Exhibit
10.12


 


2 June 2003


 


INVENSYS
HOLDINGS LIMITED


 


INVENSYS
INC.


 


INVENSYS
TWENTY-ONE LIMITED


 


(as the Vendors)


 


and


 


GAC BAAN
ACQUISITION LLC


 


(as the Purchaser)


 


 


SALE AND
PURCHASE AGREEMENT for the

sale and purchase of the Baan Business


 


 


FRESHFIELDS
BRUCKHAUS DERINGER


 

















 


INDEX TO SALE AND PURCHASE AGREEMENT


 


	
  Clause

  	
   

  	
  Description

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  Definitions and
  Interpretation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2

  	
   

  	
  Sale of the Shares
  and Consideration

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3

  	
   

  	
  Conditions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4

  	
   

  	
  Pre-Completion Undertakings

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5

  	
   

  	
  Completion

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
   

  	
  Post-Completion
  Undertakings

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7

  	
   

  	
  Post-Completion Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8

  	
   

  	
  Warranties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9

  	
   

  	
  Breach
  of Vendor Warranties and Limitations on Claims

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10

  	
   

  	
  Purchaser
  Warranties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11

  	
   

  	
  Retained and
  Transferred Lawsuits

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12

  	
   

  	
  Employees

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13

  	
   

  	
  Pension
  Schemes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14

  	
   

  	
  Properties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  15

  	
   

  	
  Separation
  Issues

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  16

  	
   

  	
  Invensys
  Guarantee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  17

  	
   

  	
  Purchaser
  Guarantee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  18

  	
   

  	
  Actions on Behalf of
  Other Parties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  19

  	
   

  	
  Variation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  20

  	
   

  	
  Assignment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  21

  	
   

  	
  Announcements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  22

  	
   

  	
  Costs

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  23

  	
   

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  24

  	
   

  	
  Counter parts

  	
   

  



 

















 


	
  25

  	
   

  	
  Waivers/Purchaser’s Rights and Remedies

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  26

  	
   

  	
  Further
  Assurance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  27

  	
   

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  28

  	
   

  	
  Entire
  Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  29

  	
   

  	
  Governing Law, Jurisdiction and Service
  of Process

  	
   

  



 


 


SCHEDULES TO SALE AND PURCHASE AGREEMENT


 


	
  Schedule

  	
   

  	
  Description

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1

  	
   

  	
  Interpretation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule  2

  	
   

  	
  The Company and the
  Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule  3

  	
   

  	
  Apportionment of
  Initial Consideration

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule  4

  	
   

  	
  Vendor Warranties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule  5

  	
   

  	
  Purchaser Warranties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule  6

  	
   

  	
  Tax Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule  7

  	
   

  	
  Closing Management
  Accounts and Adjustment Statements.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •     Exhibit
  A: IRIS Management Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule  8

  	
   

  	
  Accounting Principles

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •      Exhibit A: Balance Sheet for period ended 31
  March 2003

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule  9

  	
   

  	
  Properties:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •      Part A: Table listing Baan as Sole Occupant of
  Office

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •      Part B: Table listing Baan Surplus Property

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •      Part C: Table listing Baan as Subleasor of
  Office

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •      Part D: Table listing Baan Subleasing Offices
  to Others.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •      Part E: Agreed form sub-lease agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •      Appendix 1: Lease Agreement

  	
   

  



 


2

















 


	
   

  	
   

  	
  •      Appendix 2 Property

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  10

  	
   

  	
  Knowledge
  of the Vendors

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  11

  	
   

  	
  Pre-Completion
  Steps

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Exhibit
  A: Group Funds Plan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  12

  	
   

  	
  UK
  Pensions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  13

  	
   

  	
  IMAPS
  Business

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •      Part A

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  •      Part B

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  14

  	
   

  	
  Retained
  US Plans

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  15

  	
   

  	
  Intellectual
  Property Rights (Overview)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  16

  	
   

  	
  Pension
  Schemes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  17

  	
   

  	
  Employees
  With Salary in Excess of $100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  18

  	
   

  	
  Form
  of Transitional Services Agreement for Services from Invensys to Baan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  19

  	
   

  	
  Form
  of Transitional Services Agreement for Services from Baan to Invensys

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule
  20

  	
   

  	
  Data
  Room Index

  	
   

  



 


3

















 


THIS SALE AND PURCHASE AGREEMENT is made on
2 June 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 (121)  (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 (the Purchaser);


 


(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 11, Bermuda
(GAP);  and


 


(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).


 


WHEREAS:


 


(A)  Each of the Vendors is the legal owner of
the share capital of that Company whose name is set forth opposite the name of
that Vendor in Part A of Schedule 2 (the Companies).  The companies of which details are
set out in Part B of Schedule 2 (together the Subsidiaries and each of them a Subsidiary)  are the direct and indirect subsidiaries of
those of the Companies in which the Vendors hold the Shares.


 


(B)  The Vendors together are engaged in the
Business through the Group Companies.


 


(C)  With a view to selling the Business to the
Purchaser, the Vendors have initiated a controlled auction process.


 


1

















 


(D)  Invensys and General
Atlantic Partners (an affiliated company of the Purchaser) entered into the
Confidentiality Agreement.


 


(E)  The
Vendors have prepared a Data Room containing information concerning the Shares,
the Subsidiary Shares and the Business. The Purchaser was allowed access to the
Data Room for the purposes of a due diligence review, was given the opportunity
to attend and participate in management presentations and interviews with the
Group Companies’ management and the Group Companies’ advisors, was allowed to
make site visits to relevant sites of the Group Companies, was allowed to
submit questions during such due diligence process and was duly and properly
provided with answers to such questions.


 


(F)  The Vendors and the
Purchaser have complied with the provisions of the Social and Economic Council
Merger Regulation 2000 (SER-Fusiegedragsregels
2000), the Works
Council Act (Wet op de Ondernemingsraden)
 and any similar applicable legislation outside of the Netherlands
that are relevant to the transaction contemplated by this Agreement. In
particular, prior to or on the date of this Agreement the central works council
of the Business in the Netherlands provided positive advice with respect to the
transfer of the Shares to the Purchaser as contemplated under the terms of this
Agreement.


 


(G)  The
Vendors have agreed to sell, or procure the sale, of the Shares owned by each
of them and the Purchaser has agreed to purchase the Shares from each of the
relevant Vendors, for the consideration and upon the terms and subject to the
conditions set out in this Agreement.


 


IT
IS AGREED as follows:


 


1.         DEFINITIONS AND INTERPRETATION


 


1.1       Words and expressions used
in this Agreement shall have the meanings set out in Schedule 1, unless the
context requires otherwise.


 


1.2       The Schedules comprise
schedules to this Agreement and form part of this Agreement and shall have the
same force and effect as if set out in the body of this Agreement and any
reference to this Agreement shall include the Schedules.


 


2.         SALE OF THE SHARES AND CONSIDERATION


 


2.1       Subject to the terms and
conditions of this Agreement, each of the Vendors hereby sells to the Purchaser
and agrees to transfer to the Purchaser or a Nominated Purchaser the Shares set
opposite its name in Part A of Schedule 2 and the Purchaser hereby purchases
the relevant Shares from the relevant Vendors and agrees to accept or procure
that a Nominated Purchaser accepts the transfer thereof from the Vendors on the
Completion Date, free from all Encumbrances together with all accrued rights
and benefits attached thereto.


 


2.2       The initial consideration
for the sale of the Shares of the Companies (the Initial Consideration)  shall be the payment by the Purchaser to the
Vendors upon


 


2

















 


Completion (in accordance
with the provisions of clause 5.3) of an amount in cash in US$ equal to:


 


DCFP – (EIGP + EED) + (EIGR +ECB) + (ETWC – BTWC)


 


Where:


 


	
  DCFP

  	
  =

  	
  Debt/Cash Free Price

  
	
   

  	
   

  	
   

  
	
  EIGP

  	
  =

  	
  the aggregate of the
  Estimated Inter-Group Payables in respect of all the Group Companies

  
	
   

  	
   

  	
   

  
	
  EED

  	
  =

  	
  the aggregate of the
  Estimated External Debt in respect of all the Group Companies

  
	
   

  	
   

  	
   

  
	
  EIGR

  	
  =

  	
  the aggregate of the
  Estimated Inter-Group Receivables in respect of all the Group Companies

  
	
   

  	
   

  	
   

  
	
  ECB

  	
  =

  	
  the aggregate of the
  Estimated Cash Balance in respect of all the Group Companies

  
	
   

  	
   

  	
   

  
	
  ETWC

  	
  =

  	
  Estimated Trade Working
  Capital

  
	
   

  	
   

  	
   

  
	
  BTWC

  	
  =

  	
  Baseline Trade Working
  Capital

  



 


 


2.3       Without prejudice to the
Vendors’ obligations under clause 4.3(b), the Vendors shall procure that the
Group Companies, acting reasonably and in good faith, estimate (a) the
Estimated External Debt, the Estimated Cash Balance, the Estimated Inter-Group
Payables and the Estimated Inter-Group Receivables in relation to each Group
Company and (b) the Estimated Trade Working Capital, and shall deliver to the
Purchaser the written notice of such estimate amounts by no later than 17:30
(Amsterdam time) on the last Business Day that is at least five (5) Business
Days prior to the anticipated Completion Date. 
Prior to the Vendors delivering such estimate amounts to the Purchaser,
the Vendors agree that they shall inform, and give the Purchaser reasonable
opportunity to consult with the Vendors, regarding the amounts of the Estimated
External Debt, the Estimated Cash Balance, the Estimated Inter-Group Payables
and the Estimated Inter-Group Receivables in relation to each Group Company and
the amount of the Estimated Trade Working Capital.


 


2.4       If the aggregate of the
Estimated Cash Balance in respect of all the Group Companies exceeds $2,000,000
(hereinafter the Cash
Limit), then (i) the amount of the Cash
Limit shall be taken into account as the amount of the Estimated Cash Balance
for the purposes of calculating the Initial Consideration, and (ii)  in calculating the External Net Debt
Adjustment the Estimated Cash Balance that will be taken into account will be
the amount of the Cash Limit, provided that if the Purchaser has requested the
Vendors (in accordance with the provisions of clause 4.3(b)) to leave a certain
amount of Cash in the relevant bank account of the relevant Group Company, then
the amount of the Cash Limit will be increased by the amount of Cash so
requested by the Purchaser to be left in the relevant bank account of the
relevant Group Company.


 


3

















 


2.5       Furthermore, the Initial
Consideration shall be increased by any Restructuring Costs incurred by the
Group Companies prior to the Completion Date in accordance with clause 4.4.


 


2.6       Following the agreement or
determination of the Adjustment Statement (including the determination of the
Final Trade Working Capital and the Final External Debt, Final Cash Balance,
Final Inter-Group Receivables and Final Inter-Group Payables in relation to
each Group Company) in accordance with Schedule 7, the Initial Consideration
for the Shares shall be adjusted to reflect the amount of any payment made in
accordance with clause 7 (but not reflect any amount of interest paid pursuant
thereto). The final consideration for the sale of the Shares (the Final Consideration) 
shall, subject to the provisions of clause 15.4(d)(iii), comprise the
Initial Consideration for such sale as so adjusted.


 


2.7       The Final Consideration for
the relevant Shares of each Company as so determined and as otherwise adjusted
in accordance with this Agreement, shall be adopted by the relevant Vendor (on
behalf of itself and each of the other members of the Retained Group) and the
Purchaser (on behalf of itself and each of the other members of the Purchaser’s
Group) for all purposes (including Tax) except: (i) as otherwise required by
law; (ii) as otherwise agreed by the parties in this Agreement or (iii) as
otherwise agreed by the parties in writing.


 


2.8       If any payment is made by
the Vendor to the Purchaser pursuant to a claim made by the Purchaser for any
breach of this Agreement (including, without limitation, any Relevant Claim),
the payment shall so far as possible be deemed to adjust the price paid for the
relevant Shares by a matching amount and where such payment is specifically
referable to a Company and/or its Subsidiaries, to adjust the price for the
Shares in respect of that Company. 
Where any payment is not specifically referable to a Company and/or its
Subsidiaries, the price paid for the Shares of all Companies to which such
payment is referable shall be deemed to have been adjusted pro rata.


 


2.9       Subject to clause 2.8
above, the Vendor and the Purchaser agree that the apportionment of the Initial
Consideration between the Shares shall be as set out in Schedule 3.


 


3.         CONDITIONS


 


3.1       The obligations of the
Purchaser and the Vendors to complete this Agreement are in all respects
conditional upon the fulfilment or waiver of the following conditions:


 


(a)        all
notifications and applications required under any statutory provision or other
law in any jurisdiction applicable to any of the Group Companies where transfer
of the Shares cannot be made legally without clearance, or pursuant to Council
Regulation (EEC) 4064/89 and any other applicable Council Regulations, in
connection with the conclusion or performance of this Agreement, having been
made to the competent authorities, and in respect of each such notification or
application:


 


4

















 


(i)      the relevant competition authority having stated in writing that the
subject matter of the notification or application is permitted, or that there
are no objections to it or that it will not be subject to any further
investigations, the foregoing subject to no conditions or to conditions which
are reasonably acceptable to the Purchaser; or


 


(ii)     where applicable, the period during which the relevant authority may
refuse permission for, object to or commence an investigation into the subject
matter of the notification or application having expired without any such
action having been taken;


 


(b)           no order or judgement of any court or Governmental Entity having been
issued or made prior to Completion which has the effect of making unlawful or
otherwise prohibiting the transfer of the Shares as contemplated under this
Agreement, provided that if any such order or judgement is capable of being
appealed, the Condition in this clause 3.1(b) shall only be considered not to
have been fulfilled if within thirty (30) days of the such order or judgement
having been handed down (i) no such appeal has been lodged, or (ii) if
appealed, no further order or judgment is handed down reversing or nullifying
the effect of the initial order or judgment.


 


3.2       Subject to the provisions of clauses 3.5, 3.6
and 3.7, the obligations of the Purchaser to complete this Agreement are in all
respects conditional upon the fulfilment or waiver of the condition that no
act, omission or event shall have occurred which upon Completion would result
in:


 


(a)        a Material Breach of (i) the Vendor Warranties upon their repetition at
Completion or (ii) the obligations of the Vendors under this Agreement (other
than the obligations referred to in clause 4.3(d)) that are required to be
performed between the date hereof and Completion; or


 


(b)       the Vendors not having complied in all material respects with their
obligations referred to in clause 4.3(d).


 


(the conditions referred to in this clause 3.2, together with the
conditions referred to in clause 3.1 hereinafter collectively referred to as
the Conditions), provided
that the Condition in this clause 3.2 shall in any event only be considered not
to have been fulfilled if a Material Breach is incapable of remedy, or if
capable of remedy, is not remedied by the Vendors within the thirty (30) day
period referred to in clause 3.7.


 


3.3       The Purchaser undertakes to use all reasonable
endeavours to ensure that each of the Conditions referred to in clause 3.1 are
fulfilled, and the Vendors undertake to use all reasonable endeavours to ensure
that the Conditions are fulfilled.  The
Purchaser and each of the Vendors undertake to use all reasonable endeavours to
ensure that Completion takes place in accordance with clause 5 as soon as
reasonably practicable and in any event by the first Business Day that is
one-hundred and twenty (120) days after the date of this Agreement (the Termination Date).


 


3.4       Without prejudice to the generality of clause
3.3, the Vendors and the Purchaser undertake to cooperate with and assist each
other by providing the other


 


5

















 


and any
Competition Authority as soon as is reasonably practicable upon request and in
good faith any necessary information and documents for the purpose of making
any submissions, filings and notifications to any Competition Authority.
Furthermore, the Vendors and the Purchaser agree that they shall in
consultation with each other and as soon as reasonably practicable (and, with
respect to making the necessary initial filings with the relevant Competition
Authorities, to the extent reasonably practicable, within five (5) Business
Days after the date of this Agreement) take all commercially reasonable steps
that are necessary to obtain all consents, approvals, or actions of any
Competition Authority which are required pursuant to clause 3.l(a) in order to
complete the transactions contemplated hereunder and, without limitation,
shall:


 


(a)        progress
such submissions, filings and notifications with all necessary diligence;


 


(b)       provide
all information which is requested or required by any such Competition
Authority (to the extent that such Competition Authority is legally entitled to
request or require such information);


 


(c)        notify
each other, and provide copies (or, in the case of non-written communications,
reasonable details), of any communications from any such Competition Authority
in relation to obtaining any such consent, approval or action and communicate
with any such Competition Authority in respect of any of the transactions
contemplated by this Agreement only after having consulted with each other in
advance;


 


(d)       provide
each other (or each other’s agents or advisers) with draft copies of all
submissions, filings, notifications and communications to any Competition
Authority in relation to obtaining any such consent, approval or action
(excluding communications of an administrative nature) at such time as will
allow the other (or its agents or advisers) a reasonable opportunity to provide
comments on such submissions, filings, notifications and communications and to
amend them in accordance with the reasonable requirements of such Party (or its
agents or advisers) before they are submitted or sent to such Competition
Authority and take into account any such comments or amendments; and provide
each other (or each other’s agents or advisers) with copies of all such
submissions and communications in the form submitted or sent; and


 


(e)        where
reasonably requested by the other Party, and where permitted by the Competition
Authority concerned, allow persons nominated by the Vendors or the Purchaser,
as the case may be, to attend all meetings (and participate in all telephone or
other conversations) with any Competition Authority and, where appropriate, to
make oral submissions at such meetings (or telephone or other conversations).


 


3.5       Upon an act, omission or
event having occurred which upon Completion would result in a Material Breach
or any breach as a result of which the Vendors would not having complied in all
material respects with their obligations referred to in clause 4.3(d), the
Purchaser shall be entitled (in addition and without prejudice to any other
rights or remedies it may have against the Vendors under this Agreement), to


 


6

















 


elect by notice in
writing to the Vendors not to complete the purchase of the Shares and, except
for clauses 1, 21 to 22, 25 to 29 and Schedule 1 of this Agreement, this
Agreement shall automatically terminate and be of no further force or effect
and no party shall have any claim hereunder of any nature whatsoever against
the other party (save in respect of accrued rights and/or liabilities arising
from the prior breach of this Agreement). 
For these purposes: a Material Breach means any breach of (a) the Vendor
Warranties upon their repetition at Completion and/or (b) the obligations of
the Vendors under this Agreement (other than that referred to in clause 4.3(d))
that are required to be performed between the date hereof and Completion, the
effect of which individually or in the aggregate with all other such breaches,
would result in the Vendors being liable for Damages in an amount exceeding
fifteen per. cent (15%) of the Debt/Cash Free Price.


 


3.6           The Purchaser shall
notify the Vendors promptly in writing (a Rescission Notice) upon becoming aware of an
act, event or omission having occurred which upon Completion would result in a
Material Breach and on which basis it would elect not to proceed to Completion.


 


3.7           Upon receipt of any
Rescission Notice, if the Material Breach is capable of remedy the Vendors may
within five (5) Business Days elect by written notice to the Purchaser to
extend the rescission of this Agreement by up to thirty (30) days after such
notice, and the length of such extension shall be indicated in such notice.
During such time, the Vendors shall be entitled, and shall use all reasonable
endeavours, to remedy the breach, matter, event or circumstance giving rise to
the Rescission Notice.


 


3.8           The Vendors and
Purchaser shall consult and co-operate with each other in relation to planning
for and scheduling the Completion, and each party shall notify the other
parties to this Agreement as soon as reasonably practicable upon becoming aware
that any of the Conditions have been fulfilled.


 


3.9           Each party shall
notify the other parties as soon as reasonably practicable upon becoming aware
of anything that will cause any of the Conditions not to be fulfilled on or
prior to the Termination Date.


 


3.10         If any of the Conditions shall not have been
fulfilled by and on the Termination Date, then the Vendors or the Purchaser
may, by written notice to the others, terminate this Agreement, and upon
delivery of such notice, neither the Vendors nor the Purchaser shall be bound
to proceed with the sale of the Shares and, except for clauses 1, 21 to 22, 25
to 29 and Schedule 1 of this Agreement, this Agreement shall automatically
terminate and be of no further force or effect and no party shall have any
claim hereunder of any nature whatsoever against the other party (save in respect of accrued rights and/or liabilities arising
from the prior breach of this Agreement), provided, however, that the right to
terminate this Agreement under this clause 3.10 shall not be available (i) to
the Vendors if any Vendor is in breach of or has breached its obligation under
clause 3.3 or 3.4 or is in material breach of or has materially breached its
other obligations under this Agreement or (ii) to the Purchaser if it is in
breach of or has breached its obligations under clauses 3.3 or 3.4 or is in
material breach of or has materially breached its other obligations under this


 


7

















 


Agreement and, in the case of both (i) and (ii), such breach has
contributed materially to the non-satisfaction of the Conditions.


 


4.         PRE-COMPLETION UNDERTAKINGS


 


4.1       Pending Completion, subject to clause 4.4, each of the Vendors shall in
relation to each Company owned by it:


 


(a)        procure that the business of such Company and its Subsidiaries is
conducted only in the ordinary course of business and in a normal and prudent
manner, consistent with past practice;


 


(b)       procure that reasonable steps are taken to maintain the Properties,
assets (including the Internal IT Systems and Intellectual Property Rights) and
any other material goods in use by any such Company and its Subsidiaries in
good working order and state of maintenance and repair; and


 


(c)        procure that reasonable steps are taken to preserve and protect the
assets, financial position and the business organisation of such Company and
its Subsidiaries in all material respects and to preserve good relations with
suppliers, customers, Employees and relevant trade unions.


 


4.2       Without limiting the generality of clause 4.1, but subject to
clause 4.4, each of the Vendors agree that pending Completion they shall
procure in relation to each Group Company directly or indirectly owned by it
that no Group Company shall without the prior written consent of the Purchaser
(which consent may not be unreasonably withheld or delayed):


 


(a)        declare, pay or make any dividend or other distribution in cash, in
stock or in specie to any shareholder in any of the Group Companies;


 


(b)       allot or issue, agree to allot or issue or pledge any shares, debentures
or other securities or grant or agree to grant, any options over any shares,
debentures or other securities;


 


(c)        alter the provisions of its memorandum or articles of association (or
analogous constitutional documents) or adopt or pass further regulations or
resolutions inconsistent therewith;


 


(d)       change its accounting reference date or make any material change to the
accounting procedures or principles by reference to which its accounts are
drawn up (except for changes required by law or regulation);


 


(e)        discontinue or cease to operate all or a material part of its business;


 


(f)        enter into any material contract outside the ordinary course of business
or take any action with respect to a material contract (which for the purposes
of this clause shall mean a contract that involves or is likely to involve
expenditure by any Group Company in excess of US$250,000 during any one-year
period) which would result in a material default or breach thereof and enter
into any


 


8

















 


material
contracts or make any material change in, or amendment of, any such material
contract beyond the ordinary course of business;


 


(g)       enter
into any transactions between any Group Company on the one hand and a member of
the Retained Group on the other hand other than on arm’s length terms;


 


(h)       other
than in the ordinary course of business, make any material change to the terms
and conditions of employment (including, without limitation, in relation to
remuneration, pension, bonus, profit sharing, compensation, stock option,
retirement, deferred compensation, severance, termination or other employment
benefits) of Key Employee of the Business;


 


(i)         increase
the remuneration or change the terms and conditions of employment (including,
without limitation, in relation to remuneration, pension, bonus, profit
sharing, compensation, stock option, retirement, deferred compensation,
severance, termination or other employment benefits) of Employees, other than
in the ordinary course of business or as required pursuant to the applicable
employment contract;


 


(j)         create,
incur, or guarantee any indebtedness for borrowed money which in the aggregate
exceeds US$250,000 or issue or sell any debt securities;


 


(k)        purchase
or otherwise acquire, by merger, consolidation, acquisition of securities or
assets or otherwise, (i) any corporation, partnership, association or other
business organization or division thereof or (ii) any assets or properties
which would be material, in the aggregate, to the Group Companies taken as a
whole;


 


(l)         sell,
lease, or otherwise dispose of any of their assets or properties which are
material, in the aggregate, to the Group Companies taken as a whole, other than
in the ordinary course of business;


 


(m)       grant
any licences for the use of the Intellectual Property Rights owned by the Group
Companies, other than in the ordinary course of business;


 


(n)       mortgage
or encumber any of their assets or properties which are material, in the
aggregate, to the Group Companies taken as a whole;


 


(o)       make
any capital expenditures or commitments for capital expenditures which, in the
aggregate, exceed US$250,000;


 


(p)       pay
or discharge any material claim or liability other than in the ordinary course
of business or pursuant to binding contractual obligations of the Companies;


 


(q)       make
any tax election or settle any tax claim, other than in the ordinary course of
business;


 


(r)        agree,
whether in writing or otherwise, to do any of the foregoing; or


 


9

















 


(s)        pass
a shareholders’ resolution, except for such resolutions as are required (i) in
order to prepare for or give effect to the transaction contemplated in this
Agreement and (ii) to comply with applicable statutory obligations or corporate
housekeeping requirements.


 


4.3       In addition to the
limitations on the conduct of the Vendors and the relevant Group Companies
under the provisions of clause 4.1 and 4.2, the Vendors agree that to the
extent reasonably within their powers and pending Completion they shall and
shall cause the Group Companies to:


 


(a)        use
all reasonable endeavours and take all reasonable steps (including without
limitation the making of such filings, applications, registrations and notices)
to obtain the release of:


 


(i)      the
Company in which it owns Shares and its Subsidiaries from any Inter-Group
Guarantees to which such company is a party or otherwise subject prior to the
Completion Date; and


 


(ii)     each
member of the Retained Group from any Inter-Group Guarantees to which such
company is a party or otherwise subject prior to the Completion Date,


 


provided
that any such Inter-Group Guarantees that have not yet been released by the
Completion Date, shall be dealt with in accordance with the provisions of
clauses 6.1(a) and 6.2(a), respectively;


 


(b)       use
all reasonable endeavours and take all reasonable steps to deliver the Group
Companies to the Purchaser at the Completion Date free of Debt and Cash,
provided that the Vendors shall prior to Completion consult with the Purchaser
regarding any specific Cash requirements of any of the Group Companies on or
immediately after the Completion Date and shall, where it is reasonable for the
Vendors to do so, leave the required amount of Cash in the relevant bank
account of the relevant Group Company, and provided further that any Debt or
Cash remaining in the Group Companies at the Completion Date shall be dealt
with in accordance with clauses 2.2, 2.3 and 2.4 (with respect to the amounts
of the Estimated External Debt and Estimated Cash Balance) and the External Net
Debt Adjustment provisions referred to in clause 7.4;


 


(c)        use
all reasonable endeavours and take all reasonable steps to minimize prior to or
on the Completion Date all Inter-Group Payables and all Inter-Group
Receivables, provided that any Inter-Group Payables or Inter-Group Receivables
estimated to be remaining in the Group Companies as at the Completion Date
shall be dealt with in accordance with the provisions of clauses 2.2, 5.6 and
7.5 through 7.9;


 


(d)       upon
the instructions of the Purchaser (i) use all reasonable endeavours and take
all reasonable steps to seek and obtain the advice or, where such would be
legally required, consent of the central works council of the Business in the
Netherlands, any relevant trade union or other Governmental Entity with


 


10

















 


respect to any restructuring of the Business (any
restructuring plan with respect thereto having to be agreed to by the
Purchaser) and (ii) in the event that the necessary advices and consent (as
referred to in (i) above) have been obtained before the Completion Date,
procure that the relevant Group Company take all reasonable steps to procure,
in accordance with the written instructions of the Purchaser, the commencement
of the implementation of certain restructuring steps related to the Business
prior to Completion provided that, subject to clause 3.2, Completion shall in
no way be conditional upon such advice or consent having been obtained or such
implementation steps having been taken prior to or on the Completion Date;


 


(e)        use reasonable efforts to give all required notices to third parties and
obtain all necessary third party approvals (other than approval from
Competition Authorities as described in Section 3.4) in connection with the
matters contemplated by this Agreement;


 


(f)        provide prompt written notice to the Purchaser of (i) any variances in
any of Vendor Warranties; (ii) any breach of any pre-completion undertaking set
out in this clause 4; and (iii) any other material development affecting the
ability of the Vendors to consummate the transactions contemplated by this
Agreement.  No disclosure by the Vendors
pursuant to this clause 4.3(f), however, shall be deemed to amend or supplement
the Disclosure Letter or to prevent or cure any misrepresentation or breach of
the Vendor Warranties or breach of any such pre-completion undertakings; and


 


(g)       take or cause to be taken all such steps and actions to procure the
recapitalisation of any of the Group Companies with a negative equity value as
at the date hereof.


 


4.4       With respect to the obligations of the Vendors
under clause 4.3(d), Parties agree that the Vendors shall only be obliged to
procure that any Group Company takes the necessary action and incurs any costs
with respect thereto if the Purchaser has in writing provided prior written
instructions to the relevant Group Company to take such steps and incur such
costs (such costs hereinafter referred to as the Restructuring Costs).


 


4.5       Notwithstanding the provisions of clauses 4.1
and 4.2, prior to and on the Completion Date, the Vendors may take such steps
as may be reasonably practicable to carry out any of the following actions:


 


(a)        their obligations under clause 4.3;


 


(b)       the Pre-Completion Steps, including without limitation:


 


(i)      take or cause to be taken all such steps and actions to procure the
recapitalisation of any of the Group Companies with a negative equity value as
at the date hereof;


 


11

















 


(ii)     take
or cause to be taken all such steps and actions as provided for in this
Agreement and as to procure the separation of the Group Companies from the
Retained Group as of the Completion Date;


 


(c)        assign,
novate or otherwise transfer to any member of the Retained Group the benefit of
any Inter-Group Payable owed by any Group Company to any other member of the
Retained Group and vice versa with respect to Inter-Group Receivables to the
extent reasonably necessary or advisable to achieve set-offs as contemplated by
clause 5.6; and


 


(d)       cause
any Group Company to cease to participate in any Invensys cash pooling
programme, it being understood that in some cases such steps may be taken on
the Completion Date after close of business in the relevant jurisdiction.


 


4.6       The relevant Vendor shall
request the Purchaser’s consent (as referred to in clause 4.2) in writing, sent
by facsimile, addressed to the Purchaser in the manner referred to in clause
27. When requested to grant its consent, the Purchaser shall as soon as
possible, and in any event within five (5) Business Days, inform the relevant
Vendor in writing whether it consents to the taking of the proposed action, and
if it withholds its consent, the reasons for doing so. If the Purchaser fails
to reply to such request within the aforementioned five (5) Business Day
period, then the Purchaser shall be deemed for the purposes of this clause 4 to
have granted its consent to the taking of such proposed action.


 


4.7       During the period between
the date of this Agreement and Completion, the Vendors shall procure that the
Business, to the extent permitted by applicable law, is conducted in
consultation with the Purchaser and shall allow the Purchaser, its potential
financing partners and their respective agents, upon reasonable notice and
during normal business hours, access to senior management personnel of the
Group Companies and the books and records of or relating in whole or in part to
the Business, provided that the obligations of the Vendors under this clause
4.7 shall not extend to allowing access to information that is reasonably
regarded as confidential to the activities of the Vendors otherwise than in
connection with the Business. Notwithstanding the foregoing, without having
first informed the Vendors and having obtained the prior consent of management
of the Business, the Purchaser shall not contact any suppliers to, employees
(other than contacts with senior management personnel permitted pursuant to the
preceding sentence) or customers of, the Business or any Group Company in
connection with or pertaining to any subject matter of this Agreement.  During the period between the date of this
Agreement and Completion, the Vendors shall use all reasonable endeavours to
cooperate in any attempt by the Purchaser to raise any external debt financing
with respect to the acquisition of the Group Companies (it being agreed that
the obtaining of such financing shall not be a pre-condition to the
Completion).


 


5.         COMPLETION


 


5.1       The sale and purchase of
the Shares shall be completed at the Amsterdam offices of Freshfields Bruckhaus
Deringer at Apollolaan 151, 1077AR Amsterdam, The Netherlands, or at such other
venue as may be agreed in writing between the


 


12

















 


Vendors and the
Purchaser, upon the close of business on the Completion Date and the events
referred to in the following provisions of this clause 5 shall take place on
Completion.


 


5.2       All documents and items
delivered at Completion pursuant to this clause 5, shall be held by the
recipient to the order of the person delivering the same until such time as
Completion shall be deemed to have taken place in accordance with the
provisions of clause 5.7.


 


5.3       By no later than 12:00
(Amsterdam time) on the Completion Date:


 


(a)        the
Purchaser shall cause that the following cash amounts in US$ be paid by wire
transfer to the Notary Account, under the reference “Project Saturn”:


 


(i)      an
amount on account of the consideration for the Shares equal to the Initial
Consideration;


 


(ii)     an
amount equal to the Non-Compete Consideration; and


 


(iii)    an amount equal to the amounts payable under clause
5.6(c) (if any); and


 


(b)       the
Vendors shall cause that a cash amount in US$ equal to the amount payable under
clause 5.6(f) (if any) be paid by wire transfer to the Notary Account, under
the reference “Project Saturn”.


 


The amounts payable under
clause 5.3(a) shall be held by the Notary in the Notary Account for the benefit
and to the order of the Purchaser until such time as Completion shall be deemed
to have taken place in accordance with the provisions of clause 5.7.


 


The amounts payable under
clause 5.3(b) shall be held by the Notary in the Notary Account for the benefit
and to the order of the Vendors until such time as Completion shall be deemed
to have taken place in accordance with the provisions of clause 5.7.


 


All costs of the Notary
and the Notary Account shall be borne exclusively by the Vendors. The Vendors
shall procure that the Notary confirms in writing prior to the Completion that
he will abide by the relevant provisions of this Agreement.


 


5.4       Immediately following the
moment upon which Completion shall be deemed to have taken place in accordance
with the provisions of clause 5.7, the amount of the Initial Consideration
shall be held by the Notary in the Notary Account for the benefit and to the
order of the Vendors.


 


5.5       On the Completion Date:


 


(a)        each
of 121, the Purchaser and Invensys International B.V. shall effect the transfer
of the shares in Invensys International B.V. by means of the execution of a
notarial deed of transfer in the customary form before the Notary (it being
agreed that the cost of the Notary shall be borne exclusively by the Vendors);


 


13

















 


(b)       each
of the Vendors will deliver (or cause to be delivered) to the Purchaser:


 


(i)      duly
executed transfers in respect of all of the shares of Baan UK Ltd duly
completed by or on behalf of all persons required to execute such transfers in
favour of the Purchaser, together with the certificates for such shares in the
name of the relevant transferors;


 


(ii)     stock
certificates relating to all the shares in Baan USA, Inc. duly and validly
endorsed in favour of the Purchaser;


 


(iii)    a counterpart of the Transitional Services
Agreement, duly executed by the parties thereto that are members of the
Retained Group;


 


(iv)    such
resignations of directors of Group Companies as shall have been requested by
the Purchaser in writing at least ten Business Days before the Completion Date,
provided that each such resignation shall be effective and conditional upon
Completion having taken place; and


 


(c)        the
Purchaser shall deliver (or cause to be delivered) to the relevant Vendor(s) a
signed counterpart to the Transitional Services Agreements.


 


5.6       On the Completion Date, to
the extent that the Estimated Inter-Group Payables in respect of any Group
Company are greater than or equal to the Estimated Inter-Group Receivables in
respect of such Group Company, then:


 


(a)        the
Vendors shall, for itself and as duly authorised representative on behalf of
the relevant members of the Retained Group, agree to set off the whole of the
Estimated Inter-Group Receivables in respect of such Group Company against an
equal amount of the Estimated Inter-Group Payables in respect of such Group
Company;


 


(b)       the
Purchaser shall procure that the relevant Group Company shall accept such set
off in respect of such amount of the Estimated Inter-Group Payables in respect
of such Group Company; and


 


(c)        the
Purchaser shall, in respect of any remaining amount of the Estimated
Inter-Group Payables after such set off in respect of such Group Company,
procure the discharge and repayment by such Group Company of such remaining
amount, if any, to the Vendors (for themselves, if applicable, and on behalf of
each relevant member of the Retained Group) in cash in US$ in accordance with
the provisions of clause 5.3.


 


and, to the extent that
the Estimated Inter-Group Payables in respect of any Group Company are less
than the Estimated Inter-Group Receivables in respect of such Group Company,
then:


 


(d)       the
Vendors shall, for itself and as duly authorised representative on behalf of
the relevant members of the Retained Group, agree to set off against the whole
of the amount of the Estimated Inter-Group Payables in respect of such Group


 


14

















 


Company,
an equal amount of the Estimated Inter-Group Receivables in respect of such
Group Company;


 


(e)        the
Purchaser shall procure that the relevant Group Company shall accept such set
off in respect of such amount of the Estimated Inter-Group Payables in respect
of such Group Company; and


 


(f)        the
Vendor shall procure the discharge and repayment by the relevant member of the
Retained Group of the remaining amount of the Estimated Inter-Group Receivables
in respect of such member of the Retained Group after such set off, to be paid
by the Vendors (for themselves, if applicable, and on behalf of each relevant
member of the Retained Group) to the Purchaser (on behalf of and as agent for
the relevant Group Company) in cash in US$ in accordance with the provisions of
clause 5.3.


 


5.7       Upon:


 


(a)        receipt
by the Notary of written confirmation from both the Purchaser and the Vendors
that they are satisfied that the steps and delivery of all documents required
to be taken and delivered at Completion pursuant to clause 5.5 have been taken
(or waiver of the delivery thereof by the rightful recipient of any such document);


 


(b)       payment
by the Purchaser of the amounts referred to in clause 5.3; and


 


(c)        the
payment by the Vendors and the Purchaser of the amount(s) referred to in clause
5.6,


 


the documents and items
delivered in accordance with this clause 4.7 shall cease to be held to the
order of the person delivering the same, and Completion shall be deemed to have
taken place.


 


5.8       If the respective
obligations of the Vendors and the Purchaser under clauses 5.3, 5.5 and 5.6 are
not complied with in all material respects or waived on the Completion Date,
the Purchaser (in the case of non-compliance by the Vendors) or the Vendors (in
the case of non-compliance by the Purchaser) may:


 


(a)        proceed
to Completion (without limiting any claims it may have as a result of such
non-compliance under this Agreement); or


 


(b)       defer
Completion (so that the provisions of this clause 4.7 shall apply to Completion
as so deferred), provided that Completion shall not be able to be deferred to a
date that is later than the Termination Date; or


 


(c)        if
any of the respective obligations of the Vendors and the Purchaser under
clauses 5.3, 5.5 and 5.6 have not been complied with in all material respects
or waived by the Termination Date, treat this Agreement as terminated for
breach of a condition.


 


15

















 


5.9       Upon Completion being deemed to have taken
place in accordance with clause 5.7, the Notary shall by wire transfer pay the
amount of the Initial Consideration from the Notary Account to the Invensys
Bank Account. However, as from the moment that the Notary is deemed to hold the amount of the Initial
Consideration on behalf of the Vendors (as provided for in clause 5.4), the
Purchaser’s obligation to pay the amount of the Initial Consideration shall be
considered to have been discharged.


 


5.10     The International Tax Covenant and US Tax Covenant shall come
into full force and effect upon Completion being deemed to have occurred in
accordance with clause 5.7.


 


6.         POST-COMPLETION UNDERTAKINGS


 


Inter-Group Guarantees and Intercompany Trading Amount


 


6.1       Following Completion, each of the Vendors
undertake to the Purchaser:


 


(a)        to use all reasonable
endeavours and to take all reasonable steps (including without limitation the
making of such filings, applications, registrations and notices) to obtain the
release of the Company in which it owned Shares and its Subsidiaries from any
Inter-Group Guarantees still existing at the Completion Date to which such
company is a party or otherwise subject as promptly as reasonably practicable
following Completion and in any event no later than thirty (30) days after the
Completion Date, and, pending such release, to indemnify and keep indemnified,
without regard to the limitations of clause 9, the Purchaser and the relevant
Group Company or other member of the Purchaser’s Group against all amounts paid
by it to any third party pursuant to any such Inter-Group Guarantee in respect
of any liability of any member of the Retained Group pursuant to such
Inter-Group Guarantee (including all Damages suffered in connection with such
liability) whether arising before or after Completion; and


 


(b)       to procure the repayment in the ordinary and usual course of business in
accordance with past custom and practice, but in any event no later than ninety
(90) days after the Completion Date, of all Intercompany Trading Amounts owed
to the Group Companies as at Completion subject to any rights with respect to
breach or non-performance under any of the contracts underlying the Intercompany
Trading Amounts.


 


6.2       Following Completion, the Purchaser undertakes to each
of the Vendors:


 


(a)        to use all reasonable
endeavours and to take all reasonable steps (including without limitation the
making of such filings, applications, registrations and notices) to obtain the
release of each member of the Retained Group from any Inter-Group Guarantees
still existing at the Completion Date to which such company is a party or
otherwise subject as promptly as reasonably practicable following Completion
and in any event no later than thirty (30) days after the Completion Date and,
pending such release, to indemnify and keep indemnified, without regard to the
limitations referred to in clause 10.3, the


 


16

















 


relevant member of the Retained Group against all
amounts paid by it to any third party pursuant to any Inter-Group Guarantees in
respect of any liability
of any Group Company pursuant to such Inter-Group Guarantee (including all
Damages suffered in connection with such liability) whether arising before or
after Completion; and


 


(b)       to procure the repayment in the ordinary
and usual course of business in accordance with past custom and practice, but
in any event no later than ninety (90) days after the Completion Date, of all
Intercompany Trading Amounts owed to the Retained Group as at Completion
subject to any rights with respect to breach or non-performance under any of
the contracts underlying the Intercompany Trading Amounts.


 


Hiring employees


 


6.3       The Vendors agree with the Purchaser that they
shall not, and that they shall procure that no other member of the Retained
Group shall, within a period of two (2) years after the Completion Date,
(whether alone or jointly with another and whether directly or indirectly)
employ, without the prior written permission of the Purchaser, any Key Employee
of any of the Group Companies at the date of this Agreement, provided that such
restriction shall not apply if such Key Employee’s employment with the relevant
company is terminated by any of the Group Companies at any time during such two
(2) year period.


 


6.4       The Purchaser agrees with the Vendors that it
shall not, and shall procure that the members of the Purchaser’s Group shall
not, within a period of two (2) years after the Completion Date, (whether alone
or jointly with another and whether directly or indirectly) employ, without the
prior written permission of the Vendors, any Key Employee any member of the
Retained Group at the date of this Agreement, provided that such restriction
shall not apply if such Key Employee’s employment with the relevant company is
terminated by such company at any time during such two (2) year period.


 


Non-Competition


 


6.5       Subject to the provisions of clause 6.7, the
Vendors shall not, and shall procure that no other member of the Retained Group
shall, for a period of two (2) years from the Completion Date, engage in the
development, design and/or manufacture of a new, stand-alone, enterprise
resource planning (ERP)  system designed specifically for the
discrete manufacturing industry.


 


6.6       Notwithstanding the provisions of clause 6.6,
neither the Vendors nor any other member of the Retained Group shall be
restricted from engaging in the design, manufacture, marketing and sale of
products, services and solutions relating to:


 


(a)        stand-alone ERP systems sold into the process and hybrid manufacturing
industries;


 


(b)       the interoperability of
disparate applications across the production enterprise (including without
limitation ERP components and systems, production


 


17

















 


systems, manufacturing systems, control systems,
manufacturing execution systems, batch systems, tracking systems, planning
systems, control systems, and accounting systems), it being understood that
this technology enables the creation and delivery of solutions that use events
and information from various disparate sources (users, production and
enterprise applications) in order to get the right information, in the right
context to the right people and systems, anywhere in the enterprise so they can
make timely decisions and take proper action;


 


(c)        enabling the so-called “Real Time Enterprise”, which is an enterprise
that exploits the immediate exchange of business process based information
across geographical, technical and organizational boundaries to achieve
business benefit, strives to get the right information, at the right time, in
the right context, to the right system or person and enables “The Resource
Revolution” in an enterprise by optimising the use of natural and human
capital, resources, capital assets and time; and


 


(d)       vertical industry solutions, including without limitation, combinations
of software, hardware, systems, solutions and services aimed at achieving
desirable business goals in industry specific production environments, and
which may include a wide variety
of components, including without limitation, ERP components and systems,
production systems, manufacturing systems, control systems, manufacturing
execution systems, batch systems, tracking systems, planning systems, control
systems and accounting systems.


 


6.7       In consideration for the Vendors agreeing to
the restrictions on the future business of the Vendors and the other members of
the Retained Group (as set out in clauses 6.5 and 6.6), the Purchaser agrees to
pay to Invensys an amount of $1,000,000 (the Non-Compete Consideration).


 


Confidentiality


 


6.8       Subject to clause 6.10, after Completion the
Vendors undertake that for a period of five (5) years beginning from the
Completion Date, except so far as may be required by law or a binding order of
a Governmental Entity and, in such circumstances, only after prior consultation
with the Purchaser, that it shall not, and that it shall procure that no other
member of the Retained Group shall at any time disclose to any other person
outside the Retained Group any Confidential Information relating to the
Business.


 


6.9       Subject to clauses 6.10 and 21, each Party
shall treat and shall cause, in the case of the Purchaser, the other members of
the Purchaser’s Group, and in the case of the Vendors, the other members of the
Retained Group, to treat, as strictly confidential all non-public information
whether in writing, oral or otherwise received or obtained as a result of
entering into or performing this Agreement which relates to:


 


(a)        the provisions of this Agreement; or


 


(b)       the negotiations relating
to this Agreement; or


 


18

















 


(c)        the other Parties.


 


6.10     Any Party may disclose
information which would otherwise be confidential if and to the extent:


 


(a)        such information has
already come within the public domain (otherwise than by reason of a breach of
clause 6.8); or


 


(b)       such disclosure or use is required by law or by any judicial,
governmental, administrative or regulatory body or process or proceeding; or


 


(c)        such disclosure or use is
required by the regulations or rules of any recognised investment exchange to
be included in any filing or notification any member of the Purchaser’s Group
or the Retained Group, as the case may be, may make from time to time; or


 


(d)       each party to the
Agreement authorises every other party (and each employee, representative or
other agent of every other party and each member of the Purchaser’s Group or
the Retained Group, as the case may be, and person acting on behalf of any such
party) to disclose to any and all persons, without limitation of any kind, the
United States federal income tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to such party or
such person related to such tax treatment and tax structure, except to the
extent necessary to comply with any applicable federal or state securities
laws.  Any such disclosure may not be
made, however, until the earlier of (i) the public announcement of discussions
related to the transactions, (ii) the public announcement of the transactions
or (iii) the execution of this Agreement. 
This authorisation is not intended to permit disclosure of any other
information including (without limitation) (i) any portion of any materials to
the extent not related to the United States federal income tax treatment or tax
structure of the transactions, (ii) the identities of participants or potential
participants in the transactions, (iii) the existence of status of any
negotiations, (iv) any pricing or financial information (except to the extent
such pricing or financial information is related to the United States federal
income tax treatment or tax structure of the transactions), or (v) any other
term or detail not relevant to the United States federal income tax treatment
or the tax structure of the transactions.


 


Record Retention & Access


 


6.11     Subject to any applicable statutory
requirements regarding record retention, for a period of five (5) years
following the Completion Date, neither party shall dispose of or destroy, and
shall procure that their respective Group’s shall not dispose of nor destroy,
any of the books, accounts, customer lists and all other records held by any
member of its Group after Completion to the extent that such books, accounts,
customer lists and records relate to the Business and relate to the period up
to Completion (the Records),  or any copies of the Records without first
giving the other at least ninety (90) days prior written notice of its
intention to do so and giving the other the opportunity to remove and retain
any of them (at that other party’s expense).


 


19

















 


6.12     Without prejudice to clause
6.8, for a period of five (5) years following the Completion Date the Purchaser
shall, and shall procure that all members of the Purchaser’s Group shall, and
the Vendors shall, and shall procure that all members of the Retained Group
shall, each provide the other (subject to customary confidentiality
undertakings being entered into by such persons) upon reasonable request and
upon providing reasonable justification that the same is required access
(including the right to take copies at the cost of the party making the
request) at a time acceptable to the holder, to the Records held by any member
of the Purchaser’s Group or the Retained Group respectively after Completion,
or to any employee, director or officer of a member of the Purchaser’s Group or
the Retained Group, as the case may be, except to the extent such access is
restricted by law or the terms of any agreement, as may be reasonably required
in connection with any insurance claims by, legal proceedings (including
relating to Tax) or employees’ claims against or governmental investigations of
any member of the Purchaser’s Group or the Retained Group. The Purchaser shall
reimburse as promptly as is reasonably practicable the Vendors or the relevant
member of the Retained Group, and the Vendor shall reimburse as promptly as is
reasonably practicable the Purchaser or the relevant member of the Purchaser’s
Group, for the reasonable out-of-pocket costs and expenses incurred by the
relevant party in complying with requests made by or on behalf of the Purchaser
or the any of the Vendors, as the case may be, in connection with this clause
6.12.


 


Sale of
the Business by the Purchaser


 


6.13     The Purchaser agrees that it
shall procure that no Sale shall be announced or completed for a period of six
(6) months from the date of this Agreement. 
For the purposes of this clause, the term Sale  means
any transaction which results in the realisation by the Purchaser or any member
of the Purchaser’s Group of cash (or equivalents, which for these purposes
shall include any investment which is listed or quoted on any recognised investment exchange) and following which
the Business is no longer controlled by the Purchaser or other member of the
Purchaser’s Group. For the purposes of this clause 6.13, the Business will be
controlled by the Purchaser or other member of the Purchaser’s Group if the
Purchaser or other member of the Purchaser’s Group is/are:


 


(a)        directly or indirectly the
legal and beneficial owner of more than 50 per cent.  (50%) of the Business; and


 


(b)       either:


 


(i)      is
directly or indirectly the legal and beneficial owner of more than 50 per cent.
(50%) of the voting shares of the legal entities through which the Business is
conducted; or


 


(ii)     is/are
able to appoint or remove a majority of the board of directors of the legal
entities through which the Business is conducted.


 


20

















 


6.14    Tax provisions


 


To the extent that the provision or reserve for tax liabilities included
in the Closing Management Accounts (as agreed or otherwise determined in
accordance with Schedule 7) exceeds the provision or reserve for tax
liabilities included in the Accounts, parties agree that within three (3)
Business Days of the date on which the Closing Management Accounts are so
agreed or otherwise determined, Invensys (on behalf of the Vendors) shall pay
an amount equal to such excess into a bank account to be jointly designated by
the Purchaser and Invensys. The amount of such excess shall be held in such
bank account in accordance with the provisions of an escrow agreement, the
terms of which escrow agreement are to be negotiated in good faith and agreed
between the parties prior to Completion.


 


7.         POST-COMPLETION PAYMENTS


 


7.1       In order to determine the Final Consideration,
the Initial Consideration shall be adjusted in respect of:


 


(a)        the amount of the Trade Working Capital
Adjustment; and


 


(b)       the amount of the External Net Debt
Adjustment; and


 


(c)        the amount of the Inter-Group Payables and
Receivables Adjustment,


 


in each case, in accordance with the relevant provisions of this clause
7.


 


Closing Management Accounts and the
Adjustment Statement


 


7.2          In accordance with Schedule 7 the Purchaser shall
prepare and deliver to the Vendors, within forty-five (45) days after
Completion, the Closing Management Accounts and the Adjustment Statement, which
shall be prepared in accordance with the Accounting Principles. The Adjustment
Statement shall be prepared and agreed (or otherwise determined) in accordance
with Schedule 7.


 


Trade Working Capital Adjustment


 


7.3       The Trade Working Capital Adjustment, if any,
shall:


 


(a)        be paid by the Purchaser to the Vendors if the
Trade Working Capital Adjustment
is a positive amount; or


 


(b)       be paid by the Vendors to the Purchaser if the
Trade Working Capital Adjustment is a negative amount,


 


within
three (3) Business Days of the date on which the Adjustment Statement is agreed
or otherwise determined in accordance with the provisions of Schedule 7. Such
payment shall be made in accordance with clause 7.10 or clause 7.11, as the
case may be. Any payment under paragraphs (a) or (b) above shall be made by way
of adjustment to the Initial Consideration paid for the Shares on the following
basis: the price paid for the Shares of all Companies shall be deemed to have
been adjusted pro rata.


 


21

















 


External
Net Debt Adjustment


 


7.4       The External Net Debt Adjustment shall:


 


(a)        be paid by the Purchaser to the Vendors if the
aggregate External Net Debt Adjustment is a positive amount; or


 


(b)       be paid by the Vendors to the Purchaser if the aggregate External
Net Debt Adjustment is a negative amount;


 


within three
Business Days of the date on which the Adjustment Statement is agreed or
otherwise determined in accordance with the provisions of Schedule 7.  Such payment shall be made in accordance
with clause 7.10 or clause 7.11, as the case may be. Any payments under
paragraphs (a) and (b) above shall be made by way of adjustment to that part of
the Initial Consideration paid for the Shares in each relevant Company on the
following basis: such amount shall be increased to the extent that the External
Net Debt Adjustment attributable to that Company and/or its Subsidiaries is
positive and reduced to the extent it is negative.


 


Inter-Group
Payables and Receivables Adjustment


 


7.5       Within three (3) Business
Days of the date on which the Adjustment Statement is agreed or determined in
accordance with the provisions of Schedule 7 the Vendors, if and to the extent
that:


 


(a)        the
aggregate of the Inter-Group Receivables in respect of all of the Group
Companies is greater than the aggregate of the Estimated Inter-Group
Receivables in respect of all of the Group Companies; and/or


 


(b)       the
aggregate of the Inter-Group Payables in respect of all of the Group Companies
is less than the aggregate of the Estimated Inter-Group Payables in respect of
all of the Group Companies,


 


shall (for
themselves and on behalf of the relevant member of the Retained Group) pay or,
as the case may be, repay (or procure that the relevant member of the Retained
Group pays or, as the case may be, repays) an amount equal to the aggregate of
such differences to the Purchaser (on behalf of the relevant Group Companies)
by way of discharge of the excess of the aggregate of the Inter-Group
Receivables over the aggregate of the Estimated Inter-Group Receivables or
refund of the overpayment equal to the amount by which the aggregate of the
Estimated Inter-Group Payables exceeds the aggregate of the Inter-Group
Payables, in all cases in respect of all of the Group Companies, in accordance
with the provisions of clause 7.11.


 


7.6       Payment by the Vendor of the amounts referred to in clause 7.5,
shall be made against payment by the Purchaser to the Vendors by way of
adjustment to the consideration in respect of the relevant Shares, in
accordance with the provisions of clause 7.10 of an amount equal thereto.


 


22

















 


7.7       Within three (3) Business Days of the date on
which the Adjustment Statement is agreed or determined in accordance with the
provisions of Schedule 7, the Purchaser, if and to the extent that:


 


(a)        the aggregate of the Inter-Group Receivables in respect of all of the
Group Companies is less than the aggregate of the Estimated Inter-Group Receivables in respect of all of
the Group Companies; and/or


 


(b)       the aggregate of the
Inter-Group Payables in respect of all of the Group Companies is greater than
the aggregate of the Estimated Inter-Group Payables in respect of all of the
Group Companies,


 


shall (for itself and on behalf of the relevant Group Company) pay or,
as the case may be, repay (or procure that the relevant Group Company pays or,
as the case may be, repays) an amount equal to the aggregate of such
differences to the Vendors (for themselves and as agents for and on behalf of
the relevant members of the Retail Group) by way of refund of the overpayment
equal to the amount by which the aggregate of the Inter-Group Receivables is
less than the Estimated Inter-Group Receivables or by way of discharge of the
excess of the aggregate of the Inter-Group Payables over the aggregate of the
Estimated Inter-Group Payables, in all cases in respect of all of the Group
Companies, in accordance with the provisions of clause 7.10.


 


7.8       Payment by the Purchaser of the amounts
referred to in clause 7.7, shall be made against payment by the Vendors to the
Purchaser by way of adjustment to the consideration in respect of the relevant
Shares, in accordance with the provisions of clause 7.11, of an amount equal
thereto.


 


7.9       Any payment due from the Vendors to the
Purchaser under clauses 7.5 and 7.7 in respect of a particular Group Company
shall be set-off against any payments due from the Purchaser to the Vendors in
respect of the same Group Company under such clauses.


 


General


 


7.10     Unless otherwise provided for in this
Agreement, any payment pursuant to this Agreement to be made or to be procured
to be made by the Purchaser shall be made (or the Purchaser shall procure that
it is made) to the Invensys Bank Account (and Invensys agrees to pay to the
relevant member of the Retained Group such part of such payment to which the
relevant member of the Retained Group is entitled hereunder) in immediately
available funds by electronic transfer in US$ on the due date for payment, or
such other account as Invensys or the Vendors shall nominate in writing, and
receipt of such sums in the relevant bank account shall be an effective
discharge of the Purchaser’s obligation to pay or procure payment of such sums
to Invensys or the Vendors, as the case may be, and the Purchaser shall not be
concerned to see the application or be answerable for loss or misapplication of
such amount.


 


7.11     Unless otherwise provided for in this
Agreement, any payment pursuant to this Agreement to be made or to be procured
to be made by the Vendors or by Invensys (on behalf of itself or the Vendors)
shall be made (or the Vendors or Invensys shall


 


23

















 


procure that it is made)
to the Purchaser’s Bank Account (and the Purchaser agrees to pay to each Group
Company such part of such payment to which such Group Company is entitled
hereunder) in immediately available funds by electronic transfer in US$ on the
due date for payment, or such other account as the Purchaser shall nominate in
writing, and receipt of such sums in the relevant bank account shall be an
effective discharge of the Vendors’ or Invensys’s obligation to pay or procure
payment of such sums to the Purchaser or any Group Company, as the case may be,
and the Vendors or Invensys shall not be concerned to see the application or be
answerable for loss or misapplication of such amount.


 


7.12     Without prejudice to clause
7.13 below, any payment under this clause 7 shall be paid together with an
amount equal to interest on such
payment at the Interest Rate for the period from but excluding the Completion
Date to and including the date of payment calculated on a day to day basis.


 


7.13     If any sum due for payment
under or in accordance with this clause 7 is not paid on the due date (the Due Date), the
party in default shall pay Default Interest on that sum (the Due Sum)  from but excluding the
Due Date to and including the date of actual payment calculated on a day to day basis.


 


8.         WARRANTIES


 


8.1       Each of the Vendors,
severally and not jointly, represents and warrants with respect to itself and
such Company and its Subsidiaries (and
the business, assets, employees, liabilities, properties and other matters
relating to that Company and its Subsidiaries) in which such Vendor owns
Shares, to the Purchaser that as of the date of this Agreement and the
Completion Date the statements contained in Schedule 4 (the Vendor Warranties)  is true, accurate and
not misleading.


 


8.2       The Purchaser confirms to
the Vendors that, to the Purchaser’s knowledge, as at the date of this
Agreement it is not aware of any breach of a Vendor Warranty.


 


8.3       The Purchaser hereby acknowledges
that when entering into this Agreement it did not rely on any other warranty or
statement other than those contained in Schedule 4 or elsewhere in this
Agreement. To the extent specific arrangements to the contrary have been
provided herein, the Parties
hereby agree that they are not relying on and shall not have the right to
invoke any rights or warranties that are in any way contained in or implied by
Dutch law, including but not limited to Articles 7:17 and 7:20-23 of the DCC.


 


9.         BREACH OF VENDOR WARRANTIES AND LIMITATIONS ON CLAIMS


 


9.1       In the event of (i) breach
of any of the Vendor Warranties, (ii) non-fulfilment by any of the Vendors of
any other obligation under this Agreement or the Transaction Documents or (iii)
breach by, or liability of, any Vendor under the International Tax Covenant or
the US Tax Covenant (any of the foregoing hereinafter referred to as a Vendor Breach), the
relevant Vendor or Vendors shall, subject to the provisions of this clause 9,
indemnify and hold harmless, severally and not jointly, the Purchaser for any
Damages incurred by the Purchaser as a result of any such Vendor Breach. For
this purpose, Damages suffered at the level of a Group Company shall,


 


24

















 


subject to the provisions
of this clause 9, be deemed to be the amount of Damages incurred by the
Purchaser as a result of any Vendor Breach.


 


9.2       Subject to the provisions
of clauses 3.5 and 9.3, a claim for indemnification of the Purchaser as
provided for in clause 9.1, shall be the sole and exclusive remedy of the
Purchaser with respect to any Vendor Breach, notwithstanding any other remedy
available under Netherlands law or any other applicable law. In particular, the
Purchaser waives its rights, if any, to annul, rescind or dissolve (including: “ontbinding” en “vernietiging”)  this Agreement, the Transaction Documents or any agreements or
deeds entered into pursuant to this Agreement.


 


9.3       Notwithstanding the provisions of clause 9.2, the
Parties agree that with respect to the Vendors’ obligations to deliver, subject
to and in accordance with the terms of this Agreement, the Shares to the
Purchaser on the Completion Date and the Vendors’ respective obligations
pursuant to clauses 3.3, 3.4, 4, 5, 6, 7, 11, 20, 25 and 26, the Purchaser
shall be entitled, in lieu of or in addition to a claim for Damages, to the
remedy of specific performance for any threatened or actual breach of such
obligations.


 


9.4       No Vendor shall be liable for any
Relevant Claim unless it shall have received from the Purchaser written notice
containing reasonable details (to the extent then known) of the Relevant Claim
(including without limitation an indication as to whether any insurance cover
or third party recourse would be available with respect to such Relevant Claim
and the Purchaser’s estimate of the amount thereof (on a without prejudice
basis)):


 


(a)        in the case of a Relevant Claim other than a claim for breach of any of
the Title Warranties, the Tax Warranties, the Intellectual Property Warranties
or the Employee Benefit Warranties, on or before 17:30 (Amsterdam time) on the
date that is the eighteen (18) month anniversary of the Completion Date;


 


(b)       in the case of a Relevant Claim for a breach of the Intellectual
Property Warranties or the Employee Benefit Warranties, on or before the date
that is the two (2) year anniversary of the Completion Date;


 


(c)        in the case of a Relevant Claim for a breach of the Intellectual
Property Title Warranty, on or before the date that is the three (3) year
anniversary of the Completion Date; and


 


(d)       in the case of a Relevant Claim for breach of a Title Warranty, on or
before 17:30 (Amsterdam time) on the date that is the six (6) year anniversary
of the Completion Date.


 


9.5       No Vendor shall be liable for any claim with
respect to a breach of the Tax Warranties: (a) in relation to Baan Usa Inc.
and/or its Subsidiaries, unless it shall have received from the Purchaser
written notice in accordance with the relevant provisions of the US Tax
Covenant; (b) in relation to Baan UK Ltd and/or its Subsidiaries, unless it
shall have received from the Purchaser written notice in accordance with the
relevant provisions of the International Tax Covenant; and (c) in relation to
Invensys International B.V. and/or its Subsidiaries, unless it shall have
received from the


 


25

















 


Purchaser written notice
in accordance with the relevant provisions of the International Tax Covenant.


 


9.6       Any Relevant Claim shall
(if it has not been previously satisfied, settled or withdrawn) be deemed to
have been withdrawn unless legal proceedings in respect of it have been commenced by both being issued and served
within six (6) calendar months of notification to the relevant Vendor pursuant to clause 9.4, provided that to the
extent a Relevant Claim arises by reason of a liability which at the time that
the Relevant Claim is notified to the Vendors is contingent only, such Relevant
Claim shall not be deemed to be withdrawn unless such proceedings have not been
so commenced within six (6) calendar months of the date on which such liability
ceases to be contingent.


 


9.7       If the Purchaser becomes
aware of any third party claim,
matter or event (a third
party claim)  which might reasonably be expected to lead to a Relevant Claim being made, the Purchaser shall procure
that notice thereof is given as soon as reasonably practicable to the
Vendors.  As regards any such third
party claim, the Purchaser shall not make any admission of liability, agreement
or compromise with any person, body or authority in relation thereto without
prior consultation with and the prior agreement of the Vendors (such consent
not to be unreasonably withheld or delayed) and shall take (or, as appropriate,
co-operate to procure that the relevant member of the Purchaser’s Group shall
take) such action as the Vendors may reasonably request to avoid, dispute,
resist, appeal, compromise or defend the relevant third party claim or any
adjudication in respect thereof, but subject to the Purchaser being fully
indemnified and secured to its reasonable satisfaction by the Vendors against
all reasonable out-of-pocket costs and expenses incurred by the Purchaser or
any members of the Purchaser’s Group consequently arising.  The action which the Vendors may reasonably
request under this clause 9.7  shall
include (without limitation):


 


(a)        the
Purchaser allowing, or, as appropriate, co-operating to procure that the
relevant member of the Purchaser’s Group allows, the relevant Vendor to take on
or take over (on the costs and expenses basis referred to in the preceding
sentence) the conduct of all proceedings
and/or negotiations of whatsoever nature arising in connection with the third
party claim in question; or, (at the relevant Vendor’s discretion).


 


(b)       the
Purchaser assigning or procuring the assignment to the relevant Vendor (or as
the relevant Vendor may direct) of any rights of action which the Purchaser or any member of the Purchaser’s Group may
have against any third party in respect of the third party claim in question.


 


If the relevant Vendor
takes on or takes over the conduct of proceedings and/or negotiations:


 


(i)      the
Purchaser shall, on the basis that the relevant Vendor shall fully indemnify
the Purchaser and the relevant member of the Purchaser’s Group against all
reasonable out-of-pocket costs and expenses consequently arising (excluding for
the sake of clarity any internal management time costs), provide (or, as
appropriate, co-operate to


 


26

















 


procure that such member of the Purchaser’s Group
provides) such information and assistance as the relevant Vendor may reasonably
require in connection with the preparation for and conduct of such proceedings
and/or negotiations;


 


(ii)     the Vendors shall, subject to any legal privilege or customary
confidentiality considerations, update the Purchaser with reasonable frequency
with regard to the conduct of proceedings and/or negotiations;


 


(iii)    where, in relation to a Relevant Claim to which this clause applies, a
Vendor is able to secure a potential settlement for the relevant Group Company
with a relevant third party at an amount which is less than the amount of the
loss in such Group Company in respect of which the Relevant Claim is made it shall
notify the Purchaser which shall then either (i) agree to that settlement (in
which event, effective upon payment in full by or on behalf of the Vendors to
the Purchaser of the relevant settlement amount and the settlement becoming
effective, the Vendors shall be released from all liability in respect of any
Relevant Claim, potential Relevant Claim to which the third party claim
relates) or (ii) elect to take over negotiations with the relevant third party
in which case the Purchaser shall release (and provide written confirmation of
such release to) the Vendors from all liability in respect of any Relevant
Claim or potential Relevant Claim to which the third party claim relates in
excess of the amount of such potential settlement as stated in such notice. If
the Purchaser has not notified the Vendors of its decision within twenty (20)
Business Days of being notified of the proposed settlement, it shall be deemed
to have elected to agree to the proposed settlement.


 


Except with the prior consent of the Purchaser (such consent not to be
unreasonably withheld) the relevant Vendor shall not where it has assumed
control of negotiations or proceedings in respect of third party claims under
the provisions of this clause 9.7, settle or compromise any such claim on a
basis which results in a net increase in any member of the Purchaser’s Groups’
tax or other liabilities elsewhere unless the relevant Vendor fully indemnifies
such entity in respect of such net increase. Upon the relevant Vendor agreeing
any settlement with a third party in relation to any third party claim as
referred to above, the relevant Vendor shall (to the extent that it is liable
under the provisions of this Agreement in respect of the payment of any part of
the settlement amount) promptly put the Purchaser in funds in respect of that
part at the same time as the Purchaser or, as the case may be, the member of
the Purchaser’s Group is required to make due payment of the settlement amount
to the third party.


 


9.8       Notwithstanding any other provision of clause
9.7, the Purchaser shall not be required to take, permit or omit, or procure
the taking, permitting or omission of, any step or action in relation to any
third party claim nor shall the Purchaser be prevented from making any
admission of liability, agreement or compromise with any person, body or
authority if and for so long as the taking, permitting or omission of steps or
admission would be likely to have a material and adverse effect on any trading


 


27

















 


relationship or
the goodwill of any Group Company or the Business as a whole, provided that:


 


(a)        in
such event the Purchaser shall keep the Vendors reasonably informed with regard
to the conduct or negotiations with respect to the third party claim in question;


 


(b)       the
Purchaser shall not, and shall procure that the members of the Purchaser’s
Group shall not, announce or otherwise disclose the terms of any settlement or
compromise with respect to any such third party claim in a manner reasonably expected
to damage the reputation of any member of the Retained Group; and


 


(c)        the
amount of Damages payable by the Vendors with respect to the Vendor Breach to
which such third party claim relates, shall not exceed the amount of Damages that would have been payable by such
Vendors if the Purchaser had not exercised its rights under the previous
provisions of this clause 9.8.


 


9.9       For the avoidance of doubt,
the provisions of clause 9.7 shall not in any way restrict or limit the general
obligation at law of the Purchaser and each of the members of the Purchaser’s
Group to mitigate any loss or damage which it may suffer in consequence of any
breach by the Vendors of the terms of this Agreement or any matter giving rise
to a claim against the Vendors.


 


9.10     No Vendor shall have any
liability in respect of any Vendor Breach unless the liability of the Vendors
in respect of such claim for a Vendor Breach exceeds US$50,000, in which case
the Vendor shall be liable (subject always to the other provisions of this clause
9) for the full amount of such claim and not only the excess.  For the avoidance of doubt, amounts for
which the Vendors have no liability, or by which the Vendors’ liability is
reduced, as a consequence of the operation of this clause 9.10 shall not be
capable of constituting a claim for a Vendor Breach or increasing the amount
thereof for the purpose of this clause 9.10.


 


9.11     Other than with respect to
any Damages resulting from or relating to any breach by the Vendors of the
Title Warranties, the Tax Warranties, the Tax Covenants and the provisions of
clauses 6.5 and 6.6, no liability shall attach to the Vendors in respect of any
Vendor Breach unless the aggregate amount of the liability of the Vendors to
the Purchaser in respect of all claims for Vendor Breaches shall exceed US$1
million in which case the Vendors shall only be liable (subject always to the
other provisions of this clause 9) for the excess above such amount.


 


9.12     The total aggregate liability
of the Vendors in respect of all Vendor Breaches shall not exceed an amount
equal to fifteen per cent. (15%) of the Debt/Cash Free Price, other than with
respect to Vendor Breaches relating to the Title Warranties, Intellectual
Property Title Warranty, the Tax Warranties, the Tax Covenants and the
provisions of clauses 6.5 and 6.6, in respect of which the total aggregate
liability of the Vendors in respect of such Vendor Breaches (together with all
other Vendor Breaches) shall not exceed the amount of the Debt and Cash Free
Price.


 


9.13     No Vendors shall be liable
for any Vendor Breach in respect of any matter to the extent that:


 


28

















 


(a)        the information underlying the Vendor Breach is or was fairly disclosed
to the Purchaser and/or its representatives or advisors in (i) this Agreement;
(ii) the Disclosure Letter; (iii) the Data Room prepared by the Vendors
containing information concerning the Shares and the Business, which Data Room
the Purchaser was allowed to access for the purposes of a due diligence review;
(iv) the written answers provided to the questions submitted by the Purchaser
during such due diligence process; (v) the written documents provided to the
Purchaser and/or its advisors during management presentations and the
interviews with the Group Companies and their advisors, the information
referred to in (iii), (iv) and (v) above being the information listed in the
index contained in Schedule 20, provided that for the purposes hereof the
information underlying the Vendor Breach concerned shall only be considered to have been fairly
disclosed if and to the extent that such information was reasonably evident
from the contents of the document disclosed and shall, for the sake of clarity,
not be considered to have been fairly disclosed if contained in a document
referenced in a document that was disclosed to the Purchaser or its advisors,
but not actually itself disclosed to the Purchaser or its advisors; or


 


(b)       specific
provision or reserve has been made for such matter in the Accounts.


 


9.14     In the calculation of any Damages in respect
of a Vendor Breach, the amount of such Damages shall be reduced by:


 


(a)        the net amount of Tax saving to the Purchaser or the relevant Group
Company in connection with the circumstances that gave rise to the Vendor
Breach;


 


(b)       the net amount recovered
under any insurance policy held by the Purchaser or any member of the
Purchaser’s Group (including the Group Companies); and


 


(c)        the amount of any net
amount which the Purchaser or any member of the Purchaser’s Group (including
the Group Companies) actually recovers from a third party under a claim in
connection with said circumstances.


 


9.15     If any Tax Authority brings into charge, or
imposes any Tax on, or requires a withholding or deduction from a payment made,
to be made, procured to have been made or to be procured to be made by the
Vendors pursuant to a Vendor Breach, then the Vendors shall pay such additional
amount as soon as reasonably possible so as to ensure that the total amount
paid, less the Tax charged, or imposed on, or withheld or deducted from, such
amount, is equal to the amount that would otherwise be received by the
Purchaser as Damages pursuant to such Vendor Breach. The obligations of the
Vendors under this clause 9.15 shall not apply in circumstances where the
obligation to withhold or deduct Tax has arisen due to the fact that the
Purchaser has nominated a Nominated Purchaser resident in a country other than
the United States of America, the Netherlands or the United Kingdom.


 


9.16     If a Vendor pays to the Purchaser an amount
in discharge of a Relevant Claim and the Purchaser or any member of the
Purchaser’s Group subsequently recovers (whether by payment, discount, credit,
relief or otherwise) from a third party (including any taxation authority) a
sum which is referable to that Relevant Claim, the


 


29

















 


Purchaser shall (or, as appropriate, shall procure that such member of
the Purchaser’s Group shall) forthwith repay to such Vendor:


 


(a)        an amount equal to the sum
recovered from the third party less any reasonable out-of-pocket costs and
expenses incurred by the Purchaser or the member of the Purchaser’s Group in
recovering the same; or


 


(b)       if the figure resulting
under paragraph (a) is greater than the amount paid by the Vendor to the
Purchaser or the member of the Purchaser’s Group in respect of the such
Relevant Claim, such lesser amount as shall have been so paid by the Vendor;


 


so as to leave the Purchaser (taking into account the amounts received
from the third party and from the Vendor and those payable to the Vendor under
this clause) in no better or worse position than it would have been in (subject
always to the other provisions of this clause 9) had the Relevant Claim not
arisen in the first place.


 


9.17     If any Relevant Claim shall arise by reason of
some liability which at the time that the Relevant Claim is notified to the Vendors is contingent only, the Vendors shall not be
under any obligation to make any payment to the Purchaser thereunder until such
time as such contingent liability ceases to be so contingent.


 


9.18     Upon any Relevant Claim being made, the
Purchaser shall, and shall co-operate to procure that each member of the
Purchaser’s Group shall, make available to accountants and others appointed by
the relevant Vendor such relevant records and information as the Vendor reasonably requests in
connection with such Relevant Claim and the Purchaser shall, and shall procure
that each member of the Purchaser’s Group shall, use best endeavours to procure
that the auditors (both past and then current) of the Purchaser’s Group make
available to the relevant Vendor and to accountants and others appointed by the
Vendor their audit working papers in respect of audit of any member of the Purchaser’s
Group accounts for any relevant accounting period in connection with the
Relevant Claim.


 


9.19     The Vendors shall not be liable in respect of
any Relevant Claim to the extent that such Relevant Claim is attributable to,
or such Relevant Claim otherwise
having arisen, is increased as a result of, any legislation not in force at the
date hereof, any change of law or administrative practice which takes effect
retroactively.


 


9.20     The Purchaser hereby agrees for itself and on
behalf of each member of the Purchaser’s Group with the Vendors that in respect
of any claim for a Vendor Breach
where the Vendors may be liable to the Purchaser under the Vendor Warranties
and which may also give rise to a liability under the International Tax
Covenant or the US Tax Covenant, the Vendors shall not be obliged to meet any
such liability more than once and any recovery by the Purchaser in respect of
any such Vendor Breach under the Vendor Warranties shall be deemed to be a
recovery by all the relevant parties under the International Tax Covenant and
the US Tax Covenant (as appropriate) and any recovery by any party under either
the International Tax Covenant or the US Tax Covenant shall be deemed to be a
recovery by the Purchaser under this Agreement for breach of the Vendor
Warranties (as the case may be) and a recovery by the Purchaser


 


30

















 


or any member of the
Purchaser’s Group shall be deemed to be a recovery by each of them.


 


9.21     The Purchaser shall, and
shall cause each Group Company to, take all reasonable steps (including
refraining from taking certain actions that would cause Damages to be incurred
or increased) to mitigate any and all Damages incurred by any of the Purchaser
or any of the Group Companies for which the Vendors (or any of them) could
reasonably be expected to be obligated to indemnify such parties under the
provisions of this clause 9.


 


9.22     The total aggregate liability
of the Purchaser in respect of any breaches of its obligations hereunder, other
than with respect to breaches relating to the Tax Covenants, shall not exceed
an amount equal to $60,000,000.


 


10.       PURCHASER WARRANTIES


 


10.1     The Purchaser represents and
warrants to the Vendors that as of the date of this Agreement and the
Completion Date, the statements contained in the Purchaser Warranties are true,
accurate and not misleading.


 


10.2     The Vendors hereby
acknowledge that when entering into this Agreement they did not rely on any
warranty or statement other than the Purchaser Warranties.


 


10.3     In the event of a breach of
the Purchaser Warranties, the limitations on claim referred to in clause 9
shall, to the extent relevant, apply mutatis
mutandis to any claim by the Vendors with respect to such breach.


 


11.       RETAINED AND TRANSFERRED LAWSUITS


 


11.1    Retained Lawsuits


 


(a)        For the purposes of this
clause 11.1, the term Retained
Lawsuits shall refer to the following lawsuits:


 


(i)      the
lawsuit filed against Baan Company N.V. pursuant to which three former
shareholders of CAPS Logistics Inc. allege that they were fraudulently misled
in the sale of their shares to Baan as part of Baan’s acquisition of CAPS
Logistics Inc., and are seeking to rescind the transaction and to secure
damages;


 


(ii)     the
lawsuit filed against Baan Company N.V. in December 2000 in the Netherlands on
behalf of approximately 350 Baan shareholders claiming damages and alleging
that Baan “falsely and deceptively recognized tens of millions of dollars of
revenues based upon the shipment of merchandise to affiliates on an undisclosed
consignment basis.”;


 


(iii)    the lawsuit involving a claim from the Lloyd’s
Underwriters filed in July 2001 in California Superior Court against Invensys,
regarding its application for a directors’ and officers’ policy covering the
period


 


31

















 


 


November
1997 to November 1998 and the counterclaim filed by Invensys in relation
thereto;


 


(iv)    the
Class action filed in October 1998 in the U.S. Federal District Court,
Washington, DC, alleging that Baan “falsely and deceptively recognized tens of
millions of dollars of revenues based upon the shipment of merchandise to
affiliates on an undisclosed consignment basis.” (the defendant is Baan Company
N.V.);


 


(v)     the
complaint for damages and injunctive relief filed in Georgia Superior Court
against Donald Ratliff and William Nulty, both former shareholders and
employees of CAPS Logistics Inc., and their current company Velant Corporation
for theft of CAPS Logistics Inc’s trade secrets, tortious interference with
employment and business relations, breach of duty of loyalty and confidential
relationship, and breach of employment agreement; and


 


(vi)    the
arbitration proceedings filed in January 2000 against Vanenburg Business
Associates (a Dutch company formerly known as Baan Business Associates) by
Danzas Management Ltd and in respect of which Baan Company N.V. has granted
Vanenburg Business Associates an indemnity for all expenses and liabilities
arising out of the performance problems in relation to the agreement concluded
in June 1998 between Danzas and Vanenburg Business Associates for consulting
services, including development of LSP functionality, the retention of which
lawsuit shall cause the litigation provision in the balance sheet of the
relevant Group Company to be reduced by the amount allocated to this lawsuit,


 


and the term Retained Lawsuit shall refer to any one of
them.


 


(b)       With
respect to the Retained Lawsuits, the Vendors agree that they shall indemnify
and hold harmless the Purchaser on a dollar-for-dollar basis, without regard to
the limitations of clause 9, for and against all amounts paid by the Group
Companies after Completion for any and all Damages suffered in connection with
such Retained Lawsuit and any side litigation specifically related thereto.


 


(c)        Subject
to clause 11.1(d) hereof, the Vendors shall pay any amounts due under clause
1l.l(b) hereof within 30 days of the receipt by the Vendors of (i) a signed and
executed copy of a deed of settlement in respect of such Retained Lawsuit or
(ii) a copy of an enforceable judgement by the relevant court in respect of
such Retained Lawsuit; provided, that to the extent such judgment is reversed
or overturned on appeal, and no further appeal to any court will be possible
under the applicable laws, the indemnified party will return any amounts
advanced by the Vendors in respect thereof.


 


(d)       The
Purchaser agrees (on behalf of itself and each relevant Group Company) that the
full benefit of any amount recovered (whether by payment, discount, credit,
relief or otherwise) from a third party (including any taxation authority)


 


32

















 


which
is referable to a Retained Lawsuit, shall accrue for the benefit of the Vendors
or any other relevant member of the Retained Group.


 


(e)        With
respect to the Retained Lawsuits:


 


(i)      the
Purchaser shall not make and shall procure that no member of the Purchaser’s
Group makes any admission of liability, agreement or compromise with any
person, body or authority or exercises, agrees to mitigate or waives any right
in relation thereto;


 


(ii)     the
parties agree that the relevant Vendor or other relevant member of the Retained
Group shall have full control over the conduct of all proceedings and/or
negotiations of whatsoever nature arising in connection with the Retained
Lawsuits (including without limitation with respect to agreeing to any
settlement or compromise thereof) and accordingly the Vendors and the Purchaser
shall take (or, as appropriate, co-operate to procure that the relevant member
of the Retained Group or Purchaser’s Group, as the case may be, shall take) all
such action as may be necessary:


 


(A)          to
allow, or, as appropriate, co-operate to procure that the relevant member of
the Purchaser’s Group allows, the relevant Vendor or member of the Retained
Group to take on or take over (on the costs and expenses basis referred to in
clause 11.1(b)) the conduct of all proceedings and/or negotiations of
whatsoever nature arising in connection with the Retained Lawsuits; and


 


(B)           to
assign or procure the assignment to the relevant Vendor or member of the
Retained Group of any rights of action which the Purchaser or any member of the
Purchaser’s Group may have against any third party in respect of the Retained
Lawsuits;


 


(iii)    the Purchaser shall, on the basis that the relevant
Vendor or member of the Retained Group shall fully indemnify the Purchaser and
the relevant member of the Purchaser’s Group against all reasonable
out-of-pocket costs and expenses consequently arising, provide (or, as
appropriate, co-operate to procure that such member of the Purchaser’s Group
provides) such information and assistance as the relevant Vendor may reasonably
require (including without limitation access to any employee, director or
officer of a member of the Purchaser’s Group) in connection with the
preparation for and conduct of such proceedings.


 


11.2    Transferred
Lawsuits


 


(a)        For
the purposes of this clause 11.2, the term Transferred Lawsuits shall refer to:


 


33

















 


(i)      the claim instituted by Faber Enterprises against, among others, Baan
U.S.A., Inc., Baan Development B.V., Baan Company N.V. under which the
plaintiff alleges, among others, breach of warranties, intentional
misrepresentation and unfair competition in the failed implementation of Baan
5.b ERP and APS software; and


 


(ii)     the arbitration proceedings instituted by KCI Konecranes International
plc against Bean Company N.V. in which the plaintiff alleges, among others,
breach of warranties and fraud and misrepresentation in connection with
contracts for the supply and implementation of Baan 5 ERP software and the side
litigation with respect to attachments effected by KCI Konecranes International
plc as referred to in the Stibbe memorandum dated 21 May 2003 (included as
document 15.73 of the index contained in Schedule 20 hereto); and


 


(iii)    the suit by Baan Company N.V. against KCI Konecranes International plc
in US Federal Court in San Jose, California, to seek damages against KCI
Konecranes International plc for breach of the Source Code Agreement with Baan
Development B.V.


 


(b)       Subject to clause  11.2(c), with
respect to the Transferred Lawsuits, the Purchaser agrees that it shall
indemnify and hold harmless the Vendors on a dollar-for-dollar basis, without
regard to the limitations of clause 9, for and against all amounts paid by the
Retained Group after Completion for any and all Damages suffered in connection
with such Transferred Lawsuit and any side litigation specifically related
thereto.


 


(c)        Notwithstanding the provisions of clause 11.2(b), Parties agree that if
the Group Companies or any one of them, due to having taken transfer of the
Transferred Lawsuit referred to in 11.2(a)(ii), is or becomes liable to pay an
amount of Damages with respect to such Transferred Lawsuit and any side
litigation specifically related thereto in excess of $7,000,000 (such amount
hereinafter referred to as the KCI Reserve),  then the Vendors shall indemnify and hold
harmless the Purchaser, without regard to the limitations of clause 9, for
fifty per cent. (50%) of the amount of Damages for which the relevant Group
Company is liable in excess of the KCI Reserve, provided that:


 


(i)      the obligation of the Vendors to indemnify the Purchaser under this
clause 11.2(c) shall not apply with respect to any Damages that the Purchaser’s
Group is or becomes liable to pay with respect to such Transferred Lawsuit and
any side litigation specifically related thereto in excess of $13,500,000 (i.e.
maximum exposure for the Vendors will be equal to $3,250,000); and


 


(ii)     the amount of the KCI Reserve shall be deemed to have been increased by
any amounts recovered by the Purchaser’s Group under the Transferred Lawsuit
referred to in clause 11.2(a)(iii) and any side litigation specifically related
thereto. If any such recovery takes place after any amount has been paid to a
member of the Purchaser’s Group pursuant to the indemnity contained in the
first paragraph of this


 


34

















 


clause
11.2(c), then the Purchaser will reimburse the Vendors on the basis that such
recovered amount will be added to the KCI Reserve and the amounts payable by
the Vendors will be retroactively recalculated and reduced on that same basis.


 


For
the avoidance of doubt, any recoveries in relation to the Transferred Lawsuit
referred to in clause 11.2(a)(iii) shall be for the sole benefit of the
Purchaser’s Group.  Similarly if the
actual Damages in relation to the Transferred Lawsuit referred to in
clause  11.2(a)(ii) would be less than
$7,000,000, the difference between the KCI Reserve and the amount of such
actual damages will also be for the sole benefit of the Purchaser’s Group.


 


(d)       Subject
to clause 11.2(e) hereof, the Purchaser shall pay any amounts due under clause
11.2(b) hereof and the Vendors will pay amounts due under clause 11.2(c) hereof
into a bank account to be designated by the Vendors or the Purchaser, as the
case may be, within 30 days of the receipt by the Purchaser or the Vendors, as
the case may be, of (i) a signed and executed copy of a deed of settlement in
respect of such Transferred Lawsuits or (ii) a copy of an enforceable judgement
by the relevant court in respect of such Transferred Lawsuits, provided, that
to the extent such judgment is reversed or overturned on appeal and no further
appeal to any court will be possible under the applicable laws, the indemnified
party will return any amounts advanced by the indemnifying party in respect
thereof.


 


(e)        Subject
to clause 11.2(c)(ii), each Vendor agrees (on behalf of itself and each
relevant member of the Retained Group) that the full benefit of any amount
recovered (whether by payment, discount, credit, relief or otherwise) from a
third party (including any taxation authority) that is referable to a Transferred
Lawsuits, shall accrue for the benefit of the Purchaser or any relevant Group
Company.


 


(f)        With
respect to the Transferred Lawsuits:


 


(i)      the
Vendors shall not make and shall procure that no member of the Retained Group
makes any admission of liability, agreement or compromise with any person, body
or authority or exercises, agrees to mitigate or waives any right in relation
thereto;


 


(ii)     the
parties agree that the Purchaser or other relevant member of the Purchaser’s
Group shall have full control over the conduct of all proceedings and/or
negotiations of whatsoever nature arising in connection with the Transferred
Lawsuits (including without limitation with respect to agreeing to any
settlement or compromise thereof) and accordingly the Vendors and the Purchaser
shall take (or, as appropriate, co-operate to procure that the relevant member
of the Retained Group or Purchaser’s Group, as the case may be, shall take) all
such action as may be necessary:


 


(A)          to allow, or, as
appropriate, co-operate to procure that the relevant member of the Retained
Group allows, the Purchaser


 


35

















 


or
member of the Purchaser’s Group to take on or take over (on the costs and
expenses basis referred to in clause 11.2(b)) the conduct of all proceedings
and/or negotiations of whatsoever nature arising in connection with the
Transferred Lawsuits; and


 


(B)           to assign or procure
the assignment to the Purchaser or member of the Purchaser’s Group of any
rights of action which the Vendors (or any of them) or any member of the
Retained Group may have against any third party in respect of the Transferred
Lawsuits;


 


(iii)    the Vendors shall, on the basis that the Purchaser
or member of the Purchaser’s Group shall fully indemnify the Vendors and the
relevant member of the Retained Group against all reasonable out-of-pocket
costs and expenses consequently arising, provide (or, as appropriate,
co-operate to procure that such member of the Retained Group provides) such
information and assistance as the Purchaser may reasonably require (including
without limitation access to any employee, director or officer of an member of
the Retained Group) in connection with the preparation for and conduct of such
proceedings.


 


11.3    Other lawsuits


 


For the avoidance
of doubt, Parties agree that:


 


(a)        the
Vendors shall indemnify and hold harmless the Purchaser and each of the Group
Companies on a dollar-for-dollar basis, without regard to the limitations of
clause 9, for and against all amounts paid by the Group Companies after
Completion with respect to any lawsuit ongoing as at the date hereof or arising
after Completion, other than the Transferred Lawsuit, to which Baan Company
N.V. is a party and that relates to events or occurrences that took place prior
to or following Completion (including all Damages suffered in connection with
such lawsuits);


 


(b)       the
Purchaser shall indemnify and hold harmless the Vendors and each of the members
of the Retained Group on a dollar-for-dollar basis, without regard to the
limitations of clause 9, for and against all amounts paid by the Vendors or any
member of the Retained Group after Completion with respect to any lawsuit
ongoing as at the date hereof or arising after Completion, other than the
Retained Lawsuits, to which any Group Company is a party and that relates to
events or occurrences that took place prior to or following Completion  (including all Damages suffered in
connection with such lawsuits).


 


(c)        With
respect to the lawsuits referred to in clause 11.3(a) and (b):


 


(i)      but subject to clause
11.3(d) hereof, the indemnifying party shall pay any amounts due under clauses
11.3(a) and (b), respectively, within 30 days of the receipt by the
indemnifying party of (i) a signed and executed copy of a deed of settlement in
respect of such lawsuit or (ii)


 


36

















 


a copy of an enforceable judgement by the relevant
court in respect of such lawsuit, provided, that to the extent such judgment is
reversed or overturned on appeal, and no further appeal to any court will be
possible under the applicable laws, the indemnified party will return any
amounts advanced by the indemnifying party in respect thereof;


 


(ii)     the
indemnified party agrees (on behalf of itself and each relevant Group Company
or member of the Retained Group, as the case may be) that the full benefit of
any amount recovered (whether by payment, discount, credit, relief or
otherwise) from a third party (including any taxation authority) which is
referable to the lawsuit concerned, shall accrue for the benefit of the
indemnifying party or any other relevant member of the Retained Group or Group
Company, as the case may be;


 


(iii)    the
indemnified party shall not make and shall procure that no member of its group
(being the Retained Group or the Purchaser’s Group, as the case may be) makes
any admission of liability, agreement or compromise with any person, body or
authority or exercises, agrees to mitigate or waives any right in relation
thereto;


 


(iv)    the parties
agree that the indemnifying party or other relevant member of its group shall
have full control over the conduct of all proceedings and/or negotiations of
whatsoever nature arising in connection with the such lawsuits (including
without limitation with respect to agreeing to any settlement or compromise
thereof); and


 


(v)     the indemnified party shall, on the basis that
the indemnifying party or member of its group shall fully indemnify the
indemnified party and the relevant member of its group against all reasonable
out-of-pocket costs and expenses consequently arising, provide (or, as
appropriate, co-operate to procure that such member of the indemnified party’s
group provides) such information and assistance as the relevant indemnifying
party may reasonably require (including without limitation access to any
employee, director or officer of a member of the indemnified party’s Group) in
connection with the preparation for and conduct of such proceedings.


 


11.4    Barneveld Project


 


(a)        With respect to the letter of intent concluded between V.d. Top
Projectrealisatie B.V. and Baan International B.V. on 16 July 2002 (the LOI), 
Parties agree that to the extent that any Damages are suffered with
respect to the LOI (including without limitation the termination thereof) by
any member of the Purchaser’s Group or the Retained Group, the first $500,000
of such Damages shall be borne by the Purchaser’s Group. The Purchaser shall
indemnify and hold harmless the Vendors and the members of the Retained Group,
without regard to the limitations referred to in clause 10.3, for any amount of
Damages suffered with respect to the LOI where such Damages relates to such
initial $500,000 portion.


 


37

















 


(b)       Any
Damages suffered in excess of such amount of $500,000 shall be borne in equal
portions by the Purchaser or relevant member of the Purchaser’s Group, on the
one hand, and the Vendors or relevant member of the Retained Group, on the
other. The Vendors and the Purchaser shall indemnify and hold each other
harmless, without regard to the limitations of clause 9 or those referred to in
clause 10.3, as the case may be, so as to give effect to such 50/50 allocation
of the excess portion of the Damages.


 


12.       EMPLOYEES


 


12.1     For a period of at least six
(6) months immediately following the Completion Date, the Purchaser agrees to
provide, and shall cause the relevant members of the Purchaser’s Group to
provide, each US Employee that the Purchaser elects to retain during such
period with:


 


(a)        while
so employed, a base salary or wage rate with respect to such Employee being
employed by the relevant Group Company that is not less than his or her base
salary or wage rate in effect immediately prior to the Completion Date; and


 


(b)       while
so employed, cash incentive opportunities (including, but not limited to,
gainsharing, sales incentives and merit bonuses), employee benefits plans,
programs and arrangements (other than stock-based or similar equity incentive
plan) that are substantially similar in the aggregate to the cash incentive
opportunities, employee benefits plans, programs and arrangements in effect
immediately prior to the Completion Date.


 


12.2     To the extent that the
Purchaser or a member of the Purchaser’s Group terminates a US Employee during
the six (6) months immediately following the Completion Date, the Purchaser
agrees to provide, and shall cause the relevant member of the Purchaser’s Group
to provide, severance arrangements substantially similar in the aggregate to
the severance arrangements in effect immediately prior to the Completion Date.


 


12.3     The Purchaser agrees to take
such corporate action as may be necessary to cause the Group Companies to
honour, in all material respects the obligations of the Group Companies under
the provisions of any employment, retention, severance (whether pursuant to
individual contract, company policy or mandated by law), indemnification,
collective bargaining agreements and “social plans” between and among any of
the Group Companies and any Employee.


 


12.4     The Purchaser agrees that,
and shall cause the relevant members of the Purchaser’s Group to agree that,
with respect to all employee benefit plans, programs and arrangements of the
Purchaser’s Group covering or otherwise benefiting any of the Employees on or
after the Completion Date, service with the Vendors’ Group prior to the
Completion Date shall be counted for purposes of eligibility to participate,
vesting and, solely for purposes of vacation and severance, level of benefits
(but, in the case of a defined benefit pension plan maintained under the laws
of the US, not for purposes of benefit accrual) to the same extent such service
was counted under the corresponding employee benefit plans, programs, or
arrangements of the Vendors’


 


38

















 


Group prior to the
Completion Date and, in the case of Non-US Employees, further to the extent and
in the manner provided for under applicable law, except to the extent that such
credit would result in duplication of benefits for such period of service.


 


12.5     To the extent that the Group
Companies currently provide welfare benefits of the type described in Section
3(1) of ER1SA the Purchaser agrees to cause the relevant members of the
Purchaser’s Group to continue to provide such benefits in accordance with
clause 12 hereof as of the Completion Date so as to ensure uninterrupted
coverage of all US Employees.  Such
plans shall grant credit for amounts paid by the US Employees during the
applicable plan year preceding the Completion Date (including applicable
deductibles and annual out-of-pocket limits) and shall waive any pre-existing
condition exclusions, evidence of insurability provisions, waiting period
requirements or any similar provision.


 


12.6         On and after the Completion
Date, except as provided in clauses 9 and 13 hereof, the US Companies shall
retain liability for:


 


(a)        all US Plans (other than
the Retained US Plans);


 


(b)       all
employment, consulting, termination and severance agreements covering US
Employees, including former US Employees; and


 


(c)        and
the Retained Group shall have no further liability with respect to the plans,
arrangements and agreements referred to in subsections (a) and (b) of this
clause 12.5.


 


12.7     On and after the Completion
Date, except as provided in clause 13 hereof, the Retained Group shall retain
all liability with respect to Employees under the US Plans which are Retained
US Plans, including responsibility for:


 


(a)        welfare
benefits or claims (whether submitted before or after the Completion Date)
which will, by reason of events which took place prior to the Completion Date,
become payable under any group life insurance policy, accidental death and
dismemberment policy, group health program (including medical and dental
benefits) or any flexible spending account plan maintained by any member of the
Retained Group with respect to Employees;


 


(b)       long-term
disability benefits payable under the Retained US Plans to US Employees who
became disabled within the meaning of the applicable long-term disability
insurance policy prior to the Completion Date; and


 


(c)        workmen’s
compensation-related benefits which are payable under the Retained US Plans to
Employees whose workmen’s compensation-related injury occurred before the
Completion Date.


 


(d)       In
the case of health benefits, the event referred to in clause 12.6(a) is the
provision of the service for which the reimbursement or payment is sought by
the Employee.  Effective as of the
Completion Date, except as provided in clause 13 hereof, the appropriate member
of the Retained Group shall


 


39

















 


terminate,
or cause to be terminated, with respect to Employees, all Retained US Plans,
subject to the terms of such plans.


 


13.       PENSION SCHEMES


 


13.1    UK Pensions


 


The provisions of
Schedule 12 shall apply in respect of the UK pensions.


 


13.2    US Pension Schemes


 


Effective as of the
Completion Date, the Purchaser shall cover, or cause the relevant member of
Purchaser’s Group to cover, the US Employees under one or more defined
contribution plans and trusts intended to qualify under Section 401(a) and
Section 501 (a) of the Code (referred to as the Purchaser DC Plan).  At
II’s election, II shall either:


 


(a)        transfer
the account balances (including loans to US Employees) of US Employees under
Invensys 401(k) Plan (referred to as the Vendor DC Plan)  to the Purchaser DC
Plan;


 


(b)       permit
US Employees to make a “direct rollover” of such account balances to the
Purchaser DC Plan. In connection with any such direct rollover elected by any
such US Employee, the Purchaser shall allow any such US Employee’s outstanding
loan and related promissory note under the Vendor DC Plan to be directly rolled
over into the Purchaser DC Plan; or


 


(c)        II
and Purchaser shall reasonably cooperate in good faith to effect such transfers
or distributions as soon as reasonably practicable after the Completion Date.


 


13.3    Liability
in respect of Pension Schemes


 


To the extent the
Purchaser or a member of Purchaser’s Group has or incurs liabilities in excess
of $20 million in the aggregate in respect of any pension scheme in which a
Group Company participated and such liability is the result of either:


 


(a)        contributions
payable prior to the Completion Date by any Group Company with respect to any
such pension scheme not having been fully paid; or


 


(b)       there
existing as at the Completion Date an underfunding of such pension scheme,


 


then the Vendors shall
indemnify and hold the Purchaser and the relevant Group Company harmless,
without regard to the limitations of clause 9, against the amount of such
excess liability above $20 million.


 


14.       PROPERTIES


 


14.1     Parts A through D of Schedule
9 set out certain relevant information regarding the following Properties of
the Group Companies:


 


40

















 


(a)                       Part A: Properties of which a Group Company is
lessee and sole occupant;


 


(b)                      Part B: Properties of which a Group Company is
lessee, but where the occupation thereof by a Group Company is surplus to the
requirements of the Business;


 


(c)                       Part C: Properties that a Group Company
sublets in whole or in part from a member of the Retained Group; and


 


(d)                      Part D: Properties that a Group Company
sublets in whole or in part to a member of the Retained Group.


 


14.2                With respect to each of the Properties
referred to in Parts C and D of Schedule 9, Parties agree that a sub-lease
agreement (in the agreed form attached hereto as Part E to Schedule 9, subject
only to such variations as shall be required in order to comply with the law of
the jurisdiction in which the Property is situated) shall be concluded prior to
or as soon as reasonably possible following the Completion Date between the
relevant member of the Retained Group and the relevant Group Company. The
Vendors and the Purchaser agree that they shall use all reasonable endeavours
(in the case of the Purchaser, only if any such sub-lease agreement has not
been concluded by the Completion Date) to procure that the relevant member of
the Retained Group and the relevant Group Company conclude such sub-lease
agreement as soon as reasonably possible following the date hereof.


 


15.       SEPARATION ISSUES


 


15.1    Insurance


 


(a)        Upon Completion, all insurance coverage provided in relation to the
Business pursuant to policies maintained by the Retained Group (whether such
policies are maintained with third party insurers or with the Retained Group)
shall cease and no further coverage shall be available to any Group Company or
any other member of the Purchaser’s Group under any such policies that are
“claims made” basis policies but (subject to the terms of any relevant policy)
without prejudice to any accrued claims which are pending at Completion,
provided that the Group Companies shall retain the benefit of “occurrence”
based policies of insurance in relation to events occurring prior to Completion
but in respect of which no claim has yet arisen at the time of Completion.


 


(b)       The Purchaser and the Vendors agree that any claims made under the
insurance policies referred to in clause 15.1(a) in respect of the Business
shall be administered and collected by the Vendors (or by a claims handler
appointed by the Vendors) on behalf of the Purchaser.  The Purchaser shall cooperate fully with the Vendors to enable
the Vendors to comply with the requirements of the relevant insurer, and the
Purchaser shall provide such information and assistance as Vendors may
reasonably request in connection with any such claim. Any monies received by
the Vendors as a result of such claims shall be paid over to the Purchaser, net
of all reasonable costs and expenses of recovery (including, without
limitation, all reasonable handling and collection charges by any claims
handler appointed by Vendors).


 


41

















 


(c)        In respect of all claims under the insurance policies referred to in
clause 15.1(a) notified to insurers at the date of this Agreement and all
claims subsequently brought under such insurance policies and relating to the
Business, the Purchaser acknowledges that it shall be responsible for the
deductible on each relevant insurance policy and will not be entitled to seek
reimbursement of such deductible from the Vendors. The Purchaser shall
reimburse Vendors within twenty (20) Business Days after receipt of the invoice
for any deductible paid by the Vendors (including evidence of such payment)
after the Completion Date with respect to claims made under the insurance
policies referred to in clause 15.1(a) to the extent such deductible has been
paid by the Vendors or any other member of the Retained Group or, if the
Purchaser is invoiced directly by the insurance company for such deductible
amount, it shall pay or cause such invoice to be paid within twenty (20)
Business Days.


 


15.2    IBM Global Master Services Agreement


 


(a)        With respect to the Global Master Services Agreement entered into
between Invensys and International Business Machines Corporation (IBM)  with an effective date of 1 March 2002 (the GMSA), Invensys shall use all reasonable
endeavours to procure that, with respect to the Baseline Services, IBM,
Invensys and the relevant Group Company will, before the Completion Date, enter
into a tri-partite agreement (the terms of which shall require the prior
consent of the Purchaser, such consent not to be unreasonably withheld or
delayed) that will, in general terms, provide for following:


 


(i)      that IBM shall provide to the Business the Baseline Services for a period of six (6) months after the
Completion Date;


 


(ii)     that either the relevant Group Company or IBM shall be entitled to
terminate upon three (3) months written notice the provision to the Business of
such Baseline Services prior to the expiry of the six (6) month period referred
to in (i) above;


 


(iii)    that the Baseline Services shall be provided to the Business at a deemed
annual fee of USD 5 million (excluding VAT), which amount shall be paid on a
pro rata basis according to the length of the period during which the Baseline
Services are actually provided to the Business following the Completion Date;


 


(iv)    that fees payable by the relevant Group Company for the provision of the
Baseline Services, shall be invoiced by Invensys to the relevant Group Company
monthly in arrears and shall be paid by such Group Company to Invensys in full
within forty-five (45) days of receipt of such invoice, it being understood
that Invensys shall pay such monies to IBM as part of its overall payment of
fees owing to IBM for services rendered under the GMSA;


 


(v)     that immediately following the expiry of the six (6) month period referred
to in (i) above or the early termination in accordance with (ii)


 


42

















 


above, the employees who are currently employed by
IBM or one of its affiliates for the purposes of providing the Baseline
Services to the Business, shall be transferred to the employ of one of the
Group Companies, with such Group Company to re-employ such employees in
accordance with applicable law and to bear all employment related costs and
expenses in respect of such employees that arise after the date of such
transfer; and


 


(vi)    that as soon as reasonably practicable following the expiry of the six
(6) month period referred to in (i) above or the early termination in
accordance with (ii) above:


 


(A)          one of the Group Companies shall acquire and take transfer of all
hardware equipment specifically purchased by IBM for the purposes of it being
able to provide the Baseline Services to the Business under the GMSA, with the
consideration payable by the relevant Group Company for such hardware equipment
being equal to the book value thereof as stated in the financial records of IBM
or its relevant affiliate following normal depreciation rules; and


 


(B)           IBM shall assign to a Group Company the third party maintenance
contracts previously assigned by that Group Company to IBM or its relevant
affiliate in connection with the GMSA, following which such Group Company shall
indemnify IBM or its relevant affiliate and hold such party harmless for any
costs and expenses arising after the date of such assignment in connection with
such third party maintenance contracts.


 


(b)       In the event that no separate agreement, containing substantially the
terms referred to in clause 15.2(a), is concluded with IBM and the relevant
Group Company before the Completion Date, Invensys shall procure that the
provision by IBM to the Business of the Baseline Services is continued for a
period of one hundred (100) days following the Completion Date at a fee
(excluding VAT) equal to an annual equivalent of USD 5 million (payment by the
Business for the Baseline Services during such period to take place on the same
basis as that referred to in clause 15.2(a)(iv)).


 


(c)        Furthermore, in the circumstances referred to in clause 15.2(b),
Invensys shall use all reasonable endeavours to, in consultation with the
Purchaser, assist the relevant Group Company in reaching agreement with IBM
either:


 


(i)      for the continuation of the provision by IBM to the Business of the
Baseline Services following the expiry of the one hundred (100) day period
referred to in clause 15.2(b); or


 


(ii)     that upon the termination of the provision of the Baseline Services to
the Business following the expiration of the one hundred (100) day period
referred to clause 15.2(b):


 


43

















 


(A)          the employees who are currently employed by IBM or one of its affiliates
for the purposes of providing the Baseline Services to the Business,
immediately be transferred to the employ of one of the Group Companies, with
such Group Company to re-employ such employees in accordance with applicable
law and to bear all employment related costs and expenses in respect of such
employees that arise after the date of such transfer;


 


(B)           one of the Group Companies shall as soon as reasonably practicable
acquire and take transfer of all hardware equipment specifically purchased by
IBM for the purposes of it being able to provide the Baseline Services to the
Business under the GMSA, with the consideration payable by the relevant Group
Company for such hardware equipment being equal to the book value thereof as
stated in the financial records of IBM or its relevant affiliate following
normal depreciation rules; and


 


(C)           IBM shall as soon as reasonably practicable assign to a Group Company
the third party maintenance contracts previously assigned by that Group Company
to IBM or its relevant affiliate in connection with the GMSA, following which
such Group Company shall indemnify IBM or its relevant affiliate and hold such
party harmless for any costs and expenses arising after the date of such
assignment in connection with such third party maintenance contracts,


 


provided that if IBM agrees to the matters referred
to in paragraphs (A) through (C) above, the Purchaser shall procure that the
relevant Group Company indeed (i) re-employs the relevant employees (as
referred to in paragraph (A) above), (ii) acquires and takes transfer of the
hardware equipment (as referred to in paragraph (B) above) and (iii) takes
assignment of the third party maintenance contracts (as referred to in
paragraph (C) above).


 


(d)       With respect to the fees charged by IBM for services rendered to Group
Companies and members of the Retained Group under the GMSA, parties agree that
in each of the cases referred to in clauses 15.2(a), (b) and (c), the following
shall apply:


 


(i)      the Group Companies or any of them shall, as from the Completion Date,
cease to act as collection agent in any jurisdiction with respect to fees to be
paid by any member of the Retained Group under the GMSA;


 


(ii)     any outstanding fees payable to a Group Company (acting in its capacity
of collection agent) by a member of the Retained Group for services rendered to
such member under the GMSA during the period prior to the Completion Date, will
immediately following Completion become payable to Invensys, with the relevant
member of the Retained


 


44

















 


Group
being released from making any payment of such fees to the relevant Group
Company;


 


(iii)            any and all fees payable by any Group
Company for the Baseline Services rendered to it during the period prior to the
Completion Date, shall be considered to have been fully paid and Invensys shall
indemnify and hold harmless the Purchaser and the Group Companies, without
regard to the limitations of clause 9, for any amount of such fees owing by a
Group Company as at, and payable with respect to the period prior to, the
Completion Date; and


 


(iv)           Invensys
shall indemnify and hold harmless the Purchaser and the Group Companies, without
regard to the limitations of clause 9, for any amount of fees owing by any
member of the Retained Group as at, and payable with respect to the period
prior to, the Completion Date.


 


15.3    Intellectual Property Rights


 


(a)        The
Purchaser agrees that it shall procure that each Group Company shall:


 


(i)      as
soon as reasonably practicable after Completion and in any event within one
hundred and twenty (120) days after the Completion Date, cease in any manner
whatsoever to use or display any trade or service marks, trade or service names
or logos used or held by any member of the Retained Group or any confusingly
similar mark, name or logo, including the Retained Name;


 


(ii)     immediately
after Completion, cease to hold itself out as having any affiliation with any Vendor
or Invensys or any other member of the Retained Group;


 


(iii)    promptly after Completion, but in no event later
than one hundred and twenty (120) days following the Completion Date, in the
case of any Group Company whose name includes the Retained Name, change its
corporate name to a name that does not include the Retained Name and make any
necessary legal filings with the appropriate Governmental Entities to effect
such change;


 


(iv)    as
promptly as reasonably practicable after Completion, but in no event later than
one hundred and twenty (120) days following the Completion Date, remove the
Retained Name from all materials owned by any Group Company, including, without
limitation, any vehicles, business cards, schedules, stationery, packaging
materials, displays, signs, promotional materials, manuals, forms, computer
software and other materials, save that the Group Company may during such one
hundred and twenty (120) day period continue to use any such material
containing the Retained Name to the extent that it is not reasonably
practicable to remove such Retained Name.


 


45

















 


(b)       The
Vendors and Invensys agree that they shall procure that each member of the
Retained Group shall undertake the same steps as those set out in clause
15.3(a) in respect of the trade or service marks, trade or service names or
logos of Group Companies and the “Baan” name.


 


15.4    India separation


 


(a)        Parties
acknowledge and agree that the development of software for the IMAPS Business
(the assets, services and personnel as at the date hereof comprising such IMAPS
Business being described Part A of Schedule 13) (the IMAPS Business)  of Invensys is currently conducted and for a certain period
following Completion may continue to be conducted by one of the Group
Companies, namely Baan Info Systems India Ltd.


 


(b)       Parties
further acknowledge and agree that Invensys is currently in the process of
incorporating a newly incorporated company organised under the laws of India (Newco), which company will as soon as
reasonably practicable after the date of this Agreement acquire and take
transfer from Baan Info Systems India Ltd of the IMAPS Business.  For the sake of clarity, Parties agree that
the completion of such sale and transfer to Newco of the IMAPS Business shall
not serve as a condition to Completion.


 


(c)        With
respect to the period between the Completion Date and the date of completion of
the sale and transfer of the IMAPS Business, Parties agree that the terms of
the Software Development and Support Agreement attached hereto as Part B to
Schedule 13 shall continue to apply.


 


(d)       With
respect to such sale and transfer of the IMAPS Business, Parties agree that:


 


(i)      the
Purchaser shall procure that Baan Info Systems India Ltd sells and transfers to
Newco, and Invensys shall procure that Newco purchases and accepts transfer of,
the IMAPS Business, which shall involve the following steps:


 


(A)          the
employees referred to in Part A of Schedule 13 shall resign from their
employment with Baan Info Systems India Ltd and shall immediately thereafter be
employed by Newco on terms no less favourable to such employees than those
applicable immediately prior to such resignation;


 


(B)           Baan
Info Systems India Ltd shall to the extent legally permissible assign or sublet
to Newco its rights to use the hardware and software referred to in Part A of
Schedule 13;


 


(C)           with
respect to the premises currently occupied by the IMAPS Business (which
premises are currently leased to Baan Info Systems India Ltd), Baan Info
Systems India Ltd shall use reasonable efforts to surrender back to the
relevant landlord that part of the premises currently occupied by the IMAPS


 


46

















 


Business and take all reasonable steps to assist
Newco in concluding a lease for such premises directly with the current
landlord thereof;


 


(ii)     the IMAPS Business shall be sold to Newco for a consideration equal to
the book value of such IMAPS Business as reflected in the financial records of
the Business (applying depreciation rules that are consistent with past
practice); and


 


(iii)    the amount of the consideration to be paid by Newco in consideration for
the acquisition of the IMAPS Business shall be paid to Baan Info Systems India
Ltd in cash upon the completion of the transfer of such business to Newco and
shall thereafter be added, net of Costs, to the Final Consideration and be paid
by the Purchaser to the Vendors within five (5) Business Days of the payment to
Baan Info Systems India Ltd having been effected by Newco.


 


(e)        Following completion of the sale and transfer of the IMAPS Business to
Newco, the Purchaser agrees that it shall procure that Baan Info Systems India
Ltd shall continue to allow Newco to make use of the satellite link located at the
premises of Baan Info Systems India Ltd for a further period of twelve (12)
months, provided that Newco shall be entitled to terminate such arrangement on
three (3) months’ written notice to Baan Info Systems India Ltd. The Vendors
agree to procure that Newco shall pay to Baan Info Systems India Ltd a pro rata
portion (based on usage) of the latter’s total costs incurred in respect of
such satellite link.


 


(f)        Invensys shall be held responsible for and shall indemnify the Purchaser
and Baan Info Systems India Ltd, without regard to the limitations of clause 9,
against all fees, costs and tax obligations associated with the sale and
transfer of the IMAPS Business to Newco as contemplated in this clause 15.4,
such to include, without limitation, all stamp or other documentary or
transaction duties and any other transfer taxes.


 


15.5    General


 


(a)        With respect to any agreements or arrangements concluded by Invensys or
any other member of the Retained Group under the terms of which services,
licences or other rights of any nature whatsoever is granted to both (certain
of the) members of the Retained Group and (certain of) the Group Companies
(other than those agreements or arrangements already specifically provided for
in this Agreement), Parties agree that subject to the terms of the relevant
agreement or arrangement, they shall use all reasonable endeavours to cause, to
the extent possible (also taking into account the terms of the relevant
agreement or arrangement), an uninterrupted continuation of such services
following Completion to both the relevant members of the Retained Group and the
Group Companies, provided that no member of the Retained Group shall bear any
liability of any nature whatsoever with respect to the provision of services by
the relevant service provider to any of the Group Companies under such
agreement or arrangement after the Completion Date.


 


47

















 


(b)       The
Parties hereto shall use all reasonable endeavours to obtain the consent,
approval or agreement of the relevant third party or to ensure that the
relevant procedure, application or other requirement is complied with (as the
case may be) in order to give effect to the provisions of clause 15.5(a).


 


16.       INVENSYS GUARANTEE


 


16.1     Invensys hereby irrevocably
and unconditionally:


 


(a)        guarantees
to the Purchaser as principal obligor the due and punctual performance and
observance by the Vendors of all of their obligations under this Agreement
(including, without limitation, any liabilities arising from a Vendor Breach in
accordance with clause 9); and


 


(b)       undertakes
to indemnify the Purchaser against all Damages incurred by the Purchaser and
the Group Companies arising from any failure by the Vendors to perform and/or
observe any of their obligations under this Agreement (including, without
limitation, any liabilities arising from a Vendor Breach in accordance with
clause 9), provided that if such failure is capable of remedy, the relevant
Vendors shall first have been given a period of thirty (30) days to remedy such
failure,


 


(together the Guarantee), it being
understood that the liability of Invensys under the Guarantee shall at no time
exceed, and shall be subject to the same limitations as those applicable to,
the liability of the Vendors whose obligations Invensys has hereby guaranteed.


 


16.2     The Guarantee is to be a
continuing security which shall remain in full force and effect until all of
the obligations of the Vendors under this Agreement shall have been fulfilled
or shall have expired in accordance with the terms of this Agreement (whichever
is the sooner) and the Guarantee is to be in addition and without prejudice to,
and shall not merge with, any other right, remedy, guarantee, indemnity or
security which the Purchaser may now or hereafter hold in respect of all or any
of the obligations of the Vendors under this Agreement.


 


16.3     In giving the Guarantee,
Invensys warrants that the following shall be true, accurate and not misleading
as at the date hereof and as at the Completion Date:


 


(a)        Invensys
is a company duly incorporated and organised and validly existing under the
laws of England and Wales;


 


(b)       Invensys
has the power and authority required to give this Guarantee and to perform
fully its obligations under it in accordance with its terms;


 


(c)        the
Invensys audited financial accounts for the year ended 31 March 2002 give a
true and fair view of (i) the state of affairs of Invensys as at 31 March 2002
and (ii) the profit and loss for the year then ended, and such financial
accounts have been properly prepared in accordance with generally accepted
accounting principles in the United Kingdom;


 


48

















 


(d)                      the
giving of this Guarantee will not result in a violation or breach of (i) any
provision of the memorandum and articles of association of Invensys (ii) of any
applicable laws or regulations or of any order, decree or judgment of any
court, Governmental Entity or regulatory authority applicable to Invensys or
(iii) financing agreement binding upon Invensys; and


 


(e)                       this
Guarantee constitutes a valid and legally binding obligation of Invensys
enforceable in accordance with its terms.


 


17.                    PURCHASER GUARANTEE


 


17.1     GAP
and Cerberus severally and not jointly hereby irrevocably and unconditionally:


 


(a)        guarantee
to the Vendors as principal obligors the due and punctual performance and
observance by the Purchaser (and if applicable a Nominated Purchaser or a
permitted assignee under clause 20.2) of all of its obligations under this
Agreement (including, without limitation, the obligation to pay any Damages,
the Initial Consideration and the Non-Compete Consideration); and


 


(b)       undertake
to indemnify the Vendors against all Damages incurred by the Vendors and the
members of the Retained Group arising from any failure by the Purchaser (and if
applicable a Nominated Purchaser or a permitted assignee under clause 20.2) to
perform and/or observe any of its obligations under this Agreement (including,
without limitation, the obligation to pay any Damages, the Initial
Consideration and the Non-Compete Consideration), provided that if such failure
is capable of remedy, the Purchaser (and if applicable a Nominated Purchaser or
a permitted assignee under clause 20.2) shall first have been given a period of
thirty (30) days to remedy such failure,


 


(together the Purchaser Guarantee), it being understood that the
aggregate liability arising under the Purchaser Guarantee shall be borne for
75% by Cerberus and for the remaining 25% by GAP. Furthermore, it is agreed
that the liability of Cerberus and GAP under the Purchaser Guarantee shall at
no time exceed, and shall be subject to the same limitations as those
applicable to, the liability of the Purchaser (and if applicable a Nominated
Purchaser or a permitted assignee under clause 20.2) whose obligations Cerberus
and GAP have hereby guaranteed.


 


17.2     The Purchaser Guarantee is to
be a continuing security which shall remain in full force and effect until all
of the obligations of the Purchaser (and if applicable a Nominated Purchaser or
a permitted assignee under clause 20.2) under this Agreement shall have been
fulfilled or shall have expired in accordance with the terms of this Agreement
(whichever is the sooner) and the Purchaser Guarantee is to be in addition and
without prejudice to, and shall not merge with, any other right, remedy,
guarantee, indemnity or security which the Vendors may now or hereafter hold in
respect of all or any of the obligations of the Purchaser (and if applicable a
Nominated Purchaser or a permitted assignee under clause 20.2) under this
Agreement.


 


49

















 


 


17.3     In giving the Purchaser
Guarantee, GAP warrants that the following shall be true, accurate and not
misleading as at the date hereof and as at the Completion Date:


 


(a)        GAP
is a limited partnership duly organised and validly existing under the laws of
Bermuda;


 


(b)       GAP
has the power and authority required to give this Purchaser Guarantee and to
perform fully its obligations under it in accordance with its terms;


 


(c)        the
giving of this Purchaser Guarantee will not result in a violation or breach of
(i) any provision of the memorandum and articles of association of GAP (ii) of
any applicable laws or regulations or of any order, decree or judgment of any
court, Governmental Entity or regulatory authority applicable to GAP or (iii)
financing agreement binding upon GAP; and


 


(d)       this
Purchaser Guarantee constitutes a valid and legally binding obligation of GAP
enforceable in accordance with its terms.


 


17.4     In giving the Purchaser
Guarantee, Cerberus warrants that the following shall be true, accurate and not
misleading as at the date hereof and as at the Completion Date:


 


(a)        Cerberus
is a company duly organised and validly existing under the laws of State of
Delaware, the  United States of
America;


 


(b)       Cerberus has the power and authority required to give this Purchaser Guarantee and to perform
fully its obligations under it in accordance with its terms;


 


(c)        the giving of this Purchaser Guarantee will not result in a violation or
breach of (i) any provision of the memorandum and articles of association of
Cerberus (ii) of any applicable laws or regulations or of any order, decree or
judgment of any court, Governmental Entity or regulatory authority applicable
to Cerberus or (iii) financing agreement binding upon Cerberus; and


 


(d)       this Purchaser Guarantee constitutes a valid and legally binding obligation of Purchaser
enforceable in accordance with its terms.


 


17.5     Parties acknowledge and agree that GAP and Cerberus have only been included as party
to this Agreement for the purposes of providing to the Vendors the Purchaser
Guarantee.


 


18.       ACTIONS ON BEHALF OF OTHER PARTIES


 


18.1     Each of the Vendors agrees that with respect
to any undertaking in this Agreement given by that Vendor, for itself and on
behalf of any of the other Vendors and/or member of the Retained Group, it
shall ensure that such other Vendors and/or member of the Retained Group, as
the case may be, complies with such undertaking and that to the extent that the
relevant Vendors and/or member of the Retained Group,


 


50

















 


as the case may be, does
not comply with such undertaking, such shall be deemed a breach of the relevant
undertaking by that Vendor.


 


18.2     The Purchaser agrees that
with respect to any undertaking in this Agreement given by the Purchaser, for
itself and on behalf of any of the Group Companies and/or member of the
Purchaser’s Group, it shall ensure that such Group Company and/or member of the
Purchaser’s Group, as the case may be, complies with such undertaking and that
to the extent that the relevant Group Company and/or member of the Purchaser’s
Group, as the case may be, does not comply with such undertaking, such shall be
deemed a breach of the relevant undertaking by that Purchaser.


 


19.       VARIATION


 


19.1     No variation of this
Agreement (or of any of the Transaction Documents) shall be valid unless it is
in writing and signed by or on behalf of each of the parties to it. The
expression “variation” shall include any variation, supplement, deletion or
replacement however effected.


 


19.2     Unless expressly agreed, no
variation shall constitute a general waiver of any provisions of this Agreement
or of any Transaction Document, nor shall it affect any rights, obligations or
liabilities under or pursuant to this Agreement or of any Transaction Document
which have already accrued up to the date of variation, and the rights and
obligations of the parties under or pursuant to this Agreement and any
Transaction Document shall remain in full force and effect, except and only to
the extent that they are so varied.


 


20.       ASSIGNMENT


 


20.1     It is acknowledged and agreed
by the Vendors that the Purchaser may at any time prior to Completion, assign
and transfer all of its rights and obligations under this Agreement to any
Nominated Purchaser. Accordingly, the Vendors agree that the benefit and
obligations of this Agreement may be assigned and transferred in whole or in
part by the Purchaser without the consent of Vendors to a Nominated Purchaser.
Upon execution and delivery by such Nominated Purchaser and Invensys (acting on
behalf of each of the Vendors) of a deed of adherence (pursuant to which the
Nominated Purchaser gives to the Vendors the Purchaser Warranties in respect of
itself as at the date thereof and agrees to observe and be bound by all of the
provisions of the Agreement as if the Nominated Purchaser were a party to the
Agreement) such Nominated Purchaser shall have the benefit of the provisions of
this Agreement and shall be bound by the obligations of this Agreement as if it
were a party to this Agreement.


 


20.2     Furthermore, it is
acknowledged and agreed by the Vendors that, subject to the following
provisions of this clause 20, the Purchaser may at any time following
Completion assign and transfer all or any of its rights and obligations under
this Agreement to any other member or members of the Purchaser’s Group (which
for this purpose shall in any event include, without limitation, SSA Global
Technologies, Inc. or any entity that is directly or indirectly controlled by
SSA Global Technologies, Inc.). 
Accordingly, the Vendors agree that the benefit and obligations of this
Agreement may be assigned and transferred in whole or in part by the Purchaser


 


51

















 


without
the consent of Vendors to any member of the Purchaser’s Group as if it were the
Purchaser under this Agreement, provided that where any such entity
subsequently ceases to be a member of the Purchaser’s Group the Purchaser shall
procure that before it so ceases it shall assign and transfer that benefit and
the obligations to the Purchaser or to another continuing member of the
Purchaser’s Group.


 


20.3     Immediately after any assignment in accordance with this clause 20 the
Purchaser will give written notice of the assignment to the Vendors containing
details of the assignment including the identity of the assignor and assignee.


 


20.4     Save as provided in clauses 20.1 to 20.2, no party shall nor shall it
purport to assign, transfer, charge or otherwise deal with all or any of its
rights under this Agreement, declare, create or dispose of any right or
interest in it without the prior written consent of the other parties or party.


 


20.5         The parties acknowledge and agree that if the Purchaser assigns the
benefit of this Agreement in whole or in part to any other person the
liabilities of the Vendors under this Agreement shall be no greater than such
liabilities would have been had the assignment not occurred.


 


20.6     Any purported assignment in contravention of
this clause 20 shall be void.


 


21.       ANNOUNCEMENTS


 


21.1     Except as required by law or by any recognised
investment exchange to whose rules the party making the announcement or
disclosure is subject, no announcement or circular or disclosure in connection with the existence or the
subject matter of this Agreement or any of the Transaction Documents shall be
made or issued by or on behalf of the Vendors and the Vendors agree that they
shall procure that no such announcement or circular or disclosure shall be made
or issued by or on behalf of any other member of the Retained Group, without
the prior written approval of the Purchaser, and no announcement or circular or
disclosure in connection with the existence or the subject matter of this
Agreement or any of the Transaction Documents shall be made or issued by or on
behalf of the Purchaser, and the Purchaser agrees that it shall procure that no
such announcement or circular or disclosure shall be made or issued by or on
behalf of any other member of the Purchaser’s Group, without the prior written
approval of the Vendors.


 


21.2     Notwithstanding the provisions of clause 21.1,
the Purchaser agrees that the Vendors or any other member of the Retained Group
shall be permitted, in addition
to its legal obligation as a publicly listed company to announce the existence
of the transaction contemplated hereby, to also explain or set out, without
disclosing specific details (other than the purchase price) of the Agreement,
its commercial rationale and motivation for entering into this Agreement for
the divestment of the Business.


 


21.3     The Vendors and the members of the Retained Group shall be permitted to
disclose the existence and subject matter of the Transaction Documents to any
third party participating in a bona fide due
diligence exercise relating to a transaction with a member of the Retained
Group to which such Transaction Documents are relevant,


 


52

















 


provided
such third party has given a confidentiality undertaking on customary terms
that would apply to such Transaction Documents.


 


21.4     Where any announcement or disclosure is made in reliance on the
exception in clauses 21.1 and 21.2, the party making the announcement or
disclosure will use its reasonable endeavours to consult with the other party
in advance as to the form, content and timing of any such announcement or
disclosure.


 


22.       COSTS


 


22.1     Subject to clause 22.2, each of the parties
shall pay its own Costs incurred in connection with the negotiation,
preparation and completion of this Agreement and the Transaction Documents and
shall procure the payment by the members of their respective Group Companies of
such Costs incurred by them, provided that no such costs shall be borne by any
of the Group Companies.


 


22.2     The Purchaser shall bear all stamp or other
documentary or transaction duties and any other transfer taxes relating to the
transfer of the Shares (including the charges levied by any Competition
Authority in connection with a submission, filing or notification to such
Competition Authority) and any notarial fees (other than the fees of the
Notary, which shall be borne by the Vendors) relating to the transfer of the Shares.


 


23.       SEVERABILITY


 


If
any provision of this Agreement or of any of the Transaction Documents 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 or the relevant Transaction Document, but without
invalidating any of the remaining provisions of this Agreement or that
Transaction Document. 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.


 


24.       COUNTERPARTS


 


This
Agreement may be executed in any number of counterparts and by the parties to
it on separate counterparts, each of which is an original but all of which
together shall constitute one and the same instrument.


 


25.       WAIVERS/PURCHASER’S RIGHTS AND REMEDIES


 


No
failure or delay by any party hereto in exercising any right or remedy provided
by law or under or pursuant to this Agreement shall impair such right or remedy
or operate or be construed as a waiver or variation of it or preclude its
exercise at any subsequent time and no single or partial exercise of any such
right or remedy shall preclude any further exercise of it or the exercise of
any other remedy.


 


53

















 


26.       FURTHER ASSURANCE


 


The
Vendors and the Purchaser agree to perform (or procure the performance of) all
such further acts and things, and execute and deliver (or procure the execution
and delivery of)  such further
documents, as may be required by law or as the other party may reasonably
require, whether on or after Completion, to implement and/or give effect to
this Agreement and the transactions contemplated by the Transaction Documents.


 


27.       NOTICES


 


27.1         Any notice or other communication to be given by any party under, or in
connection with, this Agreement shall be in writing and signed by or on behalf
of the party giving it.  It shall be
served by sending it by fax to the number set out in clause 27.2, or delivering
it by hand, or sending it by pre-paid recorded delivery, special delivery or
registered post, to the address set out in clause 27.2 and in each case marked
for the attention of the relevant party set out in clause 27.2 (or as otherwise
notified from time to time in accordance with the provisions of this clause
27).  Any notice so served by hand, fax
or post shall be deemed to have been duly given:


 


(a)        in the case of delivery by hand, when delivered;


 


(b)       in the case of fax, at the time of transmission;


 


(c)        in the case of prepaid recorded delivery, special delivery or registered
post, at noon on the second Business Day following the date of posting


 


provided
that in each case where delivery by hand or by fax occurs after 18:00 on a
Business Day or on a day which is not a Business Day, service shall be deemed
to occur at 9:00 on the next following Business Day.


 


References
to time in this clause are to local time in the country of the addressee.


 


27.2         The addresses and fax numbers of the parties for the purpose of clause
27.1 are as follows:


 


Vendors:


 


c/o
Invensys plc

Carlisle Place

London, SWIP IBX

United Kingdom

Fax: + 44 207 821 3806


 


For the attention of the Company Secretary


 


54

















 


With a copy to:


 


Freshfields Bruckhaus Deringer

Apollolaan 151

1077 AR Amsterdam

The Netherlands

Fax: +31 20 485 7001


 


For the attention of Jan Willem van der Staay


 


Purchaser:


 


GAC Baan Acquisition LLC


C/o Cerberus Capital Management L.P.


450 Park Avenue


New York, New York 10022, USA


Fax: +l 212 891 1540


 


For the attention of Mark A. Neporent


 


And also to:


 


c/o General Atlantic Service Corporation


3 Pickwick Plaza


Greenwich, Connecticut 06830, USA


Fax: +1 203 618 9207


 


For the attention of William E. Ford and Matthew Nimetz


 


With a copy to:


 


Schulte Roth & Zabel LLP


919 Third Avenue


New York, New York 10022, USA


Fax : +1 212 593 5955


 


For the attention of Robert B. Loper, Esq.


 


And also to:


 


Nauta Dutith


PO
Box 7113


1007
JC Amsterdam


The
Netherlands


Prinses
Irenestraat 59


1077
WV Amsterdam


The
Netherlands


Fax:
+31 20 541 4952


 


For the attention of Jaap Jan Trommel


 


55

















 


27.3     A party may notify the other party to this
Agreement of a change to its name, relevant addressee, address or fax number
for the purposes of this clause 27, provided that, such notice shall only be
effective on:


 


(a)        the date specified in the notice as the date on which the change is to
take place; or


 


(b)       if no date is specified or the date specified is less than five (5)
Business Days after the date on which notice is given, the date following five
(5) Business Days after notice of any change has been given.


 


27.4     In proving such service it shall be sufficient
to prove that the envelope containing such notice was properly addressed and
delivered either to the address shown thereon or into the custody of the postal
authorities as a pre-paid recorded delivery, special delivery or registered
post letter, or that the facsimile transmission was, according to a written
facsimile transmission report, completed, as the case may be.


 


27.5     All notices under or in connection with this
Agreement shall be in the English language or, if in any other language,
accompanied by a translation into English. 
In the event of any conflict between the English text and the text in
any other language, the English text shall prevail.


 


28.       ENTIRE
AGREEMENT


 


28.1     For the purpose of this clause, Pre-contractual Statement
means a draft agreement, undertaking, representation, warranty, promise,
assurance or arrangement of any nature whatsoever, whether or not in writing,
relating to this Agreement, made or given by a Party to this Agreement or any
other person at any time prior to the date of this Agreement, other than the
Confidentiality Agreement.


 


28.2     This Agreement and any other
documents referred to in this Agreement constitute the whole and only agreement
between the Parties relating to the sale and purchase of the Shares.


 


28.3     Except to the extent repeated in this
Agreement, this Agreement supersedes and extinguishes any Pre-contractual
Statement.


 


28.4     Each Party acknowledges that
in entering into this Agreement, and any other documents referred to in this
Agreement, it is not relying upon any Pre-contractual Statement which is not
set out in this Agreement.


 


28.5     No Party shall have any right of action
against any other Party to this Agreement arising out of or in connection with
any Pre-contractual Statement (except in the case of fraud), except to the
extent repeated in this Agreement.


 


29.       GOVERNING
LAW, JURISDICTION AND SERVICE OF PROCESS


 


29.1     This Agreement shall be governed by and
construed in accordance with the laws of The Netherlands.


 


56

















 


29.2     All disputes between the Parties hereto
arising under or in connection with this Agreement or further agreements
resulting from this Agreement, including all disputed claims for breach by any
party of any representation, warranty, undertaking or covenant under this
Agreement (a Dispute),  shall be resolved in accordance
with the further provisions of this clause 29.2:


 


(a)        in the event of any Dispute, the Parties shall firstly endeavour to
resolve the Dispute on an amicable basis through direct negotiation;


 


(b)       if one of the parties serves formal written notice on the others that a
Dispute has arisen and the parties are unable to resolve the Dispute through
direct negotiation in accordance with clause 28.2(a) within a period of twenty
(20) Business Days from the service of such notice, then the process under
clause 28.2(a) shall be deemed to have failed and the Dispute shall be referred
to the respective chief executive officers of Invensys and ultimate holding
company of the Purchaser, who shall consult and attempt to resolve the Dispute
within the next following ten (10) Business Days;


 


(c)        if no resolution of the Dispute is reached
within the ten (10) Business Days period referred to in clause 28.2(b), the
consultation process between the chief executive officers shall be deemed to
have failed and any party may initiate arbitration proceedings under clause
28.2(f);


 


(d)       a Dispute shall only be deemed to have been resolved under clauses
28.2(a) or 28.2(b), if the resolution of such matter has been reduced to
writing in the form of a settlement agreement concluded between the parties to
that Dispute;


 


(e)        no recourse to arbitration as referred to under clause 28.2(f) below
shall take place unless and until the procedures under clauses 28.2(a) or
28.2(b) have been followed, provided that no Party shall be barred from seeking
seizure (beslag) or provisional
measures in summary proceedings (kort geding);


 


(f)        subject to the previous provisions of this clause 29.2, any Dispute
shall be finally settled by arbitration in accordance with the rules of the
Netherlands Arbitration Institute in Rotterdam (the Rules),  provided always that the Parties have the
right to settle any such dispute in summary proceedings and the right to obtain
seizure (beslag). The
arbitrators, who shall be appointed in accordance with the Rules and who shall
be required to have appropriate legal or commercial experience in the matters
being disputed, shall decide according to the rules of the law (“naar de  regelen
des  rechts”). The
arbitral proceedings shall be conducted in the English language. The place of
arbitration shall be Amsterdam, The Netherlands.


 


29.3     The parties irrevocably consent to service of
process or any other documents in connection with proceedings in any court by
facsimile transmission, personal service, delivery at any address specified in
this Agreement or any other usual address, mail or in any other manner
permitted by Netherlands law or the law of the place of service or the law of
the jurisdiction where proceedings are instituted.


 


57

















 


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


 


 


INVENSYS HOLDINGS LIMITED


 


	
  /s/
  N. Blackwell

  	
   

  
	
  By:

  	
   

  
	
  Title:
  

  	
  ATTORNEY
  IN FACT

  
			



 


 


INVENSYS INC.


 


	
  /s/
  N. Blackwell

  	
   

  
	
  By:

  	
   

  
	
  Title:
  

  	
  ATTORNEY
  IN FACT

  
			



 


 


INVENSYS TWENTY-ONE LIMITED


 


	
  /s/
  N. Blackwell

  	
   

  
	
  By:

  	
   

  
	
  Title:
  

  	
  ATTORNEY
  IN FACT

  
			



 


 


GAC BAAN ACQUISITION LLC


 


	
   

  	
  By:
  General Atlantic Partners (Bermuda), L.P.

  
	
  /s/
  Mark A. Neporant

  	
   

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

  
	
  By:
  Cerberus Capital

  Management II, L.P.

  	
   

  
	
  (its
  managing member)

  	
   

  
	
  By:
  Mark A. Neporant

  	
  By:

  	
  /s/ William E. Ford

  	
   

  
	
  Title:

  	
   

  	
  Name:
  William E. Ford

  
	
   

  	
   

  	
  Title:
  Vice President

  
					



 


58

















 


INVENSYS PLC


 


	
  /s/ N. Blackwell

  	
   

  
	
  By:

  	
   

  
	
  Title:
  

  	
  ATTORNEY
  IN FACT

  
			



 


 


GENERAL ATLANTIC PARTNERS (BERMUDA), L.P.


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


 


 


	
  By:

  	
  /s/ William E. Ford

  	
   

  
	
   

  	
  Name:
  William E. Ford

  
	
   

  	
  Title:Vice
  President

  



 


 


CERBERUS CAPITAL
MANAGEMENT II, L.P.


 


 


	
  /s/
  Mark A. Neporant

  	
   

  
	
  By:

  	
  Mark A.
  Neporant

  
	
  Title:
  

  	
  Sr.
  Managing Director/COO

  
			



 


59