EXHIBIT 2.1
DATED 15 JUNE 2006
SYNERGIA CAPITAL PARTNERS B.V.
and
HEIJKERS HOLDING B.V.
and
TEMTEC B.V.
and
STEIJVERS HOLDING B.V.
and
INTESYS NEDERLAND B.V.
and
MR. C.G. ANGUS
and
MR. E.A. ZWENNIS
and
MR. R.LH. PISTERS
as the Sellers
and
APPLIX INC.
as the Purchaser
and
MR. A.M. PARKER
-------------------------
SHARE PURCHASE
AGREEMENT OF THE
SHARES IN THE CAPITAL OF
TEMTEC INTERNATIONAL
B.V.
-------------------------
[Stibbe LOGO]
TABLE OF CONTENTS
CLAUSE HEADINGS PAGE
1. INTERPRETATION...................................................... 4
2. SALE AND PURCHASE................................................... 5
3. CONSIDERATION....................................................... 5
4. TEMTEC FINANCIAL STATEMENTS......................................... 6
5. COMPLETION.......................................................... 7
6. SELLERS' WARRANTIES................................................. 7
7. PURCHASER'S WARRANTY................................................ 8
8. SPECIFIC INDEMNITIES................................................ 8
9. LIABILITY OF THE SELLERS FOR BREACHES............................... 9
10. CONDUCT OF CLAIMS................................................... 11
11. DEFENSE OF THIRD PARTY CLAIMS....................................... 12
12. NON-COMPETE, NON SOLICITATION, USE OF NAME.......................... 13
13. POST COMPLETION CONVENANT........................................... 13
14. RELATIONSHIP SELLER................................................. 13
15. CONFIDENTIALITY AND ANNOUNCEMENTS................................... 13
15.1. Confidentiality........................................... 13
15.2. Announcements............................................. 14
15.3. Synergia.................................................. 14
16. EFFECT OF TERMINATION............................................... 14
17. GENERAL PROVISIONS.................................................. 15
SCHEDULE 1 (DEFINITIONS)
SCHEDULE 2 (COMPLETION EVENTS)
SCHEDULE 3 (SELLERS' WARRANTIES)
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CLAUSE HEADINGS PAGE
APPENDIX A TO SCHEDULE 3 (OWNERSHIP OF THE SHARES)
APPENDIX B TO SCHEDULE 3 (SUBSIDIARIES)
APPENDIX C TO SCHEDULE 3 (CORPORATE INFORMATION)
APPENDIX D TO SCHEDULE 3 (LIST OF IP RIGHTS)
APPENDIX E TO SCHEDULE 3 (LIST OF PROPRIETARY SOFTWARE)
SCHEDULE 4 (ESCROW AGREEMENT)
SCHEDULE 5 (TEMTEC FINANCIAL STATEMENTS 31 MAY)
SCHEDULE 6 (DATA ROOM CD-ROM)
SCHEDULE 7 (PURCHASER'S WARRANTIES)
SCHEDULE 8 (DISCLOSURE LETTER)
SCHEDULE 9 (DEED OF TRANSFER)
SCHEDULE 10 (SPOUSE DECLARATION)
SCHEDULE 11 (RESIGNATION LETTERS SUPERVISORY DIRECTORS)
SCHEDULE 12 (RESIGNATION LETTERS MANAGING DIRECTORS)
SCHEDULE 13 (EMPLOYMENT AGREEMENT STEIJVERS)
SCHEDULE 14 (EMPLOYMENT AGREEMENT HEIJKERS)
SCHEDULE 15 (EMPLOYMENT AGREEMENT PISTERS)
SCHEDULE 16 (ADDENDUM EMPLOYMENT AGREEMENT PARKER)
SCHEDULE 17 (SHAREHOLDERS' RESOLUTION)
SCHEDULE 18 (FLOW OF FUNDS)
SCHEDULE 19 (APPLIX SHARES)
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THIS SHARE PURCHASE AGREEMENT is made on 15 June 2006
BETWEEN:
(1) SYNERGIA CAPITAL PARTNERS B.V., a private company with limited liability
incorporated under the laws of the Netherlands with its corporate seat in
Veenendaal ("SYNERGIA");
(2) HEIJKERS HOLDING B.V., a private company with limited liability
incorporated under the laws of the Netherlands with its corporate seat in
Nederweert ("HEIJKERS");
(3) TEMTEC B.V., a private company with limited liability incorporated under
the laws of the Netherlands with its corporate seat in Nijmegen
("TEMTEC");
(4) STEIJVERS HOLDING B.V., a private company with limited liability
incorporated under the laws of the Netherlands with its corporate seat in
Stramproy ("STEIJVERS");
(5) INTESYS NEDERLAND B.V., a private company with limited liability
incorporated under the laws of the Netherlands with its corporate seat in
's-Hertogenbosch ("INTESYS");
(6) MR.C.G. ANGUS, domiciled in the United States of America ("ANGUS");
(7) MR. E.A. ZWENNIS, domiciled in the Netherlands ("ZWENNIS");
(8) MR. R.L.H. PISTERS, domiciled in the Netherlands ("PISTERS");
(9) MR. A.M. PARKER, domiciled in the United Kingdom ("PARKER");
(10) APPLIX INC., a public company incorporated under the laws of
Massachusetts with its corporate seat in Westborough, 289 Turnpike Road,
MA 01581, United States of America (the "PURCHASER"); and
(11) TEMTEC INTERNATIONAL B.V., a private company with limited liability
incorporated under the laws of the Netherlands with its corporate seat in
Nijmegen (the "COMPANY").
The parties to this Agreement are hereinafter collectively referred to as the
"PARTIES" and individually as a "PARTY". Synergia, Heijkers, Temtec, Steijvers,
Intesys, Angus, Zwennis and Pisters collectively referred to as the "SELLERS" or
the "SHAREHOLDERS" and each individually a "SELLER" or a "SHAREHOLDER".
RECITALS:
(1) The Company is a private company with limited liability incorporated
under the laws of the Netherlands, with its corporate seat in Nijmegen,
the Netherlands, registered with the trade register of the Chamber of
Commerce with number 09112458.
(2) The companies listed in Appendix B (Subsidiaries) to Schedule 3 (Sellers'
Warranties) are the direct subsidiaries of the Company.
(3) Zwennis and Pisters each have been granted an option right to subscribe
for 6 shares, which options have been exercised prior to the Completion
Date by each of them against issuance of 6 Shares by the Company to each
of Zwennis and Pisters pursuant
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to a notarial deed of issuance (the "DEED OF ISSUANCE") executed before
the Notary.
(4) Each of the Sellers owns the shares set opposite its name in Appendix A
(Ownership of the Shares) to Schedule 3 (Sellers' Warranties), together
constituting the entire issued and outstanding share capital of the
Company (the "SHARES").
(5) The Purchaser is a listed company on the Nasdaq stock market in the
United States of America.
(6) With a view to selling the Shares, the Sellers have initiated a
controlled auction sale process inviting interested potential purchasers
to participate.
(7) On 17 April 2006, the Purchaser has submitted an indicative offer on the
basis of the information contained in the Information Memorandum (as
defined below).
(8) On 23 April 2006, the Sellers and the Purchaser have entered into a
letter of intent pursuant to which the Sellers have granted the Purchaser
exclusivity and that further contains the main terms and conditions on
the basis of which the Purchaser will acquire the Shares.
(9) The Purchaser has conducted and completed a due diligence investigation
into the Company and its subsidiaries with the assistance of professional
legal, accountancy, financial and tax advisors and the Purchaser has
conducted and completed a due diligence investigation into the technical
aspects of the Company and its subsidiaries with the assistance of
in-house technical advisors (the "DUE DILIGENCE INVESTIGATION").
(10) The Parties have obtained the internal and external approvals prior to
entering into this Agreement.
(11) The Sellers agree to sell to the Purchaser and the Purchaser agrees to
purchase from the Sellers the Shares, subject to the terms and conditions
of this Agreement.
IT IS AGREED as follows:
1. INTERPRETATION
1.1. In this Agreement the definitions in Schedule 1 (Definitions) are used.
1.2. In this Agreement, unless the context dictates otherwise:
1.2.1. the masculine gender shall include the feminine and the neuter and
vice versa;
1.2.2. references to a person shall include a reference to any
individual, company, association, partnership or joint venture;
1.2.3. references to the "awareness" of the Sellers or "to the best of
Sellers' knowledge" or any similar statement, shall mean the
knowledge of the Sellers whereby the knowledge of Intesys shall
mean the knowledge of Intesys as shareholder of the Company, the
knowledge of Synergia and Temtec shall mean their knowledge as
shareholders and the knowledge of Mr. L. Schenk and Mr. H. Tepper
as supervisory directors of the Company within the limitations as
set forth in Book 2 of the Dutch Civil Code, the knowledge of
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Heijkers and Steijvers shall mean their knowledge as shareholders,
the knowledge of H. Heijkers, Parker and Angus shall mean their
knowledge respectively as managing directors and former managing
directors of the Company and the knowledge of Zwennis, Pisters and
A. Steijvers shall mean their knowledge as employees of the
Company;
1.2.4. references to "include" and "including" shall be treated as
references to "include without limitation" or "including without
limitation";
1.2.5. references to documents in "agreed form" shall be to documents
agreed between the Parties, annexed to this Agreement and
initialled for identification by the Parties;
1.2.6. the headings are for identification only and shall not affect the
interpretation of this Agreement.
2. SALE AND PURCHASE
2.1. Subject to the terms and conditions of this Agreement, each of the
Sellers hereby sells to the Purchaser and the Purchaser hereby purchases
the Shares set opposite each Sellers' name in Appendix A (Ownership of
the Shares) to Schedule 3 (Sellers' Warranties).
2.2. At Completion, title to the Shares, including all rights attached to
them, shall pass to the Purchaser upon the execution of the Deed of
Transfer.
2.3. The Company undertakes to acknowledge the transfer of the Shares on the
Completion Date by co-signing the Deed of Transfer and immediately to
enter such transfer in its register of shareholders.
3. CONSIDERATION
3.1. The total consideration for the Shares shall be an amount of USD
14,500,000 (the "PURCHASE PRICE"), consisting of USD 12,000,000 in cash
and USD 2,500,000 in the form of shares of common stock ("APPLIX
SHARES"). At Completion the Purchaser shall pay the Purchase Price to the
Sellers adjusted for the Net Debt as of 31 May 2006, being a net cash
amount of EUR 106,000, minus EUR 100,000 that remains with the Company,
plus the amount of EUR 6,000 (as specified in the Flow of Funds) and
minus the amount of bonuses to be paid to certain employees. Therefore,
the Purchaser shall pay at completion the amount of USD 13,955,037 as
follows: USD 10,455,023 will be paid in cash to the Sellers directly, USD
500,014 will be paid in the form of Applix Shares to be issued by the
Purchaser to the Sellers in proportion to the number of Shares held by
the Sellers and in accordance with Clause 0 of Schedule 2 (Completion
Events) and USD 3,000,000 (consisting of USD 1,000,006 in cash and USD
1,999,994 in Applix Shares) will be paid and transferred into an escrow
account in accordance with Clauses 3.1 up to and including 3.4. (the
"ESCROW") The number of Applix Shares to be transferred into the escrow
account in accordance with this Clause 3.1 will amount to 264200 and is
based on a price of USD 7,57 per Applix Share. The number of Applix
Shares to be transferred to the Sellers in accordance with this Clause
3.1 will amount to 66052 and is based on a price of USD 7,57 per Applix
Share.
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3.2. An amount of USD 3,000,000 (the "ESCROW AMOUNT") of the Purchase Price
will be paid into an escrow account with Van Lanschot N.V. (the "ESCROW
AGENT"). The Escrow Amount will serve as security for any Claims, claims
pursuant to Clause 4, claims pursuant to Clause 6.5 and claims pursuant
to the Sellers' Indemnities that the Purchaser may have against the
Sellers. Parties will set out the terms and conditions which apply to the
Escrow Amount in a separate escrow agreement prior to Completion (the
"ESCROW AGREEMENT") attached hereto as Schedule 4 (Escrow Agreement). The
Escrow Amount will consist of two-third of the Applix Shares and
one-third in cash. Any fluctuation in the stock market price of the
Applix Shares after the Completion Date shall not lead to an adjustment
of the number of Applix Shares or the amount of cash held in escrow by
the Escrow Agent.
3.3. Subject to the provisions of the Escrow Agreement 1/3 (one-third) of the
number of Applix Shares held in Escrow or 1/3 (one-third) of the cash
amount held in Escrow (or a combination thereof up to a maximum of 1/3
(one-third) of the Escrow Amount, if applicable calculated on the basis
of the price of the Applix Shares as mentioned in Clause 3.1), to be
determined at the sole discretion of the Sellers, will be released within
30 days after the adoption of the Applix Financial Statements 2006 but in
any event no later than 31 May 2007. Subject to the provisions of the
Escrow Agreement, the remaining part of the Applix Shares held in Escrow
and cash held in Escrow, will be released within 30 days after the
adoption of the Applix Financial Statements 2007 but in any event no
later than 31 May 2008.
3.4. With the exception of the Applix Shares held in escrow as set forth in
Clauses 3.1 and 3.2, the Sellers shall be entitled to sell the Applix
Shares after twelve months following the Completion Date in accordance
with the applicable securities laws and regulations.
4. TEMTEC FINANCIAL STATEMENTS
4.1. Attached as Schedule 5 are the consolidated financial statements of the
Company and its Subsidiaries for the period of 1 January 2006 until and
including 31 May 2006 (the "TEMTEC FINANCIAL STATEMENTS 31 MAY"), which
reflect a net cash position as at 31 May 2006 of EUR 106,000. The Sellers
represent and warrant towards the Purchaser that the Temtec Financial
Statements 31 May:
(i) have been prepared in accordance with the Accounting Rules in all
material respects and with the Accounting Policies applied on a
basis consistent with that applied in respect of the Temtec
Financial Statements 2005, taking into account that the Temtec
Financial Statements 31 May are mid-year financial statements and
not full year financial statements;
(ii) show a true and fair view of the financial position, assets,
liabilities, results and the Net Debt of the Company and, on a
consolidated basis, of the Group Companies,
(iii) are not distorted by any items of an unusual or non recurring
nature or affected by transactions with any of the Sellers or
persons directly or indirectly related to any of the Sellers,
except as the explicitly reflected.
4.2. The Sellers further represent and warrant towards the Purchaser that
during the period between 31 May 2006 and the Completion Date:
6
(i) the business of each of the Group Companies has been carried on as
a going concern in the ordinary course of business, consistent
with past practice;
(ii) there has been no material adverse change in the financial or
trading position of the Group Companies and in the Net Debt (other
than changes in the ordinary course of business, consistent with
past practice);
(iii) no Group Company has acquired or disposed of or agreed to acquire
or dispose of any business or any material asset other than in the
ordinary course of business:
(iv) no dividend or other distributions have been made, and no
(interim) dividend or other distribution has been declared, agreed
to be paid or paid by any of the Group Companies.
4.3. The Parties agree that any liability of the Sellers pursuant to this
Clause 4 shall be on a Dollar for Dollar basis, provided that the
provisions of Clause 9 shall apply accordingly to this Clause 4 except
the provision of Clause 9.6.
5. COMPLETION
5.1. Completion shall take place on 15 June 2006 commencing on 8.00 CET or,
any later date as Parties have agreed upon (the "COMPLETION DATE").
Completion shall take place at the offices of Stibbe in Amsterdam.
5.2. All actions to be completed by the Parties on the Completion Date are set
out in Schedule 2 (Completion Events) in the order in which they are to
be completed by the relevant Party.
6. SELLERS' WARRANTIES
6.1. Each of the Sellers warrants subject to the qualifications of Clause 6.3
that each of the Sellers' Warranties is true and accurate in all respects
on the Completion Date.
6.2. The Purchaser confirms that when entering into this Agreement it did not
rely on any other warranty or statement than the Sellers' Warranties
contained in Schedule 3 (Sellers' Warranties). For the avoidance of
doubt, the Sellers shall not be liable in respect of any forecasts,
estimates, interpretations, analysis, projections, statements of intent
or statements of opinion.
6.3. The Sellers shall not be liable for any Claims to the extent the matters
or circumstances giving rise thereto are known to the Purchaser or any of
its advisors involved in the Due Diligence Investigation contained in the
Disclosed Information. For the purposes of this Agreement "DISCLOSED
INFORMATION" means the information made available to the Purchaser or its
advisors, or both, in the Due Diligence Investigation, including
documents provided in the Data Room, correspondence, management
interviews, site visits, the Information Memorandum and information
contained in the Disclosure Letter. The Parties acknowledge and agree
that (i) where matters do not appear on the face of the documents
contained in the Data Room , or (ii) where reference is made to a
document or a particular part of a document, but the document has not
been provided to the Purchaser, such matter or reference and document or
particular part of a document shall not be deemed to have been disclosed
to the Purchaser.
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6.4. The Purchaser confirms that it has conducted and completed the Due
Diligence Investigation prior to the execution of this Agreement and that
the Due Diligence Investigation has in form, scope and substance been to
its satisfaction and that the Sellers have given all information and
assistance requested by the Purchaser or its advisors in the Due
Diligence Investigation.
6.5. The Sellers shall reimburse the Purchaser in respect of the accounts
receivables of the Group Companies that are on the Completion Date
outstanding for a time period of three (3) months from their due date
(other than the debtors specified in the Disclosure Letter) and that have
not been collected by the Group Companies in whole or in part within a
period of 60 days after the Completion Date. Such reimbursement shall be
on a Dollar for Dollar basis provided that any liability of the Sellers
shall be reduced with an amount of EUR 52,000. For the avoidance of
doubt, the provisions of Clause 9 shall apply accordingly to this Clause
6.5 except the provisions of Clause 6.3 and Clause 9.6.
7. PURCHASER'S WARRANTY
The Purchaser warrants that each of the statements set out in Schedule 7
(Purchaser's Warranties) is true and accurate on the Completion Date. The
Purchaser warrants that the Purchaser and its advisors involved in the
transaction are not aware of a breach by the Sellers of any Sellers'
Warranty or of any other provision of this Agreement or of any matter or
circumstance that will give rise to a breach of any Sellers' Warranty or
of any other provision of this Agreement.
8. SPECIFIC INDEMNITIES
8.1. The Sellers shall indemnify and hold the Purchaser harmless for any
direct or indirect damage suffered by the Purchaser, as a result of or
related to any assessment due to a Tax Authority because of any
remuneration paid by the Company and/or any of its Subsidiaries to Mr.
Ph. Buttaud up to and including the Completion Date, including all costs
and expenses incurred by the Purchaser in respect thereof (the "INDEMNITY
BUTTAUD"), provided that of the amount of damages resulting from the
Indemnity Buttaud the Sellers and the Purchaser shall each bear 50% of
any amount up to USD 300,000 and to the extent the amount of damages
exceeds USD 300,000, the Sellers shall, in addition to an amount of USD
150,000, be liable for any amount in excess of USD 300,000.
8.2. If the receivable of the Company on Hewlett-Packard in the amount of USD
162,500 has not been collected in whole or in part within a period of 60
days after the Completion Date, the Sellers shall indemnify and hold the
Purchaser harmless for the full outstanding amount of the Hewlett-Packard
Receivable (the "HEWLETT-PACKARD RECEIVABLE"), as well as all costs and
expenses incurred by the Purchaser in respect thereof. If the Sellers pay
an amount in discharge of the indemnity under this Clause 8.2, the
Purchaser shall correspondingly substitute the Sellers by subrogation in
its right or claim with respect to the Hewlett-Packard Receivable. In
recovering the Hewlett-Packard Receivable, the Sellers may take all steps
necessary to enforce recovery from Hewlett Packard provided that the
Sellers shall act in reasonable consultation with the Purchaser prior to
taking any action towards Hewlett Packard and in the manner of conducting
the recovery the Sellers shall give reasonable consideration to the
Purchaser's interest in maintaining a business relationship between the
Purchaser, the Company and Hewlett Packard.
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8.3. Each of Intesys, Heijkers and Steijvers indemnifies (not jointly and
severally but each of them only for their respective management
agreements) and hold the Purchaser harmless for any direct or indirect
damage, including all costs and expenses, suffered or incurred by the
Purchaser and/or the Company and/or any Subsidiary, in the event that the
current management agreement between the Company and Heijkers and/or the
current management agreement between the Company and Steijvers and/or the
(former) management agreement between Intesys and the Company is deemed
an employment agreement by the Tax Authority.
8.4. The provision of Clauses 9.12, 9.14 up to and including 9.17 shall apply
accordingly to the indemnities specified in this Clause 8.
9. LIABILITY OF THE SELLERS FOR BREACHES
9.1. In the event of a breach of any Sellers' Warranty, the Sellers shall
separately, and therefore not jointly and severally, in proportion to the
number of Shares held by each of them, and subject to limitations set
forth in this Clause 9, pay to the Purchaser an amount equal to the
actual amount of damage (SCHADE) within the meaning of Article 6:96 of
the Dutch Civil Code, proven to be suffered by the Purchaser or any of
the Group Companies as a direct result of such breach. For the avoidance
of doubt, the Sellers shall not be liable for any reduced profits,
increased losses, loss of goodwill or any indirect or consequential
damage.
9.2. Any damage suffered by the Purchaser in respect of a breach of any
Sellers' Warranty shall be calculated on a dollar-for-dollar basis
without applying any multiplier or any other valuation principles used by
the Purchaser in calculating the Purchase Price.
9.3. The sole remedy of the Purchaser for a breach of any Sellers' Warranty
shall be an action for damages. The Purchaser shall not be entitled to
terminate or rescind this Agreement in the event of a breach of any
Sellers' Warranty. No person other than the Purchaser is entitled to make
a Claim.
9.4. A breach of any Sellers' Warranty that is capable of remedy shall not
entitle the Purchaser to a Claim unless the Sellers are given notice of
such breach in accordance with Clause 10.1 and such breach is not
remedied within 30 Business Days after the date on which notice is
served.
9.5. The Sellers shall be liable for a breach of any Sellers' Warranty until
17.30 CET on the date that is twenty four months after the Completion
Date in respect of any Sellers' Warranty, provided that notice of a Claim
has been given in accordance with Clause 10.1 before expiry of the
relevant dates except for (i) any Claim under paragraph 16 (Tax) of the
Schedule 3 in respect of which the statute of limitations applies,
provided that a period of three months shall be added in order to enable
the Purchaser to submit a Claim and (ii) any Claim under paragraph 2.1.1
(valid incorporation) and paragraph 3 (Shares) of Schedule 3 in respect
of which the statute of limitations applies.
9.6. The Sellers shall not be liable for a Claim unless the amount of an
individual Claim exceeds USD 10,000 (provided that separate Claims below
such amount but caused by the same event or set of circumstances shall
together be considered to constitute one individual Claim) and the
aggregate amount of all Claims exceeds USD 150,000 in which case the
Sellers shall be liable for the full amount and not merely the excess.
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The Sellers shall be liable for a Claim in proportion to the number of
Shares held by each of them and subject to the terms and conditions of
this Agreement.
9.7. The aggregate liability of the Sellers in respect of all breaches of this
Agreement, including Claims, shall not exceed an amount of USD 3,000,000
except in case of a breach of paragraph 2.1.1 (valid incorporation) and 3
(Shares) of the Sellers' Warranties regarding which Sellers' aggregate
liability shall not exceed the Purchase Price and except in case of the
Sellers' Indemnities regarding which Sellers' liability is governed by
Clause 8.
9.8. The Sellers shall not be liable in respect of a contingent liability
until and unless such contingent liability becomes an actual liability
and is due and payable.
9.9. The Sellers shall not be liable for any matter or circumstance resulting
in a breach of a Sellers' Warranty if the sole cause of that matter was
(i) an action by the Purchaser or any of the Group Companies or any of
their respective directors, employees or agents after Completion or (ii)
an action by any of the Group Companies or any of their respective
directors, employees or agents prior to Completion if at the request of
the Purchaser.
9.10. The Purchaser will take all measures and will procure that all measures
are taken by the Company in order to avoid or mitigate damage that may
give rise to a Claim.
9.11. If, before the Sellers pay an amount in discharge of any Claim, the
Purchaser or any other member of the Purchaser's Group recovers from a
third party, including for the avoidance of doubt any Tax Authority or
insurance company, a sum that is directly related to the Claim, the
amount of the relevant Claim shall be reduced or satisfied with the sum
recovered from the third party less any Taxes payable by the Purchaser or
the relevant member of the Purchaser's Group in respect of this sum and
reasonable costs and expenses incurred in obtaining such recovery.
9.12. If the Sellers pay an amount in discharge of any Claim and the Purchaser
or any other member of the Purchaser's Group subsequently recovers from a
third party, including for the avoidance of doubt any Tax Authority or
insurance company, a sum that is directly related to the Claim, the
Purchaser shall pay to the Sellers an amount equal to the sum recovered
from the third party less any Taxes payable by the Purchaser or the
relevant member of the Purchaser's Group in respect of this sum and less
reasonable costs and expenses incurred in obtaining such recovery or, if
less, the amount previously paid by the Sellers to the Purchaser. If the
Sellers pay an amount in discharge of any Claim, and the Purchaser or any
member of the Purchaser's Group has a claim in respect of such Claim on a
third party, the Purchaser shall substitute the Sellers by subrogation in
its right or claim with respect to third party, or, at the reasonable
request of the Sellers, the Purchaser shall at the cost of the Seller try
to recover from the third party.
9.13. The Sellers shall not be liable in respect of a Claim to the extent that
the matter giving rise to the Claim has been disclosed in accordance with
Clause 6.3, provided for or recognised as a liability in the balance
sheet of the Temtec Financial Statements 2005.
9.14. If any payment pursuant to a Claim forms part of the Purchaser's taxable
profit (or reduces its Tax losses) the Seller shall pay to the Purchaser
such additional amount (taking into account any Tax payable in respect of
such additional amount) as will ensure that the Purchaser receives and
retains a net amount equal to the full amount
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which it would have received and retained had the payment not formed part
of the Purchaser's taxable profit (or reduced its Tax losses).
9.15. All sums payable by the Sellers to the Purchaser pursuant to any Claim
shall be paid free and clear of any deductions or withholdings whatsoever
save only as may be required by law. Where any deduction or withholding
is required by law from any such payment (save to the extent that the
Purchaser may be credited for such deduction or withholding), the Sellers
shall be obliged to pay to the Purchaser such greater sum as will, after
such deduction or withholding, leave the Purchaser with the same amount
as it would have been entitled to receive in the absence of any such
deduction or withholding, thereby taking into account any reduction to
such deduction or withholding to which the Purchaser is entitled under
any double taxation treaty or otherwise.
9.16. In assessing the amount of a Claim, such amount shall be reduced by any
Tax saving, relief or benefit enjoyed by the Purchaser's Group
corresponding to the matter giving rise to the Claim.
9.17. The Purchaser shall not be entitled to recover from the Sellers more than
once in respect of the same damage suffered.
9.18. The Sellers shall not be liable in respect of a Claim to the extent that
the Claim arises or is increased as a result of:
9.18.1. any change in law after the date of this Agreement;
9.18.2. any change in the rates, methods of calculation, basis,
imposition or collection of Taxation;
9.18.3. any change in the accounting or taxation policies or practice of
the Purchaser or any other member of the Purchaser's Group after
the Completion Date.
10. CONDUCT OF CLAIMS
10.1. The Purchaser shall as soon as reasonably practicable after it or any
member of the Purchaser's Group becomes aware of a Claim or any matter or
circumstance that will give rise to a Claim give written notice to the
Sellers. The notification of the Purchaser shall contain all reasonable
details of such Claim including the Purchaser's best estimate of the
amount of the Claim.
10.2. If the Purchaser fails to notify the Sellers within 45 Business Days
after it or the relevant member of the Purchaser's Group becomes aware of
a Claim or any matter or circumstance that will give rise to a Claim as
set out in Clause 10.1, such Claim shall not be enforceable against the
Sellers and no new Claim may be made in respect of the matter or
circumstance giving rise to such Claim.
10.3. If a Claim has been notified by the Purchaser pursuant to Clause 10.1 and
a Claim has not been satisfied, settled or withdrawn before the end of
the Claim period as described in Clause 9.5 increased by 1 (one) month
("END OF CLAIM PERIOD"), such Claim shall not be enforceable against the
Sellers and shall be deemed to have been withdrawn and no new Claim may
be made in respect of the matter or circumstance giving rise to such
Claim unless legal proceedings of the Claim are commenced and
11
being pursued by the Purchaser in good faith within six months as of the
date of the End of Claim Period.
10.4. For as long as H. Heijkers, A. Steijvers and/or Parker are employed by
the Company and/or the Purchaser or the Purchaser's Group, the Sellers
shall refrain from bringing any claim against Heijkers, Steijvers (and H.
Heijkers and A. Steijvers in person) and/or Parker in respect of any
information supplied by any of them to the Purchaser or any of the
persons authorised by the Purchaser in connection with the Company or any
Subsidiary in connection with the transaction contemplated in the
Agreement, save in the event of wilful intent or gross negligence.
10.5. Upon notification of a Claim pursuant to Clause 10.1, the Purchaser
shall, and shall procure that the Company shall:
10.5.1. allow the Sellers or their representatives access to books,
records and to such personnel of the Purchaser's Group as the
Sellers may reasonably request to investigate the Claim provided
that such books and records shall be subject to a duty of
confidentiality except for disclosure necessary for resolving
such Claim or otherwise required by applicable law or stock
exchange rules;
10.5.2. disclose to the Sellers or their representatives all information
and documents relevant to the Claim, provided that such
information and documents shall be subject to a duty of
confidentiality except for disclosure necessary for resolving
such Claim or otherwise required by applicable law or stock
exchange rules; and
10.5.3. take such steps as the Sellers may reasonably request pursuant
to the Clause .
11. DEFENSE OF THIRD PARTY CLAIMS
11.1. Where a Claim of the Purchaser is based upon or relates to a claim of a
third party against the Purchaser, the Company and/or any Subsidiary (a
"THIRD PARTY CLAIM"), the Purchaser or the Company shall notify the
Seller of such Third Party Claim as soon as possible after becoming aware
thereof. The provisions of Clause 10.1, 10.2 and 11.2 shall apply to such
notification. As soon as possible following the date of that notification
the Parties shall consult each other on the course of action to be taken.
The Purchaser shall, however, be entitled to take, or procure the Company
or its relevant Subsidiary to take, any action necessary to defend the
Third Party Claim, provided that the Purchaser shall not enter into a
settlement with respect to the Third Party Claim or otherwise accept
liability for the Third Party Claim without the prior written consent of
the Sellers (which consent shall not unreasonably be withheld).
11.2. The Parties will cooperate with each other in dealing with any Third
Party Claim and will allow each other access to all relevant books and
records during normal business hours and at the place where the same are
normally kept, with full right to make copies thereof or take extracts
there from. Such books and records shall be subject to a duty of
confidentiality except for disclosure necessary for resolving such Third
Party Claim or otherwise required by applicable law or stock exchange
rules.
12
12. NON-COMPETE, NON SOLICITATION, USE OF NAME
12.1. Each of Angus and Temtec hereby undertakes towards both the Purchaser and
the Company that it will not itself, or allow any of the companies of its
group to, without the prior written consent of the Purchaser for a period
of 3 (three) years from the Completion Date in any capacity or in any way
whatsoever in the Netherlands, either directly or indirectly be engaged
in or concerned with, or approach any person with a view to being engaged
in or concerned with, the conduct of any business which may compete with
the business of the Company as conducted on the Completion Date.
12.2. Each of Synergia, Intesys, Temtec and Angus hereby undertakes towards
both the Purchaser and the Company that it will not itself, or allow any
of the companies of its group to, without the prior written consent of
the Purchaser persuade or cause, or attempt to persuade any employee of
any of the Group Companies to terminate his relationship with any of the
Group Companies, or employ or engage any such person within 1 (one) year
of the effective termination of his relationship with any of the Group
Companies, or take any action that may result in the impairment of the
relationship between such employee and any of the Group Companies.
12.3. The Sellers undertake towards both the Purchaser and the Company that
they will not use the name "Temtec" for commercial purposes as of the
Completion Date and Temtec undertakes that it will change its name so as
to eliminate the word "Temtec" within one month after the Completion
Date.
13. POST COMPLETION CONVENANT
The Purchaser warrants to the Sellers that the Company shall pay
unconditionally and irrevocably the bonuses as specified in Schedule 18
to Brian Williams, Jos Dore, Alan Parker (the "BONUS PAYMENT RECIPIENTS")
no later than the date on which the June 2006 pay-roll payments are made
(the "DUE DATE") by the Company to its respective employees (the "BONUS
PAYMENTS"). The Company shall make the Bonus Payments in full and the
Purchaser and/or the Company are not entitled to set off -wholly or
partially- any claims they may have against the Bonus Payment Recipients
with the Bonus Payments. If the Bonus Payments are not paid by the
Company on the Due Date, the Purchaser shall forthwith pay the Bonus
Payments to the Bonus Payments Recipients.
14. RELATIONSHIP SELLER
For the purpose of Clauses 10 and 11 of this Agreement, the Sellers will
be represented by Temtec on behalf of all Sellers (the "AGENT"). The
Sellers are entitled to appoint another Seller as Agent by notifying the
Purchaser timely in advance of such appointment.
15. CONFIDENTIALITY AND ANNOUNCEMENTS
15.1. CONFIDENTIALITY
15.1.1. Subject to Clause 15.1.2 and Clause 15.2, each Party shall treat
as strictly confidential and not disclose or use any information
relating to this Agreement or any ancillary matter and the
negotiations leading up to this Agreement.
13
15.1.2. The restrictions contained in Clause 15.1.1 shall not apply if
and to the extent:
(A) disclosure is required by any law or by a court;
(B) disclosure is required by any securities exchange or
regulatory or governmental body;
(C) disclosure is necessary to enforce this Agreement in
court proceedings;
(D) the other Parties have given their written consent to
disclosure;
(E) the information has come into the public domain through
no fault of the relevant Party's group;
(F) disclosure is necessary to obtain the advice of any
professional advisor;
(G) disclosure is necessary within the relevant Party's
group.
In the event of a disclosure of information pursuant to Clause
15.1.2 (A) or (B) or (C), the disclosing Party shall consult
with the other Parties as to the contents, form and timing of
the disclosure to be made.
15.2. ANNOUNCEMENTS
15.2.1. Subject to Clause 15.1, none of the Parties shall make any
announcement before or after Completion with respect to this
Agreement or any ancillary matter without the prior written
consent of the other Parties, such consent not to be
unreasonably withheld or delayed.
15.2.2. Notwithstanding Clause 15.1, a Party may make an announcement
with respect to this Agreement or any ancillary matter if
required by any law to which that Party is subject, provided
that such Party shall endeavour to consult with the other
Parties and take into account any reasonably comments of the
other Parties prior to making any such announcement.
15.3. SYNERGIA
15.3.1. The restriction in this Clause 15 shall not apply to Synergia if
and to the extent disclosure of the (key) terms of this
Agreement is necessary by Synergia to investors and (potential)
investors in funds managed by Synergia.
15.3.2. Synergia hereby waives any rights and claims it may have against
any of the Group Companies arising from the participation
agreement dated 12 October 2000.
16. EFFECT OF TERMINATION
If this Agreement is terminated:
16.1.1. all rights and obligations of the Purchaser and the Sellers
under this Agreement shall end except for this Clause 16, the
Clauses 1 (Interpretation),
14
15 (Confidentiality and Announcements), 17.3 (Notices), 17.15
(Governing law and Jurisdiction) that will remain in full force
and effect;
16.1.2. a Party shall not be relieved from liability for a breach prior
to termination of any of its warranties, covenants or other
obligations in this Agreement.
17. GENERAL PROVISIONS
17.1. At or following Completion the Sellers and the Purchaser shall sign all
documents and undertake and perform all acts necessary for the fulfilment
of their respective obligations under this Agreement.
17.2. At or following Completion Heijkers shall procure that H. Heijkers shall,
and Parker shall, to the extent necessary, cooperate in their resignation
from the boards of directors of Temtec UK Ltd. and Temtec USA Inc.
17.3. All notices, consents, waivers and other communications under this
Agreement must be in writing in English and delivered by hand or sent by
registered mail, express courier, fax or e-mail to the appropriate
addresses and fax numbers set out below, or to such addresses and fax
numbers as a Party may notify to the other Parties from time to time. A
notice shall be effective upon receipt and shall be deemed to have been
received at the time of delivery, if delivered by hand, registered mail
or express courier, or at the time of successful transmission, if
delivered by fax or e-mail.
To the Sellers:
Name: Synergia Capital Partners B.V.
Address: Plesmanstraat 62, Veenendaal
Fax number: +31 318 55 40 84
E-mail: leoschenk@synergia.nl
Attention: Leo Schenk
Name: Heijkers Holding B.V.
Address: Lindenhof 68, Weert
Fax number: + 31 495 45 00 79
E-mail: hubert.heijkers@temtec.com
Attention: Hubert Heijkers
Name: Temtec B.V.
Address: St. Annastraat 198C, Nijmegen
Fax number: + 31 24 32 20 293
E-mail: tepperhj@multep.com
Attention: Henk Tepper
Name: Steijvers Holding B.V.
Address: Breederkamp 9, Ell
E-mail: ton.steijvers@temtec.com
Attention: Ton Steijvers
Name: Intesys Nederland B.V.
Address: Seringenstraat 17, s'-Hertogenbosch
Attention: Johanna Monique Heijting
15
Name: C.G. Angus
E-mail: chris.angus@temtec.com
Attention: Chris Angus
Name: E.A. Zwennis
E-mail:
Attention: E. Zwennis
Name: R.L.H. Pisters
E-mail:
Attention: R. Pisters
Name: A.M. Parker
E-mail: alan.parker@temtec.com
Attention: A. Parker
With a copy to:
Stibbe N.V.
Casper Hamersma
Strawinskylaan 2001
1077 ZZ Amsterdam
Fax: +31 20 5460831
To the Purchaser:
Name: Applix Inc.
Address: Westborough 289 Turnpike Road, United States of America
Fax number: 508616-0602
E-mail: malpern@applix.com
Attention: Milton Alpern
With a copy to:
Nauta Dutilh N.V.
Attn. Lieke van der Velden
Strawinskylaan 1999
1077 XV Amsterdam
Fax number: +31 20 71 71 323
17.4. Except as explicitly stated otherwise in this Agreement, each Party to
this Agreement shall pay its own costs and expenses in relation to the
preparation and execution of this Agreement and the sale and purchase of
the Shares.
17.5. This Agreement constitutes the entire agreement between the Parties
relating to the sale and purchase of the Shares. This Agreement
supersedes and terminates any earlier agreements, either verbally or in
writing, between the Parties and no Party shall have any right or remedy
against any other Party arising out of or in connection with any such
earlier agreements unless stated otherwise in this Agreement.
17.6. This Agreement may only be amended by mutual agreement in writing.
16
17.7. None of the Parties may assign or procure the assumption of its rights
and obligations under this Agreement, either in whole or in part, to any
other person without the prior written consent of the other Parties.
17.8. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of
this Agreement. Any such invalid or unenforceable provision shall be
replaced or be deemed to be replaced by a provision that is considered to
be valid and enforceable. The interpretation of the replacing provision
shall be as close as possible to the intent of the invalid or
unenforceable provision.
17.9. The Purchaser is aware that the Notary is a civil law notary working at
Stibbe, the law firm acting as lawyers of the Sellers. With reference to
the provisions of the Code of Conduct (Verordening Beroeps- en
Gedragsregels) of the Royal Notarial Regulatory Body (Koninklijke
Notariele Beroepsorganisatie) the Purchaser acknowledges and agrees that
Stibbe may assist and act on behalf of the Sellers in connection with
this Agreement including any disputes arising in relation to this
Agreement.
17.10. The Parties waive their right to nullify (vernietigen) or rescind
(ontbinden) this Agreement pursuant to Articles 6:228 or 6:265 of the
Dutch Civil Code after Completion. Parties waive any right pursuant to
Title 1 Book 7 of the Dutch Civil Code.
17.11. The rights of any Party under this Agreement are without prejudice to all
other rights and remedies available to such Party and no failure by any
Party to exercise, and no delay in exercising, any right under this
Agreement, in the event of breach of contract by any Party hereto will
operate as a waiver of such right or any other right under this
Agreement.
17.12. Any payment by the Purchaser or any other member of the Purchaser's Group
to the Sellers under this Agreement shall be made (i) to the Sellers and
(ii) for same day value.
17.13. Any payment made by the Sellers in respect of a claim of the Purchaser
for any breach of this Agreement, including any Claim, shall be deemed an
adjustment of the Purchase Price for Dutch Tax purposes.
17.14. Clauses 1 (Interpretation), 15 (Confidentiality and Announcements), 17.3
(Notices), 17.15 (Governing law and Jurisdiction) shall apply mutatis
mutandis to all agreements connected with this Agreement save as
otherwise provided or as the context may otherwise require in the
relevant agreement.
17.15. This Agreement is governed by the laws of the Netherlands. The competent
court in Amsterdam, the Netherlands shall have jurisdiction to settle any
dispute in connection with this Agreement without prejudice to the right
of appeal and that of appeal to the Supreme Court.
17
THUS AGREED AND SIGNED IN AMSTERDAM ON 15 JUNE 2006,
APPLIX INC. SYNERGIA CAPITAL PARTNERS B.V.
/s/ Milton A. Alpern /s/ Richard H.M. Verkleij
- -------------------------------- --------------------------------
By: Milton A. Alpern By: Richard H.M. Verkleij
Title: Chief Financial Officer Title: Investment Manager
by power of attorney
HEIJKERS HOLDING B.V. TEMTEC B.V.
/s/ H.H.R. Heijkers /s/ Richard H.M. Verkleij
- -------------------------------- --------------------------------
By: H.H.R. Heijkers By: Richard H.M. Verkleij
Title: Director Title: Investment Manager
by power of attorney
INTESYS NEDERLAND B.V. STEIJVERS HOLDING B.V.
/s/ H.H.R. Heijkers /s/ H.H.R. Heijkers
- -------------------------------- --------------------------------
By: H.H.R. Heijkers By: H.H.R. Heijkers
Title: by power of attorney Title: by power of attorney
MR. C.G. ANGUS MR. E.A. ZWENNIS
/s/ Richard H.M. Verkleij /s/ H.H.R. Heijkers
- -------------------------------- --------------------------------
By: Richard H.M. Verkleij By: H.H.R. Heijkers
Title: by power of attorney Title: by power of attorney
MR. R.L.H. PISTERS MR. A.M. PARKER
/s/ H.H.R. Heijkers /s/ Alan Parker
- -------------------------------- --------------------------------
By: H.H.R. Heijkers By: Alan Parker
Title: by power of attorney Title:
18
SCHEDULE 1 (DEFINITIONS)
"ACCOUNTING RULES" means (i) the Dutch General Accepted Accounting Principles
(Dutch GAAP), and (ii) the relevant provisions on financial statements of the
Dutch Civil Code and (iii) to the extent applicable, the prevailing Guidelines
for annual reporting in the Netherlands (Richtijnen voor de jaarverslaggeving)
published by the Dutch Accounting Standards Board (Raad voor de
Jaarverslaggeving) as amended from time to time;
"ACCOUNTING POLICIES" means the specific principles, bases and conventions,
rules and practices applied and used by the Company in preparing and presenting
financial statements;
"ACCOUNTS DATE" means the end of the financial year of the Company, which runs
from 1 January to 31 December 2005;
"AGREEMENT" means this share purchase agreement including the recitals and all
Schedules and Appendices, as amended in accordance with its terms;
"APPLIX FINANCIAL STATEMENTS 2006" means the consolidated financial statements
of Applix Inc. and its subsidiaries and the separate financial statements of
each group company (including the explanatory notes and reports thereto) for the
year 2006;
"APPLIX FINANCIAL STATEMENTS 2007" means the consolidated financial statements
of Applix Inc. and its subsidiaries and the separate financial statements of
each group company (including the explanatory notes and reports thereto) for the
year 2007;
"APPLIX SHARES" has the meaning given in Clause 3.1;
"BONUS PAYMENTS" has the meaning given in Clause 13;
"BONUS PAYMENTS RECIPIENTS" has the meaning given in Clause 13;
"BUSINESS DAY" means a day, other than a Saturday or a Sunday, on which the
banks in Amsterdam are open for normal business;
"CLAIM" means any individual claim by the Purchaser in respect of a breach of
any Sellers' Warranty;
"COMPANY" has the meaning given in the recitals to this Agreement;
"COMPLETION" means the completion of the sale and transfer of the Shares
pursuant to Clause 5;
"COMPLETION DATE" has the meaning given in Clause 5.1;
"DATA ROOM" means the virtual data room of which a CD-Rom is attached to this
Agreement as Schedule 6 (Data Room CD-Rom);
"DEED OF ISSUANCE" has the meaning given in the recitals to this Agreement;
"DEED OF TRANSFER" means the notarial deed of transfer of the Shares in the
agreed form attached to this Agreement as Schedule 9 (Deed of Transfer);
19
"DISCLOSURE LETTER" means the letter from the Sellers to the Purchaser dated the
date of this Agreement and attached to this Agreement as Schedule 8 (Disclosure
Letter);
"DUE DATE" has the meaning given in Clause 13;
"DUE DILIGENCE INVESTIGATION" has the meaning given in the recitals of this
Agreement;
"ENCUMBRANCES" means any rights of pledge, mortgage or usufruct, liens or
attachments or similar charges;
"ESCROW AGENT" has the meaning given in Clause 3.2;
"ESCROW AGREEMENT" has the meaning given in Clause 3.2;
"ESCROW AMOUNT" has the meaning given in Clause 3.2;
"GROUP" or "GROUP COMPANIES" means the Company and the Subsidiaries and "GROUP
COMPANY" means any one of them;
"INFORMATION MEMORANDUM" means the information memorandum distributed by the
Sellers to the Purchaser in the auction sale process;
"NET DEBT" means the difference between all amounts owed by the Company to
shareholders or third party lenders in the form of (bank)loans or overdrafts or
any other such instruments, including the subordinated shareholder loan owed by
the Company to Synergia and the cash at bank and cash equivalents of the
Company;
"NOTARY" means civil law notary C. Holdinga of Stibbe or her substitute;
"NOTARY'S BANK ACCOUNT" means the bank account number 69.64.62.672 with ING Bank
N.V. in the name of Stibbe Derdengelden Notariaat;
"PURCHASE PRICE" has the meaning given in Clause 3.1;
"PURCHASER" has the meaning given in the opening of this Agreement;
"PURCHASER'S GROUP" means the Purchaser and its subsidiaries and any direct or
indirect holding company of the Purchaser and all other subsidiaries of any such
holding company from time to time, including the Company after Completion;
"PURCHASER'S WARRANTIES" means the warranties given by the Purchaser set out in
Schedule 7 (Purchaser's Warranties);
"SELLER" or "SELLERS" has the meaning given in the opening of this Agreement;
"SELLERS' INDEMNITIES" means the indemnities given by the Sellers set out in
Clauses 8.1 and 8.2;
"SELLERS' GROUP" means the Sellers and their subsidiaries and participations and
any direct or indirect holding company of the Sellers and all other subsidiaries
of any such holding company from time to time, except the Company after
Completion;
"SELLERS' WARRANTIES" means the warranties given by the Sellers set out in
Schedule 3
20
(Sellers' Warranties);
"SHARES" has the meaning given in the recitals to this Agreement;
"SUBSIDIARIES" means the companies listed in Appendix B (Subsidiaries) to
Schedule 3 (Sellers' Warranties);
"TAX" or "TAXATION" means all forms of local and national taxes, duties, levies,
social security contributions or other imposts or withholdings imposed by or
payable to any Tax Authority including penalties, additions, interest, costs and
expenses relating to such taxes, duties, levies, social security contributions
or other imposts or withholdings;
"TAX AUTHORITY" means any local, national or supranational authority in or
outside the Netherlands having the power to impose or collect Tax;
"TEMTEC FINANCIAL STATEMENTS 2005" means the audited consolidated financial
statements of the Company and the Subsidiaries and the separate financial
statements of each Group Company (including the explanatory notes and reports
thereto) for the year 2005.
21
SCHEDULE 2 (COMPLETION EVENTS)
1. GENERAL OBLIGATIONS
1.1. DELIVERABLES
At Completion:
1.1.1. the Purchaser shall deliver to the Sellers and the Sellers shall
deliver to the Purchaser duly executed powers of attorney and
corporate resolutions, if and as applicable, in the agreed form.
1.1.2. the Sellers shall give to the Purchaser statements in the form
attached hereto as Schedule 11 signed by Messrs H.J. Tepper, L.
Schenk and C.G. Angus in which the relevant supervisory director
resigns as supervisory director effective as per the moment of
execution of the Deed of Transfer and whereby each of them waives
all rights and claims he may have against the Company;
1.1.3. Heijkers and Parker shall give to the Purchaser statements in the
form attached hereto as Schedule 12 signed by each of them whereby
they resign as managing director effective as per the moment of
execution of the Deed of Transfer and whereby each of them waives
all rights and claims he may have against the Company;
furthermore, Heijkers and Steijvers shall give to the Purchaser
documentation evidencing the termination of their management
agreements;
1.1.4. the Company and A.G.P. Steijvers shall enter into an employment
agreement substantially in the agreed form attached hereto as
Schedule 13;
1.1.5. the Company and H.H.M. Heijkers shall enter into an employment
agreement substantially in the agreed form attached hereto as
Schedule 14;
1.1.6. the Company and Pisters shall enter into an employment agreement
substantially in the agreed form attached hereto as Schedule 15;
1.1.7. the Company and Parker shall enter into an addendum to the current
employment agreement between them substantially in the agreed form
attached hereto as Schedule 16;
1.1.8. the current employment agreement between Mr. B. Williams and
Temtec USA Inc. dated 10 March 2000 shall be terminated, such
termination effective no later than on the date of execution of
the Deed of Transfer;
1.1.9. Sellers shall execute a shareholders' resolution in the form
attached as Schedule 17, pursuant to which (i) the resignation of
the managing directors and the supervisory directors mentioned in
1.1.2 and 1.1.3 above is accepted, (ii) each of them is granted
discharge for the performance of their duties as supervisory and
managing directors respectively and (iii) David Mahoney and Milton
Alpern are appointed as managing directors of the Company as per
the moment of execution of the Deed of Transfer.
22
2. PAYMENT OF THE PURCHASE PRICE AND TRANSFER OF APPLIX SHARES
2.1. PAYMENT PURCHASE PRICE
2.1.1. By no later than 11.00 CET (a.m.) on the Completion Date the
Purchaser shall pay the cash component of the Purchase Price in
accordance with Clause 3 of this Agreement by wire transfer into
the Notary's Bank Account. The Notary shall hold cash component of
the Purchase Price on behalf of the Purchaser up to the moment of
execution of the Deed of Transfer. Thereafter, the Notary shall
pay out the monies in accordance with Clause 4.1.3 below.
2.2. TRANSFER OF APPLIX SHARES
2.2.1. The Applix Shares shall be transferred in accordance with the
procedure parties have agreed to in the e-mail on 14 June 2006
attached hereto as Schedule 19.
3. PAYMENT OF OUTSTANDING DEBT
The Sellers and the Company shall procure payment of the shareholder loan
in accordance with Schedule 18 (the Flow of Funds). Subject to receipt of
payment thereof, Synergia grants the Company hereby full and final
discharge for any amounts outstanding under the shareholder loan granted
by Synergia.
4. DEED OF TRANSFER
4.1.1. Upon completion of the steps set out in the aforesaid Clauses of
this Schedule the Purchaser and the Sellers shall instruct the
Notary to execute the Deed of Transfer. The Company shall
acknowledge the transfer of the Shares by co-signing the Deed of
Transfer.
4.1.2. Following the transfer of the Shares the Notary shall register the
transfer of the Shares in the shareholders register and deliver
the register to the Purchaser.
4.1.3. Upon the execution of the Deed of Transfer the Notary shall hold
the Purchase Price for the sole benefit of the Sellers and shall
transfer the Purchase Price for same day value to the following
bank accounts designated by the Sellers in the following
proportions:
(A) [*] % of the Purchase Price being an amount of USD [*] to
bank account with number [*] in the name of Synergia,
[which shall constitute payment of the part of the Purchase
Price due to Synergia and full redemption of the
shareholder loan granted by Synergia to the Company in
accordance with Clause 3 above)];
(B) [*] % of the Purchase Price being an amount of USD [*] to
bank account with number [*] in the name of [*];
23
(C) [*] % of the Purchase Price being an amount of USD [*] to
bank account with number [*] in the name of [*];
(D) [*] % of the Purchase Price being an amount of USD [*] to
bank account with number [*] in the name of [*];
(E) [*] % of the Purchase Price being an amount of USD [*] to
bank account with number [*] in the name of [*];
(F) [*] % of the Purchase Price being an amount of USD [*] to
bank account with number [*] in the name of [*];
(G) [*] % of the Purchase Price being an amount of USD [*] to
bank account with number [*] in the name of [*];
(H) [*] % of the Purchase Price being an amount of USD [*] to
bank account with number [*] in the name of [*].
5. OTHER COMPLETION ARRANGEMENTS
5.1. MISCELLANEOUS
The performance of any other actions as set out in the Completion Agenda.
24
SCHEDULE 3 (SELLERS' WARRANTIES)
Any word or expression defined in the Agreement shall, save as otherwise defined
in this Schedule and the Appendices to this Schedule have the same meaning in
this Schedule and the Appendices to this Schedule, and the provisions of Clause
1.2 of the Agreement shall apply to this Schedule and the Appendices to this
Schedule.
"INTELLECTUAL PROPERTY RIGHTS" has the meaning given in Clause 9.1;
"IT-SYSTEMS" has the meaning given in Clause 11.1;
"MATERIAL AGREEMENTS" has the meaning given in Clause 11.1;
"REAL PROPERTY RENTED" has the meaning given in Clause 8.1;
"SUBSIDIARY SHARES" means the shares owned by the relevant Group Companies in
each of the Subsidiaries listed in Appendix B (Subsidiaries).
1. AUTHORITY AND CAPACITY OF THE SELLERS
1.1. Each of the Sellers has been duly incorporated and validly exists under
the laws of its jurisdiction and has the necessary corporate capacity and
power to enter into the Agreement and to perform its obligations under
the Agreement.
1.2. All corporate and other action required to be taken by the Sellers to
authorise the execution of the Agreement and the performance of their
obligations under the Agreement has been duly taken or will have been
duly taken by Completion.
1.3. The Agreement has been duly executed on behalf of the Sellers and
constitutes legal, valid and binding obligations of the Sellers,
enforceable in accordance with their terms.
1.4. The execution and performance of the Agreement do not conflict with or
result in a breach of any material provision of the articles of
association of the Sellers or any material provision of any applicable
law.
1.5. No approval, consent, license or notice to any regulatory or governmental
body must be obtained or made by the Sellers in connection with the
execution and performance by the Sellers of this Agreement.
2. CORPORATE ORGANISATION
2.1. THE GROUP COMPANIES
2.1.1. Each of the Group Companies has been duly incorporated as a
private company with limited liability and validly exists under
the laws of its jurisdiction and has the requisite powers to own
its assets and to carry on its business as presently conducted.
2.1.2. No Group Company is involved in or subject to any bankruptcy or
insolvency proceedings nor has any Group Company been a party to a
merger or de-merger during the past three years.
25
2.1.3. No decision has been taken to dissolve or liquidate any of the
Group Companies.
2.1.4. The Group Companies have no directors or proxy-holders or their
equivalent under any jurisdiction other than the Netherlands,
other than the persons named in Appendix D.
2.2. GROUP STRUCTURE
Appendix B (Subsidiaries) lists all the Subsidiaries of the Company and
no Group Company has any interest in the share capital of a company that
is not listed in Appendix B. None of the Group Companies is a party to
any partnership agreement (v.o.f., c.v., maatschap or equivalent).
2.3. CORPORATE DOCUMENTS, REGISTRATION
2.3.1. The articles of association of the Company dated 18 April 2001 are
its articles of association as currently in force. The current
articles of association or other constitutional documents of the
other Group Companies have been disclosed in the Disclosed
Information. No decision has been taken to amend the articles of
association of the Group Companies.
2.3.2. The minute books of each of the Group Companies are up to date and
accurately reflect in all material respects the corporate
resolutions of the shareholders and the management board and any
committees or other bodies of any of the Group Companies as
required by applicable law.
2.3.3. The Company is duly registered in the trade register of the
Chamber of Commerce in the Netherlands. The information set out in
the extract of the trade register of the Chamber of Commerce
attached hereto as Appendix C (Corporate information) is accurate
and complete in all material respects.
3. THE SHARES
3.1. CAPITAL STRUCTURE
3.1.1. The Shares constitute the whole of the issued and outstanding
share capital of the Company. The Shares and the Subsidiary Shares
have been validly issued and fully paid up and are free and clear
of Encumbrances.
3.1.2. The Sellers are the sole legal and beneficial owner (juridische en
economische eigenaar) of the Shares set opposite their names in
Appendix B (Ownership of the Shares) and the Company is the sole
legal and beneficial owner, directly or indirectly, of the
Subsidiary Shares. The Sellers are entitled to sell and transfer
title to the Shares to the Purchaser.
3.1.3. No depository receipts have been issued for any of the Shares or
the Subsidiary Shares held, directly or indirectly, by the
Company.
3.1.4. None of the Group Companies has given to any person any rights to
acquire or subscribe for its shares, including but not limited to
option rights, warrants or convertibles, other than the option
right given to Zwennis and Pisters to subscribe for 6 Shares each.
26
3.1.5. None of the Group Companies has issued any profit sharing
certificates (winstbewijzen) or granted any other rights to share
in its profits (winstrechten), nor granted any other rights to
third parties, including but not limited to Employees, entitling
such parties to share in its profits.
3.1.6. None of the Group Companies owns shares in its capital.
3.2. SHAREHOLDERS' REGISTER
The shareholders' registers of the Group Companies are accurate and
complete in all material respects and contain all information that should
be recorded in such register as required by applicable law and its
articles of association.
4. THE FINANCIAL STATEMENTS
4.1. ACCOUNTING POLICIES
The Accounting Policies applied by the relevant Group Companies are in
accordance with the Accounting Rules in all material respects.
4.2. FINANCIAL STATEMENTS
The Temtec Financial Statements 2005:
4.2.1. have been prepared in accordance with the Accounting Policies
applied on a basis consistent with that applied with respect to
the preceding one (1) financial year of the Company;
4.2.2. show a true and fair view of the financial position, assets,
liabilities and results of the Company and, on a consolidated
basis of all Group Companies for the accounting reference period
ending on the Accounts Date;
4.2.3. are not affected by transactions with any of the Sellers or
persons directly or indirectly related to any of the Sellers,
except as the explicitly disclosed in the explanatory notes;
4.2.4. have been duly filed or an exemption from filing has been obtained
in accordance with applicable law.
4.3. All accounts receivable of the Group Companies existing on the Accounts
Date or arisen since then and prior to or on 31 May 2006 represent
receivables (a) which can be collected from the debtors involved within a
time period of three (3) months from their due date without assistance by
any third party being required and without any loss on collection, or (b)
in respect of which a loss on collection has been adequately insured, or
(c) for which an adequate provision has been made in the Accounts or the
Temtec Financial Statements 31 May 2006.
5. EVENTS SINCE THE ACCOUNTS DATE
Since the Accounts Date:
(A) the business of each of the Group Companies has been carried on as
a going concern in the ordinary course of business consistent with
past practice;
27
(B) there has been no material adverse change in the financial or
trading position of the Group Companies and in the Net Debt (other
than changes in the ordinary course of business, consistent with
past practice);
(C) no Group Company has acquired or disposed of or agreed to acquire
or dispose of any business or any material asset other than in the
ordinary course of business; and
(D) no (interim) dividend or other distribution has been declared,
agreed to be paid or paid by any of the Group Companies.
6. GUARANTEES
No Group Company has given any guarantee for the benefit of the Sellers'
Group, nor has any of the Sellers' Group companies given any guarantee
for the benefit of any Group Company.
7. THE BUSINESS
7.1. CONDUCT OF BUSINESS
7.1.1. Each of the Group Companies is duly qualified to carry on its
business in all jurisdictions in which it presently carries on its
business.
7.1.2. Each of the Group Companies conducts its business in material
compliance with its articles of association and any applicable
law.
7.2. REGULATORY LICENSES
As far as the Sellers are aware all regulatory licenses required for the
carrying on of the business of each of the Group Companies are fairly
disclosed in the Disclosed Information and have been obtained by it and
are in full force and effect and the Sellers are not aware of any
circumstances indicating that any of those licenses is likely to be
suspended, revoked or not renewed. As far as the Sellers are aware, each
of the Group Companies is in material compliance with the terms of the
regulatory licenses.
8. REAL PROPERTY RENTED
8.1. The real property rented by the Group Companies (the "REAL PROPERTY
RENTED") is listed on Appendix F.
8.2. No other agreements, whether verbal or in writing, pertaining to the Real
Property Rented exist with the lessors thereof and no obligations have
been assumed by any of the Group Companies other than those which appear
from the lease agreements disclosed in the Data Room.
8.3. None of the Real Property Rented has been leased to any person other than
the Group Companies and no other right of (sub-)lease, use or enjoyment
of any of the Real Property Rented has been granted to any person other
than the Group Companies.
28
9. ENVIRONMENT
9.1. As far as the Sellers are aware each of the Group Companies is in
material compliance with any applicable environmental law.
9.2. No written notice or claim has been received by any Group Company from
any governmental authority or any other person stating that any of the
Group Companies is responsible for any decontamination of the soil of any
property used by any Group Company.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. The intellectual property rights used by the Group Companies (not
relating to proprietary software) are listed on Appendix D (the
"INTELLECTUAL PROPERTY RIGHTS") are either owned by the relevant Group
Company or the relevant Group Company has been granted a license to use
the Intellectual Property Rights. All Intellectual Property Rights owned
by the Group Companies are free of Encumbrances.
10.2. The Company and/or its Subsidiaries have at their disposal and own all
rights, including property rights and intellectual property rights to
software listed in Appendix E ( the "Proprietary Software"), the
documentation (including functional and technical specifications) and the
source code (including documentation necessary for the maintenance and
further development of the Proprietary Software) (the "Source Code").
None of the Company or its Subsidiaries have disclosed to any third party
any Source Code relating to the Proprietary Software. All the
aforementioned rights are free of Encumbrances. All escrow agreements
entered into by any of the Group Companies are in the form as disclosed
in the Data Room and more specifically none of those escrow agreements
contain other conditions for the release of the Source Code than as
contained in the format as disclosed in the Data Room.
10.3. No claims or objections are pending or, as far as the Sellers are aware,
threatened against any of the Group Companies with respect to the
Intellectual Property Rights.
10.4. As far as the Sellers is are aware no person is infringing any
Intellectual Property Rights.
10.5. As far as the Sellers are aware no Group Company is infringing any
intellectual property right of any other person.
11. INFORMATION TECHNOLOGY SYSTEMS
11.1. The information technology systems operated by or required to carry on
the business of the Group Companies (the "IT SYSTEMS") are either owned
by or properly leased or licensed to the Group Companies.
11.2. In the period of twelve (12) months prior to Completion, there have been
no failures or continuous disruptions of the IT Systems, which have had a
material adverse effect on the conduct of the Group Companies'
businesses.
11.3. As far as the Sellers are aware, no Group Company is in material breach
of any license or lease of IT Systems or Software operated by the Group
Companies.
29
12. AGREEMENTS
12.1. MATERIAL AGREEMENTS
All agreements that are material to the business of the Group Companies
(the "MATERIAL AGREEMENTS") have been made available in the Data Room.
12.2. COMPLIANCE WITH MATERIAL AGREEMENTS
12.2.1. Each of the Material Agreements constitutes legal, valid and
binding obligations of the relevant Group Company.
12.2.2. Neither the relevant Group Company nor, as far as the Sellers
are aware, any of the other parties to any Material Agreement is
in material default under that Material Agreement.
12.2.3. None of the relevant Group Companies has received a notice
(whether in writing or otherwise) of termination in respect of
any Material Agreement to which it is a party.
13. LITIGATION
Except for debt collection in the ordinary course of business, no Group
Company is engaged in any litigation, arbitration or other legal
proceedings and, none of the relevant Group Companies has received a
notice (whether in writing or otherwise) in respect of any claims or
proceedings threatened against any Group Company.
14. INSURANCE
14.1. The insurance policies taken out by each of the Group Companies (the
"INSURANCE POLICIES") have been made available in the Data Room. The
Group Companies maintain the Insurance Policies in full force and effect.
14.2. Each of the Group Companies is in material compliance with the terms and
conditions of the insurance policies referred to in Clause 14.1 and each
of the Group Companies has to date paid all premiums when due.
14.3. Under any insurance policy there is no material claim outstanding.
15. EMPLOYMENT
15.1. The Group Companies have no employees other than as disclosed in the Data
Room. No person has a management agreement or an agreement for the
rendering of services (overeenkomst tot het verrichten van enkele
diensten) with any of the Group Companies other than specified in Clause
8.3 of the Agreement.
15.2. None of the Group Companies is bound by any collective labour agreement.
15.3. Save as disclosed in the Data Room, there are no bonus, share option or
stock appreciation schemes or any similar arrangements in existence for
the account of any of the Group Companies.
15.4. As far as the Sellers are aware none of the Group Companies has in
relation to any of
30
its Employees incurred any liability for a material breach of any
applicable law or any employment agreement with any Employee which on the
date of this Agreement is outstanding.
15.5. There is no dispute pending or, as far as the Sellers are aware,
threatened between any of the Group Companies and any Employees. During
the last year no dispute has arisen between any of the Group Companies
and any material number or category of its employees or former employees
or their representatives.
15.6. As far as the Sellers are aware no Key Employee has agreed to or given
notice of termination of his employment agreement or is under notice of
dismissal.
15.7. The pension arrangements of the Group Companies are disclosed in the Data
Room ("THE PENSION ARRANGEMENTS"). The Pension Arrangements apply to all
Employees or former employees and directors and none of the Group
Companies is a party to any pension arrangement relating to any of the
Employees, including pension insurance or excess (excedent) insurance,
other than the Pension Arrangements.
15.8. All premiums that have fallen due in respect of the Pension Arrangements
have been paid or are adequately provided for. None of the Group
Companies has any obligation with respect to Pension Arrangements,
whether or not conditional or contingent, including but not limited to
back-service obligations, which are not fully funded or adequately
provided for.
16. TAXATION
16.1. All Taxes for which each of the Group Companies has been assessed or that
have become due or which have accrued or arisen with regard to the period
up to and including 31 May 2006 have either been paid in full or been
fully provided for in the Temtec Financial Statements 31 May 2006.
16.2. As far as the Sellers are aware each of the Group Companies has properly
filed all returns required to be filed pursuant to any relevant law. The
Sellers have supplied all other information in relation to Taxation it
was required to supply and all such returns and information were correct
and complete in all material respects.
16.3. As far as the Sellers are aware no Group Company is subject to any
disagreement or dispute with any Tax Authority regarding the Tax position
of any Group Company.
16.4. Other than as disclosed in the Disclosure Letter, no Group Company is
part of any fiscal unity for Dutch corporate income Tax or Dutch value
added Tax purposes.
16.5. For Tax purposes, each of the Group Companies is and has been resident
only in the jurisdiction in which it is incorporated and does not have
nor had a permanent establishment or permanent representative or, as far
as Sellers are aware, other taxable presence in any jurisdiction other
than that in which it is resident for Tax purposes. None of the Group
Companies constitutes or has constituted a permanent establishment or is
or has been a permanent representative of another person.
31
APPENDIX A TO SCHEDULE 3 (OWNERSHIP OF THE SHARES)
NAME OF SELLER NUMBER OF SHARES OWNED
Synergia 32 F shares (1 - 32)
Heijkers 32 B shares (33 - 64)
converted in 32 E shares
(1 - 32)
Temtec 32 A shares (1 - 32)
Steijvers 32 B shares (1 - 32)
Intesys 32 D shares (1 - 32)
Angus 32 C shares (1 - 32)
Zwennis 6 A shares (33 - 38)
Pisters 6 A shares (39 - 44)
TOTAL NUMBER OF SHARES 204
32
APPENDIX B TO SCHEDULE 3 (SUBSIDIARIES)
A list of the Subsidiaries referred to in Clause 2.2 of Schedule 3 (Sellers'
Warranties).
Temtec Technical Services B.V. (100%)
Temtec Europe B.V. (100%)
Temtec UK Ltd. (100%)
Temtec USA Inc. (100%)
33
APPENDIX C TO SCHEDULE 3 (CORPORATE INFORMATION)
Extract from the trade register of the Chamber of Commerce in respect of the
Company referred to in Clause 2.3.3 of Schedule 3 (Sellers' Warranties).
34
APPENDIX D TO SCHEDULE 3 (LIST OF IP RIGHTS)
Temtec USA, Inc.
US Trademark registration 'Executive Viewer' (Registration number: 3,089,867)
US Trademark registration 'Executive Viewer' (Registration number: 2,328,826)
US Trademark registration 'Portable Cubes' (Registration number: 2,328,825)
New United States Trademark registration 'Executive Viewer' (Serial number:
78/608,509)
Pending
European Trademark Registration 'Executive Viewer' (Serial Number: 4630687)
35
APPENDIX E TO SCHEDULE 3 (LIST OF PROPRIETARY SOFTWARE)
OWNED
Executive Viewer and all its components and all private label derivatives
Portable Cubes components
LICENSED
Component One Chart (Graphics Engine licensed from Component One)
PDF Font Embedding Technology (licensed from TallComponents B.V.)
VParse (licensed from Sandstone Technologies Inc.)
Icons (licensed from Iconfactory Inc.)
OEM-ED/RESOLD
Portable Cubes Generator components (OEM-ed from SDG Computing)
36
SCHEDULE 4 (ESCROW AGREEMENT)
37
15 JUNE 2006
SYNERGIA CAPITAL PARTNERS B.V.
and
TEMTEC B.V.
and
HEIJKERS HOLDING B.V.
and
INTESYS NEDERLAND B.V.
and
MR. R.L.H. PISTERS
and
MR. C.G. ANGUS
and
MR. E.A. ZWENNIS
and
STEIJVERS HOLDING B.V.
as the Sellers
and
APPLIX INC.
as the Purchaser
and
VAN LANSCHOT BANKIERS N.V.
as the Escrow Agent
------------------------
ESCROW AGREEMENT
------------------------
[Stibbe LOGO]
TABLE OF CONTENTS
CLAUSE HEADINGS PAGE
1. INTERPRETATION....................................................... 2
2. APPOINTMENT ESCROW AGENT............................................. 2
3. THE ESCROW ACCOUNT................................................... 3
4. INTEREST AND DIVIDENDS............................................... 3
5. PURPOSE OF THE ESCROW ACCOUNT........................................ 3
6. TRANSFERS OUT OF THE ESCROW ACCOUNT.................................. 3
7. TERM AND TERMINATION................................................. 5
8. CONFIDENTIALITY...................................................... 5
9. GENERAL PROVISIONS................................................... 5
THIS ESCROW AGREEMENT is made on 15 June 2006
BETWEEN:
(1) SYNERGIA CAPITAL PARTNERS B.V., a company incorporated under the laws of
the Netherlands with its corporate seat in Veenendaal ("SYNERGIA");
(2) TEMTEC B.V., a company incorporated under the laws of the Netherlands
with its corporate seat in Nijmegen ("TEMTEC");
(3) HEIJKERS HOLDING B.V., a company incorporated under the laws of the
Netherlands with its corporate seat in Nederweert ("HEIJKERS");
(4) STEIJVERS HOLDING B.V., a company incorporated under the laws of the
Netherlands with its corporate seat in Stramproy ("STEIJVERS");
(5) INTESYS NEDERLAND B.V., a company incorporated under the laws of the
Netherlands with its corporate seat in 's-Hertogenbosch ("INTESYS");
(6) MR. C.G. ANGUS, domiciled in the United States of America ("ANGUS");
(7) MR. R.L.H. PISTERS, domiciled in the Netherlands ("PISTERS");
(8) MR. E.A. ZWENNIS, domiciled in the Netherlands ("ZWENNIS");
(9) APPLIX INC., a public company incorporated under the laws of
Massachusetts with its corporate seat in Westborough 289 Turnpike Road,
MA 01581, United States of America (the "PURCHASER"); and
(10) F. VAN LANSCHOT BANKIERS N.V. (the "ESCROW AGENT").
The parties to this Agreement are hereinafter collectively referred to as the
"PARTIES" and individually as a "PARTY". Synergia, Temtec, Heijkers, Intesys,
Steijvers, Angus, Pisters, Angus, Zwennis, collectively also the "SELLERS" and
each individually a "SELLER".
RECITALS:
(1) The Purchaser has acquired the entire issued and outstanding share
capital of Temtec International B.V. from the Sellers pursuant to a share
purchase agreement (the "SHARE PURCHASE AGREEMENT") dated 15 June 2006,
attached hereto as Schedule 1.
(2) Pursuant to the Share Purchase Agreement the Purchaser and the Sellers
have agreed that an amount of USD 1,000,006 in cash (the "ESCROW CASH
AMOUNT") and 264,200 of Applix Shares (the "ESCROW APPLIX SHARES") shall
be transferred into a monetary account (the "ESCROW CASH ACCOUNT"),
respectively a securities account (the "ESCROW STOCK ACCOUNT") in
accordance with the terms of the Share Purchase Agreement to secure the
obligations of the Sellers under the Sellers' Warranties, the Sellers'
Indemnities (as defined in the Share Purchase Agreement) and claims
pursuant to Clauses 4 or 6.5 of the Share Purchase Agreement on the terms
set out in this Agreement.
1
IT IS AGREED as follows:
1. INTERPRETATION
Definitions used in this Agreement have the same meaning as given to them
in the Share Purchase Agreement unless stated otherwise and the
provisions of Clause 1 (Interpretation) of the Share Purchase Agreement
shall apply to this Agreement. In this Agreement the following other
definitions are used:
"AGREEMENT" means this escrow agreement;
"BANK" has the meaning given in Clause 4;
"CLAIM" has the meaning given in Clause 5.1;
"ESCROW ACCOUNT" means the joint reference to the monetary account with
number 26 00 27 669 with the Escrow Agent (the "ESCROW CASH ACCOUNT") and
the securities account with number 26 00 27 707 with the Escrow Agent
(the "ESCROW STOCK ACCOUNT"), both in the names of the Sellers and the
Purchaser;
"ESCROW AMOUNT" means the joint reference to the Escrow Cash Amount and
the Escrow Applix Shares initially transferred to the Escrow Account as
set out in the recitals to this Agreement;
"ESCROW APPLIX SHARES" has the meaning given in the recitals to this
Agreement;
"ESCROW CASH AMOUNT" has the meaning given in the recitals to this
Agreement;
"ESCROW PERIOD" means the period starting on the Completion Date and
ending no later than 31 May 2008 unless prior to that date the Purchaser
has made a request for payment or transfer out of the Escrow Account,
which request has not been revoked by the Purchaser and in respect of
which request the Escrow Agent has not yet received a notice in
accordance with Clause 6.2 of the Agreement, in which case the Escrow
Period shall end on the earlier of (i) the date on which the Purchaser
has revoked its request or (ii) the date on which payment or transfer has
been effected by the Escrow Agent in accordance with a notice pursuant to
Clause 6.2 of the Agreement;
"JOINT COURT NOTICE" has the meaning given in Clause 6.3.2;
"JOINT SETTLEMENT NOTICE" has the meaning given in Clause 6.3.1;
"REPRESENTATIVE" or "REPRESENTATIVES" has the meaning given in Clause
2.3;
"SHARE PURCHASE AGREEMENT" has the meaning given in the recitals to this
Agreement.
2. APPOINTMENT ESCROW AGENT
2
The Escrow Agent is hereby appointed to open, hold in escrow, disburse
and administer the Escrow Account in accordance with the terms set out in
this Agreement.
3. THE ESCROW ACCOUNT
3.1. As soon as reasonably practicable after the execution of the Deed of
Transfer the Notary shall transfer the Escrow Cash Amount to the Escrow
Cash Account and the Purchaser shall transfer the Escrow Applix Shares to
the Escrow Stock Account.
3.2. The Purchaser and the Sellers shall act as joint signatories in respect
of the Escrow Account and shall each appoint one person to act on their
behalf (the persons thus appointed by the Purchaser and the Sellers
collectively also the "REPRESENTATIVES" and each individually a
"REPRESENTATIVE"). The Purchaser appoints Milton Alpern as its
Representative and the Sellers appoint Henk Tepper as their
Representative.
4. INTEREST AND DIVIDENDS
4.1. The dividends and other payments accrued on the Escrow Stock Amount will
be credited into the Escrow Cash Account and shall accrue for the benefit
of the Sellers. The Escrow Cash Account shall be a fixed deposit account
and the interest on the amount in the Escrow Cash Account shall be at a
rate equal to the credit interest paid by the Bank on fixed deposit
accounts in dollars from time to time. The interest accrued on the amount
in the Escrow Cash Account will be credited into the Escrow Cash Account
and shall accrue for the benefit of the Sellers.
4.2. The interest accrued on the Escrow Cash Amount can be released during the
Escrow Period by the Escrow Agent at the request of the Sellers.
5. PURPOSE OF THE ESCROW ACCOUNT
5.1. The purpose of the Escrow Account is to secure the obligations of the
Sellers under the Sellers' Warranties, the Seller's Indemnities (as
defined in the Share Purchase Agreement) and claims pursuant to Clause 4
or Clause 6.5 of the Share Purchase Agreement. A "CLAIM" as used in this
Agreement means any claim by the Purchaser pursuant to a claim in respect
of any Sellers' Warranty, Sellers' Indemnity and pursuant to Clause 4 or
Clause 6.5 of the Share Purchase Agreement.
6. TRANSFERS OUT OF THE ESCROW ACCOUNT
6.1. Any request for payment or transfer out of the Escrow Account must be
made in writing in English to the Escrow Agent and shall state the amount
of the Escrow Cash Amount to be paid, or the number of Escrow Applix
Shares respectively to be transferred out of the Escrow Account and the
name, address and account number of the recipient.
6.2. In respect of a payment or transfer pursuant to a Claim as determined in
accordance with the Share Purchase Agreement, the Escrow Agent shall
release 1/3 (one-third) of the Claim out of the Escrow Cash Amount and
2/3 (two-third) of the Claim out of the Escrow Applix Shares.
6.3. In respect of a payment pursuant to a Claim as determined in accordance
with the Share Purchase Agreement and Clause 6.2 above, the Escrow Agent
shall release
3
(wholly or partially) the Escrow Cash Amount and the Escrow Applix Shares
to the Purchaser, after receipt and in accordance with:
6.3.1. a duly completed notice in the form set forth in Annex A hereto
(the "JOINT SETTLEMENT NOTICE") signed by each of the
Representatives to release (wholly or partially) the Escrow Cash
Amount and the Escrow Applix Shares from the Escrow Account.
6.3.2. a duly completed notice in the form set forth in Annex B hereto
(the "JOINT COURT NOTICE") signed by each of the Representatives
to release (wholly or partially) the Escrow Cash Amount and the
Escrow Applix Shares from the Escrow Account accompanied by an
enforceable judgement of a competent court obtained by the
Purchaser in respect of a Claim.
6.4. The Escrow Agent shall release (wholly or partially) the Escrow Cash
Amount and/or the Escrow Applix Shares (as the case may be) to the
Sellers:
6.4.1. an amount of 1/3 (one-third) of the Escrow Cash Amount or 1/3
(one-third) of the Escrow Applix Shares (or a combination thereof)
up to a maximum of 1/3 (one-third) of the Escrow Amount, if
applicable calculated on the basis of the price of the Applix
Shares mentioned in Clause 3.1 of the Share Purchase Agreement to
be determined by the Sellers at their sole discretion (i) less the
aggregate amount of the Escrow Cash Amount and /or aggregate
number Escrow Applix Shares already paid or transferred by the
Escrow Agent to the Purchaser out of the Escrow Account and (ii)
less the amount of any pending requests by the Purchaser (in
accordance with the Share Purchase Agreement) for payment or
transfer out of the Escrow Account in respect of a Claim of which
the Purchaser has notified the Sellers (in accordance with the
Share Purchase Agreement) in accordance with a duly completed
notice in the form set forth in Annex C hereto signed by each of
the Representatives to be received by the Escrow Agent within 30
days after the adoption of the Applix Financial Statements 2006
but no later than 31 May 2007.
6.4.2. the remainder of the Escrow Cash Amount and the remaining number
of Escrow Applix Shares less the amount and/or number of any
pending requests by the Purchaser (in accordance with the Share
Purchase Agreement) for payment or transfer out of the Escrow
Account in respect of a Claim of which the Purchaser has notified
the Sellers in accordance with the Share Purchase Agreement within
30 days after the adoption of the Applix Financial Statements 2006
in accordance with a duly completed notice in the form set forth
in Annex D hereto signed by each of the Representatives to be
received by the Escrow Agent within 30 days after the adoption of
the Applix Financial Statements 2007 but no later than 31 May
2008.
6.5. Notwithstanding the provisions of Clause 6, the Escrow Agent shall only
make payment or transfer out of the Escrow Account if the request for
payment is signed by both Representatives.
6.6. Upon receipt of a request for payment or transfer in accordance with this
Clause 6, the Escrow Agent shall promptly make the relevant payment or
transfer accordingly.
4
6.7. Any payment or transfer to the Sellers pursuant to this Clause 6 shall be
made to an account designated by the recipient and shall be allocated
among the Sellers in the same proportions as set out on Schedule 2
(Completion Events) to the Share Purchase Agreement.
7. TERM AND TERMINATION
7.1. Subject to the provisions of Clause 7.2, this Agreement shall terminate
on (i) the expiry date of the Escrow Period; or (ii) the date on which
the entire balance of the Escrow Account has been paid out or
transferred, whichever is earlier.
7.2. This Agreement may be terminated at any time before the expiry date of
the Escrow Period:
7.2.1. by a joint 14 day's written notice of the Representatives to the
Escrow Agent, setting out to whom and in which manner the
remaining balance of the Escrow Account must be paid out or
transferred by the Escrow Agent;
7.2.2. by written notice of the Escrow Agent to the Representatives,
subject to the provisions of Clauses 7.3 and 7.4.
7.3. If this Agreement is terminated pursuant to Clause 7.2.2:
7.3.1. the Purchaser and the Sellers shall without delay appoint a
replacement escrow agent and instruct the Escrow Agent to transfer
the remaining balance of the Escrow Account to the escrow account
held with the replacement escrow agent; and
7.3.2. the Escrow Agent shall be bound by the provisions of this
Agreement until a replacement escrow agent has been appointed by
the Purchaser and the Escrow Agent has credited the remaining
balance of the Escrow Account to the account of the replacement
escrow agent on the joint instruction of the Representatives.
7.4. In the event the Purchaser and the Sellers have not appointed a
replacement escrow agent within one month after receipt of the written
notice by the Escrow Agent pursuant to Clause 7.2.2, the Escrow Agent may
appoint a replacement escrow agent. The Purchaser and the Sellers shall
accept such appointment subject to any reasonable objections they may
have against the replacement escrow agent thus appointed by the Escrow
Agent. The Purchaser and the Sellers hereby (i) grant their consent to
the assignment of the rights and obligations of the Escrow Agent under
this Agreement to the replacement escrow agent; (ii) authorise the Escrow
Agent to transfer the remaining balance of the Escrow Account to the
account of the replacement escrow agent upon his appointment; and (iii)
undertake to discharge the Escrow Agent from all its obligations under
this Agreement.
8. CONFIDENTIALITY
The Parties confirm that the provisions of Clause 14 (Confidentiality and
Announcements) of the Share Purchase Agreement apply mutatis mutandis to
this Agreement.
9. GENERAL PROVISIONS
5
9.1. NOTICES
All notices, consents, waivers and other communications under this
Agreement must be in writing in English and delivered by hand or sent by
registered mail, express courier or e-mail to the appropriate addresses
and numbers set out below (or to such addresses and numbers as a Party
may notify to the other Parties from time to time). A notice shall be
effective upon receipt and shall be deemed to have been received at the
time of delivery (if delivered by hand, registered mail or express
courier) or at the time of successful transmission (if delivered by fax
or e-mail).
To the Sellers:
Name: Temtec B.V.
Address: St. Annastraat 198C, Nijmegen
Fax number: +31 24 32 20 293
E-mail: tepperhj@multep.com
Attention: Henk Tepper
To the Purchaser:
Name: Applix Inc.
Address: Westborough, 289 Turnpike Road, United States of America
Fax number: 508616-0602
E-mail: malpern@applix.com
Attention: Milton Alpern
To the Escrow Agent:
Name: F. Van Lanschot Bankiers N.V.
Address: Herculesplein 5, Utrecht
Fax number: + 31 30 659 9146
E-mail: p.snip@vanlanschot.com
Attention: Paul Snip
9.2. RESCISSION
Subject to the provisions of Clause 7 of this Agreement, the Parties
waive their right to rescind this Agreement.
9.3. PARTIAL INVALIDITY
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of
this Agreement. Any such invalid or unenforceable provision shall be
replaced or be deemed to be replaced by a provision that is considered to
be valid and enforceable and which interpretation shall be as close as
possible to the intent of the invalid or unenforceable provision.
9.4. GOVERNING LAW
This Agreement shall be governed by the laws of the Netherlands.
9.5. DISPUTE RESOLUTION
6
9.5.1. The competent court in Amsterdam, the Netherlands shall have
jurisdiction to settle any dispute in connection with this
Agreement without prejudice to the right of appeal and that of
appeal to the Supreme Court.
9.5.2. Notwithstanding the provisions of Clause 9.5.1, if any dispute
arises in connection with this Agreement:
(A) all obligations of the Escrow Agent under this Agreement
shall end except for this Clause 9.5.2, Clause 1
(Interpretation), Clause 8 (Confidentiality) and Clause 9
(General Provisions);
(B) the Escrow Agent shall refrain from taking any action in
respect of the Escrow Account;
(C) the Escrow Agent shall be entitled to retain all or part of
the remaining balance of the Escrow Account until the
dispute has been settled or, at its sole discretion, to
deposit the remaining balance of the Escrow Account with a
court of competent jurisdiction; and
(D) the Escrow Agent shall be under no duty to institute or
defend any legal proceedings to determine the disposition
of the remaining balance of the Escrow Account or to
mediate or decide upon the dispute.
THUS AGREED AND SIGNED ON 15 JUNE 2006,
SYNERGIA CAPITAL PARTNERS B.V. TEMTEC B.V.
/s/ R.H.M. Verkleij /s/ H. Tepper
- -------------------------------- --------------------------------
By: R.H.M. Verkleij By: H. Tepper
Title: Investment Manager Title: Investment Manager
by power of attorney by power of attorney
HEIJKERS HOLDING B.V. INTESYS NEDERLAND B.V.
/s/ H. Heijkers /s/ H. Heijkers
- -------------------------------- --------------------------------
By: H. Heijkers By: H. Heijkers
Title: Director Title: by power of attorney
7
MR. R.L.H. PISTERS MR. C.G. ANGUS
/s/ H. Heijkers /s/ C. Angus
- -------------------------------- --------------------------------
By: H. Heijkers By: C. Angus
Title: by power of attorney Title: Investment Manager
by power of attorney
MR. E.A. ZWENNIS STEIJVERS HOLDING B.V.
/s/ H. Heijkers /s/ H. Heijkers
- -------------------------------- --------------------------------
By: H. Heijkers By: H. Heijkers
Title: by power of attorney Title: by power of attorney
APPLIX INC. VAN LANSCHOT BANKIERS N.V.
/s/ Milton A. Alpern /s/ A.C.C. van Winkle
- -------------------------------- --------------------------------
By: Milton A. Alpern By: A.C.C. van Winkle
Title: Chief Financial Officer Title: business banker
VAN LANSCHOT BANKIERS N.V.
- --------------------------------
By:
Title:
8
ANNEX A
JOINT SETTLEMENT NOTICE
DATE: ______________________
Van Lanschot Bankiers N.V.
____________________________
____________________________
Attn.:
Dear Sir/Madam,
Reference is made to the Escrow Agreement entered into by the Sellers, the
Purchaser and the Escrow Agent dated as of 15 June 2006. Capitalised terms used
and not otherwise defined herein have the respective meanings ascribed to them
in the Escrow Agreement.
The undersigned H. Tepper in his capacity as authorised representative of the
Sellers and M. Alpern in his capacity as authorised representative of the
Purchaser hereby jointly instruct you as Escrow Agent to release USD [....] from
the Escrow Cash Account and [...] number of shares from the Escrow Stock Account
after receipt of this notice, and remit such sum as immediately available funds,
by wire transfer to the account(s) no.: [....], [....] held with
...................Bank, in name of [beneficiary(ies)].
Yours truly,
Authorised representative of the Sellers
By:___________________________
Name:_________________________
Title: _______________________
Authorised representative of the Purchaser
By:___________________________
Name:_________________________
Title: _______________________
9
ANNEX B
JOINT COURT NOTICE
DATE: ______________________
Van Lanschot Bankiers N.V.
____________________________
____________________________
Attn.:
Dear Sir/Madam,
Reference is made to the Escrow Agreement entered into by the Sellers, the
Purchaser and the Escrow Agent dated as of 15 June 2006. Capitalised terms used
and not otherwise defined herein have the respective meanings ascribed to them
in the Escrow Agreement.
The undersigned H. Tepper in his capacity as authorised representative of the
Sellers and M. Alpern in his capacity as authorised representative of the
Purchaser hereby jointly instruct you as Escrow Agent to release USD [....] from
the Escrow Cash Account and [...] number of shares from the Escrow Stock Account
after receipt of this notice, and remit such sum as immediately available funds,
by wire transfer to the account(s) no.: [....], [....] held with
................Bank in name of [beneficiary(ies)].
Pursuant to the requirements of Section 6.3.2 of the Escrow Agreement, we hereby
attach:
a) A copy of the final judgement of the competent court (NAME/ADDRESS
court);
b) The confirmation from the registrar's office of the aforementioned court
bearing a date later than the last date of the applicable appeal period,
setting forth: (i) the applicable appeal period; and (ii) that the
aforementioned judgement has not been appealed within such appeal period.
Yours truly,
Authorised representative of the Purchaser
By:___________________________
Name:_________________________
Title: _______________________
10
Authorised representative of the Sellers
By:___________________________
Name:_________________________
Title: _______________________
11
SCHEDULE 5 (TEMTEC FINANCIAL STATEMENTS 31 MAY)
38
SCHEDULE 6 (DATA ROOM CD-ROM)
The data room CD-Rom referred in Clause 1 (Interpretation) of the Agreement.
39
SCHEDULE 7 (PURCHASER'S WARRANTIES)
1.1. The Purchaser has been duly incorporated and validly exists under the
laws of its jurisdiction and has the necessary corporate capacity and
power to enter into the Agreement and to perform its obligations under
the Agreement.
1.2. All corporate and other action required to be taken by the Purchaser to
authorise the execution of the Agreement and the performance of its
obligations under the Agreement has been duly taken or will have been
duly taken by Completion.
1.3. The Agreement has been duly executed on behalf of the Purchaser and
constitutes legal, valid and binding obligations of the Purchaser,
enforceable in accordance with their terms.
1.4. The execution and performance of the Agreement do not conflict with or
result in a breach of any provision of the articles of association or
equivalent constitutional documents of the Purchaser or any provision of
any applicable law and will not result in a breach of any agreement to
which the Purchaser is bound.
1.5. No approval, consent, license or notice to any regulatory or governmental
body must be obtained or made by the Purchaser in connection with the
execution and performance by the Purchaser of this Agreement.
1.6. No investigation, action or proceeding is pending or threatened that may
have the effect of preventing, delaying or prohibiting or otherwise
interfering with any of the transactions contemplated by this Agreement.
1.7. The Applix Shares have been validly issued and fully paid up and are free
and clear of Encumbrances.
1.8. The Purchaser shall not do anything which will restrict the
transferability of the Applix Shares (or omit to take any action which
will result in restriction of the transferability of the Applix Shares),
subject to compliance with applicable securities laws and the corporate
insider trading regulations of the Purchaser, as amended from time to
time.
40
SCHEDULE 8 (DISCLOSURE LETTER)
41
SCHEDULE 9 (DEED OF TRANSFER)
42
SCHEDULE 10 (SPOUSE DECLARATION)
43
SCHEDULE 11 (RESIGNATION LETTERS SUPERVISORY DIRECTORS)
44
SCHEDULE 12 (RESIGNATION LETTERS MANAGING DIRECTORS)
45
SCHEDULE 13 (EMPLOYMENT AGREEMENT STEIJVERS)
46
SCHEDULE 14 (EMPLOYMENT AGREEMENT HEIJKERS)
47
SCHEDULE 15 (EMPLOYMENT AGREEMENT PISTERS)
48
SCHEDULE 16 (ADDENDUM EMPLOYMENT AGREEMENT PARKER)
49
SCHEDULE 17 (SHAREHOLDERS' RESOLUTION)
50
SCHEDULE 18 (FLOW OF FUNDS)
51
SCHEDULE 19 (APPLIX SHARES)
52