EXHIBIT 2.01
Document No. 1407/2004 A
Done
in the Free and Hanseatic City of Hamburg
on 13 th September 2004
Before me, the notary public of
Hamburg,
Dr. Herbert
Asschenfeldt
today appeared in my office rooms in
Poststrasse 2, 20354 Hamburg:
1.
Mr. Jochen Witte, born
28.08.1960,
place of business: Wiesenkamp 22b, 22359 Hamburg,
personally known to the recording notary public;
2.
Mr. Ludwig Lutter, neé
Steinhäusel, born 25.11.1966,
place of business: Wiesenkamp 22b, 22359 Hamburg,
personally known to the recording notary public.
The persons appearing as to 1. and
2. not acting in their own names but as managing directors with
joint power of representation on behalf of
the private limited liability
company called
POET Software GmbH
with place of business in Hamburg and business address:
Wiesenkamp 22b, 22359 Hamburg,
registered with the commercial register of the local court of
Hamburg under HRB 54723,
something which is certified by the
recording notary public after having inspected the above-mentioned
commercial register today according to Section 21 BNotO
(Federal Regulations for Notary Publics),
- POET Software GmbH, hereinafter
also called “SELLER” -
and the person appearing as to 1.
also acting in its capacity as managing director with sole power of
representation on behalf of
POET GmbH,
with place of business in Hamburg and business address:
Wiesenkamp 22b, 22359 Hamburg,
registered with the commercial register of the local court of
Hamburg under HRB 89950,
something which is certified by the
recording notary public after having inspected the above-mentioned
commercial register today according to Section 21 BNotO
(Federal Regulations for Notary Publics),
- POET GmbH hereinafter
also called “COMPANY”,
3.
Dr. Jakob Karszt, born
06.11.1953
place of business: Karl-Friedrich-Strasse 14-18, 76131
Karlsruhe,
identified by the valid identity card no. 6395328219,
not acting in its own name but on
behalf of the
Aktiengesellschaft (stock
corporation)
ems ePublishing AG
with place of business in Karlsruhe
and business address: Karl-Friedrich-Strasse 14-18, 76131
Karlsruhe,
registered with the commercial register of the local court of
Karlsruhe under HRB 9293,
insofar certified copy of the
commercial register extract of ems e-publishing AG will be send in
order to give evidence of the power of representation of the person
appearing as to 3,
- ems ePublishing AG hereinafter
called “PURCHASER” -
- POET Software GmbH and ems
ePublishing AG hereinafter individually also called
“PARTY” and together also called “PARTIES”
-
Acting in their above-mentioned
capacities, the persons appearing requested the notary public to
notarize the following agreement :
Share Purchase and Transfer
Agreement
with respect to POET GmbH
, Hamburg
between
POET Software GmbH,
Hamburg
and
ems ePublishing AG,
Karlsruhe
Contents
Article 1
Relationships in Terms of Company
Law
1.
SELLER is the sole shareholder of
POET GmbH with place of business in Hamburg, registered with the
commercial register of the local court of Hamburg under HRB 89950
(hereinafter also called “COMPANY”).
2.
On the basis of a share transfer
agreement dated June 23, 2004 (notarial protocol no. 930/2004
of the notary public Dr. Herbert Asschenfeldt, Hamburg), COMPANY
has been acquired by SELLER as shelf company with a share capital
of € 25,000.00 (in words: twenty-five thousand Euros). By
means of a spin-off and takeover agreement dated July 20, 2004
(notarial protocol no. 1064/2004 of the notary public Dr. Herbert
Asschenfeldt, Hamburg), SELLER und COMPANY agreed to spin-off the
business division “catalogue business” of SELLER to
COMPANY (hereinafter also briefly called “Spin-off”).
The business division “catalogue business” includes the
development, licensing and marketing of software for the
administration of electronic catalogues together with the pertinent
services. The shareholders’ meetings of SELLER and COMPANY
approved the spin-off and takeover agreement on the same day
(notarial protocol no. 1065/2004 and 1066/2004 of the notary public
Dr. Herbert Asschenfeldt, Hamburg). The tangible and intangible
assets of the business division “catalogue business” as
it has been transferred within the framework of the Spin-off have
been taken into account in the opening balance sheet of COMPANY as
to July 01, 2004 according to Annex [1] by using their current
market values.
3.
With the Spin-off taking effect by
means of the entry in the commercial register of Hamburg on
August 30, 2004, the share capital of the COMPANY was
increased from € 25,000.00 (in words: twenty-five thousand
Euros) by 25,000.00 (in words: twenty-five thousand Euro) to
€ 50,000.000 (in words: fifty thousand Euro), and apart from
its already existing share with a nominal value of €
25,000.00 (in words: twenty-five thousand Euro) (this share is
hereinafter also called “First Share”), SELLER acquired
another share in the COMPANY with a nominal value of €
25,000.00 (in words: twenty-five thousand Euro) (said share is
hereinafter also called “Second Share”; the First Share
and the Second Share together are hereinafter called
“Shares”).
4.
For the purpose of assessing the
acquisition of all Shares in the COMPANY PURCHASER carried out a
due diligence with respect to the legal and economic circumstances
of COMPANY.
Article 2
Sale and Assignment of the
Shares
1.
SELLER hereby sells the Shares in
COMPANY as described in Article 1 para 3 and assigns them to
PURCHASER. PURCHASER hereby accepts this sale and
assignment.
2.
The payment of the first purchase
price instalment by PURCHASER according to Article 4 para 2
shall be a condition precedent for the assignment of the Shares.
Upon receipt of the first purchase price instalment according to
Article 4 para 2, PURCHASER shall acquire the
Shares (hereinafter called
“Transfer Date”). SELLER will inform the Notary Public
immediately about the receipt of the first purchase price
instalment in writing.
Article 3
Economic Effective Date;
Operating Result
1.
The sale and the assignment
according to Article 2 paragraph 1 shall economically come
into effect on August 31, 2004, at midnight (hereinafter also
called “Effective Date”).
2.
PURCHASER shall be exclusively
entitled to receive the operating result of the current business
year.
3.
The balance sheet as to the
Effective Date shall be drawn up by COMPANY without any delay and
forwarded to SELLER and PURCHASER immediately.
Article 4
Purchase Price
1.
The purchase price for the Shares
sold according to Article 2 para 1 shall be calculated
according to the following formula:
purchase price = € 1,000,000 +
EC S
- hereinafter called “Purchase
Price” -
whereby EC S shall be the
equity capital of COMPANY as it exists on Effective
Date.
In words: The amount of €
1,000,000.00 (in words: one million Euro) shall be increased by the
amount of the equity capital of the COMPANY on Effective Date (EC
S ). The equity capital (EC S ) shall not
include the difference amount between the equity capital in the
final balance sheet of the business division “catalogue
business” as to June 30, 2004 according to Annex [2] and
the equity capital as shown in the opening balance sheet of the
COMPANY as to July 1, 2004 according to Annex [1], which is
shown in the capital reserve according to Section 272 para 2
no. 4 of the German Commercial Code (HGB). When determining the
equity capital, deprecations in July and August of 2004
on the book value increases of the assets side resulting from the
above-mentioned difference amount shall not be taken into
account.
In case that sales taxes arise from
the sale of the Shares the Purchase Price shall be increased
correspondingly.
2.
The Purchase Price shall be paid in
two instalments. The first instalment R 1 amounting to
€ 1,000,000.00 (in words: one million EURO) shall be due and
payable immediately. The second instalment R 2 is the
amount of the equity capital as of the Effective date.
It shall become due and payable on
October 30, 2004, but not earlier than seven banking days
after the submission of the balance sheet as to Effective Date as
accepted by the PARTIES, or after the arbitration award of an
auditing company (compare Article 7 para 1). Within the same
period of time, a repayment, if any, to PURCHASER shall become
due.
3.
With respect to its obligation of
pay the first instalment R 1 of the amount mentioned in
Article 4 para 2 together with interests amounting to 5% p.a.
after having become due PURCHASER submits itself towards SELLER to
an immediate execution on its whole assets on the basis of this
document. Upon its request at any time, SELLER shall be given by
the notary public an enforceable copy about the amount R
1 according to Article 4 paragraph 2 of this
document, but in no case earlier than two weeks after the first
instalment has become due (compare Article 4 paragraph 2). The
document shall only be issued by the notary public if SELLER states
towards him in writing that it has not yet received a payment of
the first instalment.
4.
In addition to the purchase price
according to Art. 4 paragraph 1 the Purchaser will pay a purchase
price according to the following provisions:
a)
A share of the turnover with the
software of the COMPANY according to Enclosure 6 as well as with
services in connection therewith as follows:
30% of the turnover from 01.
September 2004 until 31. December 2004, which is
exceeding an amount of € 800.000 (R3)
30% of the turnover from 01.
January 2005 until 31. March 2005, which is exceeding an
amount of € 600.000 (R4)
30% of the turnover from 01.
April 2005 until 30. June 2005, which is exceeding an
amount of € 600.000 (R5)
b)
PURCHASER is obliged to give to
SELLER after the last day of each of the above mentioned periods at
the end of the following month at the latest a list of the
respective turnover and a calculation of the additional purchase
price and to pay the additional purchase price according to 4 a)
until this point in time. The PURCHASER has to pay interest of 5%
above the Base Interest Rate beginning with the respective due date
of the payment.
c)
The turnover according to 4 a) has
to be determined corresponding to the accepted principles of proper
bookkeeping and balance sheet preparation inclusive of bookkeeping
and balance sheet consistency (with reference to the audited
balance sheets of POET Software GmbH as of 30 th
June 2004 and of POET GmbH as of 31 st
August 2004). The turnover has to be increased by the
difference of the balance of finished goods and work in process as
of the end of the accounting period and the balance of these goods
as of the previous accounting period or the balance of these goods
in the balance sheet as of 31 st August 2004
respectively (regarding the calculation of the first accounting
period) or has to be reduced by a negative difference respectively.
The turnover has to be reduced by necessary value
adjustments.
d)
In the calculation of the turnover
according to 4 a) the turnover of the PURCHASER and all related
companies of the COMPANY and the PURCHASER with the software
according to Enclosure 6 are to be taken into account additionally.
In case the COMPANY transfers the software to a related company the
consideration which is paid for this is not to be taken into
account for the calculation of the turnover, instead the turnover
of the related company will be taken into account for the
calculation of the turnover.
e)
SELLER is entitled to have access to
the books and accounts of the COMPANY by a tax advisor or auditor
in order to review the calculated turnover. The COMPANY explicitly
gives its consent to this. COMPANY and PURCHASER are additionally
obliged to give access to the books and accounts of PURCHASER and
the related companies of the COMPANY and the PURCHASER to a tax
advisor or auditor instructed by SELLER in order to review the
calculated turnover. The tax advisor or auditor is only allowed to
report the results of his review to SELLER as far as they are
necessary for a founded and understandable presentation of the
correct turnover of the COMPANY, the PURCHASER and their related
companies. In case the review will establish that the turnover has
been calculated incorrectly by the PURCHASER, the PURCHASER has to
bear the necessary costs of the review, if the correct turnover is
at least 2% higher that the calculated turnover.
f)
In case there has to be paid VAT on
the purchase price, the calculated additional purchase price has to
be increased respectively.
5.
The instalments have to be received
on the following account of PURCHASER on the respective due
dates:
|
Account holder:
|
|
POET Software GmbH
|
|
|
|
|
|
Account number:
|
|
|
|
|
|
|
|
Bank:
|
|
|
|
|
|
|
|
Bank Sorting Code:
|
|
|
As reference, “Acquisition of
Shares POET GmbH” shall be indicated.
6.
A setoff or the execution of a right
of retention with respect to the above-mentioned claims of SELLER
shall be excluded unless the counterclaim is undisputed or
determined with legal effect.
7.
Upon execution of this Agreement,
SELLER shall submit a bank guaranty in an amount of € 150,000
as a security for claims, if any, according to Article 5 and
Article 6 of this Agreement. Said guaranty shall be valid
until August 31, 2005. PURCHASER shall confirm the receipt of
the document.
Article 5
Warranty
1.
With respect to the Shares sold by
it SELLER warrants in form of an independent warranty promise
according to Articles 311, 241 of the German Civil Code (BGB) that
the following statements are appropriate at the time of the
notarization of this Agreement:
a)
COMPANY is a private limited
liability company existing according to the legislation of the
Federal Republic of Germany. The statements given in Article 1
are true.
b)
The initial share capital of COMPANY
amounting to € 25,000.00 (in words: twenty-five thousand
Euros) has been paid up in full.
c)
The Articles of Association in its
version of July 20, 2004 are the current version. There do not
exist any other resolutions of the shareholders which could modify
the Articles of Association. There do not exist any other
procedures in terms of company law PURCHASER might be
reconstructably interested to know about.
d)
The two Shares in a nominal value of
€ 25,000.00 each exist with legal effect. Other shares or
other shar
