are fully satisfied.
9.6.2 Termination of the PURCHASER'S Indemnification Obligations.
The obligation of the PURCHASER to indemnify under Section 4.1 hereof shall
terminate on October 15, 2001 except for matters regarding which any SELLER has
made a claim for indemnification or given a CLAIMS NOTICE on or prior to this
date, in which case the right to indemnification with respect thereto shall
survive until the related claim for indemnification has been finally resolved
and all obligations with respect thereto are fully satisfied.
Section 9.7 Treatment. Indemnity payments by an INDEMNIFYING PARTY
to an INDEMNIFIED PARTY under this Article IX shall be treated by the parties as
an adjustment to the PURCHASE PRICE.
Section 9.8 Survival. The representations made by the SELLERS in
this AGREEMENT reflect the situation of the COMPANY at the time of the CLOSING
and shall continue to do so until the time of the
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
BALANCE SHARES EXERCISE NOTICE, subject to the provisions hereafter. The
warranties, covenants and agreements of the SELLERS and the PURCHASER contained
in this AGREEMENT shall survive the BALANCE SHARES EXERCISE NOTICE subject to
the provisions of Sections 9.6.1 and 9.6.2. Nevertheless, no event occuring
after the CLOSING DATE in the ordinary course of business or with the approval
of the PURCHASER or contained within a representation which expressly reflects
the situation of the COMPANY at the CLOSING DATE, may be used as a ground for
the enforcement of the indemnification obligations of the parties. If, before
the EXERCISE of the BALANCE SHARES CALL RIGHT an event occurs which might cause
the warranty to become enforceable, the latter may send a NOTICE to the
PURCHASER on this matter. The PURCHASER shall not invoke the warranty for any
event of which he had received notice before the EXERCISE of the BALANCE SHARES
CALL RIGHT. If the event notified to the PURCHASER does not have a MATERIAL
ADVERSE EFFECT, the PURCHASER shall not invoke the warranty for said event, even
if the BALANCE SHARES PUT RIGHT has been exercised.
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
PART VI
MISCELLANOUS
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
ARTICLE X
MISCELLANEOUS
Section 10.1 Expenses. The parties hereto shall pay all of their own expenses
relating to the transactions contemplated by this AGREEMENT, including, but not
limited to, the fees and expenses of their respective legal counsel and
financial advisers.
Section 10.2 Publication. Subject to the provisions of the next sentence, no
party to this AGREEMENT will, and the SELLERS shall insure that no
representative of the COMPANY shall, issue any press release or other public
document or make any public statement or give any information to any third party
relating to this AGREEMENT or the matters contained herein without obtaining the
prior approval of the PURCHASER, the COMPANY and the SELLERS. Notwithstanding
the above-mentioned, the foregoing provision shall not apply to the extent that
the PURCHASER is required to make any announcement relating to or arising out of
this AGREEMENT by virtue of the federal securities laws of the United States of
America or the rules and regulations promulgated thereunder or other rules of
the National Association of Securities Dealers or other stock exchanges on which
the securities of the PURCHASER may then be traded, or any announcement by any
party or the COMPANY pursuant to applicable law or regulations.
Section 10.3 Confidentiality. The parties agree that they will not, at any time,
disclose to any PERSON whomsoever any CONFIDENTIAL INFORMATION, or utilize such
CONFIDENTIAL INFORMATION for their own benefit (except as absolutely necessary
in order to fully enjoy the rights bestowed upon them by this AGREEMENT), nor
for the benefit of third parties (except the PURCHASER'S AFFILIATES). In the
event that a parry becomes legally required to disclose any CONFIDENTIAL
INFORMATION, it shall provide the other parties with prompt notice thereof so
that they may seek a protective order or other appropriate remedy, or waive
compliance with the provisions of this Section to permit a particular
disclosure. In the event that such protective order or other remedy is not
obtained, or that compliance with the provisions of this Section is waived to
permit a particular disclosure, the disclosing party will furnish only that
portion of the CONFIDENTIAL INFORMATION which it is legally required to disclose
and, at the other party's expense, will cooperate with the efforts of that other
party to obtain a protective order or other reliable assurance that confidential
treatment will be accorded to the CONFIDENTIAL INFORMATION. Notwithstanding the
foregoing, the parties agree to take all necessary and appropriate measures to
ensure that third parties (except the PURCHASER'S AFFILIATES) are barred access
to the CONFIDENTIAL INFORMATION; in particular, they shall make certain that
said CONFIDENTIAL INFORMATION be accessible exclusively to their directors and
officers, employees, or legal counsel or financial advisors who are (i) directly
involved in the business relations between the parties and (ii) are bound to
secrecy in
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
accordance with all of the legal or contractual provisions, to which they are
subject, and this even in the event that they cease to be in the employment of
their company.
Section 10.4 Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to any other
party shall be in writing and shall be deemed to have been given (a) upon
personal delivery, if delivered by hand, (b) five days after the date of deposit
in the mail, postage prepaid, if mailed by certified or registered mail, or (c)
the next business day (i) if sent by facsimile transmission with electronic
confirmation of receipt -- provided that a reconfirmation is then sent in
writing by a prepaid overnight courier -- or (ii) by a prepaid overnight courier
service, and in each case at the respective addresses or numbers set forth below
or in the preamble or any other address or number as declared and notified by
the party:
If to the PURCHASER, at the following addresses:
▇▇▇▇▇▇.▇▇▇ LTD.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇.▇▇▇ LTD.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 10.5 Restrictions to Transfer. This AGREEMENT may not be transferred,
assigned, pledged or hypothecated by any of the SELLERS, other than by operation
of law. The PURCHASER shall have the right to assign its rights and/or
obligations pursuant to this AGREEMENT to a wholly owned subsidiary, provided
that the SELLER'S prerogative set forth in Section 4.1 of this AGREEMENT is
unaffected by said transfer, provided that the PURCHASER remains jointly bound
by the terms of this AGREEMENT and provided that such subsidiary shall be deemed
to be included within the defined term "PURCHASER" for the purpose of this
AGREEMENT. This AGREEMENT shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
Section 10.6 No Waiver. No waiver of any breach or default under this AGREEMENT
shall be considered valid unless in writing, and no such waiver shall be deemed
a waiver of any subsequent breach or default of the same or similar nature.
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
Section 10.7 Cooperation. Each party to this AGREEMENT shall cooperate and take
such further action and shall execute and deliver such further documents as may
be reasonably requested by any other party in order to carry out the provisions
of this AGREEMENT.
Section 10.8 Severability. In the event that any provision of this AGREEMENT is
found to be void or unenforceable by an arbitrator or a court of competent
jurisdiction, the remaining provisions of this AGREEMENT shall nevertheless be
binding upon the parties with the same effect as if the void or unenforceable
part had been severed and deleted. Were any provision of this AGREEMENT to be
void or unenforceable, the parties agree to make all necessary and bona fide
efforts to replace it with a valid provision having an equivalent economic
result. However, in the event that the parties are unable to reach an agreement
on a replacement provision and provided that the void or unenforceable provision
is an essential one, the defendant in the initial action for rescission may
request that the AGREEMENT in its entirety be declared null and void.
Section 10.9 Indivisibility of the Entire agreement. The NON CORPORATE SELLERS
and the PURCHASER have concluded a separate Warranty Agreement; both this
AGREEMENT and the Warranty Agreement, including all documents and Schedules
referred to in either, contain the entire understanding of the NON CORPORATE
SELLERS and the PURCHASER with respect to the subject matter contained herein
and therein and this AGREEMENT, including all documents and Schedules referred
to in it, contain the entire understanding of the CORPORATE SELLERS and the
PURCHASER with respect to the subject matter contained herein. This AGREEMENT
and the Warranty Agreement supersede all prior agreements and understandings
between the parties with respect to such subject matter. This AGREEMENT and the
Warranty Agreement are indivisible; should one of them become void or
unenforceable, the other shall be deemed null and void. Notwithstanding, if the
request for rescision or premature termination of the Warranty Agreement is made
by the PURCHASER, then the PURCHASER shall not invoke the indivisible nature of
the AGREEMENTS. In all other cases, the rescission or premature termination of
the Warranty Agreement will automatically cause the termination of this
AGREEMENT, except between the PURCHASER and the CORPORATE SELLERS, whereby the
rescission or premature termination of the Warranty Agreement will not cause the
termination of this AGREEMENT.
Section 10.10 Amendments. This AGREEMENT may not be amended, supplemented or
modified orally, but only by an agreement in writing, signed by the PURCHASER
and the SELLERS.
Section 10.11 Captions. The Article, Section and Subsection captions used herein
are for reference purposes only, and shall not in any way affect the meaning or
interpretation of this AGREEMENT.
▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN
/s/ ST /s/ FP /s/ CB
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ IN-COM GALILEO
/s/ MF /s/ [Illegible] /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
Section 10.12 Governing Law. The interpretation and construction of this
AGREEMENT and all matters relating thereto, shall be governed by the laws of
France, without reference to its conflict of laws provisions.
Section 10.13 Arbitration. Any controversy or claim arising out of or relating
to this AGREEMENT, or any breach thereof, shall be settled by arbitration.
Notwithstanding, no party to this AGREEMENT shall be precluded from applying to
a proper court for injunctive relief by reason of the prior or subsequent
commencement of an arbitration proceeding as herein provided. The sole
arbitrator shall be nominated by mutual consent of the parties to the
arbitration. In the event that this arbitrator has not been nominated within a
month following notice, by any one party to the other party or parties against
whom the claim is being lodged, of its intention to commence arbitration
proceedings, the arbitrator shall be appointed by the Chief Justice of the
Higher Court of Paris (president du tribunal de grande instance de Paris) upon
request of the most expeditious party; the arbitrator so appointed shall be a
Professor of French Law, independent from the parties, both English and French
speaking, and have already served as an arbitrator on a prior occasion. The
determination of the arbitrator shall be final and binding upon the parties to
the arbitration without the right of appeal. The arbitration shall be held in
Paris, France, according to the rules of procedure applicable to actions brought
before the Commercial Courts (tribunaux de commerce). The applicable law for the
merits of the dispute shall be French law. The fees and expenses of the
arbitrator shall be advanced, if need be, by the parties, on a prorata basis on
3/4 for the claimant or claimants and 1/4 for the defendant or defendants, and
definitively paid and/or reimbursed by the non-prevailing party or parties. The
duration of the arbitration proceedings including the rendering of the award
shall not exceed 8 months (eight months). The award shall be final and binding
upon the parties to the arbitration without the right of appeal.
In witness whereof, the parties hereto have executed this AGREEMENT, in
seven counterparts, on the day and year first above written.
▇▇▇▇▇▇.▇▇▇
By: ▇▇▇▇▇▇▇▇▇ ▇. Taun /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ PIE Carine BARBELIVIEN ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ FP /s/ Barbelivien /s/ FM
IN-COM
By: /s/ [Illegible]
GALILEO
By: /s/ [Illegible]
[LOGO] PICTORIS ACQUISITION AGREEMENT
Exhibit F
(Pictoris Acquisition)
INVESTMENT REPRESENTATION CERTIFICATE
Pursuant to an Acquisition Agreement of even date herewith (the
"Acquisition Agreement") entered into by and among ▇▇▇▇▇▇.▇▇▇ Ltd., a Delaware
corporation ("Purchaser") and the shareholders of Pictoris Interactive S.A.
("the Company"), Purchaser has purchased 5% of the outstanding shares of the
Company. In addition, Purchaser has acquired the right to purchase the remaining
shares of the Company, and the Sellers have acquired the right, exercisable
under certain circumstances, to require the Purchaser to purchase the remaining
shares of the Company. In the event that either of these two rights is
exercised, the Purchaser will issue shares of its common stock ("Purchaser
Shares") to the Sellers as set forth in the Acquisition Agreement. Unless
otherwise indicated, capitalized terms not defined herein have the meanings set
forth in the Acquisition Agreement.
The undersigned ("Seller") understands that the execution of this
Certificate is a condition precedent to Purchaser's obligation to enter into the
Acquisition Agreement.
Seller hereby represents and warrants as follows:
1. Investment Representations.
(a) The Purchaser Shares which may be issued to Seller pursuant to
the Acquisition Agreement will be acquired for investment for Seller's own
account, not as a nominee or agent, and not with a view to the sale or
distribution of any part thereof, and Seller has no present intention of
selling, granting any participation in, or otherwise distributing such Purchaser
Shares. By executing this Investment Representation Certificate, Seller further
represents that it has no present contract, undertaking, agreement or
arrangement with anyone to sell, transfer or grant participations with respect
to any of the Purchaser Shares.
(b) Seller understands and acknowledges that the issuance of the
Purchaser Shares pursuant to the Acquisition Agreement is being effected on the
basis that the issuance of such securities is exempt from registration pursuant
to Section 4(2) of the Securities Act of 1933, as amended (the "1933 Act") and
that Purchaser's reliance upon such exemption is predicated upon Seller's
representations. (Notwithstanding the foregoing, it is understood and agreed
that Seller may also rely upon an alternative exemption from registration, such
as that provided pursuant to Regulation 5, without notice to the Seller).
(c) Seller further represents that he/she/it: (i) is not a U.S.
person (as such term is defined in Regulation S), and is not acquiring the
Purchaser Shares for the account or benefit of any U.S. person, (ii) has such
knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of its prospective
investment in the Purchaser Shares; (iii) has received all the information
he/she/it has requested from Purchaser that he/she/it considers necessary or
appropriate for deciding whether to accept the Purchaser Shares; (iv) has the
ability to bear the economic risks of his/her/its prospective investment; (v) is
able, without materially impairing its financial condition, to hold the
Purchaser Shares for an indefinite period of time and to suffer complete loss on
his/her/its investment.
(d) Each certificate representing Purchaser Shares issued pursuant
hereto to Seller and any shares issued or issuable in respect of any such
Purchaser Shares upon any stock split, stock dividend, recapitalization, or
similar event, shall be stamped or otherwise imprinted with legends in the
following form (in addition to any legend required under applicable state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT, IN ACCORDANCE WITH REGULATION S OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.
(e) The certificates evidencing the Purchaser Shares shall also bear
any legend required pursuant to any state, local or foreign law governing such
securities.
(f) Seller understands and acknowledges that the Purchaser Shares
have not been registered under the 1933 Act and that the Purchaser Shares may
not be offered, sold, pledged or otherwise transferred except pursuant to an
effective registration statement, in accordance with Regulation S or pursuant to
an exemption from registration under the 1933 Act, and the Seller may not engage
in hedging transactions with regard to the Purchaser Shares unless in compliance
with the 1933 Act.
(g) Seller acknowledges that the Purchaser Shares shall not be
transferable except upon the conditions specified in this Certificate. Seller
will cause any proposed transferee of the Purchaser Shares held by him/her to
agree to take and hold such Purchaser Shares subject to the provisions and upon
the conditions specified in this Certificate.
(h) Prior to any proposed transfer of any Purchaser Shares, unless
there is in effect a registration statement under the 1933 Act covering the
proposed transfer, Seller shall give written notice to Purchaser of his/her
intention to effect such transfer. Each such notice shall describe the manner
and circumstances of the proposed transfer in sufficient detail, and shall, if
Purchaser so requests, be accompanied (except in transactions in compliance with
Rule 144 promulgated under the ▇▇▇▇ ▇▇▇) by either (i) a written opinion of
legal counsel reasonably
2
satisfactory to Purchaser, addressed to Purchaser at its then headquarters
office, to the effect that the proposed transfer of Purchaser Shares may be
effected without registration under the 1933 Act; or (ii) a "No Action" letter
from the Securities and Exchange Commission (the "Commission") to the effect
that the transfer of such securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the holder of such Purchaser Shares shall be entitled to
transfer such Purchaser Shares in accordance with the terms of the notice
delivered by the holder to Purchaser. Each certificate evidencing the Purchaser
Shares transferred as above provided shall bear the appropriate restrictive
legend set forth in clause (d) above, except that such certificate shall not
bear such restrictive legend if in the opinion of counsel for Purchaser such
legend is not required in order to establish compliance with any provisions of
the 1933 Act, which opinion will not be unreasonably withheld.
2. Parties in Interest.
This Certificate shall inure to the benefit of, and be binding upon,
the parties hereto and their respective successors and assigns.
3. Governing Law.
This Certificate shall be construed in accordance with the laws of
the State of New York, without application of conflict of laws provisions
applicable therein.
3
IN WITNESS WHEREOF, Seller has executed this Certificate as of the
day and year first above written.
________________________________________
[Name]
Agreed to and Accepted:
▇▇▇▇▇▇.▇▇▇ LTD.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: VP Corporate Development
4