Exhibit 2.1
DATED MARCH 30, 2004
BETWEEN
COMPUTER TASK GROUP EUROPE B.V.
(AS SELLER)
AND
SCAJAQUADA HOLDING B.V.
(AS PURCHASER)
SHARE SALE AND PURCHASE AGREEMENT
EXECUTION COPY
THIS SHARE SALE AND PURCHASE AGREEMENT is made on this 30th day of March 2004
(the "AGREEMENT")
Between:
(1) COMPUTER TASK GROUP EUROPE B.V., a private limited liability company
("besloten vennootschap met beperkte aansprakelijkheid") organized and
existing under the laws of The Netherlands, registered with the Trade
Register of the Chamber of Commerce under number 34073503. and having
its registered office at (1185XX) Bouwerij 4, Amstelveen, The
Netherlands ("SELLER");
and
(2) SCAJAQUADA HOLDING B.V. a private limited liability company ("besloten
vennootschap met beperkte aansprakelijkheid") organized and existing
under the laws of The Netherlands, registered with the Trade Register
of the Chamber of Commerce under number 34204512, and having its
registered office at (1161 CG) Zwanenburg, Van Hallstraat 7, The
Netherlands ("PURCHASER");
Seller and Purchaser are individually referred to in this Agreement as "PARTY"
and collectively as "Parties".
WHEREAS:
(A) Seller is the legal and beneficial owner of the entire issued share
capital of Computer Task Group Nederland B.V., a private limited
liability company ("besloten vennootschap met beperkte
aansprakelijkheid") organized and existing under the laws of The
Netherlands, registered with the Trade Register of the Chamber of
Commerce under number 34073505, and having its registered office at
(1185XX), Bouwerij 4, Amstelveen, The Netherlands (the "COMPANY").
(B) The Company is involved in the rendering of advice and services in the
field of computer technology.
(C) The Parties have entered into a letter of intent dated March 18, 2004
("LETTER OF INTENT"), a
copy of which Letter of Intent is attached to this Agreement as
SCHEDULE C, establishing the basis for the Parties' negotiations
resulting in this Agreement.
(D) Seller and Purchaser have agreed that Seller shall sell and transfer to
Purchaser and Purchaser shall purchase and acquire from Seller the
total issued share capital of the Company, consisting of 500 shares,
nominal value EUR 453.78 (NGL 1,000) per share, numbered 1 to 500 (the
"SHARES") for the Consideration (as defined below) and on the terms and
subject to the conditions contained in this Agreement ("TRANSACTION").
(E) Mr. M. Markus, the sole shareholder and statutory director ("statutair
bestuuder") of Purchaser, is currently general manager of the Company.
(F) The transaction shall be structured as a management buy-out.
(G) Seller and the Company are in a fiscal unity for corporate tax
purposes. This fiscal unity shall end on January 1, 2004.
(H) Due to the close involvement of the sole shareholder and statutory
director ("statutair bestuuder") of Purchaser, Mr. M. Markus, with the
Company, and due to the amount of the Consideration, this Agreement
will not contain any representations and warranties, except for title
to the Shares and the absence of third party rights in relation to the
Shares, and except as otherwise agreed to by the Parties.
(I) The Parties wish to have their mutual relations and their respective
rights and obligations in respect of the issues as mentioned in this
Agreement be governed by the provisions of this Agreement from the
Signing (as defined below).
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereto
hereby agree as follows:
ARTICLE 1 - DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this Agreement, unless the context indicates otherwise,
the words and expressions used in this Agreement shall have the
meanings set forth in SCHEDULE 1.1.
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1.2 Headings. Headings are inserted for convenience only and shall not
affect the construction of this Agreement.
ARTICLE 2 - SALE AND PURCHASE OF SHARES
2.1 Sale and Purchase. Subject to the terms and conditions of this
Agreement at Closing, Seller hereby sells ("verkoopt") and shall
transfer ("leveren") at Closing the Shares to Purchaser, free and clear
of Encumbrances, and Purchaser hereby purchases ("koopt") and at
Closing shall accept the transfer ("levering") of the Shares from
Seller.
2.2 Effective Date. The purchase and sale of the Shares is effective as of
January 1, 2004 ("EFFECTIVE DATE"). All dividends and other
distributions on the Shares with respect to periods after January 1,
2004 shall be for the benefit of Purchaser.
2.3 Fiscal Unity. Seller and the Company are in a fiscal unity for
corporate tax purposes. This fiscal unity shall end on January 1, 2004.
ARTICLE 3 -- CONSIDERATION
3.1 Consideration. The Consideration payable by Purchaser to Seller for the
Shares shall be one Euro (euro 1) (the "CONSIDERATION").
3.2 Payment of the Consideration. The Consideration shall be satisfied by
payment in cash by Purchaser to Seller on the Closing Date, in
accordance with the provisions of Article 5.3.
3.3 Earn Out. In the event that, within five (5) years as of the Closing
Date (i) Purchaser or any other person or entity as applicable decides
to merge, consolidate, sell, or otherwise transfer, in any way
whatsoever, more than fifty percent (50%) in total of the Shares or
other equity interest held in the Company or in the parent company or
an affiliate of the Company, not being a subsidiary, (ii) Purchaser or
the Company decides to transfer, in any way whatsoever, all or
substantially all of the Company's assets, (iii) any dividend payment
to the shareholders of the Company be declared, or (iv) Purchaser
looses control over the Company, except in the event of bankruptcy
("faillissement"), then Purchaser shall pay Seller, within thirty (30)
days of the date of such decision, declaration, or change of control,
as applicable, (i) an amount equal to twenty five percent (25%) of the
expected gross sale proceeds, (ii) an amount equal to twenty five
percent (25%) of the declared dividends, or (iii) in the event the
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expected gross sale proceeds are unreasonably low in comparison to the
fair market value an amount equal to two hundred and fifty thousand
Euros ((euro)250,000). It is understood between the Parties that in any
event the maximum earn out payment or payments shall be two hundred and
fifty thousand Euros ((euro)250,000) in total.
The purpose of this provision is to ensure that Seller will receive its
fair share of any profits generated by Purchaser by disposing of all or
a substantial part of the shares in the Company or by declaring
dividend within five years after Closing.
ARTICLE 4 - CONDITIONS PRECEDENT
4.1 Conditions Precedent to the Obligations of Both Parties. The obligation
of Seller and Purchaser to effect the Closing is conditional upon
fulfillment or waiver of the following conditions precedent
("opschortende voorwaarden") ("CONDITIONS"):
(a) The works council of the Company, pursuant to the Dutch Works
Councils Act ("Wet op de Ondernemingsraden"), having issued
either (i) an unconditional positive written advice with
respect to the transactions contemplated in this Agreement,
(ii) a positive conditional written advice with respect to
such transactions, with conditions acceptable to the Parties
or (iii) a negative or neutral or no advice whereby the works
council of the Company waives the statutory one month waiting
period as stated in article 25 paragraph 6 of the Dutch Works
Councils Act;
(b) The notifications to and consultations with the trade unions
and the SER Merger Committee pursuant to the Dutch Merger Code
("SER-Fusiecode") having been completed and objections and/or
queries from the trade unions concerned, if any, having been
dealt with;
(c) No statute, regulation or decision which would prohibit,
restrict or materially delay the sale and purchase of the
Shares or the operations of the Company after Closing having
been proposed, enacted or taken by any Governmental Authority;
(d) No order or injunction having been issued by any court of
competent jurisdiction or any competent Governmental Authority
prohibiting the Closing, or imposing material penalties or
restrictions on either Party if the Closing is effected, and
no litigation, seeking the issuance of such an order or
injunction, with respect to which there is in the reasonable
judgment of either of the Parties a reasonable likelihood of
success, be pending or
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threatened; and
(e) Any and all outstanding intercompany loans up to April 2, 2004
owed by the Company to any CTG group company, or owed by any
CTG group company to the Company up to April 2, 2004 including
the amounts that Seller is going to pay for the transfer of
the 1997 Pension Plan as set forth in article 6.2 (b) at a
later date, having been set off and any and all remaining
balance of said loans having been waived by the relevant
Party.
4.2 Conditions to the Obligations of Purchaser. The obligation of Purchaser
to effect the Closing is conditional upon fulfillment or waiver of the
following additional Conditions:
(a) The pledge on the Shares having been released;
(b) Seller having provided Purchaser a guarantee of Computer Task
Group, Inc, in order to secure the set off and waiver of the
intercompany loans as set forth in article 4.1 (e);
4.3 Conditions to the Obligations of Seller. The obligation of Seller to
effect the Closing is conditional upon fulfillment or waiver of the
following additional Conditions:
(a) Purchaser having complied in all material respects with all of
the obligations herein required to be performed by it prior to
Closing and Purchaser having delivered to Seller at Closing a
certificate, dated the Closing Date, signed by Marcel Markus,
statutory director of Purchaser, to the effect set forth in
this Article 4.3(a); and
(b) Seller having received evidence in writing the confirmation of
Mr. P. Kloet, Mr. A al Hussainy, Mr. F. Ozalp and Mr. J. Dijk,
that they are employed by the Company. In case Purchaser
cannot provide such confirmation to Seller, Purchaser shall
indemnify Seller with respect to all claims that the
aforementioned employees may have towards Seller and/ or any
of its group companies with respect to their employment
relationships with the Seller or any of Seller's group
companies.
4.4 Notice. If a Party becomes aware of a circumstance which will or may
prevent the fulfillment of a Condition to its obligations to effect the
Closing, it will notify the other Party thereof in writing without
delay. Each of the Parties will use its best efforts to ensure that
each of the Conditions to the obligation of the other Party to effect
the Closing are satisfied on or prior to April 15, 2004 and that
Closing takes place no later than such date.
4.5 Fulfillment Date,. If any of the conditions to Seller's or Purchaser's
obligation to effect the
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Closing shall not be fulfilled on or prior to April 15, 2004, and this
fact is attributable to the other Party or to matters within the
control of such other Party, the Seller or Purchaser as the case may
be, at its sole discretion and without prejudice to any of its other
rights and claims (including, even if this Agreement is terminated, any
right to payment of damages), by notifying such other Party:
(a) to the extent permitted by applicable law, waive the
unfulfilled conditions; or
(b) postpone Closing.
4.6 Effect of Termination. Without prejudice to Article 4.5, if any Party
terminates this Agreement, then this Agreement shall cease to have any
effect, except for Articles 11.1 (Parties' Costs), 11.2 (Notices), 12
(Restriction on Announcements), 13 (Confidential Information) and 15
(Governing Law and Arbitration) which shall remain in full force and
effect, and save in respect of claims for costs, damages, compensation
or otherwise arising out of any breach of the terms of this Agreement.
ARTICLE 5 - CLOSING
5.1 Time and Place of Closing. Subject to the provisions of Article 4,
Closing shall take place at the offices of Baker & McKenzie,
Leidseplein 29, 1017 PS Amsterdam, The Netherlands, immediately
following the date upon which all of the Conditions to the obligations
of the Parties to effect the Closing (other than any Condition
requiring the delivery of a certificate or other document at the
Closing) are satisfied or waived or at such other place and time as
shall be mutually agreed between the Parties, where all (and not some
only) of the events described in this Article 5 shall occur. In any
event, this date shall be, at the latest, April 15, 2004, unless
otherwise agreed by the Parties in writing.
5.2 Seller's Closing obligations. At Closing, Seller shall:
(a) deliver or cause to be delivered to Purchaser:
(i) evidence satisfactory to Purchaser of the
satisfaction of the Conditions to Purchaser's
obligation to effect the Closing; and
(ii) a copy of a letter of resignation of the statutory
director ("statutair bestuurder") of the Company.
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(b) execute the Notarial Transfer Deed, substantially in the form
as set out in SCHEDULE 5.2(B) ;
(c) cause the Company to execute the Notarial Transfer Deed
(acknowledging the transfer of the Shares); and
(d) authorize the civil law notary executing the Notarial Transfer
Deed to make the relevant entries in the shareholders'
register of the Company.
5.3 Purchaser's Closing Obligations. At Closing, and upon delivery as set
forth in Article 5.2 above, Purchaser shall:
(a) pay the Consideration in cash to Seller, and Seller's receipt
thereof shall be an absolute discharge therefor;
(b) execute the Notarial Transfer Deed; and
(c) deliver to Seller a written statement that at Closing
Purchaser is not aware of any matter or issue which is in
breach of or inconsistent with any of the Warranties, other
than as disclosed in the notice setting forth the results of
the due diligence investigation.
5.4 Non-Compliance. If Seller or Purchaser fails to perform any action
required from it under Articles 5.2, and/or 5.3, the other Party may,
at its option and without prejudice to any of its other rights and
claims (including, also if this Agreement is terminated, any right to
payment of damages):
(a) demand that the defaulting Party performs the relevant actions
on a day and at a time to be determined by the non-defaulting
Party; or
(b) terminate this Agreement by written notice (without any
liability towards the defaulting Party).
If either Party terminates this Agreement pursuant to this Article 5.4,
Article 4.6 shall apply mutatis mutandis.
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ARTICLE 6 - ACTIONS FOLLOWING CLOSING
6.1 Action immediately following Closing. Immediately following Closing,
Purchaser shall pass a shareholders resolution in order to amend the
articles of association of the Company in such way that the statutory
name of the Company is changed to a name not including Computer Task
Group or a similar name or abbreviation therefrom. Seller shall no
longer make use of the name Rendeck and Seller shall not oppose to
Purchaser using the trade name Rendeck.
6.2 Action within three (3) months following Closing. Within three (3)
months following Closing:
(a) Seller shall assign or transfer the office lease relating to
the offices located at 1185 XX, Bouwerij 4, Amstelveen, The
Netherlands, to Purchaser, and Purchaser shall accept such
assignment or transfer. Should the assignment or transfer of
the office lease not be possible, Seller shall enter into a
sublease agreement with Purchaser, under the same terms and
conditions as currently applicable to the office lease as far
as possible under the current lease agreement.
(b) Company shall transfer the 1997 pension plan with policy
number 20662, dated January 1, 1997, between the Company and
Aegon Levensverzekeringen N.V., including all assets, ("1997
PENSION PLAN") to Seller. For the sake of completeness, the
Parties agree that the successor 2003 pension plan, dated
January 1, 2003, between the Company and Aegon
Levensverzekeringen N.V. ("2003 PENSION PLAN") shall not be
transferred by Company to Seller.
(c) Upon transfer of the 1997 Pension Plan from the Company to
Seller as set forth in Clause 6.2 (ii) above, Seller shall pay
the 2003 liability relating to the successor pension plan of
the Company, amounting approximately to three hundred and
sixty three thousand Euros ((euro)363,000) with a maximum of
three hundred and seventy five thousand Euros ((euro)375,000),
on behalf of the Company to Aegon Levensverzekeringen N.V..
(d) Seller and Purchaser shall address all "disentanglement"
issues including but not limited to software licenses,
insurance policies held in the name of Seller but in fact used
by the Company.
(e) Seller and Purchaser shall split all important agreements to
which both the Company and Seller or any of its Affiliates are
a party into separate agreements.
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6.3 At or prior to the filing of the 2003 annual accounts of the Company,
Seller shall waive or forgive any and all post closing equity
difference between the existing financial system of CTG group and the
annual accounts of the Company of 2002 as set forth in SCHEDULE 6.3.
6.4 Cooperation of Aegon. In the event that Aegon Levensverzekeringen N.V.
does not cooperate with the transfer of the 1997 Pension Plan, the
Parties shall enter into negotiations and try to reach an agreement
with respect to articles 6.2 (b) and (c) above.
6.5 Future Collective Value Transfer. It is explicitly understood between
the Parties that Seller will not cooperate with any possible future
collective value transfer of the 1997 Pension Plan from Aegon
Levensverzekeringen N.V. to any pension insurance company or pension
fund appointed by the Company, applied for by the Company and/or the
employees of the Company.
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES
7.1 Warranties. Seller represents, warrants and undertakes ("verklaart,
staat er voor in en garandeert") to and with Purchaser that each of the
Warranties set forth in SCHEDULE 7.1 is true, accurate, and not
misleading at the date of this Agreement.
7.2 Impact of Due Diligence. Purchaser has carried out a legal, financial
and commercial due diligence in respect of Company and its business
activities on the basis of which Purchaser has prepared a due diligence
report, a copy of which is attached hereto as SCHEDULE 7.2. Purchaser
and Seller agree that the contents of the due diligence report and all
letters, documents, data and other communications provided by the
Seller to the Purchaser during the due diligence investigation shall be
deemed to constitute a fair and adequate disclosure for the purposes of
this Agreement.
7.3 Acknowledgment. Purchaser acknowledges that, due to the fact that Mr.
M. Markus, Purchaser's sole shareholder and statutory director
("statutair bestuuder") is the general manager of the Company,
Purchaser was and is closely involved with the Company and its business
and Purchaser agrees that it performed, with the assistance of
professional legal, accountancy and tax advisors, a due diligence
investigation in form, scope and substance to its reasonable
satisfaction and on the basis thereof Purchaser decided to enter into
this Agreement on the terms and conditions stated herein.
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7.4 Information and Documentation. Seller agrees to give Purchaser and its
professional advisors, both before and after Closing, all such
information and documentation relating to the Company as Purchaser
reasonably requires.
ARTICLE 8 - REMEDIES FOR BREACHES AND INFRINGEMENTS
8.1 Breaches and Infringements. In the event of an infringement ("inbreuk")
of any of the Warranties given by Seller ("INFRINGEMENT") or in the
event of a default ("tekortkoming") in the compliance ("nakoming") by
Seller of any other obligations under this Agreement ("DEFAULT"),
Seller shall reimburse and hold harmless ("schadeloos stollen"), in
accordance with this Article 8, either Purchaser or the Company (at the
option of Purchaser) for all damages, losses, costs and expenses
("DAMAGES") suffered by Purchaser or the Company as a result of such
Infringement or Default.
8.2 Damages. The Parties agree that the Damages shall include:
(a) The amount necessary to put Purchaser -- or at the option of
Purchaser, the Company -- in a position similar to the
position Purchaser or the Company would have been in without
the relevant Infringement or Default; and
(b) Any costs and expenses incurred by Purchaser and/or the
Company to prevent, restrict and/or determine the Damages.
In calculating the Damages, the following shall be taken into account:
(a) Any reserves ("voorzieningen") for such damages contained in
the Financial Statements;
(b) Any compensation received from Third Parties for such Damages,
including but not limited to monies received from any
insurance company; and
(c) Any Tax savings which arise from an event giving rise to the
relevant Damages.
8.3 Claim on behalf of Purchaser and/or Company. It is expressly understood
that, if and to the extent an event gives rise to a Claim under more
than one Warranty, Purchaser shall be entitled to file a Claim under
any such breached Warranty as it may deem fit, on its own
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behalf and/or on behalf of Company, as third party beneficiary of the
right to be reimbursed and held harmless pursuant to this Article 8,
provided, however, that Purchaser cannot claim reimbursement of the
Damages which have already been reimbursed. Also, for the avoidance of
doubt it is expressly confirmed and understood that, where this Article
8 refers to "Damages suffered by Purchaser or the Company", such
damages shall not be deemed to have been doubly incurred by both
Purchaser and the Company, which means that any Damages suffered for
which Purchaser of the Company is reimbursed cannot be claimed by
Purchaser, and vice versa.
8.5. Limitation of Liability. Subject to Article 8.8, the total aggregate
amount to which Purchaser shall be entitled pursuant to this Article 8
shall be limited to two hundred fifty thousand Euros ((euro) 250,000).
8.6 Survival. Subject to Article 8.8, all Warranties (other than under
Section 3 of Schedule 7.1) shall survive the Closing Date for fifteen
(15) months. Warranties set forth in Section 3 of Schedule 7.1 shall
survive the Closing date with the period as set fort in article 16
paragraph 3 of the General Tax Act ("Algemene wet inzake
rijksbelastingen")
8.7 Threshold. Subject to Article 8.8, Purchaser agrees not to enforce any
Claim until the amount of such Claim or the aggregate amount of all
Claims during the period of fifteen (15) months as of the Closing Date,
exceeds an amount equal to forty thousand Euros ((euro) 40,000)
("INDEMNIFIABLE AMOUNT") and then the Purchaser shall be entitled to
recover all Claims from the first Euro.
8.8 Qualifications to Limitations. The limitations set forth in Articles
8.5, 8.6 and 8.7 shall not apply, if a Claim has arisen by reason of:
(a) Fraud, willful concealment, dishonesty or deliberate
non-disclosure on the part of Seller prior to the date of this
Agreement; or
(b) Seller not having good and unencumbered title to the Shares of
which it is now warranted to be the owner; or
(c) Seller or any signatory on its behalf being claimed not to
have had legal authority or capacity to enter into the
Agreement or any agreement ancillary thereto.
8.9 Change in Principles or Rules. No Claim by Purchaser for any
Infringement or Default shall arise to the extent that the Claim arises
as a result of (i) any change in the accounting principles
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applied by the Company subsequent to Closing, (ii) any changes in
applicable laws or regulations after Closing, or of (iii) a new
interpretation of existing laws by a court or other public authority in
a judgment or decision published after Closing.
8.10 If Seller has made a payment for damages and Purchaser or the Company
simultaneously therewith or subsequently thereto receives any benefit
other than from Seller which would not have been received but for the
circumstance giving rise to the Claim in respect of which the payment
for damages was made by Seller, Purchaser or Company shall once it has
received the benefit, forthwith repay to Seller an amount equal to the
lesser of the amount of such benefit and the amount paid by Seller.
8.11 No Claim shall arise in respect of any consequential or indirect
damages or loss of profit and all Claims shall be limited to damages
actually suffered.
8.12 Claim Procedure.
(a) Purchaser shall give Seller written notice ("INDEMNIFICATION
NOTICE") of any facts and circumstances giving rise to a Claim
within thirty (30) days as of the moment Purchaser becomes
aware, or should have become aware, of the facts and
circumstances giving rise to such Claims.
(b) If the Claim relates to a claim or the commencement of an
action or proceeding by a Third Party against the Company
and/or Purchaser, then Seller shall have, upon request within
sixty (60) days after receipt of the Indemnification Notice by
Seller (but, in any event, not after the settlement or
compromise of such Claim), the right to defend, at its own
expense and by its own counsel, any such matter involving the
asserted liability of the Company and/or Purchaser; provided,
however, that if the Company and/or Purchaser determines that
there is a reasonable probability that a Claim may materially
and adversely affect it, it shall, at its own discretion, have
the right to defend (with the participation of Seller, if
Seller so elects), compromise or settle such claim or suit,
provided, however, that Seller has been timely informed of
settlement negotiations.
(c) If the Claim does not relate to a claim or the commencement of
an action or proceeding by a Third Party, Seller shall have
thirty (30) days after receipt of the Indemnification Notice
during which it shall have the right to object to the subject
matter and the amount of the Claim set forth in the
Indemnification Notice by delivering written notice thereof to
Purchaser. If Seller does not so object within such thirty
(30)-day period, it
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shall be conclusively deemed to have agreed that it is
obligated to indemnify Purchaser for the matters set forth in
the Indemnification Notice. If Seller sends notice to
Purchaser objecting to the matters set forth in the
Indemnification Notice, Seller and Purchaser shall use their
best efforts to settle the Claim. If Seller and Purchaser are
unable to settle the Claim, the matter shall be resolved in
the manner set forth in Article 17 of this Agreement.
ARTICLE 9 - RESTRICTIONS ON SELLER AND PURCHASER
Within two years of Closing, Seller will not re-establish a subsidiary company
in The Netherlands, unless Seller requires the establishment of a Dutch
subsidiary company in order to fulfill its service obligations to its
inhernational clients. An international client is defined as a company that buys
or will buy services from Seller in countries other than The Netherlands. If
Seller violates this clause, the Earn Out clause (3.3) will be null and void.
Within one year of Closing, Seller shall not approach the companies from the
list below for the purpose of generating business in the Netherlands, nor shall
Seller conduct business with these companies in The Netherlands, without
previous consultation of Purchaser.
List of companies:
- IBM Nederland NV
- ABN AMRO Bank NV
- Fortis Bank NV
- ING Bank Nederland NV
- Rabobank Nederland NV
- KPN Telecom NV
- Tele2 Nederland NV
When Seller conducts business with companies in The Netherlands under the
provisions described in clauses 8.1 and 8.2, Purchaser shall be given
preferential treatment with respect to the provision of the resources that
Seller requires to render its services.
Within one year of Closing, Seller shall not engage Eddy Helsen, to approach
companies in The Netherlands for the purpose of generating business for CTG.
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Within two years of Closing, Purchaser will not establish a subsidiary company
in Belgium, Luxembourg or the United Kingdom, unless Purchaser requires the
establishment of such a subsidiary company in order to fulfill its service
obligations to its Dutch clients.
Within one year of Closing, Purchaser shall not approach the companies from the
list below for the purpose of generating business for the Company, nor shall
Purchaser conduct business with these companies outside The Netherlands, without
previous consultation of Seller.
List of companies:
- IBM Belgium NV
- Fortis Belgium NV
- ING Belgium NV
When Purchaser conducts business with companies outside The Netherlands under
the provisions described in clauses 8.5 and 8.6, Seller shall be given
preferential treatment with respect to the provision of the resources that
Purchaser requires to render its services.
ARTICLE 10 - ACCESS TO INFORMATION
10.1 Access by Purchaser. As from the date of this Agreement, Seller shall
procure that Purchaser, and any persons authorized by Purchaser, will
be given all such information relating to the Company and such access
to the premises and all books, records, accounts and other
documentation of the Company as Purchaser may reasonably request and be
permitted to take copies of any such books, records, accounts and other
documentation and that the officers and employees of the Company shall
be instructed to give promptly all such information and explanations to
any such persons as aforesaid as may be requested by it or them.
Purchaser's investigation of the Company shall be conducted in such a
manner as not to disrupt the ordinary operations of the Company's
business.
10.2 Access by Seller. As from the Closing Date, Purchaser shall procure
that Seller and any persons authorized by it will be given all such
information relating to the Company and all books, records, accounts
and other documentation of the Company as Purchaser requires by law, by
any securities exchange, supervisory, regulatory or governmental body,
or tax authority and be permitted to take copies of any such books,
records, accounts and other
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documentation and that the officers and employees of the Company be
instructed to give promptly all such information and explanations to
any persons as aforesaid as may be requested by it or them.
10.3 Return of documents. In the event of this Agreement ceasing to have
effect, Purchaser undertakes to release to Seller all information and
documents concerning the Company which have been provided to Purchaser
in connection with this Agreement and also undertakes not to use any
such information gained by it to further itself in its trade or to the
detriment of the Company, unless such information had already been
known to Purchaser or had become or subsequently becomes public
knowledge otherwise than by reason of any act or default of Purchaser,
its advisers or employees.
ARTICLE 11 MISCELLANEOUS
11.1 Parties' Costs. Each Party to this Agreement shall pay its own costs
and disbursements of and incidental to this Agreement and the sale and
purchase of the Shares, provided that all costs associated with the
Notarial Transfer Deed shall be borne by Seller. The Company shall not
pay any fees or other costs of outside advisors in connection with the
transactions contemplated hereby.
11.2 Notices. Each notice, demand or other communication given or made under
this Agreement shall be in writing and delivered or sent to the
relevant Party at its address or fax number set out below (or such
other address or fax number as the addressee has by five (5) days'
prior written notice specified to the other Party):
1. If to Purchaser:
Mr. M. Markus
Van Hallstaat 7
1161 CG Zwanenburg
The Netherlands
E-mail address: mmarkus@quicknet.nl
2. If to Seller:
Computer Task Group, Inc. Address: 800
Delaware Avenue 142O9,
Buffalo, NY
16
United States of America
Attention: Chief Executive Officer Fax: +
31 (0)20 - 7132010
Any notice, demand or other communication so addressed to the relevant
Party shall be deemed to have been delivered (a) if given or made by
letter, when actually delivered to the relevant address; and (b) if
given or made by fax or e-mail, when dispatched.
11.3 Entire Agreement. This Agreement (together with any documents referred
to herein or executed contemporaneously or at Closing by the Parties in
connection herewith) constitutes the whole agreement between the
Parties and supersedes any previous agreements or arrangements between
them relating to the subject matter of this transaction and it is
expressly declared that no variations of this Agreement shall be
effective unless made in writing and executed by the Parties.
11.4 Continuity of obligations. All the provisions of this Agreement shall
remain in full force and effect notwithstanding Closing (except insofar
as they set out obligations that have been fully performed at Closing).
11.5 Severability. If any provision or part of a provision of this Agreement
shall be, or be found by any authority or court of competent
jurisdiction to be, invalid or unenforceable, such invalidity or
unenforceability shall not affect the other provisions or parts of such
provisions of this Agreement, all of which shall remain in full force
and effect.
11.6 Other Rights and Remedies. Any right of termination conferred upon
Purchaser hereby shall be in addition to and without prejudice to all
other rights and remedies available to it (and, without prejudice to
the generality of the foregoing, shall not extinguish any right to
damages to which Purchaser may be entitled in respect of the breach of
this Agreement) and no exercise or failure to exercise such a right of
termination shall constitute a waiver by Purchaser of any such other
right or remedy.
11.7 Further acts. Upon and after Closing Seller shall do and execute or
cause to be done and executed all such further acts, deeds, documents
and things as may be necessary to give effect to the terms of this
Agreement.
11.10 Interpretation. This Agreement shall constitute an allocation of risks
between the Parties. The Parties deem the security they may derive from
the provisions of this Agreement essential.
17
ARTICLE 12 - RESTRICTION ON ANNOUNCEMENTS
Each of the Parties hereto undertake that prior to Closing and
thereafter it will not (save as required by law) make any announcement
in connection with this Agreement, unless the other Party hereto shall
have given its written consent to such announcement (which consent may
not be unreasonably withheld and may be given either generally or in a
specific case or cases and may be subject to conditions).
ARTICLE 13 - CONFIDENTIAL INFORMATION
13.1 Non-disclosure. The Parties undertake that they shall treat as strictly
confidential all Confidential Information received or obtained by them
or their employees, agents or advisers as a result of entering into or
performing this Agreement including information relating to the
provisions of this Agreement, the negotiations leading up to this
Agreement, the subject matter of this Agreement or the business or
affairs of each of the Parties or the Company and subject to the
provisions of Article 13.2 that they will not at any time hereafter
make use of or disclose or divulge to any person any such Confidential
Information and shall use their best endeavors to prevent the
publication or disclosure of any such information.
13.2 Exceptions. The restrictions contained in Article 13.1 shall not apply
so as to prevent the Parties from making any disclosure required by law
or by any securities exchange or supervisory or regulatory or
governmental body pursuant to rules to which the relevant Party is
subject or from making any disclosure to any professional adviser for
the purposes of obtaining advice (provided always that the provisions
of this Article shall apply to and the Parties shall procure that they
apply to, and are observed in relation to, the use or disclosure by
such professional adviser of the information provided to him) nor shall
the restrictions apply in respect of any information which comes into
the public domain otherwise than by a breach of this Article by the
Parties.
ARTICLE 14 - TAX AFFAIRS POST CLOSING
18
14.1 To the extent this is reasonably required by Seller, Purchaser shall
procure that the Company shall without delay provide to Seller such
information and access to, and copies of, the corporate books and
records of each of the Company and Purchaser, and provide such other
assistance (e.g. by making available employees to provide additional
information and explanation of any materials so provided) as may
reasonably be requested by Seller, as being necessary or incidental to
Seller in properly fulfilling its obligations pursuant to Corporate Tax
laws and regulations or otherwise dealing with Corporate Tax affairs in
respect of the period prior to the Closing Date.
14.2 If with respect to the period prior to the Effective Date the Company
is notified of a Tax audit, or receive an assessment or other
correspondence from the Tax authorities, Purchaser shall (and Purchaser
shall procure that the Company shall) promptly inform Seller, and
Seller and Purchaser and the Company shall consult with each other and
seek agreement on the appropriate course of action, taking into account
the best interests of Seller.
ARTICLE 15 - GOVERNING LAW AND COMPETENT COURT
15.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of The Netherlands.
15.2 Competent Court. All disputes arising in connection with this
Agreement, or further agreements or contracts resulting thereof, shall
be submitted to the competent court in Amsterdam (subject to appeal as
provided by law).
19
IN WITNESS WHEREOF this Agreement has been executed on the day and year first
above written.
Seller: Purchaser:
/s/ Brendan Curran /s/ Marcel Markus
Computer Task Group Europe B.V. Scajaquada Holding B.V.
By: Peter Radetich By: Marcel Markus
Title: Senior Vice President and General Counsel Title: Statutory Director
SCHEDULE 1
DEFINITIONS
22
"1997 PENSION PLAN" As defined in Article 6.2 (b);
"2003 PENSION PLAN" As defined in Article 6.2 (b);
"AGREEMENT" Means this share sale and purchase agreement,
between Seller and Purchaser;
"CLAIM" Means a claim for (i) an Infringement, (ii) a
Default, or (iii) a Third Party claim relating
to the conduct of the business of the Company
prior to the Closing Date;
"CLOSING" Means completion of the sale and purchase of the
Shares as specified in Article 2.1;
"CLOSING DATE" Means the date on which the Closing occurs;
"COMPANY" As defined in the Recitals;
"CONDITIONS" As defined in Article 4.1;
"CONFIDENTIAL INFORMATION" Means any and all data and information relating
to the Company and/or to the business and
affairs of a Party that may be provided, orally,
in writing or digitally, to the other Party that
is marked or expressly stated as being
"confidential";
"CONSIDERATION" As defined in Article 3.1;
"CTG GROUP COMPANY" Any company belonging to the CTG group;
"DAMAGES" As defined in Article 8.1;
"DEFAULT" As defined in Article 8.1;
"ENCUMBRANCE" Means any mortgage, assignment of receivables,
debenture, lien, attachment, charge, pledge,
title retention, right to acquire, security
interest, option, right of first refusal,
usufruct or limited right ("beperkt recht') and
any other encumbrance or condition whatsoever;
"EUR" OR "EURO" Means Euro, the lawful currency of certain
participating State Members of the European
Union;
"FINANCIAL STATEMENTS" Means the 2002 annual accounts, as well as the
consolidated balance sheet of the Group for the
two financial years preceding the Last Accounts,
the directors report and the explanatory note
related thereto;
"GOVERNMENTAL AUTHORITY" Means, any government of The Netherlands,
whether local or not, or any other governmental
authority within The Netherlands, and any
ministry, department, political subdivision,
instrumentality, agency, corporation or
commission under the direct or indirect control
of any of the foregoing, including, but not
limited to, the Dutch Competition Authority
("Nederlandse Mededingingsautoriteit"), the
Securities Board ("Stichting Toezicht
Effectenverkeer") and the SER Merger Committee
("De Commissie voor Fusieaangelegenheden van de
Sociaal Economische Raad");
"GROUP" Means CTG, Inc and all other companies belonging
to the CTG group;
"INFRINGEMENT" As defined in Article 8.1;
"INDEMNIFICATION NOTICE" As defined in Article 8.12 (a);
"LETTER OF INTENT" As defined in the Recitals;
"NOTARIAL TRANSFER DEED" Means the notarial deed pursuant to which the
Shares will be transferred from Seller to
Purchaser, a copy of which is attached hereto as
Schedule 5.2 (b);
"PARTY OR PARTIES" As defined in the introduction to the Agreement;
"PURCHASER" As defined in the introduction to the Agreement;
"SELLER" As defined in the introduction to the Agreement;
"SER MERGER COMMITTEE" Means the Dutch commission relating to mergers
("De Commissie voor Fusieaangelegenheden van de
Sociaal Economische Raad");
"SER FUSIECODE" Means the 2000 Dutch Code relating to mergers;
"SHARES" As defined in the Recitals;
"SIGNING" Means the execution of the Agreement by Seller
and Purchaser;
"TAX" OR "TAXES" Means all forms of taxation, including all
national or local taxation, past, present and
deferred (including, without limitation, income
tax (including net income and gross income),
corporate, value added, occupation, real and
personal property, social security, gross
receipts, sales, use, ad valorem, franchise,
profits, license, withholding, payroll,
employment, excise, severance, occupation,
premium or windfall profit taxes, estate duty,
customs and other import or export duties, or
charges of any kind whatsoever, estimated and
other taxes, together with any interest and
levies and all penalties, charges, costs and
additions to tax, payable by or due from the
Company, or any additional amounts imposed by
any Governmental Instrumentality or any revenue
authority, upon the Company;
"THE NETHERLANDS" Means the Kingdom of The Netherlands;
"THIRD PARTY" Means any person, whether physical person or
legal entity, that is not a Party to the
Agreement;
"TRANSACTION" As defined in the Recitals
"WARRANTIES" Means the representations, warranties and
undertakings of the Purchaser set forth in
Article 7 and in Schedule 7.1, and "Warranty"
means any of the Warranties.
"WORKS COUNCILS ACT" Means the Dutch works councils act ("Wet op de
Ondernemingsraden").
SCHEDULE 5.2 (b)
NOTARIAL DEED OF SHARE TRANSFER
23
DEED OF SHARE TRANSFER
COMPUTER TASK GROUP NEDERLAND B.V.
On this day, the ** day of ** two thousand four, appeared before me, Mark Peter
Bongard Esq., civil-law notary in Amsterdam, hereinafter referred to as
"Notary": **Baker & McKenzie lawyer**;
here acting upon written powers of attorney on behalf of:
1. COMPUTER TASK GROUP EUROPE B.V., a private company with limited liability,
having its corporate seat at Hoofddorp, the Netherlands and with office
address at Bouwerij 4, 1185 XX Amstelveen, the Netherlands, registered at
the Chamber of Commerce for Amsterdam under number 34073503,
hereinafter referred to as the "Seller";
2. SCAJAQUADA HOLDING B.V., a private company with limited liability, having
its corporate seat at **, the Netherlands and with office address at Van
Hallstraat 7, 1161 CG Zwanenburg, the Netherlands, registered at the
Chamber of Commerce for ** under number **;
hereinafter referred to as the "Buyer";
3. COMPUTER TASK GROUP NEDERLAND B.V., a private company with limited
liability, having its corporate seat at Hoofddorp, the Netherlands and with
office address at Planetenweg 115, 2132 HL Hoofddorp, the Netherlands,
registered at the Chamber of Commerce for Amsterdam number 34073505,
hereinafter referred to as the "Company".
The existence of the powers of attorney appears from three (3) private
instruments to be attached to this deed.
The deponent, acting in his said capacity, declared as follows:
whereas:
- - on the ** day of ** two thousand four the Seller and the Buyer entered into
a purchase agreement for shares in the Company's capital stock held by the
Seller, hereinafter referred to as the "Agreement";
- - under the Agreement, the Seller is obliged to transfer five hundred (500)
shares in the Company's capital stock to the Buyer.
the parties agree as follows:
1. Pursuant to the Agreement, the Seller transfers to the Buyer, who accepts
the transfer of, the following shares in the Company's capital stock:
the five hundred shares, numbered 1 up to and including 500, with a par
value of one thousand Dutch guilders (NLG 1,000) each, being four hundred
fifty-three euro and seventy-eight cents (EUR 453.78) pursuant to article
2:178c Dutch Civil Code, hereinafter referred to as the "Shares".
2. Under the Agreement, the purchase price of the Shares amounts to ** Euros
(EUR **).
3. Subject to any contrary provision in this share transfer deed, the parties
shall be bound by any other agreements made between them prior to the
signing of this share transfer deed, on the understanding that dissolving
conditions can no longer be invoked and conditions precedent shall be
considered to have been satisfied.
4. All costs associated with the transfer of the Shares shall be paid by the
Buyer.
In addition, the Seller declared as follows:
I The approval required for this share transfer under the blocking provisions
of the Company's Articles of Association was granted by the Company's
General Meeting of Shareholders by its resolution of the ** day of ** two
thousand four. A copy of the minutes of the business transacted during that
meeting has been attached to this share transfer deed.
II The Seller acquired the Shares following a share transfer pursuant to a
notarial merger deed ('juridische fusie'), executed before H. van Wilsum,
Esq., civil-law notary in Amsterdam, on the nineteenth day of August
nineteen hundred ninety-three.
III The Shares have been paid in full.
IV The Shares comprise hundred percent (100%) of the Company's issued and
outstanding capital stock.
V The Shares are not encumbered with any pledge or usufruct.
VI The Shares have not been attached.
VII No depositary receipts issued with the Company's co-operation remain
outstanding in respect of the Shares.
VIII The Shares have never belonged to any incorporator or shareholder of the
Buyer during the two years following the Buyer's registration in the Trade
Register, so that the provisions of Article 2:204c, para. 1 of the Dutch
Civil Code do not apply to the share transfer.
Finally, the Company declared:
that it acknowledges the present share transfer and shall cause the required
notes to be entered into the shareholders' register.
The deponent is known to me, Notary.
WITNESSED THIS DEED,
The original was drawn up and executed in Amsterdam on the date stated in the
first paragraph of this deed.
The substance of this deed was stated and clarified to him. The deponent stated
that he had taken note of the content of the deed timely before its execution,
agreed to its content, and did not require a full reading of this deed.
Subsequently, after the deed had been read out in part in accordance with the
law, it was signed by the deponent and by me, Notary.
SCHEDULE 6.3
WAIVER OF POST CLOSING EQUITY DIFFERENCE
24
CTG NETHERLANDS POST CLOSING ADJUSTMENTS
In Euro's (000)
In the statutory report of CTG Netherlands BV, there exists post closing
differences between the financial system of CTG Netherlands and the statutory
report of CTG Netherlands. These items purely represent the intercompany
transactions relating to the fiscal unity of CTG Netherlands BV and CTG Europe
BV.
2,581 Equity in financial system
103 CTG Netherlands receivable from CTG Europe BV as a result of 2001
fiscal unity tax return.
17 CTG Netherlands receivable from CTG Europe BV as a result of 2000
fiscal unity tax return.
(512) CTG Netherlands payable to CTG Europe as a result of 2001 fiscal
unity tax return.
(94) CTG Netherlands payable to CTG Europe BV as a result of 2002 fiscal
unity tax return.
- ----------
(486) Total CTG Netherlands payable to CTG Europe as a result of above
transactions.
2,095 equity in statutory report 2002
SCHEDULE 7.1
REPRESENTATIONS AND WARRANTIES
25
SCHEDULE 7.1
REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants to the Purchaser that:
1. ORGANISATION
(a) The Company is a private limited liability company (besloten
vennootschap met beperkte aansprakelijkheid) duly organised and validly
existing under the laws of The Netherlands of its incorporation and has
the requisite corporate power and authority to own, lease and operate
its assets and properties and to carry on its business as it is now
being conducted.
(b) Exhibit 1 hereto contains a complete and correct copy of (i) the
Articles of Association of the Company as amended to the date hereof,
and (ii) the shareholders' register of the Company, which correctly
sets forth the record and beneficial ownership of all outstanding
shares of capital stock of the Company.
(c) No resolution, decision, order or petition to dissolve or liquidate the
Company has been issued, adopted or applied for, no petition for the
bankruptcy (faillissement) or suspension of payments (surseance van
betaling) has been filed, no receiver (curator or bewindvoerder) of the
Company has been appointed for the Company or any of its assets and no
attachment (beslag) has been made of any of the assets of the Company.
2. CAPITALISATION
(a) The authorised capital of the Company consists of 2000 ordinary shares,
par value EUR 453.78 per share, of which 500 shares are issued and
outstanding.
(b) The Shares are legally and beneficially owned by the Seller, free from
any liens, charges, pledges, rights of usufruct ("vruchtgebruik"),
attachments (beslagen), limited rights (beperkte rechten), adverse
claims, encumbrances, defects in title or other interests in favour of
any other person. No depositary receipts have been issued for any of
the Shares. Neither the deeds of transfer nor the title pursuant to
which Seller acquired ownership of the Shares can be terminated,
annulled or declared null and void. Seller has the power to sell and to
transfer the Shares (beschikkingsbevoegdheid) to Purchaser as
contemplated by the Agreement.
(c) All of the Shares are validly issued, fully paid and non-accessible and
not subject to, or issued in violation of, preemptive rights. All of
the Shares have been issued in compliance with the requirements of
Dutch law. The Company and its business are duly registered with the
Commercial Register of Amsterdam, and the extract regarding the Company
attached as Exhibit 2 hereto is correct. The Company has not been a
party to any merger (fusie) or demerger (splitsing) procedure. The
right to receive dividends or distributions of any kind (whether
payable now or in the future) on the Shares has not been disposed of.
No one, with the exception of Seller, has any right to distribution
arising out of the profit, reserves and/or liquidation balance of the
Company. No rights have been granted to third parties as referred to in
Article 2:272 of the Dutch Civil Code which could prevent the Articles
of Association of the Company from being amended. There are no
outstanding subscriptions, options, calls, contracts, commitments,
understandings, restrictions, arrangements, rights or warrants,
including any right of conversion or exchange under any outstanding
security, instrument or other agreement obligating the Company to
issue, deliver or sell, or cause to be issued, delivered or sold, or
otherwise to become outstanding, additional shares of the capital stock
of the Company or obligating the Company to grant, extend or enter into
any such agreement or commitment. There are no voting trusts, proxies
or other agreements or understandings with respect to the voting of any
shares of capital stock of the Company. There are no unexecuted
resolutions of the general meeting of shareholders of the Company
providing for the issuance of shares in the capital of the Company or
the grant of options or other rights to acquire shares in the capital
of the Company.
1
(d) The Company has not purchased, redeemed or repaid any share capital or
given any financial assistance in connection with any such acquisition
of share capital or issuance or sale of shares.
(e) Since December 31, 2002 the Company Financial Statements no dividend(s)
and/or interim dividend(s) or any other kinds of distribution have been
declared or paid with respect to the shares of the Company.
3. TAXATION
Seller hereby represents and warrants (staat er voor in) to Purchaser
that in case the Dutch tax authorities will, on the basis of article 39
of the Dutch Collection act (Invorderingswet), hold the Company liable
for Dutch corporate income tax relating to the period during which
Seller and the Company were grouped in a fiscal unity for Dutch
corporate income tax purposes, the Company will have a right of
recovery against Seller with respect to this tax liability.
2