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Official Copy
/coat of arms/
OF THE DEED OF SEPTEMBER 18, 1997
OF THE NOTARY PUBLIC
DR. SIEGMAR MOSSNER
ULM (DANUBE)
FOR
CYBERNET Internet-Dienstleistungen AG, Berlin
________________________________________________________________________________
Register of Deeds No. 1218/1997
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Register of Deeds No. 1218/1997
Sale and Assignment of Business Shares
of the Artwise GmbH Software Losungen
On this day, September the eighteenth,
nineteen hundred and ninety seven
-09/18/1997-
there appeared before me,
Dr. Siegmar Mossner,
Notary Public in Ulm (Danube),
in my office rooms in Bahnhofstrassse 1 in Ulm (Danube):
1. Mr. Stefan Heiligensetzer, resident in Ottacker 17, 87477 Sulzberg,
2. Mr. Frank Marchewicz, resident in Wacholderweg 1, 73340 Amstetten,
3. Mr. Rolf Strehle, resident in Lindenstr. 5, 89194 Schnurpflingen,
4. Mr. Gerhard Schonenberger, resident in Jagerweg 13, 89264 Weissenhorn,
5. Mr. Lothar Bernecker, resident in Ludwig-Thoma-Str. 3, 89231 Neu-Ulm, and
6. Mr. Andreas Eder, with business address in Stefan-George-Ring 19, 81929
Munich.
The persons appearing identified themselves by means of official identification
papers with photographs.
The persons appearing under 1. to 5. declared to be acting on their own
behalves.
The persons appearing under 1. to 3. declared to be acting hereinafter with
regard to SECTION 9 of the present Deed not only on their own behalves, but
also on behalf of the Artwise GmbH Software Solutions with seat in Neu-Ulm,
registered in the Commercial Register of the Local Court of Memmingen under HRB
7269, in their capacities as its Managers having joint power of representation.
A certified extract from the register is annexed to this Deed as Appendix 1.
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The person appearing under 6. declared to be acting hereinafter not on his own
behalf, but on behalf of
1. CYBERNET Internet-Dienstleistungen AG with seat in Berlin, registered in the
Commercial Register of the Local Court of Charlottenburg under HRB 60318, in
his capacity as a Member of the Managing Board having joint power of
representation together with the Member of the Managing Board Rudof Strobl
represented by proxy. A certified extract from the register is annexed to
this Deed as Appendix 2, and
2. CYBERNET Internet-Beteiligungs GmbH under foundation, established by the
Deed of the Notary Public Dr. Martin Schuck in Munich of September 17, 1997
(Register of Deeds No. 2177/1997), in his capacity as a Manager having joint
power of representation together with the Manager Rudof Strobl represented
by proxy, expressly excluding the liability of the persons acting according
to Section 11 subsection 2 of the GmbHG, which the parties to this Deed
consent to.
Upon request of the parties simultaneously present, the Notary Public has drawn
up the present Deed:
SECTION 1 - SUBJECT MATTER
The persons appearing under 1. to 5. are the sole shareholders of the firm
Artwise GmbH Software Losungen (hereinafter referred to as the "Company")
having its seat in Neu-Ulm, registered in the Commercial Register of the Local
Court of Memmingen under HRB 7269. The Company has a registered share capital
of altogether DM 115,000.00, of which
Mr. Stefan Heiligensetzer holds a business share to the nominal amount of DM 35,000.00,
Mr. Frank Marchewicz holds a business share to the nominal amount of DM 35,000.00,
Mr. Rolf Strehle holds a business share to the nominal amount of DM 35,000.00,
Mr. Gerhard Schonenberger holds a business share to the nominal amount of DM 5,000.00,
and Mr. Lothar Bernecker holds a business share to the nominal amount of DM 5,000.00.
The payments on the initial contributions have been fully made.
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SECTION 2 - SALE AND ASSIGNMENT
1. Hereby
MR. STEFAN HEILIGENSETZER,
MR. FRANK MARCHEWICZ,
MR. ROLF STREHLE,
MR. GERHARD SCHONENBERGER, and
MR. LOTHAR BERNECKER
-hereinafter individually or jointly referred to as the "Sellers"-
sell their business shares in the Company mentioned in Section 1 above to
CYBERNET INTERNET-DIENSTLEISTUNGEN AG
and
CYBERNET INTERNET-BETEILIGUNGS GmbH
-hereinafter individually or jointly referred to as the "Buyers"-
namely,
- - the persons appearing under 1. to 4. sell business shares to a nominal amount
of altogether DM 110,000.00 to CYBERNET Internet-Dienstleistungen AG, and
- - the person appearing under 5. sells his business share to the nominal amount
of DM 5,000.00 to CYBERNET Internet-Beteiligungs GmbH.
2. The persons appearing under 1. to 4. hereby assign business shares to a
nominal amount of altogether DM 110,000.00 to CYBERNET
Internet-Dienstleistungen AG and the person appearing under 5. hereby assigns
a business share to the nominal amount of DM 5,000.00 to CYBERNET
Internet-Beteiligungs GmbH. The Buyers hereby accept the assignments. The
assignments are subject to the condition precedent of paying the part of the
purchase price according to Section 3 Item 2.1 below to the amount of DM
475,500.00 and handing over the guarantees according to Section 3 Item 2.4
below to the Sellers.
Amount changed before the authentication./signature/(Mossner)
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3. Sale and assignment are made with effect from September 1, 1997 on
(hereinafter referred to as the "fixed date of transfer") and with all
rights and obligations. The profit right passes over to the Buyers with
effect from September 1, 1997 on. This shall also apply to all of the
other rights and duties in the internal relationships among the parties.
SECTION 3 - PURCHASE PRICE
1. The purchase price for the business shares mentioned in Section 1 above
to the nominal amount of altogether DM 115,000.00 amounts to
DM 1,585,000.00
(amount in words: one million five hundred and eighty-five thousand German
Marks)
Of said amount, a purchase price amounting to DM 1,521,600.00 for business
shares to a nominal amount of DM 110,000.00 shall be attributed to CYBERNET
Internet-Dienstleistungen AG and a purchase price amounting to DM
63,400.00 for business shares to a nominal amount of DM 5,000.00 shall be
attributed to CYBERNET Internet-Beteiligungs GmbH.
2. The purchase price shall be due and payable as follows.
2.1 A part of the purchase price amounting to DM 475,500.00 shall be due and
payable to a bank account to be jointly specified by the Sellers within
two weeks after the signing of this Contract.
2.1 A part of the purchase price amounting to DM 524,500.00 shall be due on
June 30, 1988. Instead of paying the amount, the Buyers can choose to
settle that part of the purchase price by transferring 30,853 shares of
Cybernet Internet Services International, Inc., Utah (listed on the outside
market of Berlin and Munich under the security identification number 906
623). The parties understand that the shares received by the Sellers can be
sold to an amount of 25% only after January 1, 1999, to an amount of
another 25% only after January 1, 2000, and to an amount of the remaining
50% only after January 1, 2001. The parties shall ensure the compliance
with these holding periods by concluding a trust agreement.
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2.3 A part of the purchase price amounting to DM 585,000.00 shall be due
within four weeks after the approval of the annual financial
statements of the Company as per December 31, 1997, according to Item
2.3.1 below, in any case not earlier than on June 30, 1998. That part
of the purchase price amounting to DM 585,000.00 may be reduced
according to Item 2.3.2 below, if applicable, and can be paid
according to Item 2.3.3 below.
2.3.1 The annual financial statements as per December 31, 1997 (hereinafter
referred to as the "financial statements of 1997") shall be audited by
Coopers & Lybrand Wirtschaftsprufungs GmbH in accordance with the
principles of proper accounting and immediately submitted to the
parties involved. Within a period of four week after the receipt of
the financial statements of 1997, Seller and Buyer can raise written
objections to the financial statements of 1997 with the respective
other party. If neither Buyer nor Seller raise any objections or if
the objections are recognized by the respective other party, the
financial statements of 1997 shall be considered approved by common
consent upon expiration of the 4-week period. Otherwise, an auditor
shall be nominated, upon the request of one of the parties, by the
Auditors' Institute e.V., Dusseldorf, who shall approve the financial
statements of 1997 with binding effect for both parties.
2.3.2 The part of the purchase price amounting to DM 585,000.00 may be
reduced, if applicable, according to the financial statements of 1997
approved under Item 2.3.1 above, as follows:
- If the net sales (without turnover tax) of the Company shown in
the financial statements of 1997 fall below the amount of DM
3,600,000.00, 50 per cent of the difference shall be deducted
from the part of the purchase price amounting to DM 585,000.00.
- If the annual deficit (without a possible value adjustment Look!,
Section 4.1) before taxes on income and proceeds exceeds the
amount of DM 58,000, 50 per cent of the difference shall be
deducted from the part of the purchase price amounting to DM
585,000.00.
Added before the authentication. /signature/ (Mossner)
The Buyers shall be obliged to run the Company's business till
December 31, 1997 to the best of their abilities. The business taken
over from Look! Multimedia GmbH shall be included into the annual
financial statements of the Company with effect from September 1, 1997
on.
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2.3.3 The part of the purchase price amounting to DM 585,000.00 or a part of
the purchase price as reduced under Item 2.3.2 above, if applicable,
shall be settled according to Item 2.2 above, the parties fixing,
already today, a value of DM 17.00 per share for the shares to be
transferred. Indivisible differences shall be settled cash.
2.4 In order to secure the parts of the purchase price under Items 2.2 and
2.3 above, the Buyers shall hand bank guarantees of the BHF-Bank AG
Berlin to the amounts of DM 524,500.00 and 585,000.00, respectively,
over to the Sellers within two weeks after signing this Sales Contract.
The bank guarantees thus handed over shall be returned to the buyer step
by step against the settlement of the respective part of the purchase
price.
SECTION 4 - WARRANTY
1. Within the meaning of an independent warranty promise, the Sellers
guarantee the Buyers the following (Section 305 of the BGB) as per the
fixed date of transfer (September 1, 1997) and this day of the
authentication of this Contract:
a) The business shares to be transferred exist and are not subject to any
encumbrance, sub-participation, restraint on disposal or other
obligations. The Sellers are unrestrictedly entitled to dispose of the
sold business shares. All approvals and permits for the conclusion and
execution of this Contract are present. All payments on the initial
contributions have been fully made.
b) The Company exists under the Shareholders' Agreement as amended on
June 5, 1992 and the addenda of August 16, 1995 and December 14, 1995
(Register of Deeds Nos. 639/1992, 1089/1995 and 1693/1995,
respectively, of the Notary Public Dr. Siegmar Mossner in Ulm/Danube);
that agreement including the above-mentioned addenda is complete,
there are no collateral agreements with regard to the company
relationship, except for the contracts with the dormant partners Dr.
Heinz Widmaier of February 10, 1996, Karl-Heinz Tropf of February 10,
1996 and Lothar Bernecker of February 1, 1996.
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c) The annual financial statements as per December 31, 1994, December 31,
1995, and December 31, 1996, handed over to the Buyer were prepared
according to the generally accepted principles of proper accounting
and balancing, preserving balance consistency, and approved by the tax
consultant Dr. Christof Coucoulis. These annual financial statements
and the business analyses handed over are accurate and complete and
give a correct picture of the financial situation as well as the
business results as per the respective dates of the balance sheets and
for the respective periods under review. The current values of the
individual assets corresponds at least to the amount stated in the
balance sheet (except for the claims against the Look! Multimedia
GmbH, cf. Letter e) below). The Company does not have any liabilities,
including imminent ones, other than the liabilities stated or covered
by reserves. During the period from January 1, 1997 to the fixed date
of transfer or this day of authentication, the Company has been
exclusively active within the framework of proper business dealings.
d) The Company disposes of a usable shareholders' equity under
corporation tax according to the separate declaratory decision of the
tax office of Neu-Ulm of January 2, 1996. Since the establishment of
the Company, there has not been any distribution of profits of the
Company. The last share of profits was paid out in 1995 for the year
of 1993 to an amount of about DM 145,000.00.
e) The Company is the owner of the assets stated in the financial
statements as per December 31, 1996 as well as of the assets that have
been acquired since that date of the balance sheet, with the exception
of those assets that were sold within the framework of proper business
dealings after December 31, 1996. The Company's assets are
unrestrictedly owned by the Company and are free from any third
party's rights. The Sellers do not guarantee the stability of the
value of the claims against the Look Multimedia GmbH amounting to ca.
DM 35,000.00 on the fixed day (DM 27,609.01 as per December 31, 1996)
and with regard to the claim under Letter l).
f) The Sellers handed the originals or copies of all contracts relevant
to the Company completely and correctly over to the Buyers.
Additions made before the authentication./signature/(Mossner)
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- --------------------------------------------------------------------------------
g) With the exception of the employment contracts with the persons
appearing regarding the persons appearing under 1 to 5 and the dormant
partners, there do not exist any contracts or agreements between the
Company and the Sellers or persons close to them.
h) The Company has not concluded any contracts involving profit- or
sales-related remuneration, shares in profit, etc., except for the
distribution agreement with the firm Maximilian Pothmann Computerdienst
of August 29, 1996 and the commission agreement with the firm Attinger,
Riess und Partner EDV Losungen of July 3/August 20, 1996. There do not
exist any commercial agency contracts or similar agreements under or
according to Section 89b of the HGB(1).
i) The Sellers handed the originals or copies of all employees' contracts
with the Company completely and correctly over to the Buyers. There do
not exist any other employment relationships, other agreements, works
agreements or obligations under works practice, except for those with
two part-time workers.
j) There do not exist any guarantees, sureties or similar encumbrances for
the Company. The Company is not liable due to a provision of securities
for third parties' liabilities. The Company has not made any promise to
grant a loan.
k) The Company is in the possession of all permissions and concessions or
licenses under public and private law required to carry on its business
operations as it does at present.
l) At present, the Company does not prosecute any actions, except for the
proving of a debt in bankruptcy (ref.-no. 2 N 126/97 of the Local Court
of Goppingen). There are neither pendant nor to be expected any
proceedings before administrative authorities or official investigative
proceedings against the Company.
m) The Company has filed all tax returns properly and in due time and paid
all due taxes or set aside sufficient tax reserves. Apart from that,
the Company does not have any tax arrears or tax risks. The wage taxes
and compulsory insurance contributions to be paid for the employees
have been properly determined, accounted and paid.
- -------------------
(1) Commercial Code
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n) The Company is not subject to any liabilities outside the ordinary
business transactions.
o) The spouses of the Sellers have consented to this Contract according to
Section 1365 of the BGB(2). The spouses' respective statements are
annexed to this Deed as Appendix 4.
2. In case of any inaccuracy or violation of one of the above-mentioned
warranties, the Sellers have to put the Buyers and the Company in such a
position as the Buyers and the Company would be in if the warranty was
accurate or not violated.
3. Without prejudice to Item 2 above, the Sellers have to indemnify the
Company against claims under any liability in connection with the
inaccuracy or violation of the above-mentioned warranties.
4. The Buyers can assert claims resulting from Items 2. and 3. above, if any,
until December 31, 1998, and in addition to that, they can assert claims
in connection with the execution of a tax field audit at the Company
within six months after the receipt of the legally valid assessment of
such tax field audit. For observing the deadline, it shall be sufficient
to inform the Seller about the claims in writing. After the receipt of
such notice, there shall run a one-year limitation period.
5. The provisions of Items 2. and 3. above shall not limit or exclude the
Buyers' legal claims and rights.
6. The above-mentioned obligations of the Sellers towards the Company
constitute a non-genuine contract for the benefit of the Company.
SECTION 5 - DUTY TO COOPERATE
1. Even after the fixed date of transfer, the Sellers shall assist the Buyers
to the best of their ability in taking over the enterprise. The Buyer or
the Company shall not pay to the Sellers a separate remuneration for such
assistance.
- --------------------
(2) German Civil Code
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2. As for the rest, both Sellers and Buyers are obliged to give all
information and to take part in all transactions and legal acts that are
necessary to perform this Contract.
3. The Sellers shall refrain from doing anything that might affect the
Company's right to use the firm name "Artwise GmbH" with or without any
additions.
SECTION 6 - PROHIBITION OF COMPETITION
1. The Sellers undertake, for a period of three years starting on the date of
authentication of this Contract, to refrain from any competition with the
Company or the Buyer in the previous territorial and material areas of
activity of the Company's object, in particular not to participate, whether
directly or indirectly, in competing enterprises, not to start to work with
a competing enterprise or promote such enterprise in any way, whether
directly or indirectly, by advise or action. For the purpose of this
prohibition of competition, the territorial area of activity shall mean the
Federal Republic of Germany, Austria and Switzerland; the material area of
activity, for the purpose of this prohibition of competition, shall mean
internet access services, internet system integration, internet
communication products and internet branch solutions.
2. The adherence to the prohibition of competition shall be compensated by the
payment of the purchase price.
3. Unless imperatively provided otherwise by law, the provisions of Section 74
ff.HGB shall not apply to this prohibition of competition.
4. In case of an infringement of the above-mentioned prohibition of
competition, the infringing Seller shall have to pay to the Buyers a
contractual penalty to the amount of DM 100,000.00. If such infringement is
continued in spite of a written warning given by the Buyers, a contractual
penalty amounting to DM 20,000.00 shall by payable for every further
started month of the infringement. This shall not affect the Buyer's rights
to claim compensation for further damage, if any, and to compel the Seller
to refrain from further acting against the prohibition.
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5. The above regulations shall not apply to individual Sellers if and to such
extent as the employment contract simultaneously concluded between the
respective Sellers and CYBERNET Internet-Dienstleistungen AG is terminated
or otherwise ended at the instigation of CYBERNET Internet-Dienstleistungen
AG before the end of 3 years after the conclusion of the contract, unless
CYBERNET Internet-Dienstleistungen AG has the right to an exceptional
termination of the employment contract.
SECTION 7 - JOINT AND SEVERAL OBLIGATION AND AUTHORIZED RECIPIENT
1. The Sellers are jointly and severally liable for the obligations under
Section 4 of this Deed. The CYBERNET Internet-Dienstleistungen AG is
jointly and severally liable for the obligations of the CYBERNET
Internet-Beteiligungs GmbH. As for the rest, the parties to this Contract
shall not be jointly and severally liable.
2. The Sellers hereby irrevocably authorize the
Lawyers Muhlbacher & Partner, Insel 13, 89231, Neu-Ulm,
to accept all declarations, in particular also services, and to receive
performance in connection with this Contract.
2. The Buyers hereby irrevocably authorize the
Lawyers Besner Kreifels Weber, Widenmayerstr. 41, 80538 Munich,
to accept all declarations, in particular also services, and to receive
performance in connection with this Contract.
SECTION 8 - GUARANTEES
The Buyers undertake that, by October 15, 1997, the Sellers under 1. to 3. will
be released from the guarantees to the amount of DM 210,000.00 given to the
Commerzbank Neu-Ulm.
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SECTION 9 - CONSENT TO THE ASSIGNMENT OF BUSINESS SHARES
The Company hereby declares its consent to the assignment of business
shares contained in this Deed, according to Section 10 of the Company's
Articles of Incorporation and the Shareholders' Resolution annexed to this Deed
in Appendix 3.
SECTION 10 - CONFIDENTIALITY
The parties shall be obliged to observe strict secrecy with regard to the
conclusion and the contents of this agreement, unless they are forced to
disclosure by law or according to this agreement.
SECTION 11 - RESCISSION OF PRELIMINARY CONTRACTS
This Contract shall replace any written or verbal declarations of intent
of the parties given in connection with contract negotiations, if any, even if
such declarations should deviate from the content of the above Contract.
SECTION 12 - COSTS
Either party shall bear itself the costs and fees of its advisers. The
costs of the notarization of this Contract shall be borne by the Buyer.
SECTION 13 - PLACE OF JURISDICTION
The place of jurisdiction and the place of performance is Munich as far as
this can be permissibly agreed.
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SECTION 14 - SAFEGUARDING CLAUSE
If any individual provisions of this agreement should be or become
partially or completely ineffective or unenforceable, this shall not affect the
remaining parts of the agreement. Instead of the ineffective or unenforceable
provision, a provision shall be regarded as agreed that comes as close as
possible to the meaning and purpose of the ineffective or unenforceable
provision, in particular to its intended economic purpose. The same shall
respectively apply to any gap in this Contract.
SECTION 15 - COPIES
-The parties to this Contract, and
-the Company
shall receive one certified copy of this Deed each, and
-the Munich Tax Office for Corporations
shall receive a simple copy of it.
Read to the persons appearing, approved and signed in person by them as
follows:
/signature/(Gerhard Schonenberger)
/signature/(Stefan Heiligensetzer) /signature/(Andreas Eder)
/signature/(Frank Marchewicz)
/signature/(Rolf Strehle)
/signature/(Lothar Bernecker)
I HEREBY CERTIFY THAT THIS IS A TRUE AND
COMPLETE TRANSLATION OF THE PRESENTED
GERMAN DOCUMENT (COPY). THIS TRANSLATION
CONTAINS 14 PAGES.
Berlin, September 3, 1998
Jochen Wendt
Graduate Interpreter/Translator for German, English, Portuguese
Generally Sworn Interpreter for the Courts and Notaries of Berlin
[NOTARY SEAL]