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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of
June 17, 1998, among
CYBERNET INTERNET SERVICES INTERNATIONAL, INC., a Utah corporation ("CYBERNET"),
and
TRISTAN LIBISCHER, resident of Austria,
ALEXANDER WIESMULLER, resident of Austria,
being the holders of all the issued and outstanding share capital of Vianet EDV
Dienstleistungs Ges.m.b.H., an Austria corporation (individually, a "VIANET
Stockholder" and collectively, the "VIANET Stockholders").
BACKGROUND:
Due to CYBERNET's group policy CYBERNET intends to purchase shares in a stock
corporation. Accordingly, the VIANET Stockholders have agreed to convert Vianet
EDV Dienstleistungs Ges.m.b.H. into an Austrian Aktiengesellschaft ("VIANET").
After the conversion, all of the issued and outstanding share capital par value
ATS 1,000,000 of VIANET (the "VIANET Stock") will be owned by the VIANET
Stockholders.
The VIANET Stockholders have agreed to sell to CYBERNET and CYBERNET has
agreed to purchase the VIANET Stock from the VIANET Stockholders on the terms
and conditions set forth in this Agreement.
In consideration of the mutual representations, warranties, covenants and
agreements contained in this Agreement, the parties agree as follows:
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STATEMENT OF TERMS:
SECTION 1
PURCHASE AND SALE OF STOCK
1.1 PURCHASE AND SALE OF STOCK. VIANET Stockholders will sell to CYBERNET
and CYBERNET will purchase from VIANET Stockholders all of the VIANET
Stockholders' right, title and interest in the VIANET Stock.
1.2 CONSIDERATION; STOCK EXCHANGE. At the Closing (as defined in Section
2.1 below), upon transfer and assignment of the VIANET Stock to CYBERNET,
CYBERNET (i) will pay an amount of DM 7,500,000 to the VIANET Stockholders and
(ii) will cause 300,000 shares of the common voting stock, par value $0.001 of
CYBERNET (the "CYBERNET Stock") to be issued to the Pooling Trustee (as defined
in Section 2.2 (b) below) on behalf of the VIANET Stockholders (collectively,
the "Consideration"). As a result of the sale of the VIANET Stock and the
payment of the Consideration, VIANET will be a wholly-owned subsidiary of
CYBERNET.
1.3 PAYMENT, DELIVERY OF CYBERNET STOCK TO THE VIANET STOCKHOLDERS. At
the Closing, the VIANET Stockholders will receive an amount of DM 7,500,000 in
cash and the Pooling Trustee (as defined in Section 2.2 (b) below) will receive
stock certificates evidencing shares which amount to an aggregate of 300,000
and being the number of shares of CYBERNET for each VIANET Stockholder as shown
next to its name at the end of this Agreement.
1.4 NO FURTHER OWNERSHIP RIGHTS IN VIANET STOCK. The Payment of DM
7,500,000 to the VIANET Stockholders and the issuance of the 300,000 shares of
common voting stock of CYBERNET to be delivered to the Pooling Trustee at the
Closing will be deemed to have been given in full satisfaction of all rights
pertaining to the VIANET Stock.
1.5 RETRANSFER OF CYBERNET STOCK. The CYBERNET Stock received by the
Pooling Trustee (as defined in Section 2.2 (b) below) on behalf of each VIANET
Stockholder and to the extent as not released by the Pooling Trustee (as
provided for in Section 2.2(b) below) will be retransferred from the Pooling
Trustee to CYBERNET if (i) the Employment Agreement (as defined in Section 2.2
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(j) below) with the respective VIANET Stockholder is terminated by VIANET or
CYBERNET for cause according to Section 75 para 4 of the Austrian Stock
Corporation Act ("Aktiengesetz") or Section 27 of the Austrian Employment Act
("Angestelltengesetz") or (ii) the respective VIANET Stockholder resigns.
SECTION 2
CLOSING; CLOSING CONDITIONS
2.1 CLOSING. The parties to this Agreement will hold a closing (the
"Closing") for the purpose of consummating the transactions contemplated by
this Agreement at 10:00 a.m. on October 31, 1998 or such other date and time
mutually agreed upon by the parties. The Closing will be held at the offices of
VIANET. The date on which the Closing actually occurs is hereinafter referred
to as the "Closing Date." At the Closing, the parties will execute and exchange
the documents, items, certificates and instruments described in this Section 2.
2.2 CONDITIONS TO CLOSING OF CYBERNET. CYBERNET's obligation to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the conditions set forth below and/or the delivery of all of
the documents, items, certificates and instruments described below, all of
which documents, items, certificates and instruments must be in form and
substance satisfactory to CYBERNET, unless such condition is waived by CYBERNET
at the Closing. The Closing of the transactions contemplated by this Agreement
will be deemed to mean a waiver of all conditions to Closing.
(a) TRANSACTION DOCUMENTS. The VIANET Stockholders will have executed
this Agreement and delivered all of the issued and outstanding shares of the
VIANET Stock to CYBERNET as provided in Section 1.2 above.
(b) POOLING TRUST AGREEMENT. The VIANET Stockholders will have executed a
pooling trust agreement (the "Pooling Trust Agreement"), substantially
acceptable to CYBERNET, with the notary public Dr. Willibald Bartl, Praterstr.
40, 1020 Wien (the "Pooling Trustee") providing that the CYBERNET Stock making
up a part of the Purchase Price shall be held by the Pooling Trustee subject to
Section 1.5 hereof and not sold until released by the Pooling Trustee, that
twenty percent (20%)
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of such CYBERNET shares shall be released on the first anniversary of the
Closing date, that twenty percent (20%) of such CYBERNET shares shall be
released on the second anniversary of the Closing date, that twenty percent
(20%) of such CYBERNET shares shall be released on the third anniversary of the
Closing date, that twenty percent (20%) of such CYBERNET shares shall be
released on the fourth anniversary of the Closing date, and that twenty percent
(20%) of such CYBERNET shares shall be released on the fifth anniversary of the
Closing date.
(c) Consents. CYBERNET will have received duly executed copies of all
third-party consents and approvals contemplated by this Agreement.
(d) Shareholder Approval. The acquisition of the VIANET Stock as provided
in this Agreement will have been approved by the shareholders of CYBERNET.
(e) Representations and Warranties. The representations and warranties of
the VIANET Stockholders set forth in this Agreement will be true, correct and
complete in all respects as of the Closing Date, as though made on and as of
the Closing Date.
(f) No Action. No suit, action, or proceeding will be pending or
threatened before any governmental or regulatory authority wherein an
unfavorable judgment, order, decree, stipulation, injunction or charge would
(1) prevent consummation of any of the transactions contemplated by this
Agreement; (2) cause any of the transactions contemplated by this Agreement to
be rescinded following consummation; or (3) adversely affect the right of
VIANET to own, operate or control the business or assets of VIANET.
(g) No Material Adverse Change. Since December 31, 1997, no VIANET
Material Adverse Effect will have occurred.
(h) Due Diligence Review. CYBERNET will be satisfied in all respects with
its due diligence investigation of VIANET which has to be completed on or
before July 31, 1998.
(i) Business Plan. VIANET will have performed its financial projections
for the time period January 1, 1998 to September 31, 1998 as defined in Exhibit
1.
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(j) Employment Agreement of VIANET Stockholders. The VIANET Stockholders
and VIANET will have executed Employment Agreements, substantially acceptable
to CYBERNET, which agreements shall provide that the VIANET Stockholders will
serve as managing directors of VIANET for a time period of at least five years
commencing on the Closing date.
(k) Conversion into an Aktiengesellschaft. Vianet EDV Dienstleistungs
Ges.m.b.H. will have been converted into an Austrian Aktiengesellschaft and all
of the issued and outstanding shares of par value ATS 1,000,000 will be owned
by the VIANET Stockholders.
2.3 Conditions to Closing of the VIANET Stockholders. The VIANET
Stockholders' obligation to consummate the transactions contemplated by this
Agreement is subject to the satisfaction of the conditions set forth below
and/or the delivery of all of the documents, items, certificates and
instruments described below, all of which documents, items, certificates and
instruments must be in form and substance satisfactory to the VIANET
Stockholders, unless such condition is waived by the VIANET Stockholders at the
Closing. The Closing of the transactions contemplated by this Agreement will be
deemed to mean a waiver of all conditions to Closing.
(a) Transaction Documents. CYBERNET will have (i) executed this
Agreement, (ii) paid an amount of DM 7,500,000 to the VIANET Stockholders and
(iii) delivered the CYBERNET Stock to the Pooling Trustee as provided in
Section 1.3 above.
(b) Copies of Resolutions. CYBERNET will have furnished the VIANET
Stockholders with certified copies of resolutions duly adopted by the Board of
Directors and the shareholders of CYBERNET approving the execution and delivery
of this Agreement and the other documents to be executed and delivered in
connection with this Agreement and consummation of the transactions
contemplated hereby and thereby.
(c) Representations and Warranties. The representations and warranties of
CYBERNET set forth in this Agreement will be true, correct and complete in all
respects as of the Closing Date, as though made on and as of the Closing Date.
(d) No Action. No suit, action, or proceeding will be pending or
threatened before any governmental or regulatory authority wherein an
unfavorable judgment, order, decree, stipulation,
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injunction or charge would (1) prevent consummation of any of the transactions
contemplated by this Agreement; (2) cause any of the transactions contemplated
by this Agreement to be rescinded following consummation; or (3) adversely
affect the right of CYBERNET to own, operate or control the business or assets
of CYBERNET.
(e) Due Diligence Review. The VIANET Stockholders will be satisfied in all
respects with its due diligence investigation of CYBERNET which has to be
completed on or before July 31, 1998.
(f) Employment Agreement of VIANET Stockholders. The VIANET Stockholders
and VIANET will have executed Employment Agreements, substantially acceptable
to VIANET Stockholders, which agreements shall provide that the VIANET
Stockholders will serve as managing directors of VIANET for a time period of at
least five years commencing on the Closing date.
2.4. MEMBER OF THE BOARD OF DIRECTORS OF CYBERNET. Immediately after the
Closing the Board of Directors of CYBERNET will elect one person to be named
by the VIANET Stockholders prior to the Closing as a Member of the Board of
Directors of CYBERNET.
SECTION 3
REPRESENTATIONS AND WARRANTIES OF THE VIANET STOCKHOLDERS
The VIANET Stockholders, jointly and severally, represent and warrant to
CYBERNET:
3.1 CORPORATE ORGANIZATION AND GOOD STANDING. VIANET is an Austrian
corporation ("Aktiengesellschaft") duly organized and validly existing under
the laws of Austria, with all requisite corporate power and authority to own,
operate and lease its properties and to carry on its business as it is now
being conducted. VIANET is qualified or licensed to do business in each
jurisdiction in which the ownership or leasing of property by it or the
conduct of its business requires such licensing or qualification, except where
the failure to be so qualified or licensed or in good standing will not have a
VIANET Material Adverse Effect. VIANET has no subsidiaries. For purposes of
this Agreement, "VIANET Material Adverse Effect" means any materially adverse
change in or effect on the business, operations, properties, assets,
liabilities, financial condition, results of operations or prospects of VI-
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ANET or its ability to carry out its obligations under this Agreement, but does
not mean any losses, adverse developments or other conditions suffered by
VIANET arising from normal operations or market, political or economic
conditions affecting the business of VIANET as a whole. As of the date of this
Agreement Vianet EDV Dienstleistungs Ges.m.b.H. is entered in the commercial
register of Vienna. All facts relating to Vianet EDV Dienstleistungs Ges.m.b.H.
and eligible for registration in the commercial register are actually entered
in the commercial register under FN 118870i. Its articles of association are
those dated September 15, 1994.
3.2 DUE EXECUTIONS; ENFORCEABILITY. This Agreement has been, and all other
documents, agreements and instruments to be executed in connection with the
consummation of the transactions contemplated by this Agreement (collectively,
the "VIANET Transaction Documents") will be, duly executed and delivered by the
VIANET Stockholders and this Agreement is, and the other VIANET Transaction
Documents when executed and delivered by the VIANET Stockholders as
contemplated by this Agreement will be, the valid and binding obligation of the
VIANET Stockholders enforceable in accordance with their respective terms,
except (1) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally, and (2) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
3.3 CAPITALIZATION. The entire authorized share capital and other equity
securities of VIANET consists of a share capital par value ATS 1,000,000 (the
"VIANET Shares") all of which shares are issued and outstanding. All of the
issued and outstanding VIANET Shares have been duly authorized, are validly
issued, were not issued in violation of any preemptive rights and are fully paid
and nonassessable, are not subject to preemptive rights and were issued in full
compliance with all federal, state and local laws, rules and regulations. Each
VIANET Stockholder owns beneficially and of record all of the shares of the
VIANET issued to such shareholder. There are no outstanding options, warrants,
subscriptions, conversion rights, or other rights, agreements, or commitments
obligating VIANET to issue any additional VIANET Shares, or any other securities
convertible into, exchangeable for, or evidencing the right to subscribe for or
acquire from VIANET any VIANET Shares. There are no agreements purporting to
restrict the transfer of the VIANET shares, no voting agreements, voting
trusts, or other arrangements restricting or affecting the voting of the VIANET
Shares.
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3.4 TITLE TO VIANET SHARES. The VIANET Shares are lawfully owned by the
VIANET Stockholders in the respective amounts set forth opposite his or its name
by its signature below, free of preemptive rights and free and clear of all
claims, liens, charges, security interest, encumbrances and other restrictions
or limitations of any kind. Each VIANET Stockholder has the full power, right,
and authority to transfer the VIANET Shares held by him pursuant to this
Agreement.
3.5 FINANCIAL STATEMENTS. Attached to this Agreement as Disclosure
Schedule 3.5 are true, correct, and complete copies of (i) unaudited VIANET
Balance Sheets and Income Statements for the period ending December 31, 1996,
and (ii) unaudited VIANET Balance Sheets and Income Statements for the period
ending December 31, 1997 (the "VIANET Reference Balance Sheet") (collectively,
the "VIANET Financial Statements"). The VIANET Financial Statements (a) are in
accordance with the books and records of VIANET and (b) present fairly the
financial condition of VIANET as of the respective dates indicated and the
results of operations for such periods. VIANET has not received any advice or
notification from its independent certified public accountants that VIANET has
used any improper accounting practice that would have the effect of not
reflecting or incorrectly reflecting in the VIANET Financial Statements or the
books and records of VIANET, any properties, assets, liabilities, revenues, or
expenses. The books, records, and accounts of VIANET accurately and fairly
reflect, in reasonable detail, the transactions, assets and liabilities of
VIANET. VIANET has not engaged in any transaction, maintained any bank account,
or used any funds of VIANET, except for transactions, bank accounts, and funds
which have been and are reflected in the normally maintained books and records
of VIANET.
3.6 ABSENCE OF CERTAIN CHANGES. Since the date of the VIANET Reference
Balance Sheet, except as set forth in Disclosure Schedule 3.6, VIANET has not
suffered any VIANET Material Adverse Effect.
3.7 FILINGS, CONSENTS AND APPROVALS. Except for any filings required by
applicable law and as otherwise set forth on Disclosure Schedule 3.7, no filing
or registration with, no notice to and no permit, authorization, consent, or
approval of any public or governmental body or authority or any other person or
entity is necessary for the consummation by the VIANET Stockholders of the
transactions contemplated by this Agreement or to enable VIANET to continue to
conduct its business after the Closing Date in a manner consistent with that in
which it is presently conducted.
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3.8 NONCONTRAVENTION. Neither the execution, delivery and performance of
the VIANET Transaction Documents, nor the consummation of the transactions
contemplated thereby nor compliance with the provisions thereof, will:
(1) Except as set forth in Disclosure Schedule 3.8, conflict with,
result in a violation of, cause a default under (with or without notice,
lapse of time or both) or give rise to a right of termination, amendment,
cancellation or acceleration of any obligation contained in or the loss of
any material benefit under, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the material properties or
assets of VIANET under any term, condition or provision of any loan or
credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to VIANET or its properties
or assets;
(2) Violate any provision of the articles of incorporation or bylaws
of VIANET; or
(3) Violate any order, writ, injunction, decree, statute, rule, or
regulation of any court or governmental or regulatory authority applicable
to VIANET or any of its properties or assets.
3.9 LITIGATION. Except as set forth on Disclosure Schedule 3.9, there is
no claim, charge, arbitration, grievance, action, suit, investigation or
proceeding by or before any court, arbiter, administrative agency or other
governmental authority now pending or, to the VIANET Stockholders' knowledge,
threatened against VIANET or which involves any of the business, or the
properties or assets of VIANET that, if adversely resolved or determined, would
have a VIANET Material Adverse Effect. To the VIANET Stockholders' knowledge,
there is no reasonable basis for any claim or action that, based upon the
likelihood of its being asserted and its success if asserted, would have a
VIANET Material Adverse Effect.
3.10 MATERIAL CONTRACTS AND TRANSACTIONS. Disclosure Schedule 3.10
contains copies of all material contracts, agreements, licenses, leases for
real property or personal property, permit, arrangements, commitments,
instruments, understanding or contracts, whether written or oral, express or
implied, contingent, fixed or otherwise, to which VIANET is a party
(collectively, the "VIANET
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Contracts"). Except as shown on Disclosure Schedule 3.10, VIANET is not a party
to any written or oral:
(1) contract for the purchase, sale or lease of any material capital
assets, or continuing contracts for the purchase or lease of any material
supplies, materials, equipment or services;
(2) agreement to pay material commissions or sales representative
agreements;
(3) agreement for the employment or consultancy or any person or entity
except those routinely entered into with employees and contracts with members of
the Board of Directors and Officers of VIANET;
(4) note, debenture, bond, trust agreement, letter of credit agreement,
loan agreement, or other contract or commitment for the borrowing or lending of
money, or agreement or arrangement for a line of credit or guarantee, pledge, or
undertaking of the indebtedness of any other person;
(5) agreement, contract, or commitment for any charitable or political
contribution;
(6) agreement, contract, or commitment limiting or restraining VIANET in
its business or any successor thereto from engaging or competing in any manner
or in any business or from hiring any employees, nor, to the Stockholders'
knowledge, is any employee or independent contractor of VIANET subject to any
such agreement, contract, or commitment;
(7) material agreement, contract, or commitment not made in the ordinary
course of business;
(8) agreement establishing or providing for any joint venture,
partnership, or similar arrangement between VIANET and any other person or
entity; or
(9) power of attorney or similar authority to act for VIANET.
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Each VIANET Contract is in full force and effect, and there exists no material
breach or violation of or default by VIANET under any VIANET Contract nor, to
the Stockholders' knowledge, by any other party to a VIANET Contract, or any
event that with notice or the lapse of time, or both, will create a material
breach or violation thereof or default under any VIANET Contract by VIANET nor,
to the Stockholders' knowledge, by any other party to a VIANET Contract. Except
as set forth on Disclosure Schedule 3.10, the continuation, validity, and
effectiveness of each VIANET Contract will in no way be affected by this
Agreement. Except as indicated on Disclosure Schedule 3.10, there exists no
actual or, to the Stockholders' knowledge, any threatened termination,
cancellation, or limitation of, or any amendment, modification, or change to any
VIANET Contract, which would have a VIANET Material Adverse Effect. A true,
correct and complete copy (and if oral, a description of material terms) of each
VIANET Contract, as amended to date, is contained in Disclosure Schedule 3.10.
3.11 INTELLECTUAL PROPERTY. Disclosure Schedule 3.11 contains a list of all
intellectual property rights owned, licensed or used by VIANET in the conduct of
its business (collectively, the "VIANET Intellectual Property") and a list of
all agreements and contracts giving VIANET a license or other rights to the
VIANET Intellectual Property. No use by VIANET of any VIANET Intellectual
Property violates and no use by VIANET of the VIANET Intellectual Property as
contemplated will violate the terms of any agreement pursuant to which such
VIANET Intellectual Property is licensed. No claim is pending, or, to the
Stockholders' knowledge, threatened, which alleges that the ownership of, rights
as licensee to, or other right to use any VIANET Intellectual Property is
invalid or unenforceable by VIANET, nor is there any basis known to the
Stockholders for any such claim. Except as shown on Disclosure Schedule 3.11, no
royalties or fees are payable by VIANET to anyone for use of the VIANET
Intellectual Property. A true, correct, and complete copy of each agreement
listed on Disclosure Schedule 3.11, as such agreement have been amended to date,
has been furnished to CYBERNET. All such agreements are in full force and
effect and, there are no existing material defaults or events of default, real
or claimed, or events which with or without notice or lapse of time or both
would constitute material defaults under such agreements that would give the
non-defaulting party a right to terminate such agreement or a right to receive
any payment pursuant to such agreement and all of such agreements will in no way
be affected by the consummation of the transactions contemplated by this
Agreement. VIANET has no registered or unregistered, foreign or Austrian
patents, utility models, trademarks, trade names, trade styles, and service
marks and copyrights, trade secrets or know-how, except as listed on Disclosure
Schedule 3.11.
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3.12 REAL PROPERTY AND REAL PROPERTY LEASES. VIANET does not own any real
property. Disclosure Schedule 3.12 sets forth the name, parties, and date of
each lease and sublease of real property that is occupied by VIANET ("VIANET
Leases"), and the address of each parcel of leased real property and a list of
all amendments to such VIANET Leases. Each VIANET Lease is in full force and
effect and there is no default asserted thereunder by any party thereto and, to
the VIANET Stockholders' knowledge, there are no unasserted defaults (including
any events which with the passage of time or giving of notice or both would
constitute a default). True, correct and complete copies of all of the VIANET
Leases, as amended to date, have been delivered to CYBERNET. VIANET has not been
notified that the use and operation of any of the real properties leased by
VIANET does not conform to applicable building, zoning, safety, environmental,
and other laws, ordinances, regulations, codes, permits, licenses, and
certificates and all restrictions and conditions affecting title, except where
the failure to conform would not have an VIANET Material Adverse Effect.
3.13 PERSONAL PROPERTY AND PERSONAL PROPERTY LEASES. Except as set forth
on Disclosure Schedule 3.13, VIANET owns or leases the use of, all material
equipment, furniture, fixtures and other material tangible personal property and
assets necessary for the continued operation of the business of VIANET as
presently conducted and where the absence of such property and assets would have
a VIANET Material Adverse Effect. All of such personal properties are in good
operating condition (normal wear and tear excepted), and are reasonably fit for
the purposes for which the such personal property is presently used.
3.14 COMPLIANCE WITH LAW. VIANET holds and is in compliance with all
permits, certificates, licenses, approvals, registrations and authorizations
necessary for the conduct of its business or the ownership of its properties or
assets, except where the failure to hold or comply could not have a VIANET
Material Adverse Effect, and all of such permits, certificates, licenses,
approvals, registrations, and authorizations are in full force and effect.
VIANET is in compliance with all applicable laws, statutes, ordinances, rules
and regulations (including without limitation those relating to environmental
protection, occupational safety and health, and equal employment practices) and
all orders, judgments and decrees, except where the failure to comply would not
have a VIANET Material Adverse Effect.
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3.15 TAXES. Except as set forth in Disclosure Schedule 3.15, VIANET has
timely filed with the appropriate taxing authorities all returns required to be
filed on or prior to the date hereof in respect of all taxes of VIANET, and has
paid all such taxes, including interest, penalties, and additions in connection
therewith shown to have become due on such returns or for which a notice of
assessment or demand for payment has been received. All such returns have been
prepared in accordance with all applicable laws and requirements. Any accruals
for such taxes reflected in the VIANET Reference Balance Sheet are sufficient to
satisfy the accrued liability for such taxes as of the date of the VIANET
Reference Balance Sheet. No material tax issues have been raised by the
competent tax authorities in connection with any of the tax returns referred to
above, and no waivers of statutes of limitations or extensions of time within
which to file any tax return or with respect to a tax assessment or deficiency
have been given or requested with respect to VIANET. No constructive dividends
("verdeckte Gewinnausschuttungen") have been made by VIANET to any of its
Stockholders.
3.16 LABOR RELATIONS. Disclosure Schedule 3.16 sets forth the name,
occupation and annual salary of each of VIANET's employees and the respective
date of each employment agreement entered into by VIANET. A true, correct and
complete copy of each employment agreement listed on Disclosure Schedule 3.16,
as such employment agreements have been amended to date, has been furnished to
CYBERNET. There is no unfair labor practice charge or other labor related
grievance pending or, to the Stockholders' knowledge, threatened against
VIANET that might have a VIANET Material Adverse Effect. VIANET has in relation
to each of its employees and to each of its former employees complied in all
material respect with all its obligations under statute and otherwise
concerning the health and safety at work of each of the employees and has not
incurred any liability to any employee in respect of any accident or injury
which is not fully covered by insurance.
3.17 PENSION AND EMPLOYEE BENEFIT PLANS AND COMPENSATION. VIANET
maintains no employee pension benefit plans, welfare benefit plans, bonus,
share purchase, share ownership, share option, deferred compensation,
incentive, severance, termination or other compensation plan or arrangement,
and other material employee fringe benefit plans. No salary or other payment
due to the VIANET Stockholders remains unpaid by VIANET and the salaries have
been completely paid for past services rendered to VIANET, other than current
unpaid salary and current business expenses to be paid or reimbursed by VIANET
in the ordinary course of business.
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3.18 INSURANCE. Set forth in Disclosure Schedule 3.18 is a list of all
insurance policies that relate to VIANET's business. The coverage under each
such policy is in full force and effect, and no notice of cancellation or non
renewal with respect to, or disallowance of any claim under, any such policy
has been received by VIANET. The VIANET Stockholders have no knowledge of any
facts or the occurrence of any event that reasonably might form the basis of
any claim against VIANET relating to its business or operations or any of its
assets or properties covered by any of such policy that may materially increase
the insurance premiums payable under any such policy.
3.19 AFFILIATE TRANSACTIONS. Except as disclosed in Disclosure Schedule
3.19, no officer, director, stockholder or affiliate of VIANET provides any
assets, services or facilities used or held for use in connection with VIANET's
business and VIANET does not provide or cause to be provided any assets,
services or facilities to any such officer, director, stockholder or affiliate.
3.20 CORRECTNESS OF REPRESENTATIONS. No representation or warranty of the
VIANET Stockholders in this Agreement or in any exhibit, certificate, or
schedule attached to this Agreement or furnished pursuant to this Agreement
contains, or at the Closing Date will contain, any untrue statement of fact or
omits, or at the Closing Time will omit, to state any material fact necessary
in order to make the statements contained therein not misleading, and all such
statements, representations, warranties, exhibits, certificates, and schedules
shall be true and complete in all material respects on and as of the Closing
Time as though made on that date.
SECTION 4
REPRESENTATIONS AND WARRANTIES
OF CYBERNET
CYBERNET represents and warrants to the VIANET Stockholders as follows:
4.1 ORGANIZATION AND GOOD STANDING. CYBERNET is a corporation duly
organized, validly existing and in good standing under the laws of Utah and has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. Except for
Cybernet Internet Dienstleistungen AG, Germany, and its subsidiaries, CYBERNET
has no subsidiaries.
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4.2 CAPITAL STRUCTURE. The entire authorized capital stock and other equity
securities of CYBERNET consists of 50,000,000 shares of $0.001 par value common
stock of which as of the date of this Agreement 14,681,891 shares are issued and
outstanding and 10,000,000 shares of preferred stock of which as of the date of
this Agreement 7,760,000 are issued and outstanding. All of the issued and
outstanding shares of CYBERNET Stock have been duly authorized, are validly
issued fully paid and nonassessable and, are not subject to preemptive rights.
4.3 AUTHORITY. CYBERNET has all requisite corporate power and authority to
enter into this Agreement and the Transaction Documents to which it is a party
and to perform its obligations thereunder and to consummate the transactions
contemplated thereby. The execution and delivery of this Agreement and each of
the Transaction Documents to which it is a party by CYBERNET and the
consummation by CYBERNET of the transactions contemplated thereby, have been
duly authorized by the board of directors and approved by the shareholders of
CYBERNET and no other corporate proceedings on the part of CYBERNET are
necessary to authorize such documents or to consummate the transactions
contemplated thereby. This Agreement has been, and all the other Transaction
Documents to which it is a party when executed and delivered by CYBERNET as
contemplated by this Agreement will be, duly executed and delivered by CYBERNET
and this Agreement is, and the other Transaction Documents when executed and
delivered by CYBERNET as contemplated hereby will be, the valid and binding
obligation of CYBERNET enforceable in accordance with their respective terms,
except (1) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting enforcement of
creditors' rights generally, and (2) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
4.4 FINANCIAL STATEMENTS. Attached to this Agreement as Disclosure Schedule
4.4 are true, correct, and complete copies of audited CYBERNET Balance Sheets
and Income Statements for the period ending December 31, 1997 (collectively, the
"CYBERNET Financial Statements"). The CYBERNET Financial Statements are in
accordance with the books and records of CYBERNET and present fairly the
financial condition of CYBERNET as of the respective dates indicated and the
results of operations for such periods. CYBERNET has not received any advice or
notification from its independent certified public accountants that CYBERNET has
used any improper accounting practice that would have the effect of not
reflecting or incorrectly reflecting in the CYBERNET Financial
16
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Statements or the books and records of CYBERNET, any properties, assets,
liabilities, revenues, or expenses. The books, records, and accounts of
CYBERNET accurately and fairly reflect, in reasonable detail, the transactions,
assets, and liabilities of CYBERNET has not engaged in any transaction,
maintained any bank account, or used any funds of CYBERNET, except for
transactions, bank accounts, and funds which have been and are reflected in the
normally maintained books and records of CYBERNET
4.5 NONCONTRAVENTION. Neither the execution, delivery and performance of
the Transaction Documents, nor the consummation of the transactions contemplated
thereby nor compliance with the provisions thereof, will:
(1) Conflict with, result in a violation of, cause a default under
(with or without notice, lapse of time or both) or give rise to a right of
termination, amendment, cancellation or acceleration of any obligation
contained in or the loss of any material benefit under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of
the material properties or assets of CYBERNET under any term, condition or
provision of any loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to CYBERNET
or its material properties or assets;
(2) Violate any provision of the articles or certificate of
incorporation or by-laws of CYBERNET; or
(3) Violate any order, writ, injunction, decree, statute, rule, or
regulation of any court or governmental or regulatory authority applicable
to CYBERNET or any of its properties or assets.
4.6 LITIGATION. There is no claim, charge, arbitration, grievance, action,
suit, investigation or proceeding by or before any court, arbiter,
administrative agency or other governmental authority now pending or, to
CYBERNET's knowledge, threatened against CYBERNET, or which involves any of the
business, or the properties or assets of CYBERNET that, if adversely resolved or
determined, would have a material adverse effect on CYBERNET. There is no
reasonable basis for any claim or
17
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action that, based upon the likelihood of its being asserted and its success if
asserted, would have a material adverse effect.
4.7 FILINGS, CONSENTS AND APPROVALS. Except for any filings required by
applicable laws, no filing or registration with, no notice to and no permit,
authorization, consent, or approval of any public or governmental body or
authority or other person or entity is necessary for the consummation by
CYBERNET of the transactions contemplated by this Agreement or to enable
CYBERNET to continue to conduct its business after the Closing Date in a manner
which is consistent with that in which it is presently conducted.
SECTION 5
SURVIVAL AND INDEMNIFICATION
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties and covenants made by the parties shall survive the Closing for a
period of six (6) months from the Closing Date.
5.2 INDEMNIFICATION BY VIANET STOCKHOLDERS. The VIANET Stockholders,
jointly and severally, agree to indemnify CYBERNET and its officers, directors,
Stockholders, employees, agents and affiliates (other than the Stockholders
themselves) in respect of, and hold each of them harmless from and against, any
and all damages, fines, fees, penalties, deficiencies, losses and expenses
(including without limitation interest, court costs, fees of attorneys,
accountants and other experts or other expenses of litigation or other
proceedings or of any claim, default or assessment) suffered, incurred or
sustained by any of them or to which any of them becomes subject, resulting
from, arising out of or relating to any misrepresentation, breach of warranty or
nonfulfillment of or failure to perform any covenant or agreement on the part of
the VIANET Stockholders contained in this Agreement.
5.3 INDEMNIFICATION BY CYBERNET CYBERNET agrees to indemnify the VIANET
Stockholders in respect of, and hold each of them harmless from and against, any
and all damages, fines, fees, penalties, deficiencies, losses and expenses
(including without limitation interest, court costs, fees of attorneys,
accountants and other experts or other expenses of litigation or other
18
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proceedings or of any claim, default or assessment) suffered, incurred or
sustained by any of them or to which any of them becomes subject, resulting
from, arising out of or relating to any misrepresentation, breach of warranty
or nonfulfillment of or failure to perform any covenant or agreement on the
part of CYBERNET contained in this Agreement.
5.4 PROCEDURES FOR INDEMNIFICATION FOR THIRD PARTY CLAIMS. Whenever
indemnification is sought under this Section 5 in connection with a claim or
demand brought by a third party, the party seeking indemnification (the
"Indemnitee") will promptly notify the party from whom indemnification is
sought (the "Indemnitor"), specifying the nature of such claims, the amount or
estimated amount of such claim and attaching copies of all relevant information
concerning the underlying claim of liability. Within ten days of receipt of
such notice, the Indemnitor will notify the Indemnitee promptly whether it
disputes its indemnification obligation. If the indemnification obligation is
not so disputed, the Indemnitor, at the option of the Indemnitee, will, at the
Indemnitor's cost and expense, defend any such claim. If the Indemnitee so
elects for the Indemnitor to defend any claim, the Indemnitor will have full
control over the conduct of such proceeding, although the Indemnitee will have
the right to retain legal counsel at its own expense and will have the right
to approve any settlement of any claim, provided that such approval may not be
withheld unreasonably. If the Indemnitee does not elect for the Indemnitor to
assume the defense of such claim, the Indemnitee will have the right to
defend the claim at the reasonable cost and expense of the Indemnitor. The
Indemnitor will not be obligated to indemnify the Indemnitee with respect to
such third party claim to the extent that the Indemnitor's ability to defend
has been irreparably prejudiced by the failure or delay of the Indemnitee to
give Indemnitor the notice required by this Section 5.4. Any dispute of an
indemnification obligation under this Agreement may be resolved by litigation
in a court of competent jurisdiction.
5.5 PROCEDURES FOR INDEMNIFICATION FOR NON-THIRD PARTY CLAIMS. If any
Indemnitee has a claim under Section 5 against any Indemnitor that does not
involve a third party claim as described in Section 5.4 above, the Indemnitee
will promptly notify the Indemnitor of such claim, specifying the nature of
such claim and the amount of any loss incurred by the Indemnitee. The failure
by any Indemnitee to give such notice will not impair such party's rights under
this Agreement except to the extent that the Indemnitor demonstrates that it
has been irreparably prejudiced thereby. If the Indemnitor notifies the
Indemnitee that it does not dispute the claim described in such notice or fails
to notify the Indemnitee within 30 days its receipt of such notice, the loss in
the amount specified in the notice will be conclusively deemed a liability of
the Indemnitor under Section 6 and the Indemnitor
19
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will pay the amount of such loss to the Indemnitee on demand. If the Indemnitor
has timely disputed its liability with respect to such claim, the Indemnitor
and the Indemnitee will proceed in good faith to negotiate a resolution of such
dispute, and if not resolved through negotiations within 60 days after the
Indemnitor's receipt of the initial claim notice, such dispute may be resolved
by litigation in a court of competent jurisdiction.
5.6 INDEMNIFICATION FOR FEES AND COMMISSIONS. Each party to this
Agreement is responsible for paying any broker, finder or investment banker
that is entitled to receive any brokerage, finder's or other fee or commission
in connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of such party and indemnifies and holds
harmless the other parties from any such fees or commissions.
SECTION 6
MISCELLANEOUS PROVISIONS
6.1 ACTIONS BY VIANET STOCKHOLDERS. Any action or remedy of the VIANET
Stockholders under this Agreement, including without limitation, a request for
arbitration or indemnification, must be exercised jointly by the VIANET
Stockholders.
6.2 EFFECTIVENESS OF REPRESENTATIONS. Each party is entitled to rely on
the representations, warranties and agreements of each of the other parties and
all such representation, warranties and agreement will be effective regardless
of any investigation that any party has undertaken or failed to undertake.
6.3 TERMINATION. This Agreement may be terminated at any time prior to
the Closing of the transactions contemplated hereby by:
(a) Mutual agreement of CYBERNET and VIANET Stockholders;
(b) CYBERNET, if there has been a breach by VIANET Stockholders of
any material representation, warranty, covenant or agreement set forth in
this Agreement on the part of VIANET Stockholders that is not cured, to the
reasonable satisfaction of CYBERNET,
20
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within ten business days after notice of such breach is given by CYBERNET
(except that no cure period will be provided for a breach by VIANET
Stockholders that by its nature cannot be cured);
(c) VIANET Stockholders, if there has been a breach by CYBERNET of
any material representation, warranty, covenant or agreement set forth in
this Agreement on the part of CYBERNET that is not cured by the breaching
party, to the reasonable satisfaction of Stockholders, within ten business
days after notice of such breach is given by Stockholders (except that no
cure period will be provided for a breach by CYBERNET that by its nature
cannot be cured);
(d) CYBERNET or VIANET Stockholders, if the transactions contemplated
by this Agreement has not been consummated prior to December 31, 1998,
unless the parties agree to extend such date; or
(e) CYBERNET or VIANET Stockholders if any permanent injunction or
other order of a governmental entity of competent authority preventing the
consummation of the transactions contemplated by this Agreement has become
final and nonappealable.
6.4 EFFECT OF TERMINATION. In the event of the termination of this
Agreement as provided in Section 6.3, this Agreement will be of no further
force or effect, provided, however, that no termination of this Agreement will
relieve any party of liability for any breaches of this Agreement that are
based on a wrongful refusal or failure to perform any obligations. Upon
termination of this Agreement, each party will, upon request, destroy all
documents, work papers and other materials of the other parties relating to the
transaction contemplated by this Agreement, whether obtained before or after
execution of this Agreement.
6.5 FURTHER ASSURANCES. Each of the parties hereto will cooperate with
the other and execute and deliver to the other parties hereto such other
instruments and documents and take such other actions as may be reasonably
requested from time to time by any other party hereto as necessary to carry
out, evidence, and confirm the intended purposes of this Agreement.
21
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6.6 EXPENSES. Except as otherwise expressly provided in this Agreement,
each party to this Agreement will bear its respective expenses incurred in
connection with the preparation, execution, and performance of this Agreement
and the transactions contemplated hereby, including all fees and expenses of
agents, representatives, counsel, and accountants. In the event of termination
of this Agreement, the obligation of each party to pay its own expenses will be
subject to any rights of such party arising from a breach of this Agreement by
another party. Expenses for the conversion of Vianet EDV Dienstleistungs
Ges.m.b.H. into an Austrian Aktiengesellschaft (such as legal, accounting and
registration fees and applicable capital contribution tax) and applicable share
capital transfer tax will be borne by CYBERNET.
6.7 PUBLIC ANNOUNCEMENTS. Any public announcement or similar publicity
with respect to this Agreement or the transactions contemplated hereby will be
issued, if at all, at such time and in such manner as CYBERNET and the VIANET
Stockholders mutually determine. Unless consented to by CYBERNET in advance or
required by law, prior to the Closing VIANET Stockholders will keep this
Agreement strictly confidential and may not make any disclosure of this
Agreement to any person or entity. VIANET Stockholders and CYBERNET will
consult with each other concerning the means by which the VIANET's employees,
customers, and suppliers and others having dealings with VIANET will be
informed of the transactions contemplated by this Agreement, and CYBERNET will
have the right to be present for any such communication.
6.8 CONFIDENTIALITY. Between the date of this Agreement and the Closing
Date, CYBERNET and the VIANET Stockholders will maintain in confidence, and
will cause the directors, officers, employees, agents, and advisors of CYBERNET
and VIANET to maintain in confidence, and not use to the detriment of another
party or VIANET any written, oral, or other information obtained in confidence
from another party or VIANET in connection with this Agreement or the
transactions contemplated hereby, unless (a) such information is already known
to such party or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such party, (b) the
use of such information is necessary or appropriate in making any filing or
obtaining any consent or approval required for the consummation of the
transactions contemplated hereby, or (c) the furnishing or use of such
information is required by legal proceedings. If the Closing is not
consummated, each party will return or destroy as much of such written
information as the other party may reasonably request.
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6.9 AMENDMENT. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.
6.10 EXTENSION; WAIVER. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the obligations or
other acts of the other parties, (b) waive any inaccuracies in the
representations and warranties contained in this Agreement and (c) waive
compliance with any of the agreements or conditions contained in this Agreement.
Any agreement on the part of a party to any such extension or waiver will be
valid only if set forth in a written instrument and signed by the party granting
such extension or waiver.
6.11 ENTIRE AGREEMENT. This Agreement, the Exhibits, Schedules attached
hereto and the other Transaction Documents contain the entire agreement between
the parties with respect to the subject matter hereof and supersede all prior
arrangements and understandings, both written and oral, expressed or implied,
with respect thereto.
6.12 SEVERABILITY. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permissible under
the law and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this Agreement would be
held in any jurisdiction to be invalid, prohibited or unenforceable for any
reason, such provision, as to such jurisdiction, will be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it will,
as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
6.13 NOTICES. All notices and other communications required or permitted
under to this Agreement must be in writing and will be deemed given if sent by
personal delivery, fax with electronic confirmation of delivery,
internationally-recognized overnight courier company that is able to provide
proof or receipt of delivery, or registered or certified mail (return receipt
requested), postage prepaid, to the parties at the following addresses (or at
such other address for a party as may be specified by like notice):
23
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If to VIANET Mr. Tristan Libischer and Mr. Alexander Wiesmuller
Stockholders Mariannengasse 14, 1090 Wien, Austria
Tel. 43-1-404020
Fax 43-1-4040240
With a copy to: Dr. Thomas Herndl
Tulpengasse 2, 1080 Wien, Austria
Tel. 43-1-4027844
Fax 43-1-402784455
If to CYBERNET: Cybernet Internet Services International; Inc.
Attn.: Mr. Andreas Eder
Stefan-George-Ring 19, 81929 Munich, Germany
Tel: 49-89-993150
Fax: 49-89-99315199
With a copy to: Besner Kreifels Weber
Attn.: Dr. Hubert Besner
Widenmayerstr 41, 80538 Munich, Germany
Tel: 49-89-2199920
Fax: 49-89-21999233
All such notices and other communications will be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery, (b)
in the case of a fax, when the party sending such fax has received electronic
confirmation of its delivery, (c) in the case of delivery by
internationally-recognized overnight courier, on the business day following
dispatch and (d) in the case of mailing, on the third business day following
mailing.
6.14 HEADINGS. The headings contained in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation of
this Agreement.
6.15 BENEFITS. None of the provisions of this Agreement is or will be
construed as for the benefit of or enforceable by any person not a party to this
Agreement.
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6.16 ASSIGNMENT. This Agreement may not be assigned by any party, by
operation of law or otherwise.
6.17 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the Republic of Austria applicable to contracts
made and to be performed therein, without regard to conflicts of laws
principles.
6.18 CONSTRUCTION. The language used in this Agreement will be deemed to
be the language chosen by the parties to express their mutual intent, and no
rule of strict construction will be applied against any party. Any reference to
any federal, state, local, or foreign statute or law will be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. The parties intend that each representation, warranty, and
covenant contained herein will have independent significance. If any party has
breached any representation, warranty, or covenant contained herein in any
respect, the fact that there exists another representation, warranty, or
covenant relating to the same subject matter (regardless of the relative levels
of specificity) which the party has not breached will not detract from or
mitigate the fact that the party is in breach of the first representation,
warranty, or covenant. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
6.19 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement and
will become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
[SIGNATURES ON FOLLOWING PAGE]
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Munich, this day of June 18, 1998
CYBERNET, Inc.
By:
---------------------------
Name: Andreas Eder
Title: President and CEO
VIANET Stockholders: Shares of Shares of
VIANET Stock CYBERNET Stock
/s/ Tristan Libischer
- ----------------------------- 500,000 150,000
Tristan Libischer
/s/ Alexander Wiesmuller
- ----------------------------- 500,000 150,000
Alexander Wiesmuller
26
STOCK PURCHASE AGREEMENT
between
Cybernet Internet Services International, Inc, and
Tristan Libischer and Alexander Wiesmuller,
DISCLOSURE SCHEDULES
Disclosure Schedule 3.5
Financial Statements of
Vianet EDV Dienstleistungs Ges.m.b.H. as of December 31, 1996 and 1997
see attached
Disclosure Schedule 3.6 (Material Adverse Effect)
None
Disclosure Schedule 3.7 (Filings, Consents, and Approvals)
None
Disclosure Schedule 3.8 (Noncontravention)
None
Disclosure Schedule 3.9 (Litigation)
27
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Disclosure Schedule 3.10 (Material Agreements)
None
Disclosure Schedule 3.11 (Intellectual Property)
trademark "Vianet", registered as of January 20, 1997
trademark "Intranet", registered as of July 30, 1997
trademark "Businesslink", registered as of July 30, 1997
Disclosure Schedule 3.12 (Real Property Leases)
LEASE AGREEMENT WITH CA IMMOBILIEN-ANLAGEN AG,
DATED JANUARY 8, 1996
Disclosure Schedule 3.13 (Personal Property)
None
Disclosure Schedule 3.15 (Taxes)
None
Disclosure Schedule 3.16 (Labor Relations)
Tristan Libischer, Managing Director, ATS 1,980,000 p.a.
Alexander Wiesmuller, ATS 1,980,000 p.a.
Kristana Abjornsson, New Media Group, ATS 350,000 p.a.
Michaela Altenburger, Accounting, ATS 280,000 p.a.
Thomas Blumenschein, Marketing, ATS 378,000 p.a.
Martin Dunkl, Teamleader Sales, ATS 490,000 p.a.
Heinz Duschanek, Teamleader New Media Group, ATS 532,000 p.a.
Irene Gansbacher, Accounting, Administration, ATS 322,000 p.a.
28
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Nick Gazey, Network, ATS 525,000 p.a.
Stefan Geiger, Development, ATS 406,000 p.a.
Gunther Graf, Support, ATS 308,000 p.a.
Claudia Grunwald, Teamleader Accounting, Administration, ATS 490,000 p.a.
Paul Haberfellner, Support, Network, ATS 385,000 p.a.
Dusan Mitrovic, Teamleader Network, ATS 616,000 p.a.
Brigitte Schmatz, Secretary, ATS 322,000 p.a.
Peter Schmid, Teamleader Development, ATS 616,000 p.a.
Alina Weinrich, Assistant Sales, ATS 322,000 p.a.
DISCLOSURE SCHEDULE 3.18 (INSURANCE)
None
DISCLOSURE SCHEDULE 3.19 (AFFILIATE TRANSACTIONS)
None
DISCLOSURE SCHEDULE 4.4
Financial Statements of Cybernet Internet Services International, Inc.
as of December 31, 1997,
see attached