Exhibit 10.38
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CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
AND
TISCALI OSTERREICH GMBH
SHARE PURCHASE AGREEMENT
DATED FOR REFERENCE JULY 31ST, 2002
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THIS SHARE PURCHASE AGREEMENT is dated for reference the 31st day of July, 2002,
AMONG:
CYBERNET Internet Services International, Inc., a company duly incorporated
under the laws of Delaware, having its registered office at Suite 1620, 400
Burrard Street, Vancouver, Canada ("Seller" or "Cybernet")
OF THE FIRST PART
AND
TISCALI Osterreich GmbH, a limited liability company duly incorporated
under the laws of Austria, having its registered office in Vienna, Austria,
ArgentinierstraBe 21, A-1040 Vienna, registered with the Commercial
Register of Vienna, FN 184573 g ("PURCHASER" or "TISCALI")
OF THE SECOND PART
Seller and Purchaser hereinafter are jointly referred to as Parties and each of
them as Party.
WHEREAS:
A. Vianet Telekommunikations AG ("VIANET" or the "COMPANY") is a joint
stock corporation duly established and registered under the laws of the
Republic of Austria and having its corporate seat in Vienna and its business
address at Mariannengasse 14, A-1090 Vienna;
B. The outstanding capital stock of Vianet amounts to EUR 80,000 which is
fully paid up and divided into 10,000 ordinary shares with a nominal value of
EUR 8 each, entirely held by the Seller in the form of bearer shares
("Shares") represented by one global certificate issued on June 20th, 2002
("GLOBAL CERTIFICATE"), which is in physical possession of Seller;
C. Purchaser seeks to acquire from Seller and Seller wishes to sell to
Purchaser the Shares pursuant to the provisions of this Share Purchase
Agreement ("AGREEMENT").
NOW THEREFORE THIS SHARE PURCHASE AGREEMENT WITNESSES THAT in consideration of
the premises, mutual covenants and agreements hereinafter set forth, the Parties
hereto acknowledge, declare, covenant and agree as follows:
ARTICLE 1.
DEFINITIONS
SECTION 1.1 Where used in this Agreement (including the recitals) or in
any amendment hereto, the following terms shall have the meaning ascribed in
the recitals and the following meanings, respectively:
"CLOSING" has the meaning specified in Article 5;
"CLOSING DATE" means the date of Closing, which shall be one Austrian business
day after the fulfillment of the conditions precedent set forth in Article 5 but
not earlier than seven business
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days after Execution Date. The Closing Date may be postponed by mutual
agreement of the Parties.
"COMPANY" means Vianet;
"CYBERNET" means the Seller;
"EXECUTION DATE" means the date on which the Agreement is signed, as indicated
on its front cover;
"FINANCIAL STATUS" shall mean Vianet's annual financial statements for the
fiscal year ending December 31, 2001 and the Balance Sheet and Profit and Loss
Account of Vianet as of June 30, 2002 as attached in Annex 1 and the trade
accounts receivables, trade accounts payables and the cash balance as of the
Execution Date.
"FIRST INSTALLMENT" means an amount equal to 75% of the Purchase Price as
defined in Article 3;
"INTERCOMPANY CLAIMS" means any of Vianet's (and/or its subsidiaries) payables
and receivables, as applicable, as of Execution Date related to Cybernet (and/or
its subsidiaries), except such claims relating to trading relations on an arm's
length basis, which in its aggregate shall not exceed EUR 10,000 and as listed
in Annex 2;
"INTERIM PERIOD" means the period commencing on the Execution Date and ending on
the Closing Date;
"LIBISCHER" means Tristan Libischer having its address in Sieveringerstrasse
176, A-1190 Vienna, Austria.
"LIBISCHER CLAIMS" means any and all existing or threatened claims by Libischer
against Vianet (and its subsidiaries or controlling companies) relating -
directly or indirectly - to the Shares;
"MFC" means MFC Bancorp Ltd., a company duly incorporated under the laws of the
Yukon Territory, Canada, having its registered office in Suite 300, 204 Black
Street, Whitehorse, Yukon Territory, Canada;
"PURCHASE PRICE" has the meaning specified in Article 3;
"SECOND INSTALLMENT" means an amount equal to 25% of the Purchase Price as
defined in Article 3;
"TISCALI" means the Purchaser.
ARTICLE 2.
SALE
SECTION 2.1 Seller hereby sells the Shares to Purchaser pursuant to the
provisions of this Agreement. From and after the Closing Purchaser shall be the
legal owner of the Shares and shall be entitled to any profits for the current
financial year as well as any undistributed profits
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for the preceding financial years. Purchaser accepts the sale pursuant to the
terms and conditions of this Agreement.
ARTICLE 3.
PURCHASE PRICE
The purchase price (the "PURCHASE PRICE") shall be EUR 1,000,000 (in words:
one million Euro), and shall be paid by the Purchaser to the Seller in two
installments, the First Installment and the Second Installment. The First
Installment shall be paid on the Closing Date by Purchaser to Seller by way of
handing over a certified bank cheque concurrent with the physical delivery of
the Global Certificate. The Second Installment shall be paid by Purchaser to
Seller on the 6th (sixth) monthly anniversary of the Closing Date, provided that
Seller had not breached the representations and warranties given pursuant to
this Agreement or is liable for any indemnifications under this Agreement. If
during a term of 6 (six) months from Closing any claim with regard to
representations and warranties or indemnifications given in this Agreement is
asserted by Purchaser the Second Installment shall not be paid to Seller prior
to the final settlement of such claims and subject to the provisions of Section
7.3. However, if the amount of possible damages or indemnifications including
cost to be paid in accordance with this Agreement is agreed between the Parties
acting reasonably on the 6th (sixth) monthly anniversary of the Closing Date,
then the balance between such agreed amount and the Second Installment shall be
paid immediately to Seller.
ARTICLE 4.
TRANSFER OF THE SHARES
SECTION 4.1 At the Closing, Seller shall transfer and assign to
Purchaser title to the Shares free from any and all rights of third parties
by physical delivery of the Global Certificate in exchange for the concurrent
payment of the First Installment by handing over a certified bank cheque.
Purchaser shall accept such transfer and assignment. The transfer and
assignment is conditioned on the receipt by Seller of the First Installment.
ARTICLE 5.
CLOSING
SECTION 5.1 Closing shall take place on the Closing Date in the offices
of Purchaser in 1040 Wien (Austria), ArgentinierstraBe 21, or at another
location agreed to by the parties at least five business days prior to
Closing.
SECTION 5.2 The obligation of Purchaser to accept the transfer and
assignment and to pay the Purchase Price, is subject to the condition
precedent to the favor of purchaser that
5.2.1. the current members of the supervisory board of the Company have
resigned from office with effect as of the Closing Date, at no costs
for the Company;
5.2.2. the Company has revoked with effect as of the Closing Date all and
any special commercial powers of attorney (PROKUREN) (Claudia
Grunwald and Irene Gansbacher) and any other commercial powers of
attorney
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(Handlungsvollmachten) granted on behalf of the Company and the
respective applications have been filed with the competent
commercial register;
5.2.3. Purchaser shall have received from Seller a certificate,
substantially in the form attached herein as Annex 3, dated the
Closing Date and duly signed on behalf of Seller to the effect that
all representations and warranties of Seller set forth in this
Agreement shall be true and correct in all material respects on and
as of the Closing Date with the same force and effect as though such
representations and warranties had been made on the Closing Date,
except for those representation and warranties which have been made
as of the Execution Date and which shall be true and correct in all
material respects on and as of the Execution Date;
5.2.4. Vianet shall have entered into termination agreements with the
current members of the management board of the Company, Mr. Leitner
and Mr. Chytil, substantially in the form and with the content as
set out in Annex 4 and at no cost (i.e. cost caused by termination
and extraordinary expenses, e.g. termination compensation.,
compensation for unused vacation, compensation for vacation payment
and Christmas payment) for the Company or Purchaser. Such cost shall
be borne by Seller, except for compensation for unused vacation and
compensation for vacation payment which cost shall be borne half by
Seller and half by Purchaser.
5.2.5. Seller presents to Purchaser a duly signed and executed Receivable
Purchase Agreement referring to any claims against Libischer and any
claims against Bank Austria Immobilienleasing GmbH and Die Fun
Internet GmbH substantially in the form attached herein as Annex 5.
Any costs, taxes and duties related to the Receivable Purchase
Agreement shall be borne by Seller.
5.2.6. The trade account receivables and the cash at hand of the Company
shall not be less than EUR 250,000 in total at the Execution Date
and the amount of the trade account payables less the trade accounts
receivables of the Company shall not be below EUR 0 at the Execution
Date.
5.2.7. Seller provides Purchaser with the guarantee under Section 7.7.,
substantially in the form attached herein as Annex 6.
5.2.8. Seller delivers to the Purchaser duly signed and executed documents
evidencing the final and complete release from any and all pledge on
the Shares by MFC;
5.2.9. The Intercompany Claims have been finally cleared and that Seller
and its subsidiaries have waived any and all claims related thereto
(current or future and conditional or unconditional) which Seller
and its subsidiaries have or may have against the Company and vice
versa.
5.2.10. MFC signs this Agreement as Guarantor.
SECTION 5.3 The obligation of the Parties to effect the transfer and
assignment at the Closing is subject to the condition precedent to the favor of
both parties that, the Parties shall have received all required approvals and
consents from (i) governmental authorities and
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agencies, including the approval from the Austrian cartel authorities
(kartellgericht), if required, (ii) their respective corporate bodies and
panels, and (iii) third parties.
SECTION 5.4 Each Party may waive individual or all or parts of the
conditions which are in its respective favor, and such conditions which are in
the favor of both Parties may be waived only by both Parties jointly, by written
instrument.
SECTION 5.5 The Parties agree to cooperate fully in order to be granted
unconditional clearance from the competent merger control authorities, if
required.
SECTION 5.6 If the condition precedent set forth in Section 5.3 has not
been fulfilled by August 30, 2002, each Party is entitled to withdraw from this
Agreement. If either Party withdraws from this Agreement under this Section,
each party shall be liable for its own costs and neither Party shall be entitled
to receive any damages or indemnification or alike from the other Party.
SECTION 5.7 If one or more of the conditions precedent set forth in
Section 5.2 has not been fulfilled by August 30, 2002, Purchaser is entitled
to withdraw from this Agreement. If Purchaser withdraws from this Agreement
under this Section, each Party shall be liable for its own costs, but
Purchaser shall be entitled to be paid an amount of EUR 70.000,-- as
contractual penalty as a liability without fault (verschuldensunabhangig).
Such obligation to pay the said contractual penalty shall not apply in the
event that the condition precedent set out in Section 5.2.4 will not be
fulfilled. In this event Section 5.6 shall apply accordingly.
SECTION 5.8 The Parties shall respectively use all reasonable endeavors
to procure that the conditions stated in this Article 5 are fulfilled as soon
as practicable and in any event on or before August 30, 2002, but if the
conditions in this Article 5 have not been fulfilled or waived by the
respective Parties by that date (or by such later date as may be determined
in writing by the Parties), then this Agreement shall thereupon become null
and void ab initio and the Parties shall not have any rights against each
other except for failure to use all such reasonable endeavors and except for
the provisions of Section 5.7 above.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES
SECTION 6.1 The representations and warranties made in this Agreement,
which are made as per the Closing Date are the sole representations and
warranties of Seller. Seller makes no other representations and warranties
whatsoever, in particular regarding the condition of the Company's fixed assets,
business prospects, etc. Any further or other representations and warranties are
excluded. Seller acknowledges that Purchaser has conducted only a limited review
and not an exhaustive due diligence on the Company, and thus Purchaser relies
entirely on the representation and warranties of Seller contained herein. Seller
represents and warrants that:
6.1.1. CORPORATE MATTERS, APPROVALS
(a) The Company is a stock corporation duly incorporated and validly
existing under the laws of the Republic of Austria.
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(b) Seller is fully authorized to execute this Agreement as well as to
fulfill all of its obligations arising out of this Agreement and to
perform the transactions contemplated herein. The execution and
performance of this Agreement shall bring into existence legally
binding and enforceable obligations.
(c) The share capital of the Company is EUR 80,000 (in words: eighty
thousand Euro) and is fully paid-in. Cash contributions have been made
in full. Contributions in kind have not been made. There have not been
any distributions of profit (including hidden distributions) nor any
return of capital (including hidden returns). There have not been any
control, profit transfer or silent partnership agreements concluded by
the Company.
(d) A total of 10,000 ordinary bearer shares with a nominal value of EUR 8
per share have been issued on the share capital. All of the shares
have been duly and lawfully issued and have been fully paid-in. One
global certificate representing all the shares has been issued and is
in physical possession of Seller or a person authorized by Seller.
6.1.2. SHARES
(a) Seller is the legal and beneficial owner of the Shares. Seller may
dispose of these Shares without requiring the approval of any third
parties nor violating any third-party rights. The Shares being sold
are not encumbered with any third-party rights; in particular, they
have neither been pledged nor attached or seized nor transferred as
collateral.
(b) Except the Shares there are no other shares outstanding. There are no
call options (either in form of stock options as per Section 5.2.6 or
others), convertible notes, warrants or other rights to purchase or
acquire any shares of the Company. There are no agreements,
arrangements or understandings of any kind obligating the Company to
issue additional shares or other shares or obligating Seller - except
under this Agreement -, to sell all or part of the Shares or to cause
the Company to issue shares. On this regard, Seller further warrants
and represents that any existing agreement with any bidder other than
Tiscali is expired or has been terminated or settled, at no cost for
the Company, prior to Execution Date.
6.1.3. COMPANY
(a) There have been no bankruptcies, composition or insolvency proceedings
filed or initiated neither against the Company nor against Seller.
Furthermore, there are no grounds that would justify initiating such
proceedings.
(b) The Company does not own any real estate.
(c) The Financial Status of the Company has been prepared in accordance
with the Austrian Commercial Code and fairly represents the financial
position, results of operations, the assets and liabilities of the
Company as of the date and for the fiscal period covered thereby. As
of this date of fiscal period there are no liabilities or obligations
of any nature which are not disclosed as such in the Financial Status.
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(d) Except as set forth in Annex 7 hereof, there are no (i) outstanding
administrative or judicial orders, judgments, decisions or arbitration
awards issued against the Company, (ii) litigation procedures or (ii)
any current or threatened court, administrative or arbitration
proceedings or investigations against the Company. There are no
grounds for any material complaints, lawsuits, proceedings or
investigations against or by the Company. The Company has conducted
its business in compliance with applicable legal regulations and all
regulatory licenses and permits. The accruals for the disclosed
disputes have been made true and correct to the best of Sellers
knowledge.
(e) The Company has duly and completely prepared and filed all tax returns
and social security returns on a timely basis. Any taxes, social
security contributions and other public charges of any kind owed by
the Company relating to any periods prior to the Closing Date that
must be paid by the Company have been either paid when due, or to the
extent that such taxes, social security contributions and other public
charges were not due by the Closing Date, were fully accounted for in
the Financial Status.
(f) On or before the Closing Date, the Company will not have received any
public subsidies that will be repayable by the Company in the future
other than as accrued for in the Financial Statements.
(g) The Company operates two regular bank accounts, one at Erste Bank der
osterreichischen Sparkasse, Account Number 030 444 24, Bank Sort Code
20111, and the other at BAWAG Bank fur Arbeit and Wirtschaft, Account
Number 01310 707 500, Bank Sort Code 14000 and operates two deposit
accounts funded in the amount of EUR 24,965.94 in total and which are
used as a security payment for the landlord of Vianet's premises at
Mariannengasse and that the balance of these accounts one business day
prior to the Execution Date is as stated in Annex 8 and Annex 9
respectively.
6.1.4. ASSETS, CONTRACTS
(a) The Company has unlimited ownership that is free of any rights or
security interests of third parties (including, but not limited to
liens and pledges or other security interests) to all materials assets
shown in the Financial Status.
(b) The Company holds all assets - of any kinds whatsoever - which are
necessary to orderly and duly conduct its business as it is.
(c) the Company maintains the insurance contracts as set out in Annex 10.
(d) The Company has the legal right to use the domain names listed in
Annex 11.
(e) The Company, as of the Execution Date, has the business customers
(companies, freelancers and organizations) and customers (including
private customers, all kinds of ADSL customers) as listed in Annex 12
and that the customers listed in Annex 13 constitute the 100 largest
customers of the Company in terms of revenue and to whom the Company
is providing services and that the validity of
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the contracts and agreements in relation thereto is, as of the
Execution Date, not challenged, and that except for those customers
listed in Annex 14 none of these customers has declared the intention
to terminate the business relationship with the Company.
(f) Latest since July 2, 2001, the Company has collected its receivables
in the ordinary course of business and as usual in the respective
markets.
(g) There are no warranty or product liability claims pending or
threatened against Vianet except as accrued for in the Financial
Status.
(h) The lease agreements for the offices of Vianet in A-1090 Vienna,
Mariannengasse 14 are in full force, can be terminated by lessee with
6 (six) months' notice and that wear and tear or damage to the leased
properties (if any) is as could be expected in case of a lease of the
respective time.
(i) The agreements listed in Annex 15 constitute all material agreements
with major suppliers, especially providers of telecommunications and
IT services and suppliers of leased property of the Company. These
agreements are in full force, and no contractual partner has brought,
or to the best of knowledge threatened to bring or is reasonably
expected to bring any claims against Vianet for actual or alleged
violation of the Company's duties under these agreements.
(j) None of the contracts, agreements or licenses mentioned under this
Section contains a clause ("change-of-control-clause" or similar
covenant) that entitles the business partners or customers to
terminate their respective contracts or agreements concluded with the
Company; however, Purchaser is aware that the Company must notify the
change of control to its landlord and that pursuant to mandatory
provisions under Austrian law the rent may be adjusted;
(k) All the supply contracts for backbone and downstream listed in Annex
15, except for one contract listed in Annex 16 can be terminated by
the Company by paying a termination penalty of not more than six
monthly fees each.
6.1.5. EMPLOYEES
(a) The employees listed in Annex 17 to the Agreement are all the
employees of the Company and as of the Closing Date those employees
have not presented or threatened any claims against the Company in
connection with their employment or otherwise except those expressly
mentioned in the Financial Status (except claims for unused vacation)
and listed in Annex 18 hereto and all such claims have been duly
satisfied.
(b) to the best knowledge of the Seller there are no rights of (present or
former) employees as to any employee inventions or other intellectual
property rights belonging to employees.
(c) All statutory provisions of Austrian labor law are being materially
complied with, and there are no labor disputes pending in or out of
court or only threatened.
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(d) All orders by the authorities in connection with employee safety
regulations and all material orders of the labor inspectorate have
been complied with.
(e) All payments relating to salaries and payrolls due under the contracts
of Vianet with its employees have been made and no obligations are
outstanding which derives from retirement pensions, early retirement
schemes, participation in benefits, insurance-medical assistance,
extra salaries, whether formal or not, pension plans, stock option
plans or analogous or other incentives and compensations for employees
and directors.
6.1.6. LICENSES
(a) Vianet is the registered owner of the trademark rights listed in
Annex 19.
SECTION 6.2 Purchaser represents and warrants, that:
(a) The Agreement has been duly authorized, executed and delivered on
behalf of Purchaser and is a legal, valid and binding obligation,
enforceable in accordance with its terms, and
(b) Purchaser has been duly incorporated, amalgamated, continued or
organized and is validly existing and in good standing under the laws
of its respective jurisdiction of incorporation, amalgamation,
continuance or organization, as the case may be, and has all requisite
corporate power and authority to carry on its business as now
conducted and as presently proposed to be conducted, to own, lease and
operate its properties and assets and to carry out the provisions of
the Agreement.
ARTICLE 7.
LEGAL CONSEQUENCES
SECTION 7.1 If any claim or demand for which Seller would be liable
hereunder is asserted, Purchaser shall promptly notify Seller by registered mail
of such claim or demand and the amount or estimated amount thereof. Section 377
Austrian Commercial Code (HGB) shall not apply (sofortige Untersuchungspflicht).
SECTION 7.2 If one or more of the warranties given by Seller pursuant to
this Agreement is breached, Purchaser shall allow Seller to cure the breach and
bring about the condition that would exist if the warranty concerned had not
been breached, within an appropriate period of time, not later however than
within 30 (thirty) days following receipt of the request or within any longer
period the Parties may mutually agree upon ("CURE PERIOD"). Should (i) Seller
fail to cure the breach within the Cure Period or should (ii) the cure not being
feasible, Seller shall indemnify Purchaser and/or the Company in respect of the
breach of the warranty by paying monetary damages by means of which Purchaser
and/or the Company are put in the position in which they would have been had the
warranty concerned not been breached ("INDEMNIFICATION"). However, Seller shall
not be liable for consequential damages and compensation for loss of business
and lost profits unless in the event of malicious intent and gross negligence
and the maximum amount of damages to be paid and Indemnification shall, in its
aggregate, not exceed the Purchase Price. This cap and any other limitation of
liability shall
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not apply for the Libischer claims and/or for any other claims arising out of
breach of the representations and warranties given by Seller under Section
6.1.2. letters (a) and (b). Purchaser may not receive Indemnification more
than once for one and the same loss caused by the same facts, matters and/or
circumstances.
SECTION 7.3 Any amount to be paid by Seller as Indemnification and any
other amount to be paid by Seller under Article 7 of this Agreement shall be
first deducted from the Second Installment. If the Second Installment has been
already paid by Purchaser to Seller (or if the amount to be paid as
Indemnification is higher than the Second Installment) the concerned amount (or
the part exceeding the Second Installment) shall be paid directly by Seller on
demand by Purchaser.
SECTION 7.4 Except for the Libischer Claims and/or for any other claims
arising out of breach of the representations and warranties given by Seller
under Section 6.1.2. letters (a) and (b), where the Parties have agreed to a
limitation period of 5 (five) years following the Closing Date, any claims by
Purchaser regarding representations and warranties are subject to a limitation
period of 12 (twelve) months following the Closing Date. Any claims resulting
from the breach of warranties regarding tax and labor matters are subject to a
limitation period of 6 (six) months following the date of a final and binding
tax assessment concerning the relevant taxes or public charges but not longer
than 5 (five) years following the Closing. If any investigations or proceedings
are instituted during the 5 (five) years period the limitation period is
prolonged in this respect by 6 (six) months following the final and binding
decision. This shall not apply in case of tax evasion or tax evasion due to
gross negligence.
SECTION 7.5 Purchaser shall under no circumstances receive
Indemnification in respect of any loss unless and until the cumulative amount
of all losses to which it would otherwise be entitled to Indemnification
under this Agreement exceeds the sum of EUR 20,000 in the aggregate. This
threshold and any other limitation of liability shall not apply for the
Libischer claims and/or for any other claims arising out of breach of the
representations and warranties given by Seller under Section 6.1.2. letters
(a) and (b).
SECTION 7.6 Purchaser agrees and undertakes that, if the subject matter of
the claim is or has been a claim brought against Purchaser and/or the Company by
a third party, Purchaser will grant Seller the right to defend the claim, at its
costs and expenses, and Purchaser and/or the Company shall co-operate, at
Seller's costs and expenses, with Seller in the defense thereof.
SECTION 7.7 MFC guarantees the payment in the event that Seller
would/could not pay any Indemnification relating to the Libischer Claims
and/or to any other claims arising out of breach of the representations and
warranties given by Seller under Section 6.1.2. letters (a) and (b)
("GUARANTEE"). Such Guarantee shall expire 5 (five) years after Closing Date,
but if within the period ending 5 (five) years after Closing Date any claims
covered by this Guarantee have been brought against Seller at a court or in
an arbitration procedure, the term of the Guarantee be extended until the
termination of the pending claims. In case MFC is not fulfilling this
obligation, the Guarantee may be drawn by Purchaser without any further
notice. Any actions taken with respect to such claims shall require the prior
coordination of the Parties.
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ARTICLE 8.
SPECIFIC OBLIGATIONS
SECTION 8.1 Seller shall use its best efforts, to the extent legally
possible, to ensure the resignation of the members of the supervisory board
from their office within and no later than the Closing Date and at no cost
for the Company.
SECTION 8.2 Seller shall use its best efforts, to the extent legally
possible, to ensure that the Company revokes prior to the Closing and with
effect as of the Closing Date all and any special commercial powers of
attorney (prokuren) and any other commercial powers of attorney
(handlungsvollmachten) granted on behalf of the Company.
SECTION 8.3 For a period of 3 (three) years after Closing Date, Seller
(and affiliated companies under its direct or indirect control or directly or
indirectly controlling it) shall not be directly or indirectly engaged in
business in Austria which is comparable to that in which the Company is
engaged as of the Closing Date.
SECTION 8.4 For a period of 3 (three) years after Closing Date, Seller
(and affiliated companies under its direct or indirect control or directly or
indirectly controlling it) shall refrain from soliciting any business from
any past or present customers (as of the Closing Date) of the Company or
request or advice any past or present (as of the Closing Date) customer to
curtail or cancel its business dealing with the Company and shall further
refrain, for a period of 3 (three) years after Closing Date, from enticing
away employees of the Company or any of their affiliated companies or prompt
said employees to terminate their employment agreements with the companies
mentioned.
SECTION 8.5 Except where required by law or regulation affecting either
Party or member of the corporate group of either Party (e.g. Italian Exchange
rules, SEC) the Parties to this Agreement, in order to protect the business
interest of the other Party, will keep confidential (unless disclosure is
necessary to protect the Parties' own interests) all aspects of this
transaction that the other side can reasonably be expected to have a
legitimate interest in keeping such aspect confidential. This confidentiality
obligation supersedes any prior confidentiality agreement between the Parties
(or group companies). In case of any disclosure allowed under this Section
8.5, each Party shall inform the other Party in writing in advance prior to
disclose the concerned confidential information.
SECTION 8.6 During the Interim Period the Company (and any of its
respective affiliates or representatives) shall not, and Seller (and any of its
respective affiliates or representatives) shall cause the Company not to do
anything outside of the ordinary course of its business without the prior
written consent of Purchaser. In addition, during the Interim Period the Company
(and any of its respective affiliates or representatives) shall not, and Seller
(and any of its respective affiliates or representatives) shall cause the
Company not to (i) engage in any transaction or effect any payment whatsoever
which value exceeds 10,000 Euro (Euro ten thousand), (ii) sell or otherwise
dispose of an equity interest in or any assets of Vianet to any third party nor
engage in any similar transaction.
SECTION 8.7 Seller shall use its best efforts to cause (i) the present
members of the current management board, (ii) all of the present employees and
(iii) all of the Employees which have ceased to be an employee of the Company
within 90 days prior to the Execution Date ("BENEFICIARIES"), to waive their
entitlements under the Cybernet Internet Services International,
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Inc. 1999 Nonqualified Stock Option Award ("Stock Option Plan") - or any
other outstanding stock option scheme - ("Waiver") without involving any
further cost, taxes or duties for the Company and/or Purchaser, substantially
in the form as set out in Annex 20. For any claims arising out or in
connection with the Stock Option Plan or any other stock option scheme within
a period of three years following Closing Date Seller shall at its sole
discretion but subject to feasibility either (i) deliver the Option Shares
(as defined in the Stock Option Plan) or (ii) indemnify and hold harmless
Purchaser for any payments, cost and damages up to an amount of EUR 25,000
(Euro twentyfivethousand) per Beneficiary or (iii) find an individual
settlement which each Beneficiary. Section 7.6. of this Agreement shall apply
accordingly.
ARTICLE 9.
MISCELLANEOUS
SECTION 9.1. APPLICABLE LAW. This Agreement shall be governed by the
laws of the Republic of Austria without regard to conflicts of laws
principles.
SECTION 9.2. LANGUAGE. The English version of this Agreement and all
agreements to be delivered in connection herewith shall be the only governing
version and shall be authoritative. However, where words in German language
have been included, the meaning of those words shall govern.
SECTION 9.3. JURISDICTION. The parties irrevocably agree that any
disputes which may arise out or in connection with this Agreement, or any
transaction contemplated hereby shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce by one arbitrator
appointed in accordance with said Rules.
The place of arbitration shall be Vienna. The arbitrator shall be fluent in
English.
All submissions and awards in relation to arbitration under this agreement shall
be made in English and all arbitration proceedings and all pleadings shall be in
English. Original documents in English or German may be submitted as evidence in
their original language; if witness is not fluent in English it may give
evidence in their native tongue (with appropriate translation). Original
documents in a language other than English or German shall be submitted as
evidence in English translation accompanied by the original or a true copy
thereof.
The arbitrator may, at the request of a party, order provisional or
conservatory measure and shall have the authority to award specific
performance; provided, however, that until the complete establishment of the
arbitration panel, the ordinary courts shall remain competent for provisional
or conservatory measures. Any award shall be final and not subject to appeal
by the parties, and the parties hereby waive all rights to challenge any
award of the arbitral panel under this section.
SECTION 9.4. CURRENCY. Unless otherwise indicated, all currency amounts
referred to in this Agreement are in Euro.
SECTION 9.5. AMENDMENTS. No amendment of any provision of this
Agreement shall be effective unless the same is in writing and signed by each
Party thereto which is then a Party to or the respective document being
amended.
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SECTION 9.6. PARTIAL INVALIDITY. Should any provision or part of a
provision of this Agreement be or become invalid or unenforceable, or should
this Agreement contain an unintended contractual gap, then the validity or
enforceability of the remainder of the Agreement shall not be affected. Any such
invalid or unenforceable provision shall be deemed replaced by, or any gap
deemed to be filled with, an appropriate provision, which, in accordance with
the economic purpose and object of the provision and/or Agreement and as far as
legally permissible, shall come closest to the Parties' original intention, or
that intention which the parties would have had, had they considered the issue.
SECTION 9.7. EXECUTION. This Agreement may be executed in any number of
counterparts by one or more Parties hereto and such counterparts, each of which
when so executed and delivered, shall be deemed to be an original and all of
which when taken together shall constitute one and the same instrument. An
executed counterpart of this Agreement may be delivered by facsimile transfer or
similar form of electronic communication from one Party to the other provided
that an original executed counterpart is promptly delivered to such receiving
Party.
SECTION 9.8. TAXES AND COSTS. Any transfer taxes and duties payable as a
consequence or in relation to the transaction contemplated in the Agreement are
to be equally borne by the Parties. Each Party shall further pay its own legal
costs.
SECTION 9.10. LEGAL ADVISE. Each Party has obtained independent legal
advice.
SECTION 9.11. NOTICES. All notices and other communication under this
Agreement must be in writing and sent - if possible prior by telefax - by
courier or mail to the addresses of the Parties as specified in this Agreement
with copies to:
FOR SELLER
Cybernet Internet Services International Inc.
Suite 1620
400 Burrard Street
Vancouver, British Columbia V6C 3A6
Canada
FOR PURCHASER:
Tiscali Osterreich GmbH
ArgentinierstraBe 21
1040 Wien
Austria
Attn. Dieter Haacker - Managing Director
Tel. +43 1 502 86 101
Fax. +43 1 502 86 299
Email. dieter.haacker@at.tiscali.com
AND WITH A COURTESY COPY TO:
Tiscali SpA
Via Pietrasanta, 14
20141 Milano
(1taly)
Attn. Antonio Corda - Corporate Legal Counsel
Page 14 of 16
Tel. +39 02 30901 1
Fax. +39 02 30901 400
Email. corda@tiscali.com
Vienna, July 31st, 2002
CYBERNET INTERNET SERVICES INTERNATIONAL, INC.
by: __________________________
date: ________________________
TISCALI OSTERREICH GMBH
by: __________________________
date: ________________________
MFC BANCORP LTD.
As guarantor under section 7.7
and subject to delivery of the Guarantee
by: __________________________
date: ________________________
Page 15 of 16
LIST OF ANNEXES:
Annex 1: Financial Status
Annex 2: Intercompany Claims
Annex 3: Statement regarding Representations and Warranties
Annex 4: Termination Agreement with Messrs. Leitner and Chytill
Annex 5: Receivable Transfer Agreement
Annex 6: Guarantee regarding Section 7.7
Annex 7: Legal Disputes
Annex 8: Bank Account Statement - Erste Bank
Annex 9: Bank Account Statement - BAWAG
Annex 10: Insurance Contracts
Annex 11: Domain Names
Annex 12: List of Customers
Annex 13: List of Top 100 Customers
Annex 14: Customers Intending to Terminate
Annex 15: Major Supply Agreements
Annex 16: Agreement with Telecom Austria regarding one 100 Mbit Fast
Ethernetverbindung
Annex 17: List of Employees
Annex 18: Other Claims By Employees
Annex 19: Tradmark Rights
Annex 20: Waiver
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