Exhibit 10.1


 


EXECUTION
COPY


 




 





 


STOCK
PURCHASE AGREEMENT


 


BY
AND AMONG


 


NAVTEQ
GERMAN HOLDINGS B.V.


 


 


THE
INDIVIDUALS LISTED ON EXHIBIT A ATTACHED HERETO


 


AND


 


MAPSOLUTE
GMBH


 


 


Dated
as of November 6, 2007




 





 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  1

  
	
  1.1

  	
  Definitions

  	
  1

  
	
  1.2

  	
  Interpretation

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  SALE AND PURCHASE OF SHARES

  	
  8

  
	
  2.1

  	
  Sale and Purchase

  	
  8

  
	
  2.2

  	
  Closing Payment

  	
  8

  
	
  2.3

  	
  Holdback Amount

  	
  9

  
	
  2.4

  	
  Release of Holdback
  Amount

  	
  9

  
	
  2.5

  	
  Purchase Price
  Adjustment

  	
  10

  
	
  2.6

  	
  Payments

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  REPRESENTATIONS AND WARRANTIES OF SELLERS

  	
  10

  
	
  3.1

  	
  Due Incorporation;
  Subsidiaries

  	
  11

  
	
  3.2

  	
  Due Authorization

  	
  11

  
	
  3.3

  	
  Merger Control; No
  Conflicts

  	
  12

  
	
  3.4

  	
  Title to Shares;
  Capitalization

  	
  12

  
	
  3.5

  	
  Financial Statements;
  Undisclosed Liabilities

  	
  13

  
	
  3.6

  	
  No Adverse Effects or
  Changes

  	
  14

  
	
  3.7

  	
  Title to and
  Sufficiency of Assets

  	
  16

  
	
  3.8

  	
  Condition of Assets

  	
  16

  
	
  3.9

  	
  Real Property

  	
  17

  
	
  3.10

  	
  Tangible Personal
  Property

  	
  17

  
	
  3.11

  	
  Accounts Receivable

  	
  17

  
	
  3.12

  	
  Intellectual Property

  	
  17

  
	
  3.13

  	
  Contracts

  	
  20

  
	
  3.14

  	
  Permits

  	
  22

  
	
  3.15

  	
  Insurance

  	
  22

  
	
  3.16

  	
  Employee Benefit Plans
  and Employment Agreements

  	
  23

  
	
  3.17

  	
  Employment and Labor
  Matters

  	
  24

  
	
  3.18

  	
  Taxes

  	
  24

  
	
  3.19

  	
  No Defaults or
  Violations

  	
  26

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  3.20

  	
  Environmental Matters

  	
  26

  
	
  3.21

  	
  Litigation

  	
  26

  
	
  3.22

  	
  Customers and Suppliers

  	
  27

  
	
  3.23

  	
  Brokers

  	
  27

  
	
  3.24

  	
  No Conflict of Interest

  	
  27

  
	
  3.25

  	
  Accuracy of Statements

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  REPRESENTATIONS AND WARRANTIES OF PURCHASER

  	
  28

  
	
  4.1

  	
  Due Incorporation

  	
  28

  
	
  4.2

  	
  Due Authorization

  	
  28

  
	
  4.3

  	
  Consents and Approvals;
  Authority Relative to this Agreement

  	
  28

  
	
  4.4

  	
  Litigation

  	
  29

  
	
  4.5

  	
  Brokers

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  COVENANTS

  	
  29

  
	
  5.1

  	
  Confidentiality

  	
  29

  
	
  5.2

  	
  Settlement of Certain
  Expenses

  	
  29

  
	
  5.3

  	
  Execution of Managing
  Director Agreements

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  REMEDIES

  	
  29

  
	
  6.1

  	
  Remedies by the Sellers

  	
  29

  
	
  6.2

  	
  Indemnification by
  Founders

  	
  30

  
	
  6.3

  	
  Indemnification by
  Purchaser

  	
  30

  
	
  6.4

  	
  Contents of Sellers’
  Warranties

  	
  30

  
	
  6.5

  	
  Claims

  	
  31

  
	
  6.6

  	
  Notice of Third Party
  Claims; Assumption of Defense

  	
  31

  
	
  6.7

  	
  Settlement or
  Compromise

  	
  32

  
	
  6.8

  	
  Knowledge

  	
  32

  
	
  6.9

  	
  Exclusion of Claims

  	
  32

  
	
  6.10

  	
  Time Limitations.

  	
  32

  
	
  6.11

  	
  Limitations on
  Liability of Sellers

  	
  33

  
	
  6.12

  	
  Exclusion of Further
  Remedies

  	
  34

  
	
  6.13

  	
  Offset of Advantages
  and Disadvantages; Claims against Third Parties; No Double Relief

  	
  34

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.14

  	
  Mitigation

  	
  35

  
	
  6.15

  	
  Recourse to Seller
  Holdback Amount

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  Tax Matters

  	
  35

  
	
  7.1

  	
  Cooperation on Tax
  Matters

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  MISCELLANEOUS

  	
  36

  
	
  8.1

  	
  Sellers’
  Representatives

  	
  36

  
	
  8.2

  	
  Expenses

  	
  36

  
	
  8.3

  	
  Amendment

  	
  37

  
	
  8.4

  	
  Payments in Euro

  	
  37

  
	
  8.5

  	
  Waivers

  	
  37

  
	
  8.6

  	
  Assignment; Set Off

  	
  37

  
	
  8.7

  	
  No Third Party
  Beneficiaries

  	
  37

  
	
  8.8

  	
  Publicity

  	
  37

  
	
  8.9

  	
  Further Assurances

  	
  38

  
	
  8.10

  	
  Severability

  	
  38

  
	
  8.11

  	
  Entire Understanding

  	
  38

  
	
  8.12

  	
  Language

  	
  38

  
	
  8.13

  	
  Governing Law; Dispute
  Resolution

  	
  38

  
	
  8.14

  	
  Release

  	
  39

  



 


iii

















 


	
  EXHIBITS

  	
   

  
	
  Exhibit A

  	
  The Sellers

  
	
  Exhibit B

  	
  Escrow Agreement

  
	
  Exhibit C

  	
  Holdback Agreement (Wiegand)

  
	
  Exhibit D

  	
  Holdback Agreement (Golob)

  
	
   

  	
   

  
	
  SCHEDULES

  	
   

  
	
  Schedule 1.1A

  	
  Financial Statements

  
	
  Schedule 3.1

  	
  Subsidiaries and Foreign Qualifications

  
	
  Schedule 3.4

  	
  Capitalization

  
	
  Schedule 3.5(c)

  	
  Preliminary P&L

  
	
  Schedule 3.5(e)

  	
  Cooperation Agreement

  
	
  Schedule 3.6

  	
  Adverse Effects or Changes

  
	
  Schedule 3.7

  	
  Title to Properties

  
	
  Schedule 3.8

  	
  Condition of Assets

  
	
  Schedule 3.9

  	
  Real Property Leases

  
	
  Schedule 3.10

  	
  Tangible Personal Property

  
	
  Schedule 3.11

  	
  Accounts Receivable

  
	
  Schedule 3.12

  	
  Intellectual Property

  
	
  Schedule 3.13(a)

  	
  Contracts

  
	
  Schedule 3.13(d)

  	
  Welldone Amendment

  
	
  Schedule 3.13(e)(i)

  	
  Company Matter

  
	
  Schedule 3.13(e)(ii)

  	
  Settlement Agreement

  
	
  Schedule 3.14

  	
  Permits

  
	
  Schedule 3.15

  	
  Insurance Matters

  
	
  Schedule 3.16

  	
  Benefits Plans

  
	
  Schedule 3.17

  	
  Employment and Labor Matters

  
	
  Schedule 3.18

  	
  Tax Issues

  
	
  Schedule 3.19

  	
  No Defaults or Violations

  
	
  Schedule 3.21

  	
  Litigation

  
	
  Schedule 3.22

  	
  Customers and Suppliers

  
	
  Schedule 5.3

  	
  Managing Director Agreements

  
	
  Schedule 6.8

  	
  Knowledge

  



 

















 


STOCK  PURCHASE  AGREEMENT


 


THIS AGREEMENT is made as of November 6, 2007, by and among NAVTEQ
GERMAN HOLDINGS B.V., a Dutch private company with limited liability (“Purchaser”),
the individuals listed on Exhibit A attached hereto (each, a “Seller”
and together, the “Sellers”) and MAPSOLUTE GMBH, a German limited liability
company (the “Company”). Certain capitalized terms used herein are
defined in Article I.


 


PREAMBLE:


 


WHEREAS,
each Seller holds shares in the
Company in the total nominal amount set forth opposite such Seller’s name on Exhibit A,
representing shares in the Company in the aggregate nominal amount of EUR
64,800 (the “Shares”);


 


WHEREAS,
the Company holds a share in treasury in the nominal value of EUR 450 (the “Treasury
Share”) (Eigene Anteile);


 


WHEREAS,
the Shares and the Treasury Share constitute all of the issued securities and
capital stock of the Company; and


 


WHEREAS,
Sellers holding all of the Shares desire to sell to Purchaser, and Purchaser
desires to purchase from Sellers all of the Shares, upon the terms and subject
to the conditions contained in this Agreement;


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual representations,
warranties, covenants and agreements herein contained, Purchaser, Sellers and
the Company agree as follows:


 


ARTICLE I



DEFINITIONS


 


1.1                         Definitions. The following
terms shall have the following meanings for the purposes of this Agreement:


 


“Accounts Receivable” shall have the meaning set forth in Section 3.11.


 


“Affiliate”
shall mean, with respect to any specified Person, any other Person that,
directly or indirectly, controls, is under common control with, or is
controlled by, such specified Person. The term “control”
as used in the preceding sentence means, with respect to a corporation, the
right to exercise, directly or indirectly, more than 20% of the voting rights
attributable to the shares of the controlled corporation, or with respect to
any Person other than a corporation, the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of
such Person.


 


1

















 


“Agreement”
shall mean this Stock Purchase Agreement, including all Exhibits and Schedules
hereto, as may be amended, modified or supplemented from time to time in
accordance with its terms.


 


“Benefit
Plans” shall have the meaning set forth in Section 3.16(b).


 


“Business
Day” shall mean any day of the year other than (i) any Saturday or
Sunday and (ii) any other day on which banks located in Amsterdam, The
Netherlands or Frankfurt, Germany generally are closed for business.


 


“Closing
Date” shall mean the date of notarial recording of this deed under German
law.


 


“Closing
Payment” shall have the meaning set forth in Section 2.2.


 


“Company”
shall have the meaning set forth in the first paragraph of this Agreement.


 


“Company
Working Capital Amount” means for the Company and the Subsidiaries on a
consolidated basis (excluding intercompany accounts), as of any date (i) the
sum of cash and cash equivalents, accounts receivable less allowances for
receivables considered not recoverable (Wertberichtigung
für als notleidend erkannten Forderungen), plus inventory, prepaid expenses (excluding
any deferred Tax assets, prepaid income Taxes or accrued Tax refunds) and other
current assets (excluding Purchaser’s obligation to refund Transaction Expenses
and the Settlement Payment to the Company pursuant to Section 5.2),
less (ii) the sum of accounts payable (excluding Transaction
Expenses and the Settlement Payment), accrued compensation (including any
bonuses accrued in the ordinary course), accrued Taxes (including any reserves
for income Taxes, or any deferred Tax liability), accrued insurance, accrued
expenses and other current liabilities, all determined in accordance with
German Accounting Rules (determined on a consistent basis with that used
to prepare the December 31, 2006 balance sheet of the Company), it being
understood that no amounts included in the definition of Indebtedness or any
long-term assets or long-term liabilities shall be included in any determination
of the Company Working Capital Amount.


 


“Confidential
Information” shall mean all secrets, confidential information, confidential
customer lists, confidential supplier information, source code and all other
confidential or secret data of or pertaining to the Company or to any Affiliate
of the Company, their respective businesses or financial affairs or products
that is not and has not become ascertainable or obtainable by third parties
from public or published information, or by other legitimate and lawful means.


 


“Contaminants”
shall have the meaning set forth in Section 3.12(e).


 


“Contract”
shall mean any contract, lease, license, sales order, purchase order,
agreement, indenture, mortgage, guaranty, note, bond, warrant or instrument or
obligation, arrangement or commitment, including all amendments thereto,
whether oral or in writing.


 


“Damage”
or “Damages” shall mean any and all damages pursuant to Section 249
et seq. BGB, including liabilities,
losses, costs, claims, damages, penalties and expenses (including reasonable
attorneys’ fees and expenses and costs of investigation and litigation). Damage
or 


 


2

















 


Damages shall expressly not include indirect or consequential damages (Folgeschäden), goodwill, loss of profits (entgangener Gewinn), internal administration or overhead
costs and expenses of Purchaser or any arguments that the Purchase Price was
calculated upon incorrect assumptions; provided, however, that
Damages shall include all damages of any nature awarded to a third party
(including incidental, consequential, special and punitive damages) and
enforceable against any Purchaser Indemnified Party or any of their respective
assets.


 


“DIS”
means the German Arbitration Institute.


 


“Enforceability
Limitations” shall have the meaning set forth in Section 3.2.


 


“Environmental
Law” shall mean any Law that imposes liability or standards of conduct
concerning discharges, emissions, releases or threatened releases of noises,
odors or any pollutants, contaminants or hazardous or toxic wastes, substances
or materials, whether as matter or energy, into ambient air, water or land, or
otherwise relating to the manufacture, processing, generation, distribution,
use, treatment, storage, disposal, cleanup, transport or handling of
pollutants, contaminants or hazardous or toxic wastes, substances or materials.


 


“Environmental
Permit” shall mean any Permit required by or pursuant to any applicable
Environmental Law.


 


“Escrow
Agreement” shall mean the escrow agreement entered into as of the date
hereof between Purchaser, each Founder and the acting notary, substantially in
the form attached hereto as Exhibit B.


 


“Estimated
Transaction Expenses” shall mean an amount equal to EUR 525,342.05.


 


“EUR”
or numbers preceded by the symbol “€” shall mean amounts in Euro.


 


“Financial Statements”
shall mean the unaudited financial statements of the Company and the
Subsidiaries as of December 31, 2006 and, except in the case of Mapsolute
Finland Oy, December 31, 2005, which are included in Schedule 1.1A.


 


“Founders” shall mean
each of Alexander Wiegand and Thomas Golob.


 


“Fundamental Warranties”
shall mean a representation or warranty in Sections 
3.1, 3.2, 3.4, 3.23, 4.1,
4.2, 4.3 and
4.5.


 


“German
Accounting Rules” shall mean all German accounting rules in
accordance with the Handelsgesetzbuch (HGB) and generally accepted accounting
principles in Germany.


 


“Governmental
Authority” shall mean any (i) multinational, federal, provincial,
state, regional, municipal, local or other government, governmental or public
department, central bank, court, tribunal, arbitral body, commission, board,
bureau or agency, domestic or foreign; (ii) any subdivision, agent,
commission, board, or authority of any of the foregoing or (iii) any
quasi-governmental or private body exercising any regulatory, expropriation or
taxing authority under or for the account of any of the foregoing.


 


3

















 


“Hazardous
Substance” shall mean any material or substance which (i) constitutes
a hazardous substance, toxic substance or pollutant (as such terms are defined
by or pursuant to any Environmental Law) and (ii) is regulated or
controlled as a hazardous substance, toxic substance, pollutant or other
regulated or controlled material, substance or matter pursuant to any
Environmental Law.


 


“Holdback
Agreements” shall mean the holdback agreements entered into as of the date
hereof between Purchaser and each Founder, copies of which are attached hereto
as Exhibits C and D.


 


“Holdback Amount” shall
have the meaning set forth in Section 2.3.


 


“Holdback Release Date”
shall mean the dates on which parts of the Holdback Amount shall be paid out as
set forth in Sections 2.4 (a) and (b).


 


“Indebtedness”
shall mean all indebtedness for borrowed money, whether current or funded, or
secured or unsecured, including (i) all indebtedness of any such Person
for the deferred purchase price of property or services (including any
liabilities under the purchase agreement for the Treasury Share), (ii) all
indebtedness of any such Person created or arising under any conditional sale
or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (iii) all indebtedness of any such Person secured by a purchase
money mortgage or other Lien to secure all or part of the purchase price
of the property subject to such mortgage or Lien, (iv) all the obligations
under leases for activated fixed assets which shall have been or are required
to be, in accordance with German Accounting Rules, recorded as capital leases
in respect of which such Person is liable as lessee, (v) all interest
(except any interest relating to periods after the Closing Date which need to
be reserved for), fees, penalties (including pre-payment penalties) other
expenses owed (or to be owed in connection with the repayment thereof) with
respect to the indebtedness referred to above insofar as such interest relates
to periods before the Closing Date and (vi) all indebtedness referred to
above that is directly or indirectly guaranteed by such Person or which such
Person has agreed (contingently or otherwise) to purchase or otherwise acquire
or in respect of which it has otherwise assured a creditor against loss. The
determination of the amounts included in the calculation of Indebtedness shall
be in accordance with German Accounting Rules. Further, no Transaction
Expenses, obligations under leases that are characterized as operating leases
in accordance with German Accounting Rules or amounts included in the
definition of Company Working Capital Amount shall be included in any
determination of Indebtedness.


 


“Indemnified
Person” shall mean the Person or Persons entitled to, or claiming a right
to, indemnification under Article VI.


 


“Indemnifying
Person” shall mean the Person or Persons claimed by the Indemnified Person
to be obligated to provide indemnification under Article VI.


 


“Individual Seller Warranties” shall
mean a representation or warranty in Sections 3.2 and 3.4(a) and
(d).


 


4

















 


“Intellectual
Property” shall mean, collectively, (i) all inventions, improvements,
patents and patent applications (including all reissues, divisions,
continuations, continuations-in-part, and extensions of any patent or patent
application), industrial designs and applications for registration of
industrial designs, including all rights, to the extent permitted by Law, to
file corresponding applications in any country in the world; (ii) all
trade secrets, know-how and confidential or proprietary information, whether
patentable or unpatentable, including technologies in development, computer
programs and other computer software (including software systems and
applications), Web sites, domains, domain names and related software, user
interfaces, topographies, source code, object code, algorithms, display
screens, layouts, development tools, instructions, templates, evaluation
software and hardware, formulae and information, manufacturing, engineering,
and other drawings and manuals, recipes, technology, processes, designs, lab
journals, notebooks, schematics, data, plans, blue prints, research and
development reports, agency agreements, technical information, technical
assistance, engineering data, design and engineering specifications, and
similar materials recording or evidencing expertise or information, including
those related to products under development, and further including any rights
as permitted by law to obtain patents thereon in any country in the world; (iii) all
trademarks, service marks and trade dress (whether registered, unregistered or
existing at common law), Internet domain names, business names and trade names,
trademark registrations and applications, including the goodwill associated
therewith, and copyrights (registered and unregistered) and (iv) all other
intellectual property rights of any nature.


 


“Law”
shall mean any law, statute, ordinance, regulation, judgment, order, decree,
injunction, arbitration award, license, authorization, opinion, agency
requirement or permit of any Governmental Authority or common law.


 


“Leased
Real Property” shall have the meaning set forth in Section 3.9(b).


 


“Letter
of Intent” shall mean that certain letter of intent identified on Schedule 3.13(e)(ii).


 


“Licensed
Intellectual Property” shall have the meaning set forth in Section 3.12.


 


“Lien”
shall mean any lien (except for any lien for Taxes not yet due and payable),
mortgage, charge, restriction, pledge, security interest, option, lease or
sublease, claim, right of any third party, easement, encroachment or
encumbrance.


 


“Major
Customers” shall have the meaning set forth in Section 3.22(a)(i).


 


“Major
Suppliers” shall have the meaning set forth in Section 3.22(a)(ii).


 


“Material
Adverse Effect” shall mean an effect on the business, operations, results
of operations, condition (financial or otherwise)  or prospects of the Company and
the Subsidiaries taken as a whole that is material and adverse, excluding
matters that are general, industry-wide developments not specifically relating
to or disproportionately affecting the Company or any Subsidiary.


 


“Minority
Sellers” shall mean all Sellers except for the Founders.


 


“Owned
Intellectual Property” shall have the meaning set forth in Section 3.12.


 


5

















 


“Permit”
shall mean any permit, license, approval, tariff, authorization, certificate,
variance, or other authorization required or granted by any Governmental
Authority and any applications for the foregoing.


 


“Permitted
Liens” shall mean (i) Liens for Taxes that are not yet delinquent or
that are being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with German Accounting
Rules; (ii) workers’, mechanics’, materialmen’s, repairmen’s, suppliers’,
carriers’ or similar Liens arising in the ordinary course of business with
respect to obligations that are not yet delinquent or that are not material and
are being contested in good faith by appropriate proceedings; (iii) Liens
encumbering the landlord’s interest in the Leased Real Property; (iv) covenants,
zoning restrictions, easements, licenses, or other restrictions on the use of
real property or other minor irregularities in title (including leasehold
title) thereto, so long as the same do not materially impair the use of such
real property, leases or leasehold estates; and (v)  those Liens set forth
in Schedule 3.7 and designated as “Permitted
Liens”, but not including any liens, security interests or pledges held by
any lender as security for borrowed money or for any guaranty of the
obligations of any party.


 


“Person”
shall mean any individual, corporation, proprietorship, firm, partnership,
limited partnership, limited liability company, trust, association or other
entity.


 


“Pre-Closing
Tax Period”  means any Tax period
ending on or before the close of business on the Closing Date or, in the case
of any Tax period which includes, but does not end on, the Closing Date, the
portion of such period up to and including the Closing Date.


 


“Preliminary
P&L” shall mean the preliminary profit and loss statements of the
Company and each of the Subsidiaries, on a non-consolidated basis, each as of July 31,
2007, attached hereto as Schedule 3.5(c).


 


“Preparation
Date” shall have the meaning set forth in Section 3.5(c).


 


“Proportionate
Share” shall mean, with respect to any Seller, such Seller’s proportion of (i) the
Purchase Price (or the Closing Payment, as the case may be), as set forth
opposite such Seller’s name on Exhibit A, or (ii) any costs
that relate to the transactions contemplated by this Agreement and the Related
Agreements, as the case may be.


 


“Purchase
Price” means EUR 28,024,000.65.


 


“Purchase
Price Adjustment” shall have the meaning set forth in Section 2.5.


 


“Purchaser”
shall have the meaning set forth in the first paragraph of this Agreement.


 


“Purchaser Indemnified
Parties” shall mean Purchaser, its Affiliates (including, from and after
the Closing Date, the Company), and their respective officers, directors,
members, employees, agents and representatives.


 


“Real
Property Leases” shall have the meaning set forth in Section 3.9(b).


 


6

















 


“Related
Agreements” shall mean any Contract that is entered into on the Closing
Date or otherwise pursuant to this Agreement, including the Escrow Agreement,
the Termination of Phantom Stock Entitlement, the Holdback Agreements and any
other agreements relating to each Founder’s employment with the Company or the
Purchaser. The Related Agreements executed by a specified Person shall be
referred to as “such Person’s Related Agreements,” “its Related Agreements” or
another similar expression.


 


“Schedules”
shall mean the collection of all schedules to this Agreement.


 


“Seller”
or “Sellers” shall have the meaning set forth in the first paragraph of
this Agreement.


 


“Seller Indemnified
Parties” shall mean the Sellers, their Affiliates, and their respective
officers, directors, members, employees, agents and representatives.


 


“Sellers’
Representatives” shall have the meaning set forth in Section 8.1(a).


 


“Sellers’ Warranties”
shall have the meaning
set forth in the preamble to Article III.


 


“Settlement
Agreement” shall mean that certain settlement agreement identified on Schedule 3.13(e)(ii).


 


“Settlement
Payment” shall mean the payment of EUR 138,060 that the Company is
obligated to pay the counterparty under the Settlement Agreement pursuant to Section 4
thereto.


 


“Shares”
shall have the meaning set forth in the preamble to this Agreement.


 


“Subsidiaries”
shall mean each of the entities set forth in Schedule 3.4.


 


“Taxes”
shall mean all income, profits, franchise, gross receipts, environmental,
customs duty, capital stock, severance, stamp, payroll, sales, employment,
unemployment, disability, use, property, withholding, excise, production,
value-added, occupancy and other taxes, duties or assessments of any nature
whatsoever, together with all interest, penalties and additions imposed with
respect to such amounts and any interest in respect of such penalties and
additions.


 


“Tax
Return” shall mean any report, return or other information required to be
supplied to a Governmental Authority in connection with any Taxes.


 


“Tax
Statute of Limitations Date” shall mean the close of business on the 180th
day after the date of the final, non-appealable assessment concerning
the respective Tax (or if such
date is not a Business Day, the next Business Day).


 


“Tax
Warranty” shall mean a representation or warranty in Section 3.18.


 


“Termination
of Phantom Stock Entitlement” shall mean the termination of phantom stock
entitlement in a form reasonably satisfactory to Purchaser entered into as
of the date hereof by the Company and each of Messrs. Huck and Rolf that
evidences the discharge of Messrs. Huck and Rolf under each of their
phantom stock entitlements with the Company.


 


7

















 


“Transaction
Expenses” shall have the meaning set forth in Section 8.2.


 


“Treasury
Share” shall have the meaning set forth in the preamble to this Agreement.


 


“Unresolved Portion”
shall have the meaning set forth in Section 2.4(a).


 


1.2                         Interpretation. The headings
preceding the text of Articles and Sections included in this Agreement and the
headings to Schedules attached to this Agreement are for convenience only and
shall not be deemed part of this Agreement or be given any effect in
interpreting this Agreement. The use of the masculine, feminine or neuter
gender or the singular or plural form of words herein shall not limit any
provision of this Agreement. The use of the terms “including” or “include”
shall in all cases herein mean “including, without limitation” or “include,
without limitation,” respectively. Reference to any Person includes such Person’s
successors and assigns to the extent such successors and assigns are permitted
by the terms of any applicable agreement, and reference to a Person in a
particular capacity excludes such Person in any other capacity or individually.
Reference to any agreement (including this Agreement), document or instrument
means such agreement, document or instrument as amended or modified and in
effect from time to time in accordance with the terms thereof and, if
applicable, the terms hereof. Underscored references to Articles, Sections,
clauses, Exhibits or Schedules shall refer to those portions of this Agreement.
The use of the terms “hereunder,” “hereof,” “hereto” and words of similar
import shall refer to this Agreement as a whole and not to any particular
Article, Section or clause of, or Exhibit or Schedule to, this
Agreement.


 


ARTICLE II



SALE AND PURCHASE OF SHARES


 


2.1                         Sale and Purchase. Pursuant to the terms and conditions of this Agreement,
each Seller hereby sells the Shares in the total nominal amount set forth
opposite such Seller’s name on Exhibit A to Purchaser free and
clear of all Liens. Purchaser hereby purchases such Shares from each
Seller, pursuant to the terms and conditions of this Agreement. Sellers herewith transfer the Shares with
effect in rem together with all rights and
obligations including the right to receive all dividends and distributions
declared, made or paid on or after the date hereof subject to and under the
condition precedent (aufschiebende Bedingung)
of (a) payment of the Closing Payment to the Sellers’ Representatives in
accordance with Section 2.2 and (b) deposit into escrow of the
Holdback Amount in accordance with Section 2.3. Purchaser herewith
accepts the transfer in accordance with the foregoing sentence.


 


2.2                         Closing Payment. Subject to the terms and conditions of
this Agreement, in consideration for the sale and transfer to Purchaser of the
Shares by Sellers, Purchaser shall, upon execution of this Agreement and the
Related Agreements, pay to Sellers’ Representatives in same-day funds by wire
transfer to a single account specified by the Sellers’ Representatives, an
aggregate amount equal to EUR 23,524,000.65 (the “Closing Payment”). The
Sellers’ Representatives shall immediately upon receipt of the Closing Payment
pay to each Minority Seller such Minority Seller’s Proportionate Share of the
Purchase Price (less a Proportionate Share of the costs of the transaction). The Closing
Payment, when paid in the manner provided 


 


8

















 


in this Section 2.2, shall fully discharge and satisfy (i) the
Proportionate Share of the Purchase Price for each Minority Seller and (ii) the
Proportionate Share of the Purchase Price for the Founders less the Holdback
Amount.


 


2.3                         Holdback Amount. Subject to
the terms and conditions of this Agreement and the Related Agreements, Purchaser shall, upon execution of this
Agreement and the Related Agreements, deposit an aggregate amount equal to EUR
4,500,000 (the “Holdback Amount”) into escrow of the acting notary. The
Holdback Amount shall be used for:


 


(a)                                  effecting the payment and discharge of any obligations
of Founders to pay any Damages as set forth in Article VI;


 


(b)                                 any payment by Sellers to Purchaser for any Purchase
Price Adjustment; and


 


(c)                                  any payment to Purchaser pursuant to Section 2(d) of
each of the Holdback Agreements.


 


2.4                         Release of Holdback Amount.


 


(a)                                  Subject to the terms and conditions of this Agreement
and the Related Agreements, on the date that is eighteen (18) months after the
Closing Date and on each of the second and third anniversary of the Closing
Date, the acting notary shall pay to each Founder from the Holdback Amount an
amount equal to such Founder’s proportionate share of (i) EUR 750,000, minus
(ii) such Founder’s proportionate share of all prior amounts distributed
to Purchaser (or a Purchaser Indemnified Party, as the case may be)
pursuant to Section 2.3, minus (iii) such Founder’s
proportionate share of any amounts necessary (as determined by Purchaser in its
reasonable judgment by way of written notice to the notary) to satisfy any
pending or potential claims theretofore asserted by any Purchaser Indemnified
Party pursuant to Article VI (such amounts relating to such pending
or potential claims are collectively referred to hereinafter as the “Unresolved
Portion”).


 


(b)                                 On the date that is eighteen (18) months
after the Closing Date, the acting notary shall pay to each Founder from the
Holdback Amount (to the extent available) an amount equal to such Founder’s
proportionate share of (i) EUR 2,250,000, minus (ii) such
Founder’s proportionate share of all prior amounts distributed to Purchaser (or
a Purchaser Indemnified Party, as the case may be) pursuant to Section 2.3,
minus (iii) such Founder’s proportionate share of any Unresolved
Portion.


 


(c)                                  Any reductions to the Holdback Amount in
accordance with Sections 2.4(a)(ii) and 2.4(b)(ii) shall
be deducted only once. Should a portion of the Holdback Amount be retained by
Purchaser pursuant to the terms of one of the Founder’s Holdback Agreements,
such amount shall only be withheld from the Founder to which such Holdback
Agreement relates.


 


9

















 


(d)                                 If there is an Unresolved Portion of the
Holdback Amount as of a Holdback Release Date, the acting notary shall continue
to retain such Unresolved Portion from and after the Holdback Release Date
until the resolution and settlement of such pending claims giving rise to the
Unresolved Portion. Following the final resolution and settlement of all such
pending claims, the acting notary shall pay to each Founder such Founder’s
proportionate share of the balance, if any, of the Holdback Amount, together
with any interest accrued on the escrow account from the Closing Date to and
including the date of payment of such balance.


 


2.5                         Purchase Price Adjustment. The “Purchase Price
Adjustment” shall be an amount equal to the Transaction Expenses minus
the Estimated Transaction Expenses. Within ninety (90) days after the date
hereof (a) if the Purchase Price Adjustment calculated in accordance with
this Section 2.5 is a positive number, Purchaser shall be entitled
to retain the amount of such Purchase Price Adjustment from the Holdback Amount
or (b) if the Purchase Price Adjustment calculated in accordance with this
Section 2.5 is a negative number, Purchaser shall pay to Sellers’
Representatives an amount equal to the absolute value of such Purchase Price
Adjustment.


 


2.6                         Payments. All payments
made hereunder shall be made in accordance with Section 8.4
and to such account or accounts as the receiving party shall designate in
writing to the paying party at least two Business Days prior to the payment
thereof.


 


ARTICLE III



REPRESENTATIONS AND WARRANTIES OF SELLERS


 


Except as disclosed in this Agreement, its Schedules or the Related
Agreements, it being understood that each Schedule to this Agreement shall
list all items applicable to such Schedule (but that any item disclosed
under any of the Schedules shall be deemed to be disclosed for all purposes
under this Agreement to the extent that the relevance of such disclosure is
reasonably apparent), Founders jointly and severally hereby represent and
warrant to Purchaser by means of an independent promise of guarantee (selbständiges Schuldversprechen) within the meaning of Sec.
311 BGB that as of the date hereof (unless the provisions set forth below
provide for otherwise) the representations and warranties given by Founders and
Sellers in this Article III (collectively, the “Sellers’
Warranties”) are true and accurate as of the Closing Date. Further,
except as disclosed in this Agreement, its Schedules or the Related Agreements,
it being understood that each Schedule to this Agreement shall list all
items applicable to such Schedule (but that any item disclosed under any
of the Schedules shall be deemed to be disclosed for all purposes under this
Agreement to the extent that the relevance of such disclosure is reasonably
apparent), the Minority Sellers individually (and not jointly and severally (keine Gesamtschuld)) hereby only represent
and warrant to Purchaser by means of an independent promise of guarantee (selbständiges Schuldversprechen) within
the meaning of Sec. 311 BGB as of the date hereof (unless the provisions set
forth below provide for otherwise) that the Individual Seller Warranties with
regard to the Share(s) sold by such Minority Seller are true and accurate as of
the Closing Date.


 


10

















 


For the
avoidance of doubt, (i) the Sellers’ Warranties shall not be considered a
guarantee within the meaning of Section 444 BGB second alternative and (ii) the
Individual Seller Warranties are only given by each Seller with respect to the
Shares sold by such Seller.


 


3.1                         Due Incorporation;
Subsidiaries.


 


(a)                                  The Company and each
Subsidiary is a company duly organized, validly existing and, if applicable, in
good standing under the laws of the jurisdiction set forth opposite its name in
Schedule 3.1. The
Company and each Subsidiary is licensed or qualified to do business and, if
applicable, is in good standing as a foreign company in each jurisdiction where
the nature of the business conducted or properties owned, leased or operated by
it require such licensing or qualification. Such jurisdictions are listed in Schedule 3.1.


 


(b)                                 Except as set forth in Schedule 3.1, the Company does not
directly or indirectly own any shares of capital stock or any other security
issued by any Person and does not hold any direct or indirect economic, voting
or management interest in any Person.


 


(c)                                  True, correct and complete
copies of the applicable formation documents of the Company and each Subsidiary
have been made available to Purchaser.


 


(d)                                 True, correct and complete
copies of all minutes of all meetings (or written consents in lieu of meetings)
of the board of directors (including where applicable, management boards and
supervisory boards as well as all committees thereof) and stockholders (or the
corresponding governing body, if any, and equity holders) of the Company and
each Subsidiary have been made available to Purchaser.


 


3.2                         Due Authorization. The Company
and each Seller have all requisite powers and authority to enter into this
Agreement and their respective Related Agreements and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance by the Company and each Seller of this Agreement and their
respective Related Agreements, and the consummation by the Company and each
Seller of the transactions contemplated hereby and thereby, have been duly and
validly approved by the Company and each Seller and no other actions or
proceedings on the part of the Company or any Seller are necessary to
authorize this Agreement, their respective Related Agreements and the
transactions contemplated hereby and thereby. The Company and each Seller have
duly and validly executed and delivered this Agreement and have duly and
validly executed and delivered its Related Agreements. Assuming due
authorization, execution and delivery of this Agreement and its Related
Agreements by the other parties hereto and thereto, this Agreement constitutes
a legal, valid and binding obligation of the Company and each Seller, and each
of its respective Related Agreements constitute legal, valid and binding
obligations of the Company and each Seller (as applicable), in each case,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect that affect the
enforcement of creditors’ rights generally 


 


11

















 


and by equitable limitations on the availability of specific remedies
and by principles of equity (collectively, “Enforceability
Limitations”).


 


3.3                         Merger Control; No Conflicts.


 


(a)                                  The combined consolidated worldwide turnover of the
Company and its Subsidiaries in 2006 was less than EUR 10,000,000. None of the
controlling shareholders of the Company controls individually or jointly,
directly or indirectly, any other Person or undertaking whether by virtue of
holding shares, stock, partnership interests or other forms of interest, by
virtue of contractual arrangements or otherwise.


 


(b)                                 Except for antitrust and
merger control filings, no consent, authorization or approval of, or filing or
registration with, any Governmental Authority is necessary in connection with
the execution, delivery or performance by the Company and each Seller of this
Agreement or any of its respective Related Agreements or the consummation by
the Company and each Seller of the transactions contemplated hereby or thereby.
Except for antitrust and merger control filings, the execution, delivery and
performance by the Company and each Seller of this Agreement and its respective
Related Agreements, and the consummation by the Company and each Seller of the
transactions contemplated hereby and thereby, do not and will not (i) violate
any Law applicable to or binding on any Seller, the Company, any Subsidiary or
any of their respective assets; (ii) unless disclosed in this Agreement,
its Schedules or the Related Agreements, violate or conflict with, result in a
breach or termination of, constitute a default or give any third party any
additional right (including a termination right) under, permit cancellation of,
result in the creation of any Lien upon any of the assets of any Seller, the
Company or any Subsidiary under, or result in or constitute a circumstance which,
with or without notice or lapse of time or both, would constitute any of the
foregoing under, any Contract to which any Seller, the Company or any
Subsidiary is a party or by which any Seller, the Company or any Subsidiary, or
any of their respective assets, are bound; (iii) unless disclosed in this
Agreement, its Schedules or the Related Agreements, permit the acceleration of
the maturity of any Indebtedness of any Seller, the Company or any Subsidiary
or Indebtedness secured by their respective assets or (iv) violate or
conflict with any provision of any of the organizational documents of any
Seller, the Company or any Subsidiary.


 


3.4                         Title to Shares;
Capitalization.


 


(a)                                  The nominal share capital of
the Company amounts to € 65,250 and is divided into the Shares and the Treasury
Share. The Shares sold by each Seller (i) are duly authorized, validly
issued, fully paid and nonassessable and (ii) are free of preemptive
rights. All contributions to the share capital (Aufbringung des
Stammkapitals) have been duly made and no repayment
(directly or indirectly) of the registered share capital (Stammkapital) has been made. Each
Seller is the owner of the Shares set forth opposite such Seller’s name on Exhibit A


 


12

















 


and sold by it, free and clear of any and all Liens. The Shares and the
Treasury Share constitute all of the issued securities and capital stock of the
Company.


 


(b)                                 Schedule 3.4 sets forth for
each Subsidiary, where applicable, the classes and amounts of its authorized
capital stock or other equity interests, the amount of its issued or
outstanding capital stock or other equity interests and the record and
beneficial owners of its issued capital stock or other equity interests. Except
as set forth in Schedule 3.4, there are no equity interests of any
Subsidiary issued, reserved for issuance or outstanding. All of the issued
equity interests of the Subsidiaries have been duly authorized and validly
issued in accordance with applicable Law and are fully paid or credited as
fully paid and non-assessable.


 


(c)                                  Except as set forth in Schedule 3.4 or as otherwise disclosed in
this Agreement, there are no shares of capital stock or other
security (whether or not such security has voting rights) of the Company or any
Subsidiary issued or outstanding or any subscriptions, options, warrants,
calls, rights, convertible securities or other agreements or commitments of any
character obligating any Seller, the Company or any Subsidiary, or obligating
any Seller to cause the Company or any Subsidiary, to issue, transfer or sell,
or cause the issuance, transfer or sale of, any shares of capital stock or
other security (whether or not such security have voting rights) of the Company
or any Subsidiary. Except as set forth in Schedule 3.4,
there are no outstanding contractual obligations of any Seller, the Company or
any Subsidiary that relate to the purchase, sale, issuance, repurchase,
redemption, acquisition, transfer, disposition, holding or voting of any shares
of capital stock or other security of the Company or any Subsidiary. All share
premiums  have been duly
made by Sellers (Aufgelder und sonstige Zuzahlungen).
Except for Sellers’ rights as holders of Shares, except for employee benefit
plans or bonus arrangements disclosed pursuant to Section 3.16 and
except pursuant to agency agreements, distribution agreements and advertising
agreements disclosed in the Schedules hereto, no Person has any right to
participate in, or receive any payment based on any amount relating to, the
revenue, income, value or net worth of the Company or the Subsidiaries or any
component or portion thereof, or any increase or decrease in any of the
foregoing; in particular, no silent partnership agreements exist.


 


(d)                                 The execution of this
Agreement by Sellers and Purchaser, due payment of the Closing Payment in
accordance with Section 2.2 and deposit of the Holdback Amount into
escrow in accordance with Section 2.3 will be sufficient to
transfer to Purchaser good and marketable title in all of the Shares, free and
clear of all Liens. Each Seller has full power and authority to convey good and
marketable title to all of the Shares, and Purchaser will receive good and marketable
title to such Shares, free and clear of all Liens.


 


3.5                         Financial Statements;
Undisclosed Liabilities.


 


(a)                                  The Financial Statements (i) have
been prepared, in the case of the Company, in accordance with German Accounting
Rules and, in the cases of the 


 


13

















 


Subsidiaries, in accordance with applicable local accounting rules, in
each case consistently applied; (ii) are true, complete and correct and (iii) present
fairly the financial position of the Company or the applicable Subsidiary as of
the date thereof on a non-consolidated basis. The Financial Statements are in
accordance with the books and records of the Company and the Subsidiaries.


 


(b)                                 Except as set forth in the
balance sheets of the Company and the Subsidiaries as of December 31, 2006
included in the Financial Statements, neither the Company nor any Subsidiary
had, as of December 31, 2006, any liabilities, debts, claims or
obligations, whether accrued, absolute, contingent, unasserted or otherwise.


 


(c)                                  Each Preliminary P&L has
been prepared in good faith based on all information available to the Company
or the respective Subsidiary at the time of its preparation on October 15,
2007 (the “Preparation Date”) and in conformity with past practice. The
revenues (Umsatz) reflected in each Preliminary
P&L include invoices to customers that may also relate to services to
be provided in periods after July 31, 2007. Further, invoices from
suppliers, including without limitation, data suppliers, will have to be booked
into the period covered by the Preliminary P&L, but have not yet been
booked as they were not yet available on the Preparation Date.


 


(d)                                 Unless disclosed in this
Agreement, its Schedules or the Related Agreements, since December 31,
2006, neither the Company nor any Subsidiary has incurred any liabilities,
debts or obligations, whether accrued, absolute, contingent, unasserted or
otherwise of a nature required by German Accounting Rules to be reflected
on the balance sheet of the Company or Subsidiaries or in the notes thereto,
other than liabilities incurred in the ordinary course of business and
consistent with past practice (excluding guarantees of third party obligations
and off-balance sheet arrangements).


 


(e)                                  The total of the Company Working
Capital Amount as of the Closing Date minus the Indebtedness of the
Company as of the Closing Date is not less than negative EUR 445,000 (-€445,000). The Estimated
Transaction Expenses are the Founders’ reasonable estimates of such amounts and
were calculated by the Founders in good faith. Notwithstanding anything that is
disclosed in this Agreement, its Schedules or the Related Agreements, under the
agreement identified on Schedule 3.5(e), the Gross Margin (as
defined therein) does not exceed EUR 200,000.


 


3.6                         No Adverse Effects or
Changes. Except as set forth in Schedule 3.6,
since December 31, 2006, neither the Company nor any Subsidiary has:


 


(a)                                  suffered any event or events
which, individually or in the aggregate, has had or would reasonably be expected
to have a Material Adverse Effect;


 


14

















 


(b)                                 suffered any damage,
destruction or loss in excess of €35,000
to any of its assets whether or not covered by insurance;


 


(c)                                  sold, transferred, conveyed
or otherwise disposed of, or encumbered with any Lien (other than Permitted
Liens), any asset or property having an individual book value in excess of €35,000, except sales of inventory
in the ordinary course of business and consistent with past practice;


 


(d)                                 made any changes in its
accounting systems, policies, principles or practices;


 


(e)                                  entered into, authorized or
permitted any transaction with any Seller or any Affiliates of any Seller;


 


(f)                                    authorized for issuance,
issued, sold or delivered, or agreed or committed to issue, sell or deliver,
any shares of its capital stock or any other securities of the Company or any
Subsidiary, or amended any of the terms of any such capital stock or other
securities; no shareholders resolutions have been passed that are not
registered in the respective commercial registers, if applicable;


 


(g)                                 incurred any obligation or
entered into any Contract that either required a payment by any party in excess
of, or a series of payments which in the aggregate exceed, €35,000 or provides for the
delivery of goods or performance of services, or any combination thereof,
having a value in excess of €35,000,
in each case other than customer agreements entered into in the ordinary course
of business;


 


(h)                                 split, combined or
reclassified any shares of capital stock, declared, set aside or paid any
dividend or other distribution (whether in cash, stock or property or any
combination thereof) in respect of capital stock or other securities, or
redeemed or otherwise acquired any capital stock or securities of the Company
or any Subsidiary;


 


(i)                                     made any borrowings or
incurred any debt (other than trade payables and bank loans incurred in the
ordinary course of business and consistent with past practice), or assumed,
guaranteed, endorsed (except for the negotiation or collection of negotiable
instruments in transactions in the ordinary course of business and consistent
with past practice) or otherwise become liable (whether directly, contingently
or otherwise) for any obligations of any other Person or  made any payment or repayment in respect of
any Indebtedness (other than trade payables and bank loans and accrued expenses
in the ordinary course of business and consistent with past practice);


 


(j)                                     made any loans, advances or
capital contributions to, or investments in, any other Person;


 


(k)                                  entered into, adopted,
amended or terminated any bonus, profit sharing, compensation, termination,
stock option, stock appreciation right, 


 


15

















 


restricted stock, performance unit, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreement, trust,
plan or fund for the benefit or welfare of any director, officer or employee,
or increased in any manner the compensation or benefits of any director,
officer or employee not required by any existing plan or arrangement, or
entered into any Contract to do any of the foregoing;


 


(l)                                     acquired or leased any
assets outside the ordinary course of business and consistent with past practice
or any assets which are material to the Company or any Subsidiary;


 


(m)                               paid any amount, performed
any obligation or agreed to pay any amount or perform any obligation, in
settlement or compromise of any suits or claims of liability against the Company,
any Subsidiary or any of their respective directors, officers or employees;


 


(n)                                 waived, released or
cancelled any claims against third parties or debts owing to it, or any rights
which have any value;


 


(o)                                 entered into any other
Contract other than in the ordinary course of business and consistent with past
practice;


 


(p)                                 made any Tax election or
settled or compromised any federal, state, provincial, local or foreign Tax
liability, or waived or extended the statute of limitations in respect of any
such Taxes; or


 


(q)                                 terminated, modified,
amended or otherwise altered or changed any of the terms or provisions of any
Contract, or paid any amount not required by Law or by any Contract.


 


3.7                         Title to and Sufficiency of
Assets.


 


(a)                                  Except
as set forth in Schedule 3.7 or as otherwise disclosed in this
Agreement, the Company and each Subsidiary has good and marketable title to,
and is the lawful owner of, (i) all of the tangible and intangible assets,
properties and rights used in connection with their respective businesses and (ii) all
tangible and intangible assets, properties and rights reflected in the
Financial Statements (other than assets leased and assets disposed of in the
ordinary course of business since December 31, 2006), free and clear of
any Lien other than Permitted Liens.


 


(b)                                 The Company and each
Subsidiary either owns, leases, licenses or otherwise has the right to use all
of the assets, properties and rights currently used by the Company or any of
the Subsidiaries in the conduct of their respective businesses and all such
assets, properties and rights are sufficient for the conduct of such businesses
as conducted as of the date of this Agreement.


 


3.8                         Condition
of Assets. Except as disclosed in Schedule 3.8 or otherwise
disclosed in this Agreement, all of the tangible assets of the Company and the
Subsidiaries currently used 


 


16

















 


in their respective businesses, whether real or personal, owned or
leased, are in good operating condition and repair (with the exception of
normal wear and tear) for the purposes of the Company’s and the Subsidiary’s
business as conducted as of the date of this Agreement.


 


3.9                         Real Property.


 


(a)                                  Neither the Company nor any
of its Subsidiaries owns any real property.


 


(b)                                 Schedule 3.9  includes a true, accurate and complete list
of all real estate held by the Company or any Subsidiary under real property
leases (the “Leased Real Property”),
and all leases covering the Leased Real Property to which the Company or any
Subsidiary is party (the “Real Property Leases”). The Company has made
available to Purchaser true and complete copies of all Real Property Leases.


 


(c)                                  All of the Real Property
Leases are in full force and effect, valid and enforceable against the Company
or the Subsidiary which is party thereto, and against the other parties
thereto, in accordance with their respective terms, except as such
enforceability may be limited by Enforceability Limitations. Neither the
Company nor any Subsidiary has received any notice of any default under any
Real Property Lease and, to the knowledge of the Founders, there is no default
under any Real Property Lease by any other party thereto.


 


3.10                   Tangible Personal Property. Schedule 3.10
sets forth an accurate and complete list as of December 31, 2006 of all
tangible personal property owned by the Company or any Subsidiary and having an
individual book value in excess EUR 10,000.00. Schedule 3.10 also
sets forth an accurate and complete list of each lease of tangible personal
property having aggregate minimum lease payments in excess of EUR 10,000.00
binding upon the Company or any Subsidiary. The Company has made available to
Purchaser true and complete copies of all such leases.


 


3.11                   Accounts Receivable. Schedule 3.11
contains an accurate and complete aging schedule as of October 18,
2007 of all accounts receivable due to the Company or any Subsidiary resulting
from goods sold or services provided by the Company or any Subsidiary (“Accounts
Receivable”) and all loans and advances by the Company or any Subsidiary to
third parties. Except as set forth in Schedule 3.11, each of the
Accounts Receivable represents a bona fide sale made or service provided in the
ordinary course of business.


 


3.12                   Intellectual Property. Schedule 3.12 is an accurate and
complete list of all Intellectual Property owned by the Company or any
Subsidiary (the “Owned Intellectual Property”),
all Intellectual Property licensed to the Company or any Subsidiary (the “Licensed Intellectual Property”) and all
Contracts to which the Company or any Subsidiary is a party that provides for
the license of Owned Intellectual Property or Licensed Intellectual Property (excluding licenses granted by the
Company or a Subsidiary to customers in the ordinary course of business and on
terms that are substantially similar to the Company’s standard terms).


 


(a)                                  Except as disclosed in Schedule 3.12:


 


17

















 


(i)                                             all of the right, title and interest in
the Owned Intellectual Property is owned by the Company or a Subsidiary free
and clear of all Liens, and is not subject to any license (excluding licenses
granted by the Company or a Subsidiary to customers in the ordinary course of
business and on terms that are substantially similar to the Company’s standard
terms), royalty or other agreement to which the Company or a Subsidiary is
party, and neither the Company nor any Subsidiary has granted any license
(excluding licenses granted by the Company or a Subsidiary to customers in the
ordinary course of business and on terms that are substantially similar to the
Company’s standard terms) or agreed to pay or receive any royalty in respect of
any Owned Intellectual Property;


 


(ii)                                          no open source or public library software, including
any version of any software licensed pursuant to the GNU General Public License
(GPL), the GNU Lesser General Public License (LGPL), the Mozilla Public License
(MPL), the Eclipse Public License (EPL), the BSD License or the Apache License,
is in whole or in part, embodied or incorporated into any software product or
any other Intellectual Property of the Company or any Subsidiary;


 


(iii)                                       none of the
Owned Intellectual Property or the Licensed Intellectual Property is the
subject of any pending litigation or claim of infringement or misappropriation
against the Company or any Subsidiary for which process has been served on the
Company or any Subsidiary and, to the knowledge of the Founders, none of the
Owned Intellectual Property or the Licensed Intellectual Property is the
subject of any threatened or pending litigation or claim of infringement or
misappropriation for which process has not yet been served on the Company or
any Subsidiary;


 


(iv)                                      no license or royalty agreement to which
the Company or any Subsidiary is a party is in breach or default in any
material respect by the Company or the applicable Subsidiary or the subject of
any notice of termination given or threatened, and, to the knowledge of the
Founders, no license or royalty agreement to which the Company or any
Subsidiary is a party is in breach or default by any other party thereto;


 


(v)                                         the Owned Intellectual Property and the
products and services produced and sold by the Company pursuant to the Owned
Intellectual Property, any process, method, part, design, material or other
Intellectual Property it employs, and the marketing and use by the Company of
any such product, service or Intellectual Property, in each case do not, and
immediately following the Closing Date will not, infringe any Intellectual
Property or confidential or proprietary rights of any third party, and, to the
knowledge of the Founders, the Company has not received any written notice
contesting its right to use any such Intellectual Property or to market or sell
such products or services;


 


(vi)                                      to the knowledge of the Founders (i) the
Company has, and enforces, policies requiring each employee, vendor, consultant
and contractor, in each case, which are or have been provided access to
Confidential Information, to 


 


18

















 


execute a
confidentiality agreement and (ii) such employees, vendors, consultants
and contractors have entered into valid and binding written agreements with the
Company sufficient to vest title to all of the Owned Intellectual Property in
the Company; and


 


(vii)                                   the Company and the Subsidiaries own or
possess adequate rights in perpetuity in and to all Intellectual Property
necessary to conduct their respective businesses as presently conducted, and
the Company’s rights in all such Intellectual Property shall be valid and
enforceable immediately after the Closing Date.


 


(b)                                 Except as disclosed in Schedule 3.12,
within the past three years, neither the Company nor any of the Subsidiaries
have asserted or threatened in writing any material claim against any Person
alleging any infringement, misappropriation or violation of any Owned
Intellectual Property.


 


(c)                                  The
Company and its Subsidiaries within Europe (excluding Russia and Turkey), the
United States and Canada and, to the knowledge of the Founders, in other parts
of the world, have complied in all material respects with all applicable Laws
relating to privacy, personal data protection and the collection, processing
and use of personal information and have not violated any right to privacy or
publicity of any third party. The operation of the Company and its Subsidiaries
as currently conducted does not constitute unfair competition or trade
practices under the Laws of any jurisdiction within Europe (excluding Russia
and Turkey), the United States and Canada and, to the knowledge of the
Founders, in other parts of the world in which the Company and its Subsidiaries
currently do business. The Company and its Subsidiaries have complied in all
material respects with their respective internal privacy policies and
guidelines, if any, relating to privacy, personal data protection, and the
collection, processing and use of personal information.


 


(d)                                 No license or royalty
agreement to which the Company or any Subsidiary is a party is in breach or
default by any party thereto or subject of any notice of termination given or
threatened, and the consummation of the transactions contemplated by this
Agreement will not result in any such breach or default or give rise to any
termination right, and no Contract to which the Company or any of its
Subsidiaries is a party will require, based upon this Agreement, the Related
Agreements or the transactions contemplated hereby or thereby (including any
assignment of any such Contract by operation of law as a result of such
transactions): (i) Purchaser or any of Purchaser’s Affiliates (including,
from and after the Closing Date, the Company) to grant to any third person any
incremental right to any non-assertion or similar obligation under any Owned
Intellectual Property, (ii) Purchaser or any of Purchaser’s Affiliates
(including, from and after the Closing Date, the Company) to be bound by, or to
be subject to, any incremental non-compete or other incremental restriction on
the operation or scope of their respective businesses, (iii) Purchaser or
any of Purchaser’s Affiliates (including, from and after the Closing Date, the
Company)


 


19
















 


to pay any incremental royalties or other material amounts, or offer
any material incremental discounts, to any third person, or (iv) Purchaser
or any of Purchaser’s Affiliates (including, from and after the Closing Date,
the Company) to be bound by a defensive suspension clause, grant a license,
non-assert covenant or undertake any similar obligation in respect of Purchaser’s
or Purchaser’s Affiliates’ Intellectual Property.


 


(e)                                  To the knowledge of the Founders, all
material products of the Company and its Subsidiaries and all applicable
material Owned Intellectual Property are free of: (i) any material
defects, including any material error or omission in the processing
capabilities of the products and (ii) any material unauthorized disabling
codes or instructions and any “back door,” “time bomb,” “Trojan horse,” “worm,”
“drop dead device,” “virus” or other software routines or hardware components
that permit unauthorized access or the unauthorized disruption, impairment,
disablement or erasure of such material product of the Company or material
Owned Intellectual Property (or any part thereof) or data or other
software of users, excluding timing devices identified in the applicable
licensing agreement (“Contaminants”).


 


(f)                                    The Company and its Subsidiaries have
taken commercially reasonable steps and implemented commercially reasonable
procedures with respect to protecting their information technology systems used
in connection with the operation of the Company and its Subsidiaries from
Contaminants. To the knowledge of the Founders, there have been no successful
material unauthorized intrusions or material breaches of the security of the
information technology systems of the Company and its Subsidiaries. The Company
and its Subsidiaries have implemented commercially reasonable security patches
or upgrades that are generally available to the Company for the Company’s
information technology systems where, in the Company’s reasonable judgment,
such patches or upgrades are required.


 


3.13                   Contracts.


 


(a)                                  Schedule 3.13(a) is an accurate and complete list of all the Contracts
of the following types to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary is bound, or to which any of the Company’s
or any Subsidiary’s assets are subject:


 


(i)                                             any Contract that requires, on or after
the Closing Date, a payment by any party in excess of, or a series of
payments that in the aggregate in the next three years exceed, €25,000.00 or provides for the delivery of goods or performance of services, or
any combination thereof, having a value in excess of €25,000.00;


 


(ii)                                          any collective bargaining agreement;


 


20

















 


(iii)                                       any Contract with a sales representative,
manufacturer’s representative, distributor, dealer, broker, sales agency,
advertising agency or other Person engaged in sales, distributing or
promotional activities, or any Contract to act as one of the foregoing on behalf
of any Person;


 


(iv)                                      any Contract pursuant to which the
Company or any Subsidiary has made or will make loans or advances, or has or
will have incurred Indebtedness for borrowed money or become a guarantor or
surety or pledged its credit for or otherwise become responsible with respect
to any undertaking of another Person (except for the negotiation or collection
of negotiable instruments in transactions in the ordinary course of business);


 


(v)                                         any Contract involving a partnership,
joint venture or other cooperative undertaking;


 


(vi)                                      any Contract involving any restrictions
with respect to the geographical area of operations or scope or type of
business of the Company or any Subsidiary or that requires the Company or any
Subsidiary to deal exclusively with any third party;


 


(vii)                                   any power of attorney or Contract with
any Person pursuant to which such Person is granted the authority to act for or
on behalf of the Company or any Subsidiary or the Company or any Subsidiary is
granted the authority to act for or on behalf of any Person;


 


(viii)                                any Contract with an Affiliate;


 


(ix)                                        any Contract or arrangement of any kind
with any employee (if not otherwise provided in this Agreement), officer or
director of the Company or any Subsidiary or any of the respective Affiliates
of such individuals, or any Contract or other arrangement of any kind with any
Seller or an Affiliate of any Seller;


 


(x)                                           any Contract with any Governmental Authority;


 


(xi)                                        any Contract, whether or not fully
performed, relating to any acquisition or disposition of the Company, any
Subsidiary or any predecessor in interest of any of them, or any acquisition or
disposition of any Subsidiary, division, line of business or real property;


 


(xii)                                     any Contract with the Major Customers and
Major Suppliers of the Company other than those Contracts that are not material
to the relationship with the applicable Major Customer or Major Supplier; and


 


(xiii)                                  any Contract that is not of a type listed above but
that is otherwise material to the Company or the Subsidiary (as applicable)
that is a party thereto (including any material Contract relating in whole or
in part to Intellectual Property).


 


21

















 


(b)                                 The Company has made available to
Purchaser accurate and complete copies of each Contract listed in Schedules
3.12 and 3.13(a).


 


(c)                                  Except as set forth in Schedule 3.13(a), (i) each Contract listed or required to be
listed on Schedule 3.13(a) is in full force and effect and
constitutes a legal, valid and binding obligation of the Company or the
Subsidiary (as applicable) that is party thereto and the other parties thereto,
enforceable in accordance with its terms, subject to Enforceability
Limitations, (ii) the Company is, and, to the knowledge of the Founders,
no other party to such Contracts is, in breach of a material term thereof or
default thereunder, (iii) no event has occurred with respect to the
Company or, to the knowledge of the Founders, otherwise, which with notice or
lapse of time would constitute a breach or default or would permit termination,
modification or acceleration under such Contracts and (iv) as of the date
hereof, no party to any such Contract has given the Company or any Subsidiary
notice that it intends to terminate such Contract prior to the end of the
current term of such Contract.


 


(d)                                 The Company has, prior to the date
hereof, entered into and delivered to Purchaser a true, correct and complete
copy of an amendment, to the Advertising Sales Agreement, dated November 28,
2005, between the Company and Welldone, in terms reasonably satisfactory to
Purchaser and as set forth on Schedule 3.13(d).


 


(e)                                  Notwithstanding
anything that is disclosed in this Agreement, its Schedules or the Related
Agreements, there
will be no liability or obligation of the Company, Founders or Sellers in
excess of (i) EUR 175,000 arising from, related to or in connection with
the matter identified on Schedule 3.13(e)(i) or (ii) EUR
138,060 arising from, related to or in connection with the Settlement Agreement
or the Letter of Intent.


 


3.14                   Permits. Schedule 3.14 is an accurate and
complete list of all material Permits (other than Environmental Permits) held
by the Company or any Subsidiary. All such Permits are in full force and effect
and neither the Company nor any Subsidiary has received any notice that any
such Permit will be revoked or canceled. Except for the Permits listed in Schedule 3.14, there are no
material Permits (other than Environmental Permits) that are necessary for the
lawful operation of the businesses of the Company and the Subsidiaries.


 


3.15                   Insurance.


 


(a)                                  Schedule 3.15 contains an
accurate and complete list of all policies of fire, liability, workers’
compensation, title and other forms of insurance owned or held by the Company
or any Subsidiary, and the Company has made available to Purchaser accurate and
complete copies of all such policies, other than policies relating to Benefit
Plans. All such policies are in full force and effect, all premiums with
respect thereto covering all periods up to and including the Closing Date have
been paid, and no notice of cancellation or termination has been received with
respect to any such policy. Except as set forth in Schedule 3.15


 


22

















 


or otherwise disclosed in this Agreement, neither the Company nor any
Subsidiary has been refused any insurance with respect to its assets or
operations, and its coverage has not been decreased by any insurance carrier to
which it has applied for any such insurance or with which it has carried
insurance, during the last three (3) years.


 


(b)                                 Schedule 3.15 contains an
accurate and complete list of all claims which have been made by the Company or
any Subsidiary since January 1, 2005 under any workers’ compensation,
general liability, property or other insurance policy applicable to the Company
or any Subsidiary. Except as set forth in Schedule 3.15 or
otherwise disclosed in this Agreement, there are no pending or threatened
claims under any insurance policy.


 


3.16                   Employee Benefit Plans and
Employment Agreements.


 


(a)           General.
Except as listed in Schedule 3.16 or otherwise disclosed in this
Agreement, neither the Company nor any Subsidiary is a party to or participates
in:


 


(i)                                             any retirement
or deferred compensation plan, incentive compensation plan, stock plan,
performance shares or similar long term equity-based incentive plan,
unemployment compensation plan, vacation pay, severance pay, bonus or benefit
arrangement, insurance or hospitalization program, early retirement plan or any
other fringe benefit arrangements for any current or former employee or
director, which does not constitute a Benefit Plan; or


 


(ii)                                          any employment agreement.


 


(b)                                 Plan Documents and Reports. A true and
correct copy of each of the plans, arrangements and agreements listed in Schedule 3.16 (collectively, the “Benefit Plans”), each as in effect on the
date hereof, has been made available to Purchaser.


 


(c)                                  Compliance With Laws; Liabilities. As to all Benefit Plans:


 


(i)                                             all Benefit
Plans comply, and have been administered in compliance with all requirements of
Law applicable thereto; and


 


(ii)                                          there are no actions, suits
or claims (other than routine claims for benefits) pending or threatened,
involving the Benefit Plans or the assets thereof.


 


(d)                                 Pension Liabilities. Neither the
Company nor any Subsidiary maintains, contributes to or has any liability or
contingent liability with respect to any employee pension benefit plan other
than statutory social security contributions under mandatory law.


 


23

















 


3.17                   Employment and Labor Matters.


 


(a)                                  Schedule 3.17 contains an
accurate and complete list of the names and titles or job descriptions for all
the employees of the Company and each Subsidiary. Seller has made available to
Purchaser the current compensation as of September 1, 2007 for all the
employees of the Company and each Subsidiary disclosed in Schedule 3.17.
There is, and since January 1, 2005 there has been, no labor strike, labor
dispute, concerted labor slow-down, work stoppage or other material labor
difficulty pending or threatened against the Company or any Subsidiary. Except
as set forth in Schedule 3.17,
none of the employees of the Company or any Subsidiary is covered by any
collective bargaining agreement, works council agreements or shop agreements,
and, to the knowledge of the Founders, no attempt is currently being made, or
since January 1, 2005 has been made, to organize any employees of the
Company or any Subsidiary to form or enter a labor union or similar
organization.


 


(b)                                 Except as set forth in Schedule 3.17,
the Company and each Subsidiary has complied with all applicable Laws and
regulations relating to the hiring and employment of employees, including those
related to discrimination, harassment, wages, hours and collective bargaining,
and neither the Company nor any Subsidiary is liable for any penalties or
damages for failure to comply with any of the foregoing. There are no unfair
labor practice claims or charges pending or threatened involving the Company or
any Subsidiary. The Company and each Subsidiary have paid all wages, social
security contributions and all other amounts due and payable in a timely
manner, and have fulfilled all obligations (including financial obligations)
imposed upon them in respect of all early retirement schemes and pensions
plans.


 


(c)                                  No employee of the Company
or any Subsidiary has given the Company or any such Subsidiary notice that he
or she intends to leave his or her employment with the Company or any such
Subsidiary as a result of the consummation of the transactions contemplated
hereby or for any other reason.


 


(d)                                 Except as set forth in Schedule 3.17
or otherwise disclosed in this Agreement, the Company is not party to any
Contract with any employee that provides for any severance pay, unemployment
compensation, change of control pay or any other similar payment, and the
consummation of the transactions contemplated by this Agreement will not
entitle any current or former employee or director of the Company to such
payment.


 


(e)                                  Except as set forth in Schedule 3.17,
to the knowledge of the Founders, no employee of the Company has been employed
by or performed consulting work for a competitor of the Company within the
previous two (2) years.


 


3.18                   Taxes.


 


(a)                                  The Company and each
Subsidiary has filed on a timely basis all Tax Returns as required by
applicable Law on or before the Closing Date. Each


 


24

















 


Tax Return is true, correct and complete in all material respects. All
Taxes shown as due and owing on all such Tax Returns have been paid. Except as
set forth in Schedule 3.18, neither the Company nor any Subsidiary
has requested an extension of time within which to file any Tax Return in
respect of any taxable year that has not since been filed. The Company and each Subsidiary have
adequately provided for liabilities for all unpaid Taxes in the Financial
Statements, which liabilities represent current Taxes not yet due and payable
for the periods ending December 31, 2006 and December 31, 2005, as
applicable, in accordance with German Accounting Rules. Schedule 3.18
sets forth identified tax risks that are deemed to be disclosed and the parties
are in agreement that if these risks materialize, no warranty claim may be
brought forward.


 


(b)                                 No federal, state,
provincial, local or foreign audit or other administrative proceeding or court
proceeding exists with regard to any Taxes or Tax Returns of the Company or any
Subsidiary, except for usual and customary Tax audits. Neither the Company nor
any Subsidiary has received any written notice that an audit or other
administrative proceeding is pending or threatened with respect to any Taxes
due from or with respect to the Company or any Subsidiary or any Tax Return filed
by or with respect to the Company or any Subsidiary. Neither the Company nor
any Subsidiary has granted or been requested to grant any waiver of any
statutes of limitations applicable to any claim for Taxes.


 


(c)                                  All Tax deficiencies which
have been claimed, proposed or asserted in writing against the Company or any
Subsidiary have been fully paid or finally settled.


 


(d)                                 There are no Tax Liens
(other than for Taxes not yet due and payable) upon the properties or assets of
the Company or any Subsidiary.


 


(e)                                  Neither the Company nor any
Subsidiary is subject to any Tax sharing agreement (other than with respect to
payments specifically provided herein).


 


(f)                                    Neither the Company nor any
Subsidiary has ever held United States real property or been a United States
real property holding corporation within the meaning of Sections 897(c)(1) or
(2), respectively, of the United States Internal Revenue Code of 1986.


 


(g)                                 Neither the Company nor any
Subsidiary has received (or is subject to) any private ruling from any taxing
authority or has entered into (or is subject to) any agreement with a taxing
authority.


 


(h)                                 No hidden distribution of
profits (verdeckte Gewinnausschüttungen) has been made
by the Company prior to the Closing Date, and the consummation of the
transactions contemplated by this Agreement and the Related Agreements,
including the payment of the Transaction Expenses 


 


25

















 


by the Company, will not lead to a hidden distribution of profits. It
being understood that for purposes of this Section 3.18(h) only,
in calculating Damages of Purchaser Indemnified Parties resulting from any
breach of the representation contained in this Section 3.18(h), the
repayment of any such hidden distribution shall be excluded from such Damages.


 


3.19                           No
Defaults or Violations. Except as set forth in Schedule 3.19 or
otherwise disclosed in this Agreement:


 


(a)                                  the Company and each
Subsidiary is within Europe (excluding Russia and Turkey), the United States
and Canada and, to the knowledge of the Founders, in all other parts of the
world, in compliance in all material respects with all Laws applicable to or
binding on it or any of its assets; and


 


(b)                                 since January 1, 2005,
no notice from any Governmental Authority has been received by the Company or
any Subsidiary claiming any violation by the Company or any Subsidiary of any
Law.


 


3.20                   Environmental Matters. The Company and each Subsidiary is in compliance in
all material respects with all applicable Environmental Laws and no written
notice from any Governmental Authority has been received by the Company or any
Subsidiary claiming that the Company is not in material compliance with any
Environmental Law. To the knowledge of the Founders, there has been no release
of any Hazardous Substance on any Leased Real Property.


 


3.21                   Litigation.


 


(a)                                  Except as set forth in Schedule 3.21, there are no actions,
suits, arbitrations, proceedings, governmental investigations or other
litigation or administrative actions pending or threatened against the Company,
any Subsidiary or any of their respective officers, directors, employees or
stockholders in their capacity as such or against any of their respective
properties or businesses before any court or other Governmental Authority and,
to the knowledge of the Founders, there are no facts or circumstances that may give
rise to any of the foregoing. Except as set forth in Schedule 3.21,
neither the Company nor any Subsidiary is subject to any order, judgment,
decree, injunction, stipulation or consent order of or with any court or other
Governmental Authority. Except as set forth in Schedule 3.21,
neither the Company nor any Subsidiary has entered into any agreement to settle
or compromise any pending or threatened proceeding against it that has involved
any obligation other than the payment of money and for which the Company or any
Subsidiary has any continuing obligation.


 


(b)                                 There are no claims,
actions, suits, proceedings, governmental investigations or other litigation or
administrative actions pending or, to the 
knowledge of the Founders, threatened by or against any Seller, the
Company or any Subsidiary with respect to this Agreement or the Related
Agreements, or in connection with the transactions contemplated hereby or
thereby and, to the


 


26

















 


knowledge of the Founders, there is no valid basis for any such claim,
action, suit, proceeding or investigation.


 


3.22                   Customers and Suppliers.


 


(a)                                  Schedule 3.22 sets forth a true, accurate and complete
list:


 


(i)                                             of the twenty (20) largest customers of
the Company in terms of revenue during each of the two most recently completed
fiscal years and the portion of the current fiscal year prior to the date of
this Agreement (collectively, the “Major Customers”), showing the total
revenue received in each such period from each such customer; and


 


(ii)                                          of the ten (10) largest suppliers of the Company
in terms of purchases during the two most recently completed fiscal years and
the portion of current fiscal year prior to the date of this Agreement
(collectively, the “Major Suppliers”), showing the total purchases in
each such period from each such supplier.


 


(b)                                 Except
as set forth in Schedule 3.22 or otherwise disclosed in this Agreement,
since January 1, 2005, there has been no material adverse change in the
business relationship, or material dispute, between the Company or any
Subsidiary (as applicable) and any Major Supplier or any Major Customer, and
there are no indications that any Major Customer or Major Supplier intends to
reduce its purchases from, or sales to, respectively, the Company or any
Subsidiary.


 


3.23                   Brokers. Except for
broker or finder fees and expenses that are included in the Transaction
Expenses, all of which fees and expenses shall be paid by Sellers, none of the
Sellers, the Company or any Subsidiary used any broker or finder in connection
with the transactions contemplated hereby, and neither Purchaser nor any
Affiliate of Purchaser has or shall have any liability or otherwise suffer or
incur any Damages as a result of, or in connection with, any brokerage or
finder’s fee or other commission of any Person retained by any Seller, the
Company or any Subsidiary in connection with this Agreement, the Related
Agreements or any of the transactions contemplated hereby or thereby.


 


3.24                   No Conflict of Interest. No Seller or
Affiliate of any Seller has or claims to have any direct or indirect interest
in any tangible or intangible property used in the business of the Company or
any Subsidiary, except as a holder of Shares or based on employment or other
contracts disclosed in this Agreement. No Founder has any direct or indirect
interest in any other Person that conducts a business similar to, has any
Contract or arrangement with, or does business or is involved in any way with,
the Company or any Subsidiary, except for the ownership of less than 1% of the
outstanding stock of any publicly held corporation.


 


3.25                   Accuracy of Statements. Neither this
Agreement, the  Related Agreements, nor
any written schedule, exhibit, written statement, written list, document,
certificate or other written information furnished or to be furnished by or on
behalf of Sellers, the Company or any Subsidiary to Purchaser or any
representative or Affiliate of Purchaser in connection with this


 


27

















 


Agreement, the Related Agreements or any of the transactions
contemplated hereby or thereby contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary to
make the statements contained herein or therein, in light of the circumstances
in which they are made, not misleading.


 


ARTICLE IV


 


REPRESENTATIONS AND WARRANTIES OF PURCHASER


 


Purchaser
represents and warrants to Sellers as follows:


 


4.1                         Due Incorporation. Purchaser is
a private company with limited liability duly incorporated, validly existing
and in good standing under the laws of The Netherlands, with all requisite
corporate power and authority to own, lease and operate its properties and to
conduct its business as they are now being owned, leased, operated and
conducted.


 


4.2                         Due Authorization. Purchaser has
all requisite corporate power and authority to enter into this Agreement and
its Related Agreements and to consummate the transactions contemplated hereby
and thereby. The execution, delivery and performance by Purchaser of this
Agreement and its Related Agreements, and the consummation by Purchaser of the
transactions contemplated hereby and thereby, have been duly and validly
approved by its board of directors and no other corporate actions or
proceedings on the part of Purchaser are necessary to authorize this
Agreement, its Related Agreements and the transactions contemplated hereby and
thereby. Purchaser has duly and validly executed and delivered this Agreement
and has duly and validly executed and delivered its Related Agreements. Assuming
due authorization, execution and delivery of this Agreement and its Related
Agreements by the other parties hereto and thereto, this Agreement constitutes
a legal, valid and binding obligation of Purchaser and its Related Agreements
constitute legal, valid and binding obligations of Purchaser, in each case,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by Enforceability Limitations.


 


4.3                         Consents and Approvals;
Authority Relative to this Agreement.


 


(a)                                  No consent, authorization or
approval of, or filing or registration with, any Governmental Authority or any
other Person not a party to this Agreement is necessary in connection with the
execution, delivery or performance by Purchaser of this Agreement or any of its
Related Agreements or the consummation by Purchaser of the transactions
contemplated hereby or thereby.


 


(b)                                 The execution, delivery and
performance by Purchaser of this Agreement and its Related Agreements, and the
consummation by Purchaser of the transactions contemplated hereby and thereby,
do not and will not (i) violate any Law applicable to or binding on Purchaser
or any of its assets; (ii) violate or conflict with, result in a breach or
termination of, constitute a default or give any third party any additional
right (including a termination right) under, permit cancellation of, result in
the creation of any Lien upon any of the assets of Purchaser under, or result
in or constitute a circumstance which, with or without


 


28

















 


notice or lapse of time or both, would constitute any of the foregoing
under any Contract to which Purchaser is a party or by which Purchaser or any
of its assets are bound; (iii) permit the acceleration of the maturity of
any Indebtedness of Purchaser or Indebtedness secured by its assets or (iv) violate
or conflict with any provision of Purchaser’s articles of association or
by-laws.


 


(c)                                  No consent, authorization or
approval of, or filing or registration with, any Governmental Authority is
necessary in connection with the execution, delivery or performance by the
Company and each Seller of this Agreement.


 


4.4                         Litigation. There are no
claims, actions, suits, proceedings, governmental investigations or other
litigation or administrative actions pending or threatened by or against
Purchaser or any of its Affiliates with respect to this Agreement or the
Related Agreements, or in connection with the transactions contemplated hereby
or thereby.


 


4.5                         Brokers. Purchaser did
not use any broker or finder in connection with the transactions contemplated
hereby, and neither the Company nor any Seller has or shall have any liability
or otherwise suffer or incur any Damages as a result of, or in connection with,
any brokerage or finder’s fee or other commission of any Person retained by
Purchaser in connection with this Agreement, the Related Agreements or any of
the transactions contemplated hereby or thereby.


 


ARTICLE V


 


COVENANTS


 


5.1                         Confidentiality. None of the
Sellers shall, directly or indirectly, use or provide to, and none of the
Sellers shall permit any Affiliate, directly or indirectly, to use or provide
to, any other Person any Confidential Information, except as on the advice of
counsel, is required in governmental filings or judicial, administrative or
arbitration proceedings.


 


5.2                         Settlement of Certain
Expenses. Purchaser shall pay and refund the Company in
immediately available funds for (a) any Transaction Expenses, other than
any costs related to any broker or finder agreements that relate to the
transactions contemplated by this Agreement and the Related Agreements (which
costs shall be paid by Sellers), in accordance with Section 8.2 and
(b) the Settlement Payment, in each case when due and payable.


 


5.3                         Execution of Managing
Director Agreements. Purchaser will, immediately upon becoming
shareholder of the Company, execute the managing director agreements with each
of the Founders as enclosed as Schedule 5.3 to this Agreement.


 


ARTICLE VI


 


REMEDIES


 


6.1                         Remedies by the Sellers. In the event of a breach by any Seller
of the Individual Seller Warranties, the respective Seller shall put the Purchaser,
or at Purchaser’s request, the Company into such position as it would have been
in had such representation and warranty not


 


29

















 


been
breached (restitution in kind; Naturalrestitution).
If and to the extent that the respective Seller is unable to achieve this
position within a reasonable time period, Purchaser may make a claim
against the respective Seller for monetary damages (Schadensersatz
in Geld) pursuant to Section 249 et seq. BGB or against the Founders
under Section 6.2(b) hereof.  


 


6.2                         Indemnification by Founders. Founders agree to jointly and
severally indemnify the Purchaser Indemnified Parties against, and agree to
hold the Purchaser Indemnified Parties harmless from, any and all Damages incurred
or suffered by the Purchaser Indemnified Parties, and the Purchaser Indemnified Parties may immediately
make a claim against the Founders for monetary damages (Schadensersatz
in Geld) pursuant to Section 249 et seq. BGB for any and all
Damages suffered by the Purchaser Indemnified Parties, arising out of any of
the following:


 


(a)                                  any breach of
any Sellers’ Warranties made by Founders or Sellers in Article III
of this Agreement (it being understood that, for purposes of this Section 6.2(a),
none of the Sellers’ Warranties contained in Article III shall be
deemed to include any Material Adverse Effect qualifier or any other qualifier
in respect of materiality);


 


(b)                                 subject to Section 6.1, any
breach of the Individual Seller Warranties by any Seller; or


 


(c)                                  any breach of or failure by the Founders
or Sellers to perform any covenant or obligation of the Founders or
Sellers set out in this Agreement.


 


6.3                         Indemnification
by Purchaser. Purchaser agrees to indemnify the Seller
Indemnified Parties against, and agrees to hold the Seller Indemnified Parties
harmless from, any and all Damages incurred or suffered by the Seller
Indemnified Parties, and the Seller Indemnified Parties may immediately make a claim for
monetary damages (Schadensersatz in Geld) pursuant
to Section 249 et seq. BGB for any and all Damages suffered by the Seller
Indemnified Parties, arising out of any of the following:


 


(a)                                  any breach of or any inaccuracy in any
representation or warranty made by Purchaser in this Agreement; or


 


(b)                                 any breach of or failure by Purchaser to
perform any covenant or obligation of Purchaser set out in this Agreement.


 


6.4                         Contents of Sellers’ Warranties. Purchaser acknowledges that it has been
given the opportunity to investigate the Company, the Subsidiaries and their
businesses, assets, records and premises in detail. Purchaser acknowledges that
none of the data, documentation and information provided or made available to
the Purchaser constitutes (i) a guarantee regarding qualities or
characteristics (Beschaffenheitsgarantie) in the
meaning of Sections 443, 444 BGB, or (ii)  an agreement
regarding the qualities or characteristics (Beschaffenheitsvereinbarungen)
in the meaning of Section 434 para. 1 sentence 1 BGB. Sellers
make no express or implied representations and warranties or guarantees of
whatsoever legal nature regarding the profitability of the Company, the
Subsidiaries or of any specific assets. Any claims under any express or implied
representations or warranties or statutory warranties in addition to the
Sellers’ Warranties set forth in Article III shall be excluded,
with


 


30

















 


the exception of
claims resulting from fraud or willful deceit (arglistige
Täuschung) or other intentional actions by the Sellers.


 


6.5                         Claims. As promptly as is reasonably practicable after
becoming aware of a claim for Damages under this Agreement not involving a
claim, or the commencement of any suit, action or proceeding, of the type
described in Section 6.6, the Indemnified Person shall give
notice to the Indemnifying Person of such claim, which notice shall specify the
facts alleged to constitute the basis for such claim, the representations,
warranties, covenants and obligations alleged to have been breached and the
amount that the Indemnified Person seeks hereunder from the Indemnifying
Person, together with such information as may be necessary for the
Indemnifying Person to determine that the limitations in Section 6.11 have been satisfied or do not apply; provided, that the failure of the Indemnified Person to give such notice shall
not relieve the Indemnifying Person of its obligations under this Article VI except to the extent (if any) that the Indemnifying
Person shall have been prejudiced thereby.


 


6.6                         Notice of Third
Party Claims; Assumption of Defense. The Indemnified Person
shall give notice as promptly as is reasonably practicable to the Indemnifying
Person of the assertion of any claim, or the commencement of any suit, action
or proceeding, by any Person not a party hereto in respect of which indemnity may be
sought under this Agreement (which notice shall specify in reasonable detail
the nature and amount of such claim together with such information as may be
necessary for the Indemnifying Person to determine that the limitations in Section 6.11 have been satisfied or do
not apply); provided, that the failure
of the Indemnified Person to give such notice shall not relieve the
Indemnifying Person of its obligations under this Article VI
except to the extent (if any) that the Indemnifying Person shall have been
prejudiced thereby. The
Indemnifying Person will have the right, upon written notice delivered to the
Indemnified Person within ten (10) days thereafter to assume the defense
of such claim at its own expense. In the event, however, that the Indemnifying
Person declines or fails to assume the defense of such claim on the terms
provided within such ten (10)-day period, then such Indemnified Person may employ
counsel to represent or defend it in any action or proceeding; provided,
that any reasonable fees and disbursements of such counsel incurred by the
Indemnified Person will be paid by the Indemnifying Person as part of any
Damages incurred or suffered by the Indemnified Person resulting from such
claim. Regarding any claim for which the Indemnifying Person has assumed the
defense, the Indemnified Person will have the right to participate in such
matter and to retain its own counsel. Such counsel’s reasonable fees and costs
shall be at the Indemnified Person’s expense in the event the Indemnifying
Person is successful in defending the underlying action and at the Indemnifying
Person’s expense in the event the Indemnifying Person is unsuccessful in
defending such action. In the event the Indemnifying Person is only partly
successful or unsuccessful, as the case may be, in defending such third
party claim, the reasonable fees and costs shall be divided between the
Indemnifying Person and the Indemnified Person on a pro rata basis (applying Section 92
para.1 sentence 1 last part German Civil Code of Procedure (ZPO) mutatis mutandis).
The Indemnifying Person will at all times use reasonable efforts to keep the
Indemnified Person reasonably apprised of the status of the defense of any
matter the defense of which the Indemnifying Person has assumed and to
cooperate in good faith with the Indemnified Person with respect to the defense
of any such matter. To the extent the Indemnifying Person shall control or
participate in the defense or settlement of any third party claim or demand,
the Indemnified Person will give to the Indemnifying Person and its counsel


 


31

















 


reasonable
access to all business records and other documents relevant to such defense or
settlement, and shall permit them to consult with the employees and counsel of
the Indemnifying Person. The Indemnified Person shall use its reasonable best
efforts in the defense of all such claims.


 


6.7                         Settlement or
Compromise. No Indemnified Person may settle or compromise any claim or
consent to the entry of any judgment with respect to which indemnification is
being sought hereunder without the prior written consent of the Indemnifying
Person, unless (a) the Indemnifying Person fails to assume and maintain
the defense of such claim pursuant to Section 6.6 or (b) such
settlement, compromise or consent includes an unconditional release of the
Indemnifying Person and its officers, directors, employees and Affiliates from
all liability arising out of such claim. An Indemnifying Person may not,
without the prior written consent of the Indemnified Person, settle or
compromise any claim or consent to the entry of any judgment with respect to
which indemnification is being sought hereunder unless, (i) such
settlement, compromise or consent includes an unconditional release of the
Indemnified Person and its officers, directors, employees and Affiliates from
all liability arising out of such claim, (ii) does not contain any
admission or statement suggesting any wrongdoing or liability on behalf of the
Indemnified Person and (iii) does not contain any equitable order,
judgment or term which in any manner affects, restrains or interferes with the
business of the Indemnified Person or any of the Indemnified Person’s
Affiliates.


 


6.8                         Knowledge  
For the purpose of the Sellers’ Warranties contained in Article III
of this Agreement, Founders shall be deemed to have knowledge of any fact or
circumstance (i) actually known to them, (ii) that a reasonable
business manager would have known under the applicable circumstances or (iii) if
reasonable inquiry to the individuals set forth on Schedule 6.8
would have revealed such fact or circumstance. For the avoidance of doubt, a
Sellers’ Warranty that is qualified by knowledge shall not be breached unless a
Founder has actual or deemed knowledge of such breach.


 


6.9                         Exclusion of Claims  
The Purchaser shall not be entitled to make any claim under Section 6.1
or 6.2 under the following circumstances:


 


(a)                                  the matter to which the claim relates is
specifically reserved for in the Financial Statements by way of liability,
provision (Rückstellung) or depreciation (Abschreibung); or


 


(b)                                 the amount of the claim has been
recovered from a third party or under an insurance policy.


 


6.10                   Time Limitations.  All claims of the Purchaser pursuant to Section 6.2(a) hereof
shall be time barred (verjährt)
eighteen (18) months after the Closing Date, except for all claims in respect
of liabilities for breach of or inaccuracy in (i) the Tax Warranty, which
shall become time barred on the Tax Statue of Limitations Date, (ii) the
Fundamental Warranties, which shall be time barred after thirty
(30) years after the Closing Date, and (iii) any representation contained
in Section 3.13(e), which shall not be time barred but instead
shall survive forever. If a due notice in accordance with Sections 6.5
or 6.6 was given within the respective time period set forth in the
preceding sentence after the Closing Date, claims for which such notice was


 


32

















 


given shall become time barred after an additional
eighteen (18) month period unless Sections 204, 205, 206 or 212 of the German
Civil Code (BGB) apply. Neither Purchaser nor Sellers shall have any liability
pursuant to Section 6.2(a) with respect to claims that became
time barred after the period specified in this Section 6.10.


 


6.11                   Limitations on Liability of Sellers.


 


(a)                                  Purchaser shall have the right to payment
by Sellers under Section 6.2(a) only if Purchaser shall have
incurred Damages that (i) as to any particular claim under Section 6.2(a) are
in excess of EUR 10,000 and (ii) in
the aggregate, are in excess of EUR 150,000, in which case Purchaser shall have
the right to payment for all such aggregate Damages (in determining whether
this aggregate threshold has been satisfied, only Damages exceeding the per
claim threshold set forth in the preceding clause (i) shall be included); provided,
that no such limitations in the preceding clauses (i) and (ii) shall
apply to any claim for Damages related to a breach of any Fundamental Warranty,
Tax Warranty or any representation contained in Sections 3.5(e) or 3.13(e);
provided  further, that the thresholds set forth in the preceding
clauses (i) and (ii) shall not apply to any claim for Damages related
to a breach of a representation contained in Sections 3.12(a)(iv) or
3.13(c)(ii), which shall be subject to the threshold set forth in Section 6.11(b).


 


(b)                                 Sellers shall have no liability under Section 6.2(a) for
a breach of a representation contained in Sections 3.12(a)(iv) or 3.13(c)(ii) unless
Purchaser shall have incurred Damages that in the aggregate with all other
claims pursuant to a breach of such representation is in excess of EUR 150,000,
in which case Purchaser shall have the right to payment for all such aggregate
Damages.


 


(c)                                  Sellers shall have no liability under Section 6.2(a) in
excess of the Holdback Amount minus amounts paid out from the escrow to the
Founders pursuant to Sections 2.4(a) and (b) except for
any or all Damages incurred from or arising out of or in connection with (i) fraud
or willful misconduct (arglistige Täuschung)
of a Seller, for which Purchaser’s right to recover any such Damages shall not
be limited or subject to any cap, (ii) a breach of any of the Individual
Seller Warranties, for which each Minority Sellers’ liability shall be limited
to its respective Proportionate Share of the Purchase Price, (iii) a
breach of any representation contained in Section 3.5(e) hereof,
for which each Founder’s liability shall be limited to (x) its respective
Proportionate Share of the Purchase Price for any claim brought by a Purchaser
Indemnified Party during the one hundred eighty (180) day period immediately
following the Closing Date or (y) the Holdback Amount (minus amounts paid out
from the escrow to the Founders pursuant to Sections 2.4(a) and (b))
for any claim brought by a Purchaser Indemnified Party after the expiration of
such one hundred eighty (180) day period and (iv) a breach of any
Fundamental Warranty, Tax Warranty or any representation contained in Section 3.13(e) hereof,
for which the Purchaser Indemnified Parties’ rights to recover any such Damages
shall not be limited or subject to any cap.


 


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(d)                                 Unless in the case of fraud or willful
misconduct (arglistige Täuschung) of a Minority
Seller, the  Minority
Sellers shall under no circumstances be liable for breach of any representation
and warranty or otherwise, except with respect to the Individual Seller
Warranties for which the liability of each of the Minority Sellers shall be
limited to such Seller’s Proportionate Share of the Purchase Price.


 


(e)                                  Any losses recovered by Purchaser
pursuant to Article VI shall be limited to Damages actually
incurred by the respective Purchaser Indemnified Party.


 


6.12                   Exclusion of Further Remedies. Sellers and Purchaser agree that
remedies the Purchaser may have against Sellers for breach of a Sellers’
Warranty set forth in this Agreement are solely governed by this Agreement, and
the remedies provided for by this Agreement shall be the exclusive remedies
available to Purchaser except in the case of fraud or willful misconduct of a
Seller. All other and further remedies (Rechtsfolgen)
that might be available to the Purchaser for statutory or other reasons (in
addition to the remedies set forth in this Agreement) hereof shall be excluded.
This exclusion shall apply to all claims and rights of whatever legal nature
except in the case of fraud or willful misconduct, and shall in particular
exclude without limiting the generality of the foregoing, claims under
pre-contractual fault (Section 311 para. 2 and 3 of the BGB), breach of contract
(Pflichtverletzung aus dem Schuldverhältnis)
and/or rights following the statutory regulations following defects in the
purchased objects (Section 437 of the BGB)(Sachmaengelgewaehrleistungsrecht)
including but not limited to the right to reduce the Purchase Price (Minderung) or to rescind this Agreement (Rücktritt), any liability in tort (Deliktshaftung)
and to all other rights and claims having a similar consequence and under all
circumstances. The parties agree that Section 442 of the German Civil Code
(BGB) and Section 337 of the German Commercial Code (HGB) shall neither
apply directly nor mutatis mutandis.


 


6.13                   Offset of Advantages and Disadvantages;
Claims against Third Parties; No Double Relief 


 


(a)                                  The amount of Damages
incurred or suffered by any Indemnified Person shall be reduced by an amount
equal to the net present value of the realizable Tax benefit of the Indemnified
Party for the taxable year in which such Damages were incurred by the
Indemnified Person arising from the facts or circumstances giving rise to such
Damages, as well as all subsequent years, in each case calculated using a
discount rate equal to the Indemnified Party’s good faith estimate of its cost
of capital as of the date of such incurrence.


 


(b)                                 Payments made by the Sellers under this Article VI
shall constitute between the Seller and the Purchaser a reduction of the
Purchase Price.


 


(c)                                  To the extent any amount has been
recovered from the Sellers under this Agreement or under Law and to the extent
that the Sellers have established the situation that would exist had the
relevant Sellers’ Warranty at the relevant time (Naturalrestitution),
any other claim with respect to the same matter


 


34

















 


under any other
provision of this Agreement or any rule of Law shall be excluded, unless
the claim exceeds the amount recovered in the previous claim in which case the
Purchaser shall be entitled to recover the excess amount only.


 


6.14                   Mitigation   Section 254
BGB shall remain unaffected, and Purchaser shall be obligated to use its
commercial reasonable efforts to prevent the occurrence of any losses or damages
and to limit the scope of any losses or damages incurred and to cause the
Company and its Subsidiaries to do the same.


 


6.15                   Recourse to Seller Holdback Amount. In the event that Purchaser is entitled
to Damages pursuant to Section 6.2, such amounts shall be satisfied
first through the setoff of the amount of such Damage from the Holdback Amount.
In the event that there are any Damages for which any Purchaser Indemnified
Party would be entitled to pursuant to the terms of this Article VI,
or any third party has alleged any facts or circumstances pursuant to which any
Purchaser Indemnified Party may be entitled to Damages pursuant to the
terms of this Article VI, and provided in each case that such claim
is not time barred, Purchaser shall be entitled to advise the notary in writing
to retain the amount of such Damages (or Purchaser’s good faith estimate of the
likely amount of such alleged Damages) until the amount of the Damages is
finally determined. To the extent funds available from the Holdback Amount are
insufficient to setoff against such Damages in full, the Holdback Amount shall
be exhausted prior to Purchaser having the right to collect any amounts other
than the Holdback Amount.


 


ARTICLE VII


 


TAX MATTERS


 


7.1                         Cooperation on Tax Matters.


 


(a)                                  Sellers’ Representatives and
Purchaser agree to furnish or cause to be furnished to the other, upon request,
as promptly as practicable, such information (including access to books and
records) and assistance relating to the Company as is reasonably necessary for
the filing of any Tax Return, the preparation for any Tax audit, the
prosecution or defense of any claim, suit or proceeding relating to any
proposed Tax adjustment for the Company attributable to the Pre-Closing Tax
Period. Sellers’ Representatives and Purchaser shall keep all such information
and documents received by them confidential unless otherwise required by Law.


 


(b)                                 Sellers’ Representatives and
Purchaser agree to retain or cause to be retained all books and records
pertinent to the Company until the applicable period for assessment of Taxes
under applicable Law (giving effect to any and all extensions or waivers) has
expired, and such additional period as necessary for any administrative or
judicial proceedings relating to any proposed assessment, and to abide by and
cause the Company to abide by all record retention agreements entered into with
any Taxing authority. Sellers’ Representatives and Purchaser agree to give the
other reasonable notice prior to transferring, discarding or destroying any
such books and records relating to Tax matters and,


 


35

















 


if so requested, Sellers’ Representatives and Purchaser shall allow the
requesting party to take possession of such books and records.


 


(c)                                  Sellers’ Representatives and
Purchaser shall cooperate with each other in the conduct of any audit or other
proceedings for any Tax purposes and they shall each execute and deliver such
powers of attorney and other documents as are reasonably necessary to carry out
the intent of this Agreement.


 


ARTICLE VIII


 


MISCELLANEOUS


 


8.1                         Sellers’ Representatives. Each of Alexander Wiegand and Thomas
Golob are hereby designated by each Seller to serve as the representatives of
such Seller (the “Sellers’ Representatives”) with respect to any service
of documents, notices or declarations set forth in this Agreement and the
Related Agreements to be performed on behalf of such Seller and with respect to
the receipt of funds under this Agreement on behalf of such Seller.


 


8.2                         Expenses. Purchaser
shall bear the costs of the notarization of this Agreement and the Related
Agreements and of the escrow account. Except for the Transaction Expenses, each
party hereto shall bear its own fees and expenses with respect to the
transactions contemplated hereby and Sellers shall pay all Taxes or fees, if
any, imposed by any Governmental Authority in connection with the transfer and
assignment of the Shares. It is understood that, except in the case of the
costs related to any broker or finder agreements that relate to the
transactions contemplated by this Agreement and the Related Agreements (which
costs shall be paid by Sellers), the Company shall pay and be refunded by the
Purchaser for the costs incurred by the Company or Sellers in connection with
the negotiation, execution and implementation of this Agreement and the Related
Agreements, including the following costs (collectively, the “Transaction
Expenses”):


 


(a)                                  the costs related to the discharge of any
employee retirement or deferred compensation plan, incentive compensation plan,
stock plan, performance shares or similar equity-based incentive plan or any
other fringe benefit arrangements for any current or former employee or
director of the Company, including the discharge of Messrs. Huck and Rolf
under each of their phantom stock entitlements;


 


(b)                                 the costs of the legal advisor(s) of the
Company and the Sellers that relate to the transactions contemplated by this
Agreement and the Related Agreements, including the fees and expenses of Graf
von Westphalen;


 


(c)                                  the costs of the tax advisor(s) of the
Company and the Sellers that relate to the transactions contemplated by this
Agreement and the Related Agreements, including the fees and expenses of Lemmer
et al. and Apers & Stenger;


 


36

















 


(d)                                 the costs related to any broker or finder
agreements that relate to the transactions contemplated by this Agreement and
the Related Agreements, which costs shall be paid by Sellers; and


 


(e)                                  the costs of any severance pay, change of
control pay, or similar payments to any employee or officer of the Company
incurred in connection with, or as a result of, the transactions contemplated
by this Agreement or the Related Agreements.


 


8.3                         Amendment. This Agreement
may be amended, modified or supplemented, but only in writing signed by
Purchaser, Sellers’ Representatives and the Company’s representatives unless a
more stringent form (notarization) is required under mandatory Law.


 


8.4                         Payments in Euro. Except as otherwise
provided herein or in a Related Agreement, all payments pursuant hereto shall
be made by wire transfer in Euro in same day or immediately available funds
without any set off, deduction or counterclaim whatsoever.


 


8.5                         Waivers. The failure
of a party hereto at any time or times to require performance of any
provision hereof shall in no manner affect its right at a later time to enforce
the same. No waiver by a party of any condition or of any breach of any term,
covenant, representation or warranty contained in this Agreement shall be
effective unless in writing, and no waiver in any one or more instances shall
be deemed to be a further or continuing waiver of any such condition or breach
in other instances or a waiver of any other condition or breach of any other
term, covenant, representation or warranty.


 


8.6                         Assignment; Set Off . This
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns; provided, that no assignment of any rights or
obligations hereunder, by operation of law or otherwise, shall be made by
either party without the written consent of the other party. Neither party may set
off (aufrechnen) any of its claims arising
from this Agreement or the Related Agreements against any claims another party may have,
unless set forth explicitly in this Agreement or a Related Agreement or
mutually agreed by the Parties in writing.


 


8.7                         No Third Party Beneficiaries. This
Agreement is solely for the benefit of the parties hereto and, to the extent
provided herein, their respective Affiliates, and no provision of this
Agreement shall be deemed to confer upon other third parties any remedy, claim,
liability, reimbursement, cause of action or other right.


 


8.8                         Publicity. Each of the
Sellers and Purchaser agree to hold confidential the terms and provisions of
this Agreement and the terms of the transactions  contemplated hereby. Notwithstanding the
foregoing, nothing in this Section 8.8
shall prevent either party from (a) making any public announcement or
disclosure required by Law or the rules of any stock exchange, (b) discussing
this Agreement or its contents or the transactions contemplated hereby with
those Persons whose approval, agreement or opinion, as the case may be, is
required for consummation of such particular transaction or transactions or (c) enforcing
its rights hereunder.


 


37

















 


8.9                         Further Assurances. Upon the reasonable request of Purchaser, each of
the Sellers shall, and shall cause its Affiliates to, on and after the date
hereof (a) execute and deliver to Purchaser such assignments and other
instruments as may be reasonably requested by Purchaser and are required
to effectuate completely the transfer and assignment to Purchaser of the
Shares, and to otherwise carry out the purposes of this Agreement and (b) cooperate
with Purchaser to obtain all consents, approvals, certificates and other
documents as Purchaser may request in order to effect the transactions
contemplated hereby.


 


8.10                   Severability. If any
provision of this Agreement shall be held invalid, illegal or unenforceable,
the validity, legality or enforceability of the other provisions hereof shall
not be affected thereby, and there shall be deemed substituted for the
provision at issue a valid, legal and enforceable provision as similar as
possible to the provision at issue.


 


8.11                   Entire Understanding. This
Agreement and the Related Agreements set forth the entire agreement and
understanding of the parties hereto with respect to the transactions
contemplated hereby and supersede any and all prior agreements, arrangements
and understandings among the parties relating to the subject matter hereof.


 


8.12                   Language. Each Seller
and Purchaser agree that the language used in this Agreement (including the
language used in the Schedules, which in certain cases is in German) is the
language chosen by the parties to express their mutual intent, and that no rule of
strict construction is to be applied against Sellers or Purchaser.


 


8.13                   Governing Law; Dispute
Resolution.


 


(a)                                  Governing Law. This
Agreement, the rights and obligations of the parties hereto, and any claims or
disputes relating thereto, shall be governed by and construed in accordance
with the Laws of the Federal Republic of Germany, without giving effect to the
choice of law rules thereof. The application of the United Nations Convention on
Contracts for the International Sale of Goods is excluded.


 


(b)                                 Dispute Resolution


 


(i)                                             Any controversy
or claim arising out of or relating to this Agreement, or any breach thereof,
shall be finally resolved by way of binding legal arbitration under the rules of
the DIS then in effect.


 


(ii)                                          The Arbitration shall take
place in Frankfurt, Germany, and shall apply the Laws of the Federal Republic
of Germany. The decision of the arbitration shall be final and binding and
judgment on the award may be entered in any court of competent
jurisdiction. A single arbitrator shall be selected by the parties in
accordance with the rules of the DIS. The arbitrator shall be instructed
to state the reasons for their decisions in writing, including findings of fact
and law. The arbitrator shall be bound by the warranties, limitations of
liability and other provisions of this Agreement. Such arbitration shall be a
precondition to any application by either party to any court of competent
jurisdiction.


 


38

















 


(iii)                                       The parties shall use best
efforts to set the arbitration within sixty days after selection of the
arbitrators. The decision or award of the arbitrators shall be rendered within
fifteen days after the conclusion of the hearing, shall be in writing, shall
set forth the basis therefore, and shall be final, binding and non-appealable
upon the parties and may be enforced and executed upon in any court having
jurisdiction over the party against whom the enforcement of such decision or
award is sought. The award shall decide on the distribution of the costs in
accordance with Sec. 91ff ZPO.


 


8.14                   Release. Each Seller
hereby releases and forever discharges the Company and its Subsidiaries from
any and all actions, causes of action, suits, debts, claims and demands that
arise out of acts, events, conditions or omissions occurring or existing prior
to and including the Closing Date, except for any rights or obligations arising
under this Agreement or the Related Agreements and any rights arising under any
employment or benefit arrangement to which such Seller was a party prior to the
Closing Date as set forth in Schedule 3.16.


 


*   
*    *


 


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