Exhibit 10.13


 


18 July 2003


 


 


INVENSYS HOLDINGS LIMITED


 


INVENSYS INC.


 


INVENSYS TWENTY-ONE LIMITED


 


GAC BAAN ACQUISITION LLC


 


INVENSYS PLC


 


GENERAL ATLANTIC PARTNERS (BERMUDA), L.P.


 


CERBERUS CAPITAL MANAGEMENT II, L.P.


 


SSA GLOBAL TECHNOLOGIES, INC.


 


SSA CARIBBEAN


 


HARFSEN HOLDING B.V.


 


 


Supplementary Agreement with respect to the

sale and purchase of the Baan Business


 


 





 

















 


CONTENTS


 


	
  CLAUSE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1.

  	
  INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  ASSIGNMENT,
  TRANSFER AND NOMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  COMPLETION DATE

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  CASH

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  WORKING CAPITAL

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  ESTIMATES

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  RECAPITALISATION OF GROUP COMPANIES

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  TAXES

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  EMPLOYMENT MATTERS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  RESIGNATION OF OFFICERS OF THE GROUPS
  COMPANIES

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  SAP PORTALS AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  EMPLOYMENT WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  INDIA SEPARATION

  	
   

  
	
   

  	
   

  	
   

  
	
  14.

  	
  SUBLEASE AGREEMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  PRE-COMPLET1ON STEPS

  	
   

  
	
   

  	
   

  	
   

  
	
  16.

  	
  DATA
  ROOM INDEX

  	
   

  
	
   

  	
   

  	
   

  
	
  17.

  	
  GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  18.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT 1

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Cash to remain in the Group Companies

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT 2

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Part A

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Estimate Amounts

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Part B

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Calculation of payment at Completion

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT 3

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Part A

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Group Companies to be Recapitalised before Completion

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Part B

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Group Companies of which the recapitalisation has been initiated but
  not finalised prior to Completion

  	
   

  



 

















 


THIS AGREEMENT is
made on 18 July 2003


 


BETWEEN:


 


1.                                       INVENSYS HOLDINGS LIMITED, a company incorporated
under the laws of England and Wales whose registered office is at Invensys
House, Carlisle Place, London, SWIP IBX, United Kingdom (IHL);


 


2.                                       INVENSYS INC., a company incorporated under
the laws of the State of Delaware, United States of America, whose registered
office is at 1209 Orange Street, Wilmington, Delaware 19801, United States of
America (II);


 


3.                                       INVENSYS TWENTY-ONE LIMITED, a company
incorporated under the laws of England and Wales whose registered office is at
Invensys House, Carlisle Place, London, SWIP IBX, United Kingdom (I2I)  (the foregoing entities collectively
being, the Vendors);


 


4.                                       GAC BAAN ACQUISITION LLC, a company
incorporated under the laws of the State of Delaware, United States of America,
with its principal place of business at 450 Park Avenue, New York, New York
10022, United States of America (GAC);


 


5.                                       INVENSYS PLC, a company incorporated under
the laws of England and Wales whose registered office is at Invensys House,
Carlisle Place, London SWIP IBX, United Kingdom (Invensys);


 


6.                                       GENERAL ATLANTIC PARTNERS (BERMUDA), L.P.,
a limited partnership incorporated under the laws of Bermuda, whose principal
place of business is at Clarendon House, Church Street, Hamilton HM II, Bermuda
(GAP);


 


7.                                       CERBERUS CAPITAL MANAGEMENT II, L.P., a
limited partnership incorporated under the laws of the State of Delaware,
United States of America, whose principal place of business is at 450 Park
Avenue, New York, New York 10022, United States of America (Cerberus); and


 


8.                                       SSA GLOBAL TECHNOLOGIES, INC., a company
incorporated under the laws of the State of Delaware, United States of America,
with its principal place of business at 500 West Madison, Suite 1600, Chicago,
IL 60661 USA (SSA).


 


WHEREAS:


 


(A) On 2 June 2003, the
Vendors, GAC, Invensys, GAP and Cerberus concluded a sale and purchase
agreement (the SPA) for the sale and purchase of the Shares.


 


(B) During the period between
the signing of the SPA and Completion, parties have reached agreement on
certain matters provided for, in addition to or in conflict with the provisions
of the SPA. Parties wish to set out their agreement with respect to such
additional or conflicting matters herein.


 


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IT IS HEREBY AGREED AS FOLLOWS:


 


1.                                      INTERPRETATION


 


1.1           Capitalised
terms used in this Agreement (which shall include the Preamble hereto) shall,
unless specifically defined herein, bear the meaning given them in the SPA.


 


1.2           Parties
agree to replace the definition of “Nominated Purchaser” as referred to in
Schedule 1 to the SPA by the following definition: “Nominated Purchaser means
any entity that, directly or indirectly, is controlled by, or controlling or
under common control with the Purchaser, Cerberus or GAP.”


 


2.                                      ASSIGNMENT, TRANSFER AND NOMINATION


 


2.1           Parties
agree to amend clause 20.2 of the SPA by adding after the words “may at any
time”, the words: “prior to or”.


 


2.2           In
accordance with clause 20.2 of the SPA (as amended), the Purchaser hereby
assigns and transfers in accordance with Article 6:159 DCC all of its existing
and future rights and obligations under the SPA to SSA, the latter which hereby
accepts all such rights and obligations from the Purchaser.  SSA agrees hereby to become a party to the
SPA and to be bound by the terms thereof in all respects as if it were
initially a party to the SPA and named in it as Purchaser.


 


2.3           For
the avoidance of doubt by signing this agreement the parties hereto acknowledge
and grant their co-operation to the assignment as mentioned in clause 2.2 hereof
(also as required under Article 6:159 DCC) and confirm that the Purchaser has
satisfactorily fulfilled its obligations with respect to such assignment under
clause 20.3 of the SPA.


 


2.4                                 In accordance with
clause 2.1 and 20.1 of the SPA, SSA hereby nominates:


 


(a)                                  Harfsen Holding B.V.,
a private limited liability company incorporated under the laws of the
Netherlands, whose registered offices is at Foppingadreef 22, 1102 BS
Amsterdam-Zuidoost, The Netherlands (Harfsen) 
as Nominated Purchaser for the sale and transfer of the shares in
Invensys International B. V.; and


 


(b)                                 SSA Caribbean, an
exempted company incorporated and existing under the laws of the Cayman
Islands, whose registered offices is at Caledonian Bank & Trust Limited,
Box 1043GT, Caledonian House, 69 Dr. Roy’s Drive, George Town, Grand Cayman,
Cayman Islands (Caribbean)  as Nominated Purchaser for the sale and
transfer of the shares in Baan UK Limited,


 


and, to the extent required to
enable each such Nominated Purchaser to effect such respective sale and
transfer to it, hereby assigns and transfers to each such Nominated Purchaser
any and all relevant rights and obligations in that respect under the SPA.
Parties further agree that any breach by either of the Nominated Purchasers of
any of the provisions of the SPA or of the Purchaser’s Warranties (which shall
be deemed to


 


2

















 


have been given by the Nominated Purchasers as well each in respect of
itself as at the date hereof) shall be considered a breach of such provision or
Purchaser’s Warranty by the Purchaser.


 


2.5           For the purpose of
clause 2.4  above, the parties
hereto agree that this agreement and in particular this clause 2 shall constitute in respect of Harfsen
and Caribbean in each of their capacity as Nominated Purchaser, a deed of
adherence as mentioned in clause 20.1 of the SPA.


 


2.6           In view of the
provisions of clauses 2.1 through 2.5 above, the Vendors hereby waive any claim
under the SPA that they may have against GAC with respect to the period
following the date of this Agreement.


 


3.                                      COMPLETION
DATE


 


3.1                                 Parties agree that the
Completion Date will be 18 July 2003.


 


4.                                      CASH


 


4.1           With respect to the
right of the Purchaser under clause 4.3(b) of the SPA to require the Vendors to
leave a certain amount of Cash in the relevant bank accounts of the relevant
Group Companies, parties agree that the Purchaser has requested the Vendors so
to leave (and the Vendors have agreed to leave) the amounts of Cash stipulated
in Exhibit 1 hereto in the relevant bank accounts of the named Group
Companies.  Such amounts will be
included as estimates in the amount of the Estimated Cash Balance, but will
remain subject to External Net Debt Adjustment referred to in the SPA.


 


4.2           With respect to the
amount of €996,000 (the Attached
Amount) currently
held in a bank account of Baan International B.V. that has been attached by
V.d. Top Projectrealisatie B.V. in the context of the dispute between the
above-mentioned parties (as referred to in clause 11.4 of the SPA), Parties
agree as follows:


 


(a)                                  a portion of the
Attached Amount equal to an amount of €496,000 shall be included as Cash in (i)
the Estimated Cash Balance and (ii) the Final Cash Balance;


 


(b)                                 the remaining portion
of the Attached Amount equal to an amount of €500,000 shall not be included as
Cash in (i) the Estimated Cash Balance and (ii) the Final Cash Balance; and


 


(c)                                  upon the occurrence
of the earlier of the following events, the Purchaser shall, within five (5)
Business Days thereafter, pay to Invensys, as representative of the relevant
Vendor, an amount of €500,000:


 


(i)                                 the two (2) year
anniversary of the Completion Date;


 


(ii)                                  the final settlement
of the dispute between Baan International B.V. and V.d. Top Projectrealisatie
B.V. (as referred to in clause 11.4 of the SPA); and


 


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(iii)                               the release of the
attachment over the Attached Amount,


 


provided that Parties agree that any obligation of the Purchaser to pay
the amount of €500,000 to Invensys pursuant to this clause 4.2(b) may be
set-off by either party against any obligation of the Vendors or any other
member of the Retained Group to pay any amount to the Purchaser or any member
of the Purchaser’s Group under clause 11.4 of the SPA. Where necessary Invensys
and the Purchaser shall procure that all reasonable steps are taken (including
the obtaining of necessary authorisations) to give effect to such set-off; and


 


(d)                                 in the event of a
failure by the Purchaser to pay the above-mentioned amount of €500,000 within
the five (5) Business Day period referred to in clause 4.2(b), then interest
shall accrue on the amount of €500,000 from such fifth Business Day until the
actual date of payment at the Default Rate.


 


4.3           Parties
agree that the amount of Cash to be included in the Estimated Cash Balance and
in the Final Cash Balance with respect to any Group Companies having (as at the
date hereof) their registered addresses in India, shall be discounted by 12%
(i.e. an amount of Cash of 100, will instead be included as 88).


 


4.4           For
the sake of clarity, parties agree that the definition of Cash in Exhibit 1 to
the SPA shall be interpreted so that the amounts of the following cheques shall
be taken into account in the determination of the amount of Cash:


 


(a)                                  cheques that have
been issued by any of the Group Companies prior to the Completion Date in
respect of the payment of accounts payable, but not yet presented for payment
by the payee of such cheque (it being assumed that such cheques will in any
event already have been recorded in the cashbook of the relevant Group
Company); and


 


(b)                                 cheques that have been
received by any of the Group Companies prior to the Completion Date in respect
of accounts receivable, but which have not yet been presented for payment by
the relevant Group Company (it being assumed that such cheques will in any
event already have been recorded in the cashbook of the relevant Group
Company).


 


4.5                                 With respect to any:


 


(a)                                  employment taxes and
social security payments withheld from payments made to employees of any of the
Group Companies, but not yet paid as at Completion to the relevant tax
authorities; and


 


(b)                                 net sales tax payable
as at Completion by the Group Companies to the relevant tax authorities,


 


that relate to the period prior
to Completion, parties agree that the aggregate estimate of such amount (which
parties agree shall be equal to $2,900,000) shall be deducted from the amount
of the Estimated Cash Balance. Furthermore, parties agree that the actual
aggregate amount of the taxes referred to in clauses 4.5(a) and (b) shall be
determined as part of the process surrounding the agreement or determination of
the


 


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Closing Management Accounts and
the Adjustment Statement. To the extent that the actual aggregate amount of the
taxes referred to in clauses 4.5(a) and (b):


 


(i)                                 exceeds the estimated
amount of $2,900,000, then Invensys shall pay to the Purchaser within three (3)
Business Days following the agreement on or determination of such amount of
taxes, the amount of such excess; or


 


(ii)                                  is less than the
estimated amount of $2,900,000, then the Purchaser shall pay to Invensys within
three (3) Business Days following the agreement on or determination of such
amount of taxes, the amount of such deficit,


 


provided that Parties agree
that any obligation of either the Purchaser or Invensys to the other to pay the
amounts referred to in clause 4.5(i) or (ii), as the case may be, may be
set-off by either party against any obligation of the Vendors or the Purchaser
to pay any amounts pursuant to the adjustments to the Initial Consideration
referred to in clause 7.1 of the SPA. Where necessary Invensys and the
Purchaser shall procure that all reasonable steps are taken (including the obtaining
of necessary authorisations) to give effect to such set-off.


 


5.                                      WORKING
CAPITAL


 


5.1                                 Parties agree that the
amount of the Baseline Working Capital as stipulated in the SPA shall be
adjusted as follows:


 


(a)                                  Baseline Working
Capital will be increased by an amount of $850,000, which amount relates to the
portion of the severance payments payable to Laurens van der Tang that Invensys
and the Vendors have agreed to bear;


 


(b)                                 Baseline Working
Capital will be increased by an amount of $1,000,000, which amount relates to
the capital tax that may have been payable on any recapitalisation of Baan
International B.V. and Baan Development B.V.;


 


(c)                                  Baseline Working
Capital will be increased by an amount of $1,750,000, which amount relates to
the fact that the Purchaser has agreed to bear any and all liabilities under
the SAP Portals Agreement referred to in clause 11 of this Agreement; and


 


(d)                                 Baseline Working
Capital will be decreased by an amount of $4,724,000, which amount relates to
the account receivable resulting from the licence agreement with Fuji Denki
signed in September 2002, the amount of which parties have agreed not to
include in the Baseline Working Capital.


 


5.2           Pursuant to the
adjustments to the amount of the Baseline Working Capital referred to in clause
5.1, parties agree that the amount of the Baseline Working Capital as so
adjusted will be equal to -$20,774,000.


 


5.3           In addition to the
adjustments to the Baseline Working Capital referred to in clauses 5.1 and 5.2,
parties agree that the amount of $4,724,000, which amount relates


 


5

















 


to the account receivable
resulting from the licence agreement with Fuji Denki signed in September 2002,
will not be taken into account for the purposes of determining the amount of
the Final Trade Working Capital. In this regard, the Vendors agree to procure
that, prior to Completion, the Business shall reverse the related revenue in
its financial accounts by issuing an internal credit note in the amount of
$4,724,000.


 


5.4           Parties
agree that the adjustment to the amount of the Baseline Working Capital
referred to in clause 5.1(d) and the action to be taken pursuant to clause 5.3
shall be considered by parties to be in full and final settlement of any claims
that the Purchaser or any other member of the Purchaser’s Group may have
against any member of the Retained Group in connection with the licence
agreement with Fuji Denki signed in September 2002 or any obligations of any
member of the Purchaser’s Group thereunder.


 


6.                                      ESTIMATES


 


6.1           For the purposes of
clause 2.3 and the other relevant provisions of the SPA, the relevant amounts
of the Estimated External Debt, the Estimated Cash Balance, the Estimated
Inter-Group Payables, the Estimated Inter-Group Receivables and the Estimated
Trade Working Capital shall be as stipulated in Part A of Exhibit 2 hereto.


 


6.2           The relevant
consideration and adjustments referred to in clauses 4 and 5 have been taken
into account in the determination of the amounts reflected in Part A of Exhibit
2.


 


6.3           The calculation of the
aggregate amount to be paid by the Purchaser in accordance with clause 5.3(a)
of the SPA is set out in Part B of Exhibit 2 hereto.


 


6.4           Furthermore, the
Parties agree that, notwithstanding any provision in the SPA to the contrary,
any payment by or on behalf of Purchaser in respect of the difference between
the Estimated Inter-Group Payables and the Estimated Inter-Group Receivables
(or, with respect to the Final Consideration, any difference between the Final
Inter-Group Payables and Final Inter-Group Receivables) will represent a
purchase by Purchaser from Invensys of the relevant obligations owing to it
from Invensys International B.V. Such obligations will be purchased from
Invensys at their face value (the Debt Purchase Price).  With
respect to the portion of the Initial Consideration and Final Consideration
that is allocable to the acquisition of Invensys International B.V., the
Parties agree that a portion of such amount equal to the Debt Purchase Price
will be allocated to the purchase of such obligations from Invensys.


 


7.                                      RECAPITALISATION OF GROUP COMPANIES


 


7.1           Contrary to the
provisions of clause 4.5(b)(i) of the SPA, parties agree as follows with
respect to the recapitalisation of the Group Companies:


 


(a)                                  the Group Companies
referred to in Part A of Exhibit 3 will be recapitalised before the Completion
Date;


 


(b)                                 with respect to the
Group Companies referred to in Part B of Exhibit 3, the Vendors have initiated
the recapitalisation of such Group Companies and will,


 


6

















 


following
Completion, provide the Purchaser with all reasonable co-operation to finalise
the recapitalisation of such Group Companies as soon as practicable following
the Completion Date;


 


(c)                                  all other Group
Companies not listed in Parts A or B of Exhibit 3 do not need to be
recapitalised, including, for the sake of clarity and without limitation, any
of the Group Companies in Japan, Mexico and the Netherlands;


 


(d)                                 the adjustment of the
Baseline Working Capital in accordance with clause 5.1(b) shall be in full and
final settlement of any liability that the Vendors or any other member of the
Retained Group may have towards any member of the Purchaser’s Group in
connection with any capital tax payable with respect to the recapitalisation of
any of the Group Companies in the Netherlands; and


 


(e)                                  that as part of the
recapitalisation of Baan UK Ltd, 41,000,000 new shares were issued in the
capital of Baan UK Ltd and accordingly the relevant Vendor will transfer to
Caribbean 46,051,500 (and not 5,051,500 as indicated in Schedule 2 to the SPA)
shares in the share capital of Baan UK Ltd, the latter which represents 100% of
the shares in that company.


 


8.                                      TAXES


 


8.1                                 Parties agree that
clause 6.14 of the SPA will be deleted.


 


8.2           Parties agree that
clause 3.1(a) of the US Tax Covenant and clause 3.1(a) of the International Tax
Covenant will be deleted.  In this
regard, parties furthermore agree that clause 9.13(b) of the SPA shall be
amended to read as follows: “specific provision or reserve has been made for
such matter in the Accounts, it being understood that no provision or reserve
shall be considered to have been included in the Accounts for Taxes”.


 


8.3           Invensys agrees that
during the period of nine  (9) months
following Completion it will, and will procure that the relevant members of the
Retained Group will, take all reasonable steps to co-operate with any Section
338(g) election that the Purchaser or any member of the Purchaser’s Group may
choose to make in connection with the acquisition of the Business. In this
regard, the Purchaser agrees to indemnify and hold Invensys and each relevant
member of the Retained Group harmless without limitation against any Damages
that such parties may incur or suffer in connection with having provided any
co-operation for the making of such Section 338(g) election.


 


8.4           Deferred revenue
expenditure of approximately $30,000,000 relating to the period ending on 31
March 2003 is included in the balance sheet of Baan USA Inc. at
Completion.  The income relating to this
deferred revenue will be accounted for during the Purchaser’s period of
ownership of the Business (thus following Completion), whereas the cash in
respect thereof has been received during the Vendor’s period of ownership (thus
before Completion). Accordingly, Invensys will seek to ensure that this income
will be recognised for US corporate tax purposes during the relevant Vendor’s
period of ownership of the Business, it being agreed that to the extent that
any income relating to the above-mentioned deferred revenue is


 


7

















 


recognised for US corporate tax
purposes during the Purchaser’s period of ownership, such shall be deemed to
constitute (for the purposes of the US Tax Covenant) a Tax liability of Baan
USA Inc, in relation to the period prior to Completion.


 


8.5           Parties agree that any
tax liability payable in relation to any of the Group Companies in Canada with
respect to the period from 1 April 2003 up to the Completion Date shall,
notwithstanding the relevant provisions of the SPA, be for the account of the
relevant member of the Purchaser’s Group. Accordingly, the Vendors shall not be
required to indemnify the relevant member of the Purchaser’s Group with respect
to the Taxes referred to in the previous sentence of this clause 8.5.


 


8.6           The Vendors will
indemnify the Purchasers for any tax liability incurred (including a tax
liability relating to a post-Completion period) to the extent that such tax
liability relates to the Baan USA, Inc. FY02 Contested Liability Trust
Arrangement.


 


9.                                      EMPLOYMENT MATTERS


 


9.1                               Laurens
van der Tang


 


(a)                                  With respect to the
pending resignation of Laurens van der Tang from his position at Baan, Parties
agree that (other than as taken into account in the adjustment to the Baseline
Working Capital referred to in clause 5.1 (a)) neither Invensys nor any other
member of the Retained Group shall have any liability whatsoever in relation to
any severance payments to be made to Laurens van der Tang.  Any and all such severance payments shall be
solely for the account of the relevant member of the Purchaser’s Group and the
Purchaser shall indemnify and hold harmless all members of the Retained Group
from and against all Damages incurred by such parties in this regard.


 


(b)                                 Despite the provisions
of clause 9.1(a), parties agree that:


 


(i)                                 all bonus amounts
referred to in the letter from Laurens van der Tang to Invensys dated 16 June
2003 (which letter has been disclosed by Invensys to the Purchaser) and any
other bonuses of an operational nature, in both cases that are paid or become
payable to Laurens van der Tang; and


 


(ii)                                  any obligations
towards or amounts payable to Laurens van der Tang in relation to any stock
option arrangement applicable with respect to Laurens van der Tang’s employment
with the Business,


 


shall be solely for the account of Invensys and Invensys shall
indemnify and hold harmless all members of the Purchaser’s Group from and
against all Damages incurred by such parties in this regard.


 


9.2                               Key
Employees


 


(a)                                  Parties acknowledge
that prior to entering into the SPA, Invensys concluded agreements with a
number of Key Employees of the Business regarding


 


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severance arrangements that would apply in the event that such Key
Employees would not be offered employment by the purchaser of the Business
following the completion of the acquisition transaction (the Invensys Severance Agreements).


 


(b)                                 If any severance
payments become due to any Key Employees of the Business, then Parties agree
that any and all such severance payments made to such Key Employees (whether
pursuant to the terms of the Invensys Severance Agreements (where applicable),
any other applicable contract or applicable law) shall be solely for the
account of the relevant member of the Purchaser’s Group and the Purchaser shall
procure that any such severance payments are promptly made (to the extent
agreed with the relevant Key Employee on an employment continuation basis) by
the relevant Group Company. The Purchaser shall indemnify and hold harmless all
members of the Retained Group from and against all Damages incurred by such
parties in relation to the matters referred to in this clause 9.2(b).


 


9.3                               Employee
Benefits


 


Notwithstanding any provision of the SPA to the contrary, parties agree
that:


 


(a)                                  Invensys shall allow
the Employees who shared Invensys health and welfare benefits at the Completion
Date, to continue benefiting following Completion, to the extent legally possible
or allowed under the relevant scheme rules, from all such employee health and
welfare benefits, including without limitation medical, dental, vision, life,
short term and long term disability, accidental death and dismemberment, and
travel accidents coverage;


 


(b)                                 Invensys shall allow
the Employees referred to in (a) above to continue so benefiting from the
shared employee health and welfare benefits for a period that will end on the
day that is the earlier of (i) 60 days following the Completion Date and (ii)
the fifth Business Days following receipt by Invensys of written notice that
the Purchaser wishes that the relevant Employees no longer benefit from the
Invensys employee health and welfare benefits, provided that such termination
by the Purchaser shall only be permitted on a per country basis;


 


(c)                                  the Purchaser shall
reimburse the relevant member of the Retained Group for all costs or expenses
incurred by such member in connection with such Employees continuing to benefit
from the above-mentioned health and welfare benefits, payment thereof to take
place on a basis that is consistent with payment practice immediately prior to
the Completion Date and in any event by no later that five (5) Business Days of
being presented with an invoice or other documentation evidencing such costs
and expenses; and


 


(d)                                 all other provisions
of the SPA relating to Employees shall remain unchanged.


 


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10.                               RESIGNATION OF OFFICERS OF THE GROUPS COMPANIES


 


10.1         With respect to clause
5.5(b)(iv) of the SPA, parties acknowledge that the Purchaser is not in a
position to appoint, immediately following Completion, directors to replace the
resigning directors.  Accordingly, with
respect to the directors of the Group Companies that are currently also
employed by any member of the Retained Group and the corporate secretaries of
each of the Group Companies (together the Remaining Officers), parties have agreed that such Remaining Officers shall not
resign with effect from Completion, but that the following shall apply:


 


(a)                                  the Remaining Officers will remain in office
following Completion, however, for a maximum period of thirty (30) days
following Completion;


 


(b)                                 the Purchaser shall procure that as soon as
possible following Completion, and in any event within thirty (30) days
thereafter, all necessary steps are taken for the appointment of officers to
replace each of the Remaining Officers;


 


(c)                                  Invensys shall procure that the Remaining
Officers shall resign as officers of the relevant Group Company with effect
from the earlier of (i) the appointment of the relevant replacement officer
referred to in clause 10.1(b) becoming effective or (ii) thirty (30) days after
the Completion Date;


 


(d)                                 Invensys shall procure that the Remaining
Officers shall, in the period during which they remain in office at the
relevant Group Company, reasonably co-operate with and follow (to the extent
legally permissible and in accordance with any applicable statutory duty as an
officer of the relevant Group Company) the instructions of the Purchaser with
respect to the management of the relevant Group Company and shall in any event
reasonably co-operate with the steps to be taken (including the signing of
resolutions and other relevant documents) to appoint the replacement officers
of the Group Companies; and


 


(e)                                  the Purchaser shall, other than in
circumstances of gross negligence or wilful misconduct, indemnify each member
of the Retained Group and each of the Remaining Officers for and against any
liability arising out of the performance by the Remaining Officers of their
duties as officers of the relevant Group Companies during the period following
Completion.


 


10.2         It is agreed that the
provisions of clause 10.1(e), to the extent that they relate to the Remaining
Officers, constitute an irrevocable third party stipulation (derdenbeding) in accordance with Article
6:253(4) of the Netherlands Civil Code, made by the Purchaser for the benefit
of the each of the Remaining Officers that is not a signatory to this letter.
If accepted or deemed accepted by or on behalf of such Remaining Officers, each
of them shall have the right to invoke the benefit of clause 10.1(e) as such
Remaining Officer were a signatory to this Agreement, provided that the parties
to this Agreement may by agreement rescind or vary this Agreement in any way
without the consent of the Remaining Officers.


 


10.3         Other than as referred to in clause 10.2, parties agree that no member
of the Retained Group will have any obligation towards the Purchaser or any
member of the


 


10

















 


Purchaser’s Group with respect
to the resignation, replacement, appointment or dismissal of any of the
officers of the Group Companies.


 


11.                               SAP PORTALS AGREEMENT


 


11.1         Parties acknowledge and
agree that the Business is currently bound by the provisions and (payment)
obligations of the SAP Portals (Top Tier) Agreement (the SAP Portals Agreement).  In
this regard, parties agree that all liabilities payable under such SAP Portals
Agreement will be for the account of the relevant member of the Purchaser’s
Group and that neither Invensys nor any other member of the Retained Group will
have any liability under such agreement, whether towards SAP or any member of
the Purchaser’s Group, whatsoever.


 


11.2         Furthermore, parties
agree that the adjustment to the amount of the Baseline Working Capital
referred to in clause 5.1(c) shall be considered by parties to be in full and
final settlement of any claims that the Purchaser or any other member of the
Purchaser’s Group may have against any member of the Retained Group in
connection with the SAP Portals Agreement or any obligations of any member of
the Purchaser’s Group thereunder.


 


12.                               EMPLOYMENT WARRANTIES


 


12.1         Parties agree to amend the
reference in clauses 10.4(a) and 10.4(b) of the SPA to “Employee Benefit
Warranties” so as to refer to “Employment Warranties”.


 


13.                               INDIA
SEPARATION


 


13.1         Parties agree that where
in clause 15.4(b) of the SPA reference is made to the time period that will end
“as soon as reasonably practicable after the date of this Agreement”, it is
understood that such period will in any event amount to a period six (6) months
following the date of the SPA.


 


13.2         In this regard, Parties
further agree that with respect to clause 15.4(d)(i)(C) of the SPA, Parties
shall at the appropriate time following Completion negotiate in good faith as
to whether:


 


(a)                                  indeed Baan Info Systems India Ltd shall be
required to use reasonable efforts to surrender back to the relevant landlord
that part of the premises currently occupied by the IMAPS Business and take all
reasonable steps to assist Newco in concluding a lease for such premises
directly with the current landlord thereof; or


 


(b)                                 the IMAPS Business shall vacate the premises currently
occupied by it, thereby allowing Baan Info Systems India Ltd the opportunity to
occupy such premises.


 


14.                               SUBLEASE AGREEMENTS


 


14.1         Parties agree that in
deviation from the provisions of clause 14.2 of the SPA, no new sublease
agreement shall be concluded with respect to those Properties (other


 


11

















 


than the Property currently
leased by Baan Austria GmbH in Vienna, Austria from IPS EMEA) in respect of
which an existing written sublease agreement was already in place as at the
date of the signing of the SPA.


 


15.                               PRE-COMPLETION STEPS


 


15.1         With respect to the
Pre-Completion Steps referred to in Part A of Schedule 11 to the SPA, parties
acknowledge and agree that:


 


(a)                                  the Pre-Completion
Steps referred to in paragraphs 1(a) through (c) and 2(a) and (b) of Part A of
Schedule 11 to the SPA have or will have been completed by Completion (it being
understood that the shares in APV Holdings Ltd were transferred to Invensys
International Holdings Limited); and


 


(b)                                 the Pre-Completion
Steps referred to in paragraphs 1(d) through (f) of Part A of Schedule 11 to
the SPA will not have been completed by Completion (it being understood that
the parties shall continue to take all reasonable steps within their respective
powers to effect such Pre-Completion Steps as soon as reasonably practicable
following Completion).


 


15.2         As soon as reasonably
practicable following the effectuation of any of the Pre-Completion Steps
referred to in clause 15.1(b), the Vendors shall provide written evidence
thereof to the Purchaser.


 


16.                               DATA ROOM INDEX


 


16.1         With respect to the index
attached to the SPA as Schedule 20, Parties agree to make the following
amendments:


 


(a)                                  the deletion of item
18.1.11 of that index; and


 


(b)                                 the amendment of the description of item
18.2.18 of that index to read as follows: “Brief
overview of Baan USA, Inc. FY02 Contested Liability Trust Arrangement (which
overview did in any event not include the internal memorandum and assessment of
the matter that was available to Invensys)”.


 


17.                               GUARANTEES


 


17.1         Invensys hereby agrees
that the Guarantee (as referred to in clause 16 of the SPA) shall also apply
and relate to the obligations of the Vendors contained in this Agreement.


 


17.2         GAP and Cerberus hereby
agree that the Purchaser Guarantee (as referred to in clause 17 of the SPA)
shall also apply and relate to the obligations of the Purchaser contained in
this Agreement.


 


18.                               MISCELLANEOUS


 


18.1         The parties hereby
irrevocably waive their right to seek dissolution and/or annulment of this
Agreement after transfer of the Shares.


 


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18.2                           With
respect to the variation of this Agreement, the provisions of clause 19 of the
SPA shall apply.


 


18.3                           With
respect to the assignment or transfer of any party’s rights under this
Agreement, the provisions of clause 20 of the SPA shall apply.


 


18.4                           With
respect to failure or delay by any party hereto, in exercising any right or
remedy provided by law or under or pursuant to this Agreement, the provisions
of clause 25 of the SPA shall apply.


 


18.5                           Any
notice to a party under this Agreement shall be given in accordance with the
provisions of clause 27 of the SPA.


 


18.6                           Each
party will bear its own Costs in relation to the negotiations, preparations,
investigations, and performance of this Agreement, including all advisors’
Costs in respect of advisors engaged by such party.


 


18.7                           If
any provision of this Agreement is held to be invalid or unenforceable, then
such provision shall (so far as it is invalid or unenforceable) be given no
effect and shall be deemed not to be included in this Agreement, but without
invalidating any of the remaining provisions of this Agreement. The parties
shall then use all reasonable endeavours to replace the invalid or
unenforceable provisions by a valid and enforceable substitute provision the
effect of which is as close as possible to the intended effect of the invalid
or unenforceable provision.


 


18.8                           This
Agreement and the Exhibits thereto represent the entire understanding and
agreement between the Purchaser and the Vendors with respect to the subject
matter hereof and supersede all previous agreements, both in writing and oral,
including correspondence, in relation to such subject matter. Parties further
agree that this Agreement shall apply to the sale and purchase of the Shares in
addition to the provisions of the SPA and that to the extent that there is any
conflict between the provisions of this Agreement and the SPA, the provisions
of this Agreement shall be deemed an amendment of the relevant provisions of
the SPA and shall prevail.


 


18.9                           This
Agreement shall be governed by and construed in accordance with the laws of The
Netherlands. Any disputes hereundcr shall be resolved in accordance with the
provisions of clause 29 of the SPA.


 


18.10                     This
Agreement may be executed in any number of counterparts, and by the parties on
separate counterparts, but shall not be effective until each party has executed
at least one counterpart.  Each
counterpart shall constitute an original agreement, but all the counterparts
together constitute but one and the same instrument.


 


 


AS WITNESS this
Agreement has been signed in on behalf of the parties the day and year first
before written.


 


INVENSYS HOLDINGS LIMITED


 


13

















 


	
  /s/ N. Blackwell

  	
   

  
	
  By:

  
	
  Title:

  
	
   

  
	
   

  
	
  INVENSYS INC.

  
	
   

  
	
   

  
	
  /s/ N. Blackwell

  	
   

  
	
  By:

  
	
  Title:

  
	
   

  
	
   

  
	
  INVENSYS TWENTY-ONE LIMITED

  
	
   

  
	
   

  
	
  /s/ N. Blackwell

  	
   

  
	
  By:

  
	
  Title:

  
	
   

  
	
   

  
	
  GAC BAAN ACQUISITION LLC

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  General Atlantic Partners

  
	
   

  	
  (Bermuda),
  L.P.

  
	
  /s/ ILLEGIBLE

  	
   

  	
  By:
  GAP (Bermuda) Limited (as 

  
	
  By:
  Cerberus Capital

  	
  general
  partner)

  
	
  Management
  II, L.P.

  	
   

  
	
  (its
  managing member)

  	
   

  
	
  By:

  	
  By:

  	
  /s/
  Matthew Nimetz

  	
   

  
	
  Title:

  	
   

  	
  Name:
  Matthew Nimetz

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  
	
  INVENSYS PLC

  
	
   

  
	
   

  
	
  /s/ N. Blackwell

  	
   

  
	
  By:

  
	
  Title:

  
						



 


14

















 


	
  GENERAL ATLANTIC PARTNERS (BERMUDA), L.P.

  
	
  By:
  GAP (Bermuda) Limited (its general partner)

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Matthew
  Nimetz

  	
   

  
	
   

  	
  Name:
  Matthew Nimetz

  
	
   

  	
  Title:
  Vice President

  
	
   

  
	
   

  
	
  CERBERUS CAPITAL MANAGEMENT II, L.P.

  
	
   

  
	
   

  
	
  /s/ ILLEGIBLE

  	
   

  
	
  By:

  
	
  Title:

  
	
   

  
	
   

  
	
  SSA GLOBAL TECHNOLOGIES, INC.

  
	
   

  
	
   

  
	
  /s/ ILLEGIBLE

  	
   

  
	
  By:

  
	
  Title:

  
				



 


15

















 


Signed in acceptance of the terms of clauses 2.4 and 2.5 of this
Agreement by:


 


 


	
  SSA CARIBBEAN

  
	
   

  
	
   

  
	
  /s/ ILLEGIBLE

  	
   

  
	
  By:

  
	
  Title:

  
	
   

  
	
   

  
	
  HARFSEN HOLDING B.V.

  
	
   

  
	
   

  
	
  /s/ ILLEGIBLE

  	
   

  
	
  By:

  
	
  Title:

  



 


16