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1. Dr. Rainer Magold, attorney-at-law, Bethmannstrasse 50-54, 60311
Frankfurt am Main, according to his own cognisance not acting in his
own name but - as agent without authority of representation
("Vertreter ohne Vertretungsmacht") - on behalf of
1.1 DIETMAR MuLLER-ELMAU, genannt Muller, resident for business
purposes at Arabellastrasse 17, 81925 Munich, F.R.G.;
and
1.2 DIETRICH VON BOETTICHER, resident for business purposes at
Widenmayerstrasse 4, 80538 Munich, F.R.G.;
and
1.3 KEITH GRUEN, resident for business purposes at Arabellastrasse
17, 81925 Munich, F.R.G.;
and
2. DR. WOLFGANG FRITZEMEYER, attorney-at-law, Bethmannstrasse 50-54,
60311 Frankfurt am Main, F.R.G., according to his own cognisance not
acting in his own name but - as agent without authority of
representation ("Vertreter ohne Vertretungsmacht") - on behalf of
2.1 MICROS SYSTEMS HOLDING GmbH, having its corporate offices at
Hoechster Bahnstrasse 2a, 65929 Frankfurt, F.R.G., a
wholly-owned subsidiary of MICROS Systems, Inc., represented
by Bernard Jammet, its Managing Director ("Geschaftsfuhrer");
and
2.2 MICROS SYSTEMS, INC., a company under the laws of the State of
Maryland, having its registered office at 12000 Baltimore
Avenue, Beltsville, MD 20705, U.S.A., represented by A. L.
Giannopoulos, its President and Chief Executive Officer.
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The Deponents requested to have the recording of this notarial deed done in the
English language. The Notary is in command of the English language and has
assured himself that the Deponents are also in command of the English language.
After having been informed about their respective rights by the Notary, the
Deponents waived their right to receive a written translation of this deed.
The Notary informed the Deponents that one of the attorneys of Doser Amereller
Noack has advised MICROS Systems Holding GmbH and MICROS Systems, Inc. in
connection with the transactions effected by and referred to in this notarial
deed and that - in view of the fact that the Notary is one of the partners of
Doser Amereller Noack - the Deponents and the parties represented by the
Deponents are entitled to request the notarization of the notarial deed by
another notary. Irrespective of this, the Deponents, also on behalf of the
parties represented by the Deponents, requested that the notarization of this
deed be performed by the Notary.
Thereafter, the Deponents asked for the notarization of the following
PURCHASE AND TRANSFER AGREEMENT
between
1. DIETMAR MULLER, GEN. ELMAU
and
2. DIETRICH VON BOETTICHER
and
3. KEITH GRUEN
(hereinafter collectively referred to as the "Sellers")
as well as
4. MICROS SYSTEMS HOLDING GmbH
(hereinafter referred to as "Buyer")
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and
5. MICROS SYSTEMS, INC.
PREAMBLE:
A. FIDELIO SOFTWARE GmbH, a company under the laws of the Federal
Republic of Germany having its corporate offices at Arabellastrasse
17, 81925 Munich (the "Company"), is registered in the Trade Register
of the municipal court at Munich under no. HRB 82753. The Company's
stated capital is DM 200,000.
B. The Sellers and the Buyer are currently holding between them 100% of
the Company's stock as follows:
1. Dietmar Muller: two interests (Geschaftsanteile) in the
aggregate nominal value of DM 77,000 (38.5% of the stated
capital of the Company), of which one is in the nominal value
of DM 55,000 (27.5%) and the other in the nominal value of DM
22,000 (11%);
2. Dietrich von Boetticher: two interests in the aggregate
nominal value of DM 35,000 (17.5 % of the stated capital of
the Company), of which one is in the nominal value of DM
25,000 (12.5%) and the other in the nominal value of DM 10,000
(5%);
3. Keith Gruen: two interests in the aggregate nominal value of
DM 28,000 (14% of the stated capital of the Company), of which
one is in the nominal value of DM 20,000 (10%) and the other
in the nominal value of DM 8,000 (4%);
4. MICROS Systems Holding GmbH: six interests in the aggregate
nominal value of DM 60,000 (30% of the stated capital of the
Company) split as follows:
a. DM16,500 (8,25%);
b. DM16,500 (8,25%);
c. DM 7,500 (3,75%);
d. DM 7,500 (3,75%);
e. DM 6,000 (3,00%); and
f. DM 6,000 (3,00%).
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C. The Sellers intend to sell, and the Buyer intends to acquire,
the remaining 70% of the stock in the Company currently
held by the Sellers pursuant to Section 2.2 (b) of that
certain Acqusition Agreement dated 12 May 1993, attached as
Annex I to the notarial deed dated May 12/13, 1993, roll
number S 1096/93 issued by Notar Dr. Graf von Stosch of
Munich (hereafter referred as the "1993 Agreement").
D. The Company has received loans from:
1) Dietmar Muller: DM 1,907,814.56, on which interest has
accrued through November 30, 1995 in the amount of DM
112,469.96;
2) Dietrich von Boetticher, which has been repaid, but on
which interest remains due as of November 30, 1995 in the
amount of DM 25,049.55; and
3) Keith Gruen DM 693,750.75, on which interest has accrued
through November 30, 1995 in the amount DM 40,895.57;
(the "Sellers' Loans")
The parties agree as follows:
1. ASSIGNMENT
1.1 The Sellers agree to sell and assign, and hereby sell and assign, all
of their remaining interests in the Company listed under their
respective names in Section B of the Preamble (hereafter referred as
"Shares") to the Buyer. The assignment shall include all rights
ancillary to such Shares, including all claims to dividends relating
to the ongoing business year 1995 (the "Assignment"). The Buyer
agrees to accept and hereby accepts the Assignment.
1.2 The Assignment shall be made with effect as of December 1, 1995,
12:01 a.m. CET (the "Effective Date").
1.3 In the event that
a. the Purchase Price as per Section 2.1 below; and/or
b. the payments to be made as per Section 4.1 below
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should not have been credited to the Sellers' accounts, except for
reasons within the Sellers' control, by December 15, 1995, the
Sellers, and each of them, shall have the right to withdraw from this
Agreement by unilateral written notice to the Buyer and the Shares
shall be deemed reassigned to the Seller concerned upon receipt of
such notice by the Buyer. Upon such reassignment, Seller or Sellers,
as the case may be, shall repay to Buyer any and all monies received
hereunder.
2. PURCHASE PRICE
2.1 In consideration of the Assignment, the Buyer shall pay a purchase
price of DM 41,255,000 (Deutsche Mark forty-one million two hundred
fifty-five thousand) on November 30, 1995 (the "Purchase Price") as
follows:
a. by certified bank check
(i) DM 22,000,000 to Dietmar Muller;
(ii) DM 10,000,000 to Dietrich von Boetticher;
(iii) DM 8,000,000 to Keith Gruen;
b. by bank transfer
(i) DM 690,250 to Dietmar Muller;
(ii) DM 313,750 to Dietrich von Boetticher;
(iii) DM 251,000 to Keith Gruen.
The Buyer and MICROS Systems, Inc. shall jointly and severally be
liable for the payment of the Purchase Price.
2.2 The Purchase Price shall be adjusted as follows:
a. If the November 30 Profits, as defined below, times 70%,
exceed DM 1,255,000, the Purchase Price shall be increased by
an amount equivalent to such excess.
b. If, on the other hand, the November 30 Profits, times 70%,
are lower than DM 1,255,000, the Purchase Price shall be
reduced by an amount equivalent to such shortfall, but in no
event to less than
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DM 40,000,000, and each Seller shall jointly and severally be
liable to repay the shortfall to the Buyer.
"November 30 Profits", as used herein, shall mean the distributable
earnings (Ergebnis) generated by the Company (less the cost of the
Allrevision Report, as defined below, and not including the
dividends, if any, that the companies in which the Company is holding
participations could have distributed to the Company) during the
eleven months ending on November 30, 1995, determined under German
law after all taxes, including trade tax (Gewerbesteuer) and
corporate income tax (Korperschaftsteuer).
2.3 The November 30 Profits shall be determined as follows:
a. The parties, each individually, shall cause Allrevision
Allgemeine Revisions- und Beratungsgesellschaft mbH of Munich
("Allrevision") to determine the November 30 Profits and to
prepare a written report setting out and supporting the
November 30 Profits (the "Allrevision Report"), established in
accordance with all applicable German accounting principles
and applying, without limitation, strictly the principle of
consistency, and to submit the Allrevision Report to all
parties hereto as soon as practicable and in no event later
than March 31, 1996. Since the Allrevision Report will be
part of the audit of the annual accounts, the cost of the
Allrevision Report shall be borne by the Company.
b. The Buyer shall be entitled to have the Allrevision Report
audited by Price Waterhouse or another auditing firm of the
Buyer's choice and at the Buyer's expense.
c. In the event that either the Buyer or one or more of the
Sellers give written notice to the respective other party,
within sixty (60) days from receipt of the Allrevision Report,
to the effect that it objects against the Allrevision Report
with substantiated reasons, the November 30 Profits shall be
finally determined - with binding effect on the parties - by
an independent expert (Schiedsgutachter) to whom the
Allrevision Report, the written objections and any other
relevant materials (including the report, if any, prepared by
the auditor retained by Buyer) shall be made available. If
the parties should be unable to agree on such expert within
one month from the date on which one of them submitted an
objection to the respective other party, the expert shall be
nominated by the president of the CPA Chamber
(Wirtschaftspruferkammer) in Munich among the Munich offices
of Arthur Andersen, Coopers &
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Lybrand, Deloitte & Touche, Ernst & Young and KPMG. The
payments to be made pursuant to the preceding Section 2.2, if
any, shall be made within thirty (30) days from the day on
which the expert's report shall have been submitted to the
parties. If the expert unequivocally confirms the view of one
party, the respective other party shall bear the fees charged
by the expert; otherwise, the expert shall split the fees
reasonably as the expert sees fit.
d. In the event that neither party gives notice as provided in
subparagraph (c), the November 30 Profits set out in the
Allrevision Report shall be deemed agreed, and the payments to
be made pursuant to the preceding Section 2.2 shall be payable
within seventy-five (75) days from the day on which the
Allrevision Report shall have been submitted to the parties.
3. SELLERS' WARRANTIES AND REPRESENTATIONS
3.1 RESTATEMENT: The Sellers hereby restate and confirm
a. the representations and warranties regarding ownership of the
Shares etc. set out in Section 2.2 (f) (iv) of the 1993
Agreement. Should any of these representations and warranties
not be materially accurate as of the date hereof (the "Option
Closing", as defined in the 1993 Agreement), the Sellers shall
have the rights set out in Article VI of the 1993 Agreement;
b. the restrictive covenant set out in Section 4.2 (b) of the
1993 Agreement. In the event of a violation of the said
restrictive covenant, the Sellers shall have the rights set
out in Section 4.2 (c) of the 1993 Agreement.
3.2 NO FURTHER CLAIMS: The parties agree that neither the Buyer nor any
other company controlled by, controlling or under the same control as
MICROS Systems, Inc, (the "MICROS Group") shall have any right or
claim in respect of the delivery of the Shares and/or the business
and/or financial situation of the Company, including the right to
withdraw from this Agreement and to request the return of the
Purchase Price or to claim damages, over and above the rights
specifically set out in this Agreement and the 1993 Agreement. For
the avoidance of doubt, nothing in this Agreement shall be read to
mean that any representations and warranties provided under the 1993
Agreement which have expired
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in the meantime shall be revived and/or to limit the Buyer's rights
in the event of fraud.
4. BUYER'S WARRANTIES AND REPRESENTATIONS
4.1 SELLERS' LOANS: The Sellers' Loans shall be repaid, and all interest
accrued thereon shall be paid, to the Sellers as set out in Section D
of the Preamble, by certified bank check on November 30, 1995.
4.2 HOLD HARMLESS CLAUSE: The Buyer and MICROS Systems, Inc., represent
and warrant that effective as of the date hereof, the Sellers shall
be indemnified and held harmless from any guarantee or other security
of whatever nature, if any, (and that are reflected in the financial
statements of the Company delivered to the Buyer or MICROS Systems,
Inc., prior to the date hereof) that they may have issued in order to
secure liabilities incurred by the Company or any of its
subsidiaries, including in particular guarantees granted to car
leasing companies, BHF Bank, Hypobank and/or Commerzbank.
4.3 SERVICE AGREEMENTS: Dietmar Muller-Elmau and Keith Gruen shall be
released from their duties to provide services to the Company under
their existing Service Agreements (as attached to the 1993 Agreement
as Exhibits M and N) as of the Effective Date, without prejudice to
their claims to compensation and other benefits under such Service
Agreements as provided in the drafts attached to the 1993 Agreement,
but at the current compensation and car level.
4.4 INDEMNIFICATION, WITHDRAWAL: Should any of the foregoing warranties
not be materially accurate as of the date hereof, the Buyer and
MICROS Systems, Inc. jointly and severally shall indemnify the
Sellers with respect to any direct damages that the Sellers incur.
Otherwise, except in the event of fraud with respect to the
representations and warranties set out above on the part of the
Buyer, the Sellers shall not be entitled to claim damages and/or to
withdraw from this Agreement and to request the return of the Shares.
5. GENERAL
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To the extent not expressly provided otherwise in this Agreement, the
provisions of Article V (Joint Covenants) and Article VII (Miscellaneous) of
the 1993 Agreement shall apply.
* * *
Finally, the Deponents declared that Fidelio Software GmbH does not own real
property.
The above protocol was read to the Deponents by the Notary, was approved by
them and was personally signed by them and the Notary as follows:
/s/ DIETMAR MuLLER-ELMAU
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DIETMAR MuLLER-ELMAU
/s/ DIETRICH VON BOETTICHER
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DIETRICH VON BOETTICHER
/s/ KEITH GRUEN
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KEITH GRUEN
/s/ MICROS SYSTEMS HOLDING GmbH
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MICROS SYSTEMS HOLDING GmbH
/s/ MICROS SYSTEMS, INC.
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MICROS SYSTEMS, INC.