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Exhibit 2.25
SHARE PURCHASE AGREEMENT
by and among
INTERSIL HOLDING CORPORATION
INTERSIL B.V.
NO WIRES NEEDED B.V.
GILDE IT FUND B.V.
PARNIB B.V.
3COM CORPORATION
KENNET 1 L.P.
HANS B. VAN DER HOEK
and
THE SHAREHOLDERS LISTED ON THE SIGNATURE PAGES HERETO.
Dated April 27, 2000
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TABLE OF CONTENTS
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ARTICLE I HE ACQUISITION..................................................................................2
1.1. Purchase and Sale of the Shares.................................................................2
1.2. Consideration for the Shares....................................................................2
1.3. Delivery and Payment............................................................................2
1.4. Exchange Agreement..............................................................................2
1.5. Payment Obligations.............................................................................3
ARTICLE II THE CLOSING.....................................................................................3
2.1. Date of Closing.................................................................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS..............................................3
3.1. Corporate Organization..........................................................................3
3.2. Authority; Absence of Conflicts.................................................................4
3.3. Outstanding Capital Stock.......................................................................4
3.4. Financial Statements............................................................................5
3.5. Absence of Undisclosed Liabilities; Indebtedness................................................5
3.6. Absence of Material Changes.....................................................................6
3.7. Real Property...................................................................................8
3.8. Tangible Personal Property......................................................................8
3.9. Accounts Receivable.............................................................................8
3.10. Accounts Payable................................................................................9
3.11. Euro Compliance.................................................................................9
3.12. Contracts.......................................................................................9
3.13. Legal Proceedings..............................................................................11
3.14. Labor Matters..................................................................................11
3.15. Employee Benefit Plans.........................................................................11
3.16. Environmental Matters..........................................................................12
3.17. Tax Matters....................................................................................14
3.18. Insurance......................................................................................15
3.19. Books and Records..............................................................................15
3.20. Brokers' or Finders' Fees......................................................................16
3.21. Material Customers and Suppliers...............................................................16
3.22. Bank Accounts: Powers of Attorney..............................................................16
3.23. Intellectual Property Rights...................................................................17
3.24. Compliance with Laws: Permits and Licenses.....................................................17
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3.25. Certain Business Practices: Potential Conflicts of Interest....................................18
3.26. Subsidies......................................................................................18
3.27. HSR Act........................................................................................18
3.28. Disclosure.....................................................................................18
3.29. Material Consents..............................................................................19
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF HOLDING AND BUYER............................................19
4.1. Organization and Corporate Power...............................................................19
4.2. Authority; Absence of Conflicts................................................................19
4.3. Outstanding Capital Stock; Issuance of Shares..................................................20
4.4. Legal Proceedings..............................................................................20
4.5. Brokers' or Finders' Fees......................................................................20
4.6. Financial Statements...........................................................................20
ARTICLE V COVENANTS......................................................................................21
5.1. Confidentiality................................................................................21
5.2. Lock-up........................................................................................21
5.3. US Securities Registration.....................................................................21
ARTICLE VI CLOSING DELIVERIES.............................................................................22
6.1. Documents being delivered by the Parties at Closing............................................22
ARTICLE VII MISCELLANEOUS..................................................................................23
7.1. Expenses.......................................................................................23
7.2. Attorneys' Fees................................................................................23
7.3. Brokers........................................................................................23
7.4. Notices........................................................................................23
7.5. Transfer Taxes.................................................................................25
7.6. Successors and Assigns.........................................................................25
7.7. Entire Agreement and Modification..............................................................25
7.8. Certain Interpretive Matters...................................................................26
7.9. Governing Law..................................................................................26
7.10. Counterparts...................................................................................26
7.11. Further Assurances.............................................................................26
7.12. Severability...................................................................................26
7.13. No Recourse....................................................................................26
7.14. Public Statements..............................................................................27
7.15. Specific Performance...........................................................................27
7.16. Notary.........................................................................................27
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SCHEDULES
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Exhibit 1 Individual Shareholders
Exhibit 2 Shareholders
Exhibit 3 Optionholders
Schedule 1.2 Share Purchase Price; Exchange Ratio Formula
Schedule 1.4 Holding Company Stock
Schedule 3.1(a) Qualified Jurisdictions
Schedule 3.2 (b) Conflicts
Schedule 3.3 (b) Optionholders
Schedule 3.4 (i) Unaudited Consolidated Balance Sheet 12/31/99
Schedule 3.4 (ii) Unaudited Financial Statements
Schedule 3.5 Liabilities; Indebtedness
Schedule 3.6 Material Changes
Schedule 3.6 (1) NWN 2000 Fiscal Year Budget
Schedule 3.7 (b) Leased Real Property
Schedule 3.8 (a) Tangible Personal Property
Schedule 3.8 (b) (i) Material Tangible Personal Property Leases
Schedule 3.8 (b) (ii) Defaults Material Tangible Personal Property Leases
Schedule 3.9 Accounts Receivable
Schedule 3.10 Accounts Payable
Schedule 3.11 Euro Compliance
Schedule 3.12 (a) Contracts
Schedule 3.12 (b) Contracts Near Relatives
Schedule 3.12 (c) Defaults Material Contracts
Schedule 3.13 Legal Proceedings
Schedule 3.14 Labor Matters
Schedule 3.15 (b) Benefit Plans
Schedule 3.15 (c) Material Changes Compensation due to Employees
Schedule 3.15(e) Claims under Benefit Plans
Schedule 3.16 Environmental Matters
Schedule 3.17 (a) Tax Returns to be filed; Taxes due
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Schedule 3.17 (b) Pending Audits
Schedule 3.17 (d) income and Franchise Tax Returns
Schedule 3.17 (e) Tax Claims
Schedule 3.17 (g) Tax Entity
Schedule 3.18 (i) Insurances
Schedule 3.18 (ii) Claims under Insurances Policies
Schedule 3.19 Books and Records not located on the Premises of the Company
Schedule 3.20 Brokers' or Finders' Fees
Schedule 3.21 (a) (i) Material Customers
Schedule 3.21 (a) (ii) Changes to Material Customers
Schedule 3.21 (b) (i) Material Suppliers
Schedule 3.21 (b) (ii) Changes to Material Suppliers
Schedule 3.22 Bank Accounts; Powers of Attorney
Schedule 3.23 (a) (i) Intellectual Property
Schedule 3.23 (a) (ii) License Agreements
Schedule 3.23 (a) (iii) Restrictions on Intellectual Property
Schedule 3.23 (b) Licenses
Schedule 3.24 (a) Claims
Schedule 3.24 (b) Missing Permits
Schedule 3.24 (c) Permits
Schedule 3.25 (b) Potential Conflicts of Interest
Schedule 3.26 Subsidies
Schedule 3.29 Material Consents
Schedule 4.6 Holding Financial Statements
Schedule 5.2 (i) Shareholders with Lock-Up of 60%
Schedule 5.2 (ii) Shareholders with Lock-Up of 100%
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EXECUTION COPY
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of the 27th day of April 2000, by and among (i) Intersil Holding
Corporation, a Delaware corporation ("Holding"), (ii) Intersil B.V., a
Netherlands corporation and indirect wholly-owned subsidiary of Holding
("Buyer"), (iii) No Wires Needed B.V., a Netherlands corporation (the
"Company"), (iv) Gilde It Fund B.V., a Netherlands corporation, (v) Parnib B.V.,
a Netherlands corporation, (vi) 3Com Corporation, a California corporation,
(vii) Kennet I L.P., a limited partnership incorporated under the Limited
Partnerships (Jersey) Law 1994, Channel Islands ("Kennet"), (viii) Hans B. van
der Hoek ("Van der Hoek") a private individual residing in the Netherlands, and
(ix) the persons listed on Exhibit 1 (as from (iv) up to and including (ix)
referred to as the "Shareholder" and collectively the "Shareholders").
RECITALS:
WHEREAS, the parties listed on Exhibit 2 hereto (the
"Shareholders") are the legal and beneficial owners of such number of shares in
the capital of the Company, which shares represent all of the capital stock of
the Company (the "Shares" or the "Company Capital Stock") set forth opposite
such Shareholder's name on Exhibit 2.
WHEREAS, the persons listed on Exhibit 3 hereto (the
"Optionholders") are the legal and beneficial owners of options (the "Options")
to purchase the number of shares of Company Capital Stock (the "Option Shares")
at the exercise prices set forth opposite each such Optionholder's name on
Exhibit 3.
WHEREAS, each of the Shareholders has granted to Van der Hoek,
through a power of attorney ("Power of. Attorney") the power and authority to
execute this Agreement and sell, assign, transfer and convey such Shareholder's
interest in the Shares, as applicable, to the Buyer; and
WHEREAS, the Shareholders desire to sell and Buyer desires to
purchase the Shares, and the Shareholders elect to receive shares of common
stock of Holding (the "Holding Common Stock"), par value USD 0.01 (one cent US
Dollar) per share and the Optionholders elect to receive Holding Common Stock,
upon exercise of the Options pursuant to an exchange agreement (the "Exchange
Agreement") between the Optionholders and Holding.
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements set forth in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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ARTICLE I
THE ACQUISITION
1.1. Purchase and Sale of the Shares. On the terms and subject to the
conditions of this Agreement, at the Closing (as defined in Section 2.1) each of
the Shareholders (i) hereby sells and transfers to Buyer, and Buyer hereby
purchases and acquires from each of the Shareholders, all right, title and
interest of each of the Shareholders in and to the Shares, free and clear of all
encumbrances. "Encumbrances" means mortgage, pledge, security interest, liens,
claims, charge, license, conditional sales contract, restriction, reservation,
options, right of first refusal, or other encumbrances of any nature whatsoever.
1.2. Consideration for the Shares. The aggregate purchase price payable by
Buyer for the Shares shall be established in accordance with Schedule 1.2 (the
"Share Purchase Price") consisting of and payable in shares of Holding Common
Stock.
1.3. Delivery and Payment. At the Closing, each of the Shareholders,
Holding, Buyer and the Company are executing a notarial deed transferring the
Shares to Buyer, and the transfer is being registered in the Shareholders'
register of the Company. Immediately thereafter, Holding on behalf of Buyer (a)
is delivering Holding Common Stock to civil law notary Mr. P.G. van Druten (the
"Notary"), for the benefit of the Shareholders, Holding Common Stock equal to
90% (ninety percent) of the Share Purchase Price, minus the premiums, fees and
costs of Baker & McKenzie - Amsterdam office, SRS and FleetBoston Robertson
Stephens International Limited mentioned under 7.1 hereunder (the "Transaction
Costs") and (b) is delivering Holding Common Stock as soon as practicable but in
any event within 15 business days of the Closing) to civil law notary Mr. H. van
Wilsum (the "Escrow Agent") an amount, in Holding Common Stock, equal in value
to 10% (ten percent) of the Share Purchase Price, such amount to be derived from
the respective Shareholders' pro rata portions of the aggregate stock
consideration set forth on Schedule 1.2, calculated based upon their respective
ownership interests in the issued and outstanding Company Capital Stock (the
"Escrow Funds"); such consideration to be held by the Escrow Agent pursuant to
the terms of the Indemnification and Escrow Agreement attached hereto as Annex A
(the "Escrow Agreement"). The number of Holding Common Stock to be transferred
hereunder is determined in accordance with the formula listed on Schedule 1.2.
The exchange ratio used in the formula shall have four decimal points. If
fractions of Holding Common Stock cannot be issued, a number of Holding Common
Stock will be issued rounded upwards to the nearest full number of shares. The
Transaction Costs shall be paid on behalf of the Shareholders by Buyer and/or
the Company within 15 days as from receipt of the respective invoices of the
respective debtors.
1.4. Exchange Agreement. On the terms and subject to the conditions of this
Agreement, at the Closing each Optionholder and the Holding will enter into the
Exchange Agreement, whereby each Optionholder agrees to receive that number of
shares of Holding Common Stock set forth on Schedule 1.4 hereof in lieu of
shares to purchase Company Common Stock upon exercise of such Optionholder's
Options and payment of the applicable exercise price.
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1.5. Payment Obligations. The parties agree that upon delivery by Buyer of
the Share Purchase Price (by way of delivery of Holding Common Stock) to the
Notary and the Escrow Agent, pursuant to Section 1.3 hereof, Holding shall have
fulfilled its payment obligations to each of the Shareholders, and shall have no
obligations or liability to each of and any of the Shareholders for any payments
under this Agreement.
ARTICLE II
THE CLOSING
2.1. Date of Closing. The consummation of the purchase and sale of the
Shares contemplated hereby (the "Closing") is taking place on May 26, 2000, at
the offices of Baker & McKenzie in Amsterdam unless otherwise mutually agreed.
The date on which the Closing is effected is referred to in this Agreement as
the "Closing Date." At the Closing, the parties shall execute and deliver the
documents referred to in Article VI.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SHAREHOLDERS
The Shareholders make the following representations and warranties to
Holding and Buyer each of which is true and correct as of the date hereof and
shall be true and correct as of the Closing Date.
3.1. Corporate Organization.
(a) For the purpose of this article III the term "Company" includes the
Company's subsidiary and branches if and when applicable. The Company is a
corporation duly organized and validly existing under the laws of its
incorporation, and has all requisite corporate power and authority to own, lease
and operate the properties and assets it now owns, leases or operates and to
carry on its business as presently conducted or proposed to be conducted
pursuant to existing plans. The Company is duly qualified or licensed to
transact business in each of the jurisdictions where such qualification or
licensing is required by reason of the nature or location of the properties and
assets owned, leased or operated by it or the business conducted by it. The
jurisdictions in which the Company is so qualified are listed on Schedule
3.1(a). The Company has provided to Holding complete and correct copies of the
Deeds of Incorporation, as amended to date (certified by the competent authority
of the jurisdiction of incorporation of the Company within 30 days of the date
hereof).
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3.2. Authority; Absence of Conflicts.
(a) The Company has full corporate power and authority to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby, subject to the limitations imposed on the Company by
Article 2:207c BW (Dutch Civil Code). The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly approved by the Board of Managing Directors ("Bestuur") and the Supervisory
Board of Directors ("Raad van Commissarissen") of the Company, and no other
corporate actions on the part of the Company are necessary to authorize and
approve the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Company and the Shareholders and, assuming this
Agreement constitutes a valid and binding obligation of Holding and Buyer,
constitutes the valid and binding obligation of the Company and each of the
Shareholders, enforceable against it in accordance with its terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general applicability relating to or affecting creditors' rights
and by general equitable principles.
(b) Except as set forth on Schedule 3.2(b) hereto, neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby, nor compliance with the terms hereof, will (i)
conflict with or violate any provision of the respective Deeds of Incorporation
or other organizational documents of the Company, (ii) violate, conflict with or
result in a breach of or default (or constitute any event which with the lapse
of time or the giving of notice or both would constitute a breach or default)
under any of the terms, conditions or provisions of any Material Contract (as
defined in Section 3.12) to which the Company is a party or by which their
respective assets or properties are bound, (iii) accelerate or give to others
any interests or rights, including rights of acceleration, termination,
modification or cancellation, under any Material Contract to which the Company
is a party or by which their respective assets are bound or in or with respect
to the capital stock, business, assets or properties of the Company, (iv) result
in the creation of any Encumbrance on the capital stock, business, assets or
properties of the Company, (v) conflict with, violate or result in a breach of
or constitute a default under any law, statute, rule, judgment, order, decree,
injunction, ruling, treaty, convention or regulation of any government,
governmental agency, authority or instrumentality, court or arbitration tribunal
(each, a "Governmental Entity") to which the Company or any of their respective
assets or properties are subject, or (vi) require the Company to give notice to,
or obtain an authorization, approval, order, license, franchise, declaration or
consent of, or make a filing with, any third party, including, without
limitation, any Governmental Entity ("Company Consents").
3.3. Outstanding Capital Stock.
(a) The authorized Company Capital Stock ("Maatschappelijk Kapitaal")
consists of (i) 18,500,000 (eighteen million, five hundred thousand) shares of
capital stock, nominal value NLG 0.05 per share, divided into 13,000,000
(thirteen million) common shares and 5,500,000 (five million, five hundred
thousand) preferred convertible shares, of which (i) 2,491,837 (two million,
four hundred and ninety-one thousand, eight hundred and thirty-seven) common
shares are issued and outstanding and (ii) 3,375,128 (three million, three
hundred and seventy-five thousand, one hundred and twenty-eight) preferred stock
are issued and outstanding.
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No other classes of capital stock of the Company are authorized or outstanding.
All of the issued and outstanding shares of Company Capital Stock have been duly
authorized and are validly issued, fully paid and non-assessable, and none of
such shares has, been issued in violation of any preemptive rights of
Shareholders. The Shareholders are the beneficial and legal owners of all of the
issued and outstanding shares of Company Capital Stock, free and clear from any
Encumbrances.
(b) Except for the options for the purchase of 540,000 (five hundred
and forty thousand) common shares of Company Capital Stock issued under the
Company's Stock Option Plan, and the "Sprenger Option" for the purchase of
100,000 (one hundred thousand) common shares of Company Capital Stock, for there
is no outstanding right, subscription, warrant, call, unsatisfied preemptive
right, option or other agreement of any kind to purchase or otherwise to receive
from the Company any shares of the capital stock or any other security of the
Company, and there is no outstanding security of any kind convertible into such
capital stock or other security. Schedule 3.3(b) sets forth a list of such
Optionholders and the respective number of Options held by each Optionholder.
There are no stock appreciation or similar rights to participate in the value of
the equity of the Company.
3.4. Financial Statements. The Company has delivered to Holding true and
complete copies of (a) the unaudited balance sheet of the Company of December
31, 1998 and the related statements of income, changes in Shareholders' equity,
and cash flows for the year then ended, reviewed by the Company's independent
public accounting firm, and (b) an unaudited balance sheet of the Company of
December 31, 1999 and related statements of income, changes in Shareholders'
equity, and cash flows for the period then ended, and (c) an unaudited balance
sheet of the Company of March 31, 2000, (collectively, the "Financial
Statements"). The unaudited balance sheet of December 31, 1999 (the "12/31/99
Balance Sheet") is attached hereto as Schedule 3.4(i). Except as set forth on
Schedule 3.4(ii), the Financial Statements have been prepared in accordance with
Netherlands GAAP consistently applied throughout the periods involved and such
balance sheets, including the related notes, fairly present the financial
position, assets and liabilities (whether accrued, absolute, contingent or
otherwise) of the Company at the dates indicated and such statements of income,
changes in stockholders' equity and cash flow fairly present the results of
operations, changes in stockholders' equity and cash flows of the Company for
the periods indicated; provided, however, that the unaudited financial
statements included in the Financial Statements do not contain footnotes and are
subject to normal year-end adjustments (all of which are of a recurring nature).
References in this Agreement to the "Balance Sheet" shall mean the 12/31/99
Balance Sheet of the Company referred to above, and references in this Agreement
to the "Balance Sheet Date" shall be deemed to refer to December 31, 1999.
3.5. Absence of Undisclosed Liabilities; Indebtedness. Except as set forth
on Schedule 3.5 hereto, the Company has no direct or indirect indebtedness,
guaranty, endorsement, claim, loss, damage, deficiency, cost, expense,
obligation, or responsibility, whether fixed or contingent, known or unknown,
asserted or unasserted, choate or inchoate, liquidated or unliquidated, secured
or unsecured, whether due or to become due and whether arising out of
transactions entered into or any condition or state of facts existing on or
prior to the date hereof (collectively, "Liabilities") except, (a) Liabilities
set forth on the Balance Sheet and (b) Liabilities which have arisen after the
date of the Balance Sheet Date in the ordinary course of
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business consistent with past practice, all of which are accurately and fairly
reflected in the books and records of the Company and which will not,
individually or in the aggregate, reasonably be expected to result in an adverse
effect. Except as set forth on Schedule 3.5 hereto, the Company does not have
any outstanding (a) indebtedness for borrowed money, (b) Liabilities evidenced
by bonds, debentures, notes or other similar instruments, (c) Liabilities in
respect of rent or other amounts due under a lease to which the Company is a
party that is required to be classified and accounted for as a capitalized lease
under Netherlands GAAP, (d) Liabilities incurred or assumed as the deferred
purchase price of property, or pursuant to conditional sale obligations
(excluding trade accounts payable arising in the ordinary course of business
consistent with past practice), (e) Liabilities relating to the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar credit
transaction, or (e) Liabilities in respect of guarantees by the Company of items
referred to in clauses (a) through (d) above of other Persons (collectively,
"Indebtedness"). There is no Indebtedness to Shareholders.
3.6. Absence of Material Changes. Except as set forth on Schedule 3.6
hereto, since the Balance Sheet Date, the Company has conducted its business in
the ordinary course of business consistent with past practice. Without limiting
the generality of the foregoing, except as set forth on Schedule 3.6 hereto and
as otherwise contemplated by this Agreement, since the Balance Sheet Date the
Company has not:
(a) incurred any Liabilities, other than Liabilities incurred in the
ordinary course of business consistent with past practice, or discharged or
satisfied any Encumbrance, or paid any Liability, other than the payment of any
Liabilities in the ordinary course of business consistent with past practice, or
failed to pay or discharge when due any Liabilities, which the failure to pay or
discharge has caused or will cause any material damage or risk of material loss
to it, its business as now conducted or any of its assets or properties;
(b) suffered any damage, destruction or loss of physical property or
goods resulting in costs or expenses to the Company in excess in aggregate of
USD 20,000 (twenty thousand USDollars), whether or not covered by insurance;
(c) created, incurred, assumed or guaranteed any Indebtedness or
subjected to any Encumbrance any of its assets or properties, tangible or
intangible, except for in the normal course of business;
(d) sold, assigned or transferred any of its assets or properties or
compromised any of its Liabilities, except, in each such case, in the ordinary
course of business consistent with past practice;
(e) experienced any material adverse effect;
(f) made any capital expenditures or capital additions or betterments
in excess of an aggregate of USD 150,000 (one hundred fifty thousand USDollars);
provided that the Company has timely made the capital expenditures contemplated
by the Company's 2000 fiscal year budget, attached as Schedule 3.6 (f);
(g) revalued any of its assets or properties;
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(h) made or suffered any amendment or termination of any Material
Contract or waived or compromised any substantial debts or claims held by it, or
waived or compromised any rights of substantial value, whether or not in the
ordinary course of business;
(i) made any change in any financial or tax accounting method,
principle or practice (including, without limitation, practices regarding
accrual methods or policies regarding reserves) or in its method of applying any
such principle or practice;
(j) paid any dividends or made any distributions (however characterized
and whether payable in cash, additional shares of stock or other property) in
respect of any shares of its capital stock;
(k) repurchased or redeemed any shares of its capital stock;
(l) issued any additional shares of its capital stock or granted any
right, subscription, warrant, call, option or any other securities convertible
into or exchangeable for shares of its capital stock or right to participate in
the equity thereof;
(m) increased the salaries or other compensation of, altered any bonus
or incentive arrangement or made any advance or loan to, any officer, director
or employee of the Company ("Employee");
(n) provided any Employee with any increased security or tenure of
employment;
(o) increased the amounts payable to any Employee upon the termination
of any such person's employment or upon the consummation of this transaction;
(p) suffered any repeated, recurring or prolonged shortage, cessation
or interruption of supplies or utility or other services required to conduct its
business and operations;
(q) adopted, amended or revised the terms of any Benefit Plan (as
defined in Section 3.15) with respect to the benefits granted to or for the
benefit of any of the present or former Employees thereunder, other than as
required by law;
(r) received notice or had knowledge of any actual or threatened labor
trouble, strike or other occurrence, event or condition of any similar
character;
(s) acquired (by merger, share exchange, consolidation, combination or
acquisition of stock or assets) any corporation, partnership or other business
organization or division thereof; or
(t) entered into any agreement to do, or taken any steps toward doing,
any of the foregoing.
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3.7. Real Property.
(a) The Company has not owned in the past, and does not own presently,
any real property.
(b) Schedule 3.7(b) hereto sets forth a list of the real property
leased by the Company (the "Leased Real Property"). The Company has made
available to Holding true and correct copies of all leases, in the Company's
possession relating to the Leased Real Property.
(c) The leases of the Leased Real Property are in full force and
effect, there are no material default by the Company under such lease, and, each
such lease will remain in full force and effect following the Closing without
any modification in the rights or obligations of the parties under such lease.
(d) The Leased Real Property includes all material easements,
rights-of-way and similar rights necessary to conduct the Company's business as
presently conducted and to use all of its Leased Real Property as currently
used. No such material easement or right will be breached by, nor will any party
thereto be given a right of termination as a result of, the transactions
contemplated by this Agreement.
3.8. Tangible Personal Property.
(a) The Company has good title to all machinery and equipment, tools,
spare and maintenance parts, furniture, vehicles and all other tangible personal
property (collectively, the "Tangible Personal Property") owned or used by the
Company, free and clear of any Encumbrance of any kind or nature whatsoever,
except for Encumbrances disclosed elsewhere in this Agreement. Schedule 3.8(a)
sets forth a complete and correct list of all Tangible Personal Property. All
material items of Tangible Personal Property currently owned or used by the
Company as of the date hereof are in good operating condition and repair,
ordinary wear and tear excepted, are physically located at or about the
Company's place of business and are owned outright, or validly leased by the
Company and are sufficient to conduct the business of the Company as it is
presently conducted.
(b) Schedule 3.8(b)(i) hereto sets forth a complete and correct list of
all material Tangible Personal Property leases to which the Company is a party,
together with a brief description of the leased property. The Company has made
available to Holding complete and correct copies of each lease (and any
amendments thereto) listed on Schedule 3.8(b)(i). Except as set forth on
Schedule 3.8(b)(ii), (i) each such lease is in full force and effect, (ii) all
lease payments due to date on any such lease have been paid, and the Company is
not in default under any such lease, and no event has occurred which
constitutes, or with the lapse of time or the giving of notice or both would
constitute, a default by the Company under such lease, and (iii) there are no
defaults alleged against the Company by any other party with respect to any such
lease.
3.9. Accounts Receivable. The accounts receivable and notes receivable
(collectively, the "Accounts Receivable") reflected on the Balance Sheet are,
and the Accounts Receivable of the Company created from and after the date of
the Balance Sheet to the Closing Date will be, free and clear of any
Encumbrance. Except as set forth on Schedule 3.9, all existing Accounts
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Receivable of the Company (i) arose from bona fide sales of goods or services in
the ordinary course of business consistent with past practice, (ii) are
accurately and fairly reflected on the Balance Sheet or, with respect to
Accounts Receivable of the Company created after the date thereof and through
the date of this representation and warranty, are accurately and fairly
reflected in the books and records of the Company, and consistent with past
practices. To the knowledge of the Shareholders there is no reason to assume
that any of the Accounts Receivable shall not be paid on terms consistent with
past practices.
3.10. Accounts Payable. Except as set forth on Schedule 3.10 hereto, all
accounts payable of the Company (i) arose from bona fide purchases in the
ordinary course of business and consistent with past practice, and (ii) are
accurately and fairly reflected on the Balance Sheet or, with respect to
accounts payable of the Company created after the Balance Sheet Date and through
the date of this representation and warranty, are accurately and fairly
reflected in the books and records of the Company consistent with past
practices.
3.11. Euro Compliance. Except as set forth on Schedule 3.11
Currency-Sensitive Systems are Euro Compliant. "Currency-Sensitive Systems"
means any software, microcode or hardware system or component, including any
business computer system or software application to support pricing, payment or
accounting by the Company for goods and services in the unit of single currency
as defined in Counsel Regulations (EC) No. 1103/97 of 17 June 1997 (the "Euro").
"Euro Data" means any data of any type that includes Euro currency information
or which is otherwise derived from, dependent on or related to Euro currency
information. "Euro Compliant" means, with respect to Currency-Sensitive Systems,
that each such system accurately processes all Euro Data, without any loss of
functionality or performance, including, but not limited to, calculating,
comparing, sequencing, storing and displaying such Euro Data, when used with a
stand alone system or in combination with other software or hardware.
3.12. Contracts.
(a) Except as set forth on Schedule 3.12(a) hereto the Company is not a
party to, or subject to:
(i) any contract, agreement, license, lease arrangement or
understanding, whether oral or written ("Contract"), or series of
related Contracts, (A) which involves annual expenditures or receipts
by the Company of more than USD 100,000 (one hundred thousand
USDollars) or (B) which provides for performance, regardless of
amounts, over a period in excess of one year after the date of such
contract, arrangement or commitment;
(ii) any license or royalty Contract, whether as licensor or
licensee;
(iii) any Contract with material suppliers or customers,
distributors, agents and VAR's;
(iv) any note, bond, indenture, credit facility, mortgage,
security agreement or other instrument or other Contract relating to or
evidencing Indebtedness or a security interest in or mortgage on the
assets of the Company;
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(v) any warranty, indemnity or guaranty issued by the Company
(other than customary product warranties provided by the Company in the
ordinary course of business, a description of which is set forth on
Schedule 3.12(a) and the form or forms of which have previously been
provided to Holding);
(vi) any Contract for capital expenditures or the acquisition
or construction of fixed assets;
(vii) any Contract granting to any Person the right to use any
property or property right of the Company, including any lease;
(viii) any Contract granting to any Person a right of first
refusal, first or similar preferential right to purchase or acquire any
assets or properties of the Company;
(ix) any Contract restricting the right of the Company to
engage in any business activity or to compete with any business;
(x) any joint venture, partnership or similar Contract;
(xi) any management service, investment advisory, investment
banking, or other similar Contract;
(xii) any outstanding proxy, power of attorney or similar
delegation of authority of the Company;
(xiii) any other material Contract not made in the ordinary
course of business and consistent with past practice; or
(xiv) any outstanding offer or commitment to enter into any
Contract of the nature described in subsections (i) through (xiii) of
this Section 3.12.
(b) Schedule 3.12(b) hereto contains an accurate and complete list of
all Contracts - other than employment - and stock option agreements, which are
currently in effect between the Company and any of the following: (i) each
director, officer, shareholder or affiliate of the Company; (ii) the spouses,
children, grandchildren, siblings, parents, grandparents, uncles, aunts, nieces,
nephews or first cousins of any director or officer of the Company or the
spouses of any of the foregoing Persons (collectively, "Near Relatives"); (iii)
any trust for the benefit of any director or officer of the Company or any of
their respective Near Relatives; and (iv) any Person owned or controlled by any
director or officer of the Company or any of their respective Near Relatives.
(The Contracts described in Schedule 3.12(a) and Schedule 3.12(b) are
collectively referred to herein as "Material Contracts").
(c) The Company has made available to Holding complete and correct
copies of each written Material Contract (and any amendments thereto), and
Schedule 3.12(a) and Schedule 3.12(b) contain accurate summary descriptions of
all oral Material Contracts. Except as set forth on Schedule 3.12(c) hereto (i)
each Material Contract is in full force and effect, (ii) none of the Company,
nor to the knowledge of the Shareholders, any other party is in default
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under any such contract, and no event has occurred which constitutes, or which
with the lapse of time or the giving of notice or both would constitute, a
default by the Company or, by any other party under such contract, and (iii)
there are no defaults alleged against the Company by any other party with
respect to any such Contract.
3.13. Legal Proceedings. Except as set forth on Schedule 3.13 hereto, there
are no suits, actions, proceedings (including, without limitation, arbitral and
administrative proceedings), claims or governmental investigations or audits
pending or, to the knowledge of the Shareholders, threatened, by or against the
Company, or its properties, assets or business, Employees or agents in
connection with the business of the Company. There are no such suits, actions,
proceedings, claims or investigations pending or, to the knowledge of the
Shareholders, threatened, challenging the validity or propriety of, or otherwise
relating to or involving, this Agreement or the transactions contemplated
hereby. Except as set forth on Schedule 3.13, there is no judgment, order, writ,
injunction, decree or award (whether issued by a Governmental Entity or
otherwise) to which the Company is a party or otherwise subject, or involving
the property, assets or business of the Company, which is unsatisfied or which
requires continuing compliance therewith by the Company.
3.14. Labor Matters. Except as set forth on Schedule 3.14 no union, works
council or other labor organization is certified or recognized as collective
bargaining agent to represent any Employees and the Shareholders do not have
knowledge of any campaign currently in progress to seek representation with
respect to any Employees. The Company is not a party to, the subject of,
involved in or, to the knowledge of the Shareholders, threatened by any labor
dispute, unfair labor practice charge, strike, work stoppage, work slowdown,
picketing, boycott, handbilling or other concerted action by or on behalf of any
Employees.
3.15. Employee Benefit Plans.
(a) For purposes of this Agreement, "Benefit Plan" means and includes
(i) any employment, consulting, severance or other compensation Contract, (ii)
any deferred compensation, stock ownership, executive compensation, bonus or
other incentive compensation, supplemental retirement, vacation pay, sickness,
disability, death benefit, retiree medical or life insurance, pension plan,
employee stock option or stock purchase, employee discount, club membership,
educational assistance, severance pay, termination or salary continuation plan,
arrangement or practice (whether provided through insurance, on a funded or
unfunded basis or otherwise), and (iii) each other employee benefit plan,
program or arrangement which relates to any of the Employees or former Employees
or in respect of which the Company has any Liability or obligation (contingent
or otherwise).
(b) Schedule 3.15(b) sets forth a complete and correct list of all
Benefit Plans, and summary of oral Benefit Plans, if any, and the Company has
delivered to the Buyer complete and correct copies of all such written Benefit
Plans.
(c) Except as set forth on Schedule 3.15(c), neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will (i) result in any material payment becoming due, or materially
increase the amount of compensation due, to any Employee or former Employee,
(ii) materially increase any benefits otherwise payable
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under any Benefit Plan, or (iii) result in the acceleration of the time of
payment or vesting of any such benefits. With respect to each Benefit Plan, the
Company has made available to Holding complete and correct copies of all
material descriptions distributed to Employees or set forth in any manuals or
other documents, the text of the Benefit Plan and of any trust, insurance or
annuity Contract maintained in connection therewith, and the most recent
actuarial reports, if any, relating to the Benefit Plan.
(d) All contributions required to be made to or with respect to each
Benefit Plan with respect to the service of Employees, former Employees or other
individuals with the Company prior to the date hereof have been made or have
been accrued for in the Balance Sheet or in the books and records of the Company
for periods after the date of the Balance Sheet, as applicable.
(e) Except as set forth on Schedule 3.15(e) hereto, each Benefit Plan
has in all material respects been administered to date in accordance with
applicable laws and with the terms and provisions of all documents or contracts
pursuant to which such Benefit Plan is maintained, except as otherwise permitted
by law; there is no dispute, arbitration, claim, suit or grievance pending or,
to the knowledge of the Shareholders, threatened, involving a Benefit Plan
(other than routine claims for benefits), and, there is not, to the knowledge of
the Shareholders, any basis for such a claim; none of the Benefit Plans nor, to
the knowledge of the Shareholders, any fiduciary thereof (in such Person's
capacity as such) has been the direct or indirect subject of an order of, or, to
the knowledge of the Shareholders, an investigation by, a Governmental Entity;
and there are no matters pending as to which the Company has received notice
from any Governmental Entity or otherwise with respect to a Benefit Plan.
(f) None of the Benefit Plans provide for post-retirement life
insurance or health benefits coverage for any participant or any beneficiary of
a participant.
3.16. Environmental Matters.
(a) Except as disclosed on Schedule 3.16 hereto:
(i) the Company, and its operations has been and is, and the
Leased Real Property during the period that it was leased by the
Company is or was, in material compliance with all applicable
Environmental Laws (as defined in Section 31(c)) and the Company
obtained, currently maintains and is in compliance with any permit,
authorization, license or similar approval required by Environmental
Laws and to the knowledge of the Shareholders there are not any facts,
circumstances or conditions that could reasonably be expected to
interfere with such continued material compliance or require capital
expenditures in excess of USD 25,000 (twenty five thousand USDollars)
to maintain such compliance;
(ii) no judicial or administrative proceedings are pending or,
to the knowledge of the Shareholders, threatened, against the Company,
or the Leased Real Property leased by the Company, alleging the
violation of or seeking to impose liability under or pursuant to any
Environmental Law, and there are no investigations pending or, to the
knowledge of the Company, threatened, under or
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pursuant to Environmental Laws against the Company, or the Leased Real
Property as owned, operated or leased by or on behalf of the Company;
(iii) the Company has not received any written notice or other
communication indicating or otherwise alleging that the Company is or
could be liable for the cost of investigating, remediating or otherwise
addressing Hazardous Material (as defined in Section 3.16(c)) under
Environmental Laws;
(iv) the Company is not subject to any outstanding
Environmental Costs and Liabilities (as defined Section 3.16(c)) in the
aggregate in excess of USD 25,000 (twenty five thousand USDollars) and,
there are not, to the knowledge of the Shareholders, any facts,
circumstances or conditions relating to, arising from, associated with
or attributable to the operations of the Company, or the Leased Real
Property by or on behalf of the Company that could reasonably be
expected to result in the Company incurring Environmental Costs and
Liabilities in the aggregate in excess of USD 25,000 (twenty five
thousand USDollars);
(v) there is not now, nor, to the knowledge of the
Shareholders, has there been in the past, on, in or under any Leased
Real Property at the time owned, leased or operated by the Company (x)
any underground storage tanks, above-ground storage tanks, dikes or
impoundments containing Hazardous Material, (y) any asbestos-containing
materials, or (z). any polychlorinated biphenyls; and
(vi) the Company has not filed any notice under Environmental
Laws indicating past or present treatment, storage or disposal of
hazardous wastes or reporting a Release (as defined Section 3.16(c)) of
Hazardous Material.
(b) The Company has no possession of environmentally related audits,
assessments, studies, reports, analyses and results of investigations of the
Leased Real Property.
(c) For purposes of this Agreement, the following terms have the
following definitions:
(i) "Environmental Costs and Liabilities" means any and all
losses, liabilities, obligations, damages, fines, penalties, judgments,
actions, claims, costs and expenses (including, without limitation,
fees, disbursements and expenses of legal counsel, experts, engineers
and consultants and the costs of investigation and feasibility studies
and remedial action) arising from or under any Environmental Law or any
agreement with any Governmental Entity or other Person thereunder or
pursuant thereto.
(ii) "Environmental Laws" means any applicable law (including
common law), statute, code, ordinance, rule, regulation or other
requirement relating to the environment, natural resources, or public
or employee health and safety, as such laws have been amended or
supplemented, and the regulations promulgated pursuant thereto, and all
analogous state or local statutes.
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(iii) "Hazardous Material" means any substance, material or
waste that is regulated by any Governmental Entity as hazardous, toxic
or words of similar meaning, including, without limitation, any
material, substance or waste that is defined as a "hazardous waste,"
"hazardous material," "hazardous substance," "extremely hazardous
waste," "restricted hazardous waste," "contaminant" "toxic waste" or
"toxic substance" under any provision of Environmental Law, as well as
petroleum, petroleum products, asbestos, urea formaldehyde and
polychiorinated biphenyls.
(iv) "Leased Real Property", for purposes of this Section 3.16
only, means any real property leased previously or presently by or for
the Company.
(v) "Release" means any release, spill, emission, migration,
leaking, pumping, injection, deposit, disposal, discharge, dispersal or
leaching into the indoor or outdoor environment.
3.17. Tax Matters.
(a) Except as set forth on Schedule 3.17(a) all material Tax Returns
(as defined in Section 3.17(h)) required to be filed by or with respect to the
Company have been timely filed. The Company has timely paid all Taxes that are
due, or claimed or asserted by any taxing authority to be due, from or with
respect to them. With respect to any period for which Taxes are not yet due, the
Company has made sufficient current accruals for all such Taxes in its financial
statements (including the Financial Statements). The Company has made all
required estimated Tax payments sufficient to avoid any penalties. The Company
has withheld and paid all Taxes required by all applicable laws to be withheld
or paid in connection with any amounts paid or owing to any Employee, creditor,
independent contractor or other third party.
(b) There are no outstanding Contracts or waivers extending the
statutory period of limitations applicable to any claim for, or the period for
the collection or assessment of, Taxes due from or with respect to the Company
for any taxable period, and no power of attorney granted by or with respect to
the Company relating to Taxes is currently in force. No closing agreement has
been entered into by or with respect to the Company. Except as set forth on
Schedule 3.17(b) no audit or other proceeding by any Governmental Entity is
pending or threatened in writing, in regard to any Taxes due from or with
respect to the Company or any Tax Return filed by or with respect to the
Company. No assessment of Taxes is proposed against the Company or any of their
respective assets.
(c) The Company is not a party to, is bound by, or has any obligation
under, any Tax sharing agreement, Tax allocation agreement, Tax indemnity
agreement, or any other similar Contract.
(d) The Company has made available complete copies of (i) all filed Tax
Returns of the Company relating to the taxable periods since January 1, 1997,
(ii) any audit report issued since January 1, 1997 relating to Taxes due from or
with respect to the Company, its income, assets or operations, and (iii) any
extensions of the statute of limitations with respect to any Taxes due from or
with respect to the Company, their income, assets or operations. All
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income and franchise Tax Returns filed by or on behalf of the Company other than
for those for the taxable years ended on the respective dates set forth on
Schedule 3.17(d) hereto have been examined by the relevant taxing authority or
the statute of limitations with respect to such Tax Returns has expired.
(e) Except as set forth on Schedule 3.17(e), since January 1, 1997, no
claim has been made in writing addressed to the Company by a taxing authority in
a jurisdiction where the Company does not file Tax Returns asserting that the
Company is or may be subject to taxation in that jurisdiction.
(f) There are no Encumbrances as a result of any unpaid Taxes, other
than Taxes not yet due and payable, upon any of the assets of the Company.
(g) Except as set forth on Schedule 3.17(g) the Company has not been a
member of any consolidated, combined, unitary or affiliated group of
corporations for any Tax purposes.
(h) "Taxes" shall mean all taxes, charges, fees, levies, duties and
other similar governmental assessments, including, without limitation, (i)
income, gross receipts, ad valorem, premium, value added, excise, real property,
personal property, sales, use, transfer, withholding, employment, social
insurance, payroll, medicare, and franchise taxes imposed by any national, local
or foreign government, or any subdivision, agency, or other similar Person and
(ii) any interest, fines, penalties, assessments, reassessments or additions to
Taxes resulting from, attributable to, or incurred in connection with any Tax or
any contest, dispute, or refund thereof. "Tax Returns" shall mean reports,
returns and statements required to be supplied to a taxing authority in
connection with Taxes.
3.18. Insurance. Schedule 3.18(i) hereto sets forth a complete and correct
list and brief summary description of all insurance policies carried by, or
covering, the Company with respect to its business. Complete and correct copies
of each such policy have been made available to Holding. All such policies are
in full force and effect. No notice of cancellation has been received with
respect to any such policy. All premiums due thereon have been paid in a timely
manner and no event has occurred, including, without limitation, the failure of
the Company to give any notice or information or the Company giving inaccurate
or erroneous notice or information, which materially limits or impairs the
rights of the Company under any such insurance policies. Except as set forth on
Schedule 3.1(ii) there are no pending claims or, to the knowledge of the
Shareholders, threatened claims, under the Company's insurance policies with
respect to the Company's property or assets.
3.19. Books and Records. True and correct copies of the Company's meeting
minutes and shareholder register have been provided to Holding. The shareholders
register accurately reflects all transactions in shares and depository receipts
of the Company's capital stock. All accounting, financial, reporting, business,
tax, corporate and other similar books and records of the Company accurately
reflect the business and financial condition of the Company. Except as set forth
on Schedule 3.19 hereto, all of the records, data, information, databases,
systems and controls maintained, operated or used by the Company in connection
with the conduct or administration of its business (including all means of
access thereto and therefrom) are located
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on the premises of the Company and are under the exclusive ownership or direct
control of the Company.
3.20. Brokers' or Finders' Fees. Except as set forth on Schedule 3.20
hereto, no agent, broker, investment banker, or other Person or firm acting on
behalf of the Company or the Shareholders of the Company is or will be entitled
to any broker's or finder's fee or any other commission or similar fee directly
or indirectly from the Company, or any shareholder of the Company in connection
with any of the transactions contemplated by this Agreement.
3.21. Material Customers and Suppliers.
(a) Schedule 3.21(a)(i) hereto sets forth a complete and correct list
of the 10 largest customers of the Company in terms of amounts of order bookings
by such customers during the year ended December 31, 1999 (each, a "Material
Customer"), showing the total amount of order bookings to each such Material
Customer for such periods. Except as set forth and described on Schedule
3.21(a)(ii), no Material Customer has given the Company any notice terminating,
suspending or reducing in any material respect, or specifying an intention to
terminate, suspend or reduce in any material respect in the future, or otherwise
reflecting an adverse change in, the business relationship between such customer
and the Company (including by way of demands for price decreases) and there has
not been any adverse change in the business relationship of the Company with any
such customer since December 31, 1999. To the knowledge of the Shareholders no
Material Customer has the intention to terminate its relationship with the
Company.
(b) Schedule 3.21 (b)(i) hereto sets forth a complete and correct list
of the material suppliers of the Company in terms of amounts purchased from such
suppliers during the year ended December 31, 1999 (each, a "Material Supplier"),
showing the total amount purchased from each such Material Supplier for such
periods. Schedule 3.21(b)(i) also correctly identifies all current outstanding
purchase orders of the Company for goods or services with an aggregate value of
USD 100,000 (one hundred thousand USDollars) or more per annum. Except as set
forth on Schedule 3.21 (b)(ii), no supplier identified on Schedule 3.21(b)(ii)
has given the Company any notice terminating, suspending or reducing in any
material respect, or specifying an intention to terminate, suspend or reduce in
any material respect in the future, or otherwise reflecting an adverse change
in, the business relationship between such supplier and the Company (including
by way of proposed price increases) and there has not been any adverse change in
the business relationship of the Company with any such supplier since December
31, 1999.
3.22. Bank Accounts: Powers of Attorney. Schedule 3.22 hereto sets forth a
complete and correct list showing (a) all banks in which the Company maintains a
bank account or safe deposit box (collectively, "Bank ----- Accounts"), together
with, as to each such Bank Account, the account number, the names of all
signatories thereof and the authorized powers of each such signatory and, with
respect to each such safe deposit box, the number thereof and the names of all
persons having access thereto and (b) the names of all persons holding powers of
attorney from the Company, true and correct copies which have been delivered to
Holding.
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3.23. Intellectual Property Rights.
(a) Schedule 3.23(a)(i) sets forth a complete list of all of the
Company's Intellectual Property owned fully, completely and exclusively by the
Company. Schedule 3.23(a)(ii) sets forth a complete list of all the (implied
license) agreements with third parties regarding the use of Intellectual
Property, owned or licensed to such third party, and used by the Company. As
used herein, the term "Intellectual Property" shall mean software licenses and
know-how licenses, trade names, trademarks, copyrights, service marks, trade
secrets, technical knowledge, know-how, patents, patent applications,
non-patentable inventions, (business) methods and/or processes, design or model
rights, topography rights, database rights, mask works, computer software
(excluding non-customized computer software available to the Company on an over
the counter basis through normal commercial channels) and other confidential
proprietary information including but not limited to governmental type
approvals, and related ownership, use and other rights. Except as set forth on
Schedule 3.23(a)(iii), the Company has the right to use, free and clear of any
claims or rights of others, all Intellectual Property owned or used by it in the
operation of its business, and such use does not, to the knowledge of the
Shareholders, infringe on any patent, trademark, copyright, service mark or
trade name, or misappropriate any other Intellectual Property of others.
(b) To the knowledge of the Shareholders, the Company has not
interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any Intellectual Property rights of third parties, and the Company
has not received any charge, complaint, claim or notice alleging any such
interference, infringement, misappropriation, or violation. No third party has,
to the knowledge of the Shareholders, interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Intellectual Property
rights of the Company. Except as set forth in Schedule 3.23(b) the Company has
not granted any licenses of or other rights to use any of the Intellectual
Property of the Company to any third party. The Company has not entered into any
Contract to indemnify any other Person against any charge of infringement of any
Intellectual Property.
3.24. Compliance with Laws: Permits and Licenses. The Company is in
compliance and has complied in all material respects with all laws, statutes,
rules, regulations, codes and ordinances applicable to their respective
business, properties and operations, and has secured all material permits,
authorizations and licenses issued by federal, state, local and foreign agencies
and authorities, applicable to their business, properties, Employees and
operations. There have been no claims made or threatened against the Company
arising out of, relating to or alleging any violation of any of the foregoing,
except for claims which are no longer pending or which are set forth on Schedule
3.24(a) hereto. Except as set forth on Schedule 3.24(b) the Company has all
material permits, licenses, approvals, franchises, notices and authorizations
issued by any Governmental Entity (collectively, "Permits") necessary for the
Company to operate its business. The Company is in compliance in all respects
with all terms required for the continued effectiveness of each such Permit, and
there is not pending, or to the knowledge of the Shareholders, threatened
non-renewal or revocation of any such Permit. No other Permits, in addition to
the Permits currently held by the Company, are necessary to conduct the business
of the Company as it is now conducted. All such Permits are renewable by their
terms or in the ordinary course of business without the need to comply with any
special qualification procedures or to pay any amounts other than routine filing
fees. None of such Permits will be adversely
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affected by consummation of the transactions contemplated hereby. Neither any
present or former Shareholder of the Company or Employees, or any other Person,
holds, owns or has any proprietary, financial or other interest (direct or
indirect) in any Permits which the Company owns, possesses or uses in the
conduct of its business as now or previously conducted. Schedule 3.24(c) sets
forth a list of the Permits.
3.25. Certain Business Practices: Potential Conflicts of Interest.
(a) None of the Company, or any agents, Employees or present or former
Shareholders of the Company has (i) used any of the Company's funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns from the Company's funds, or (iii) made any other unlawful payment
from the Company's funds.
(b) Except as set forth on Schedule 3.25(b), neither any shareholder of
the Company nor any director, officer, nor any affiliate of the Company (i)
owns, directly or indirectly, any significant interest in, or is a director,
officer, employee, consultant or agent of, any Person which is a competitor or
customer of, or supplier of goods or services to, the Company, (ii) owns,
directly or indirectly, in whole or in part, any real property, leasehold
interests or other property the use of which is necessary for the conduct of the
business of the Company, or (iii) has any cause of action or other suit, action
or claim whatsoever against, or owes any amount to the Company other than claims
in the ordinary course of business.
3.26. Subsidies. Except as set forth on Schedule 3.26, there is no
outstanding or current subsidy, aid, tax holiday, grant program, loan at a
preferential rate, special contract or lease or similar benefit which has been
made available to the Company (including by way of guaranty or other assurance)
by a Governmental Entity (each, a "Subsidy"). The Company is in material
compliance with, and has neither breached or violated in any material respect,
any representation, condition or undertaking made by it to obtain or to maintain
any Subsidy. Neither the execution of this Agreement, nor the performance of any
of the transactions contemplated herein will, pursuant to the express terms of
any Subsidy, result in the cancellation, limitation or reduction of any such
Subsidy or require any repayment of, any reapplication for or reissuance of, or
any posting of additional security for the maintenance of, any Subsidy.
3.27. HSR Act. On the Closing Date, the Company, individually or in the
aggregate, will not own any assets located in the United States (other than
investment assets or voting or non-voting securities of another person) having
an aggregate book value of USD 15,000,000 (fifteen million USDollars) or more
and will not control (as that term is defined under Section 801.1(b) of the
United States Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended
(the "HSR Act")) any U.S. issuer (as defined in the HSR Act) that has annual net
sales or total assets of USD 25,000,000 (twenty five million USDollars) or more.
3.28. Disclosure. No representation or warranty by the Shareholders
contained in this Agreement, and no statement contained in any document
(including, without limitation, the Financial Statements and the Schedules
hereto), list, certificate or other instrument furnished or to be furnished by
or on behalf of the Shareholders or the Company to the Buyer or any of its
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representatives in connection with the transactions contemplated hereby,
contains or will contain any untrue statement of a material fact necessary, in
light of the circumstances under which it was or will be made, in order to make
the statements herein or therein not misleading or necessary in order fully and
fairly to provide the information required to be provided in any such document,
list, certificate or other instrument.
3.29. Material Consents. All consents, required Permits and approvals
("Material Consents") that are material to the ability of the Buyer to continue
to operate the Company in the ordinary course of business consistent with past
practices are identified on Schedule 3.29 attached hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF HOLDING AND BUYER
Holding and Buyer make the following representations and
warranties to the Company and the Shareholders, each of which is true and
correct as of the date hereof and shall be true and correct as of the Closing
Date:
4.1. Organization and Corporate Power. Holding and Buyer are corporations
duly organized, validly existing and in good standing under the laws of their
incorporation and have full corporate power and authority to own, lease and
operate the properties and assets which they now own, lease or operate and to
carry on their business as presently conducted or proposed to be conducted
pursuant to existing plans.
4.2. Authority; Absence of Conflicts.
(a) Holding and Buyer have full corporate power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly approved by
the Boards of Directors of Holding and Buyer, and no other corporate actions on
the part of Holding and Buyer are necessary to authorize and approve the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Holding and Buyer and, assuming this Agreement constitutes a valid
and binding obligation of the Company and the Shareholders, constitutes the
valid and binding obligation of Holding and Buyer, enforceable against them in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability
relating to or affecting creditors' rights and by general equitable principles.
(b) Except with respect to consents already obtained, neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby nor compliance with the terms hereof will (i)
conflict with or violate any provision of the Articles of Incorporation or
Bylaws of Holding and Buyer, (ii) violate, conflict with or result in a breach
of or default (or constitute any event which with the lapse of time or the
giving of notice or both would constitute a breach or default) under any of the
terms, conditions or provisions of any material Contract to which Holding and
Buyer are a party or by which Holding's and
-19-
<PAGE>
Buyer's assets or properties are bound, (iii) conflict with, violate or result
in a breach of or constitute a default under any law, statute, rule, judgment,
order, decree, injunction, ruling, treaty convention or regulation of any
Governmental Entity to which Holding and Buyer or any of their assets or
properties are subject, or (iv) require Holding and Buyer to give notice to,
obtain an authorization, approval, order, license, franchise, declaration or
consent of, or make a filing with, any third party, including, without
limitation, any Governmental Entity other than notices or approvals under
applicable non-U.S. competition, antitrust or pre-merger notification laws and
notices, waivers or approvals under applicable securities laws of the
Netherlands ("Holding Consents").
4.3. Outstanding Capital Stock; Issuance of Shares.
(a) The authorized capital stock of Holding consists of 300,000,000
Class A par value USDollars 0.01 (one USDollar cent) and 300,000,000 Class B par
value USDollars 0.01 (one USDollar cent) shares of Holding Common Stock and
100,000 shares of 12 1/2% (twelve and a half percent) Cumulative Compounding
Convertible Preferred Stock ("Holding Preferred Stock"), par value USD 0.01 (one
USDollar cent) per share. All of the issued and outstanding shares of Holding
Common Stock have been duly authorized and are validly issued, fully paid and
non-assessable, and none of such shares were issued in violation of any
preemptive rights of Shareholders.
(b) Holding Common Stock to be issued to the Shareholders under the
terms of this Agreement, when issued as contemplated by this Agreement, will be
duly authorized, validly issued, fully paid and non-assessable and not issued in
violation of any preemptive rights of Stockholders.
4.4. Legal Proceedings. There are no suits, actions, proceedings, claims or
investigations pending or, to the knowledge of Holding and Buyer, threatened,
challenging the validity or propriety of, or otherwise relating to or involving,
this Agreement or the transactions contemplated hereby.
4.5. Brokers' or Finders' Fees. No agent, broker, investment banker, or
other Person or firm acting on behalf of Holding or Buyer is or will be entitled
to any broker's or finder's fee or any other commission or similar fee directly
or indirectly from Holding or Buyer in connection with any of the transactions
contemplated by this Agreement, other than customary fees and expenses of
attorneys, accountants and similar professionals.
4.6. Financial Statements. Holding has delivered to the Shareholders true
and complete copies of the unaudited balance sheets of Holding Shareholders of
December 31, 1999 (the "Holding Financial Statements"). Such Holding Financial
Statements have been prepared in accordance with United States generally
accepted accounting principles ("U.S. GAAP") (except for the absence of
footnotes and normal year-end adjustments) consistently applied throughout the
periods involved and such balance sheets, fairly present the financial position,
assets and liabilities (whether accrued, absolute, contingent or otherwise) of
Holding at the dates indicated and such statements of operations of Holding for
the periods indicated the Holding Financial Statements are attached hereto as
Schedule 4.6.
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<PAGE>
ARTICLE V
COVENANTS
5.1. Confidentiality. From and after the date hereof, each of the
Shareholders will not, and will cause their respective affiliates not to,
directly or indirectly, disclose, reveal, divulge or communicate to any Person
other than authorized officers, directors and employees of Holding, the Company,
affiliates of Holding or the Company or use or otherwise exploit for its own
benefit or for the benefit of anyone other than the Company or Holding, any
Confidential Information (as defined below). The Shareholders agree that they
shall not have any obligation to keep confidential any Confidential Information
if and to the extent disclosure thereof is specifically required by law;
provided, however, that - in the event disclosure is required by applicable law,
such Shareholder shall provide the Company and Holding with prompt notice of
such requirement prior to making any disclosure so that the Company and Holding
may seek an appropriate protective order. For purposes of this Section 5.1
"Confidential Information" shall mean any confidential information with respect
to the conduct or details of the business of the Company, including, without
limitation, methods of operation, customers, and customer lists, products,
proposed products, former products, proposed, pending or completed acquisitions
of any company, division, product line or other business unit, prices, fees,
costs, plans, designs, technology, inventions, trade secrets, know-how,
software, marketing methods, policies, plans, personnel, suppliers, competitors,
markets or other specialized information or proprietary matters. The term
Confidential Information does not include, and there shall be no obligation
hereunder with respect to, information that (i) is generally available to the
public on the date of this Agreement, or (ii) becomes generally available to the
public other than as a result of a disclosure by the Shareholder or not
otherwise permissible thereunder, or (iii) the Shareholder learns from other
sources where such sources have not violated their confidentiality obligation to
the Company or Holding or their respective affiliates. -
5.2. Lock-up. Each and all Shareholders undertake that they will not offer,
sell, contract to sell, grant any options to purchase or otherwise dispose of a
certain percentage of the Holding Common Stock they receive hereunder (the
"Lock-Up") provided, however, that permitted sales at the Closing are subject to
an orderly sale through the Holding's underwriting team. The shareholders listed
on Schedule 5.2(i) have accepted a Lock-Up of 60% of their Holding Common Stock
until such time as the current Affiliates and Management Investors (as defined
in the agreements related to the Intersil Holding Corporation initial public
offering) are released from their current IPO related lock-up which is on or
about August 23, 2000 (the "First Release"). The other 40% may be sold as from
the Closing. The shareholders listed on Schedule 5.2(ii) have accepted a Lock-Up
of 100% of their Holding Common Stock: 50% of their Holding Common Stock is
under the Lock-up until the First Release: 25% of their Holding Common Stock is
under the Lock-up until August 23, 2001, and 25% of their Holding Common Stock
is under the Lock-Up until August 23, 2002.
5.3. US Securities Registration. Prior to the signing, Holding will file a
registration statement with the United States Securities and Exchange Commission
registering the resale of the Holding Common Stock by the Shareholders and will
use its commercially reasonable efforts to cause such registration statement to
become effective and to remain effective until the third anniversary of the Date
of Closing. The Shareholders agree to provide such information
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<PAGE>
regarding the Shareholders and their proposed plan of distribution as is
reasonably requested by Holding and to hold Holding harmless to the extent any
such information is false, misleading or incomplete. The Shareholders agree that
they will not transfer the Holding Common Stock during the period such
registration statement is effective at any time when they have been notified by
Holding that there may exist material non-public information concerning Holding.
ARTICLE VI
CLOSING DELIVERIES
6.1. Documents being delivered by the Parties at Closing
(a) Shares Transfers. At Closing, the Shareholders, Holding, Buyer and
the Company shall execute a notarial deed of transfer whereby the Shares are
transferred to Buyer and the transfer shall be registered in the Shareholders
Register of the Company.
(b) Insurance. The Shareholders' Vendors Indemnity and Warranty
Insurance Policy (the "Insurance Policy") shall have been delivered to the
Holding, together with evidence satisfactory to the Holding and the Shareholders
that the insurance premium for the Insurance Policy has been paid or shall be
paid by the Holding.
(c) Escrow Agreement. The Escrow Agreement shall have been duly
executed and delivered by the parties thereto.
(d) Resignation of Directors. Each member of the Supervisory Board of
the Company designated by Buyer shall have tendered their resignations to the
Company, as applicable, to be effective as of the Closing Date.
(e) Delivery of Certificates. Each of the Shareholders and the Company
shall have delivered to Holding and Buyer such good standing certificates,
officers' certificates and similar documents and incumbency certificates as
counsel for Holding and Buyer shall have reasonably requested.
(f) Delivery of Certificates. Holding and Buyer shall have delivered to
the Shareholders or the Company such good standing certificates, officers'
certificates and similar documents and incumbency certificates as counsel for
the Shareholders shall have reasonably requested.
(g) Exchange Agreement. The Optionholders and Holding shall have
executed and delivered the Exchange Agreement.
(h) Employee Agreements. Certain employees shall have entered into
employment agreements in a form satisfactory to Holding, Buyer and their
counsel.
(i) Patent Assignments. Certain employees shall have signed patent
assignment agreements in the form satisfactory to Holding, Buyer and their
counsel.
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<PAGE>
(j) Bundeskartelamt. Any and necessary filings and/or notifications
shall have been made to fulfill the applicable requirements, if any, under
German Anti-Trust law relating to this transaction.
(k) Pre-acquisition Investigation. The outcome of Holding's and Buyer's
preacquisition investigation is satisfactory to Holding, Buyer and their
counsel.
(l) Tax Ruling. The Company shall have obtained a tax ruling on the
roll-over of Options as described in the Exchange Agreement.
(m) Non-Competition, Non-Solicitation And Lock-Up Agreement. Certain
shareholders shall have entered into Non-Competition, Non-Solicitation And
Lock-Up Agreement in a form satisfactory to Holding, Buyer and their counsel.
ARTICLE VII
MISCELLANEOUS
7.1. Expenses. The Shareholders shall be responsible for the expenses
incurred by the Shareholders, in connection with the transactions provided for
herein or contemplated hereby. The Holding and Buyer shall pay for the expenses
incurred by them in connection with the transactions contemplated hereby. The
Buyer or the Company shall pay on behalf of the Shareholders the premium on the
Insurance Policy, the fees of Baker & McKenzie --Amsterdam office for legal
services rendered and the fee payable to FleetBoston Robertson Stephens
International Limited in relation to this agreement and the transaction
contemplated hereby on behalf of and from the funds of the Shareholders.
7.2. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the party for whom judgment is
finally granted by a court in connection with such action shall be entitled to
recover in such action its reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which it may be entitled.
7.3. Brokers. Holding and Buyer shall indemnify and hold harmless the
Shareholders, and the Shareholders shall, indemnify and hold harmless Holding
and Buyer (and from and after the Closing the Company), from and against any
liability, claim, loss, damage, or expense incurred by Holding and Buyer and the
Company, respectively, relating to any fees or commissions owed to any broker,
finder, or financial advisor as a result of actions taken by Holding, Buyer, the
Shareholders, the Optionholders, and the Company, respectively, in connection
with this Agreement or the transactions contemplated hereby; provided that the
foregoing does not apply to the fee payable to FleetBoston Robertson Stephens
International Limited in relation to this agreement and the transaction
contemplated hereby.
7.4. Notices. Any notice, request, demand or other communication given by
any party under this Agreement (each a "Notice") shall be in writing, may be
given by a party or its legal counsel, and shall be deemed to be duly given (i)
when personally delivered at that party's address as it appears below or another
address of which that party has given written notice to the
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<PAGE>
other parties hereto, or (ii) when transmitted by telex (or equivalent service),
the sender having received the answer back of the addressee, or (iii) when
delivered by facsimile transmission, the sender having received machine
confirmation thereof. Notice hereunder shall be sufficient if given to and these
parties choose their domicile for the purpose of receiving any writ or other
service of process at the following address:
(i) if to the Holding:
Intersil Holding Corporation
2401 Palm Bay Road, NE
Palm Bay, Florida 32905
Facsimile No: 1 (0)32 1 729 4065
Attention: Gregory Williams
and
Intersil Holding Corporation
2401 Palm Bay Road, NE
Palm Bay, Florida 32905
Facsimile No: 1 (0)321 729 5392
Attention: Stephen Moran
(ii) If to the Buyer:
Intersil B.V.
c/o Intersil Holding Corporation
2401 Palm Bay Road, NE
Palm Bay, Florida 32905
Facsimile No: 1 (0)321 729 4065
Attention: Gregory Williams
with copy to:
Intersil Holding Corporation
2401 Palm Bay Road, NE
Palm Bay, Florida 32905
Facsimile No: 1 (0)321 729 5392
Attention: Stephen Moran
(iii) If to the Company:
No Wires Needed BV
Rembrandtlaan 1 a
3723 BG Bilthoven H
P.O. Box 343, 3720 AN Bilthoven
Facsimile No: 31(0)30 229 6061
Attention: Hans van der Hoek
-24-
<PAGE>
(iv) If to any of the Shareholders:
At their respective addresses listed on
page 1 and on Exhibit 1 hereto,
with copy to:
Caron Stevens/Baker McKenzie
Hirsch Gebouw
Leidseplein 29,
1017 PS Amsterdam
P.O. Box 2720, 1000 CS Amsterdam
Facsimile No: 31(0)20 627 3458
Attention: Mic van Bremen
7.5. Transfer Taxes. The Shareholders shall be responsible for the payment
of, and shall indemnify and hold Holding and Buyer and the Company harmless from
and against, any and all sales, use, transfer, recording, stamp, documentary,
real estate or other similar Taxes attributable to purchase and sale of the
Optionholders' Company Capital Stock, Options or Warrants. All payments under
this Agreement shall be reduced by and made net of any applicable withholding
Taxes.
7.6. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and its respective successors and assigns. This
Agreement or any part hereof may not be assigned by any party without the prior
written consent of the other parties hereto, except that Holding and Buyer may
(i) assign its rights and obligations to any affiliate of Holding or Buyer or
(ii) make a collateral assignment of its rights under this Agreement to any
lender who provides funds to Holding or Buyer for the acquisition of the Company
without the written consent of the Company; provided that any such assignment
shall not relieve Holding or Buyer from its obligations hereunder. The Company
and the Shareholders shall execute acknowledgements of such assignment(s) and
collateral assignments in such forms as Holding, Buyer or Holding's or Buyer's
lender(s) may from time to time reasonably request.
7.7. Entire Agreement and Modification. This Agreement, the Schedules and
Annexes hereto and agreements executed concurrently herewith (all of which are
hereby incorporated by reference into and considered part of this Agreement)
supersede all prior agreements and understandings among the parties or any of
its respective affiliates (written or oral) relating to the subject matter of
this Agreement, and are intended to be the entire and complete statement of the
terms of the agreement among the parties, and may be amended or modified only by
a written instrument executed by all of the parties. The waiver by one party of
any breach of this Agreement by any other party shall not be considered to be a
waiver of any succeeding breach (whether of a similar or a dissimilar nature) of
any such provision or other provision or a waiver of any such provision itself.
No representation, inducement, promise, understanding, condition or warranty not
set forth herein has been made or relied upon by any of the parties.
-25-
<PAGE>
7.8. Certain Interpretive Matters. Unless the context otherwise requires,
(a) all references to Sections, Articles, Annexes or Schedules are to Sections,
Articles, Annexes or Schedules of or to this Agreement, (b) each term defined in
this Agreement has the meaning assigned to it, (c) "or" is disjunctive but not
necessarily exclusive, (d) words in the singular include the plural and vice
versa, (e) the term "affiliate" means any Person controlled by or under common
control with the applicable referenced Person and (f) "knowledge," in the case
of the Company or the Shareholders, shall refer to the actual knowledge, after
due inquiry, of any Shareholder. All references to "NLG" will be to lawful
currency of the Netherlands. All references to "USD" will be to lawful currency
of the United States of America. No provision of this Agreement will be
interpreted in favor of, or against, either of the parties hereto by reason of
the extent to which either such party or its counsel participated in the
drafting thereof or by reason of the extent to which any such provision is
inconsistent with any prior draft hereof or thereof.
7.9. Governing Law. This Agreement, and the respective rights, duties and
obligations of the parties hereunder, shall be governed by and construed in
accordance with the laws of the Netherlands, without giving effect to the
conflicts of laws provisions thereof. All disputes arising in connection with
this Agreement, shall be brought before the competent Netherlands court.
7.10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, and such
counterparts shall together constitute one and the same instrument.
7.11. Further Assurances. Each of the parties shall, at any time and from
time to time after the Closing Date, and at the expense of the other parties but
without further consideration, execute and deliver such further instruments,
assignments or documents and other papers and take such further actions as may
be reasonably required to carry out the provisions hereof and the transactions
contemplated hereby. Each party shall use its reasonable efforts to fulfill or
obtain the fulfillment of the conditions to the Closing.
7.12. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
7.13. No Recourse. No past, present or future director, officer, employee,
shareholder, incorporator or partner, as such, of Holding, Buyer, the Company or
the Shareholders (except to the extent any of the foregoing is a party to the
Agreement) shall have any liability for any obligations of Holding, Buyer, the
Company or the Shareholders under this Agreement or for any claim based on, in
respect of or by reason of such obligations or their creation.
-26-
<PAGE>
7.14. Public Statements. The Holding and Buyer, on the one hand, and the
Company and the Shareholders, on the other hand, will consult with the other
before issuing, and will provide the other with a reasonable opportunity to
review and comment upon, any press release or other public statements with
respect to the transactions contemplated by this Agreement, and shall not issue
any such press release or make any such public statements prior to such
consultation except as may be required by applicable law or judicial process.
7.15. Specific Performance. In the event of a breach or threatened breach by
any party hereto of any of his, her or its obligations hereunder to consummate
the transactions provided for herein any other party hereto shall be entitled to
specific performance with respect to said obligation. Nothing herein shall be
construed as prohibiting any party hereto from pursuing any other remedies
available for such breach or threatened breach, including the recovery of
damages.
7.16. Notary. The Notary who will execute the transfer deed is a civil law
notary of Caron & Stevens/Baker & McKenzie, which firm acts as the external
legal advisors of the Shareholders. Each party hereby acknowledges that it is
aware of the provisions of the "Guidelines concerning associations between civil
law notaries ("notarissen") and barristers/solicitors ("advocaten")" as
established by the Board of the Royal Professional Organization of Civil Law
Notaries ("Koninklijke Notariele Beroepsorganisatie") and agrees that Caron &
Stevens/Baker & McKenzie may advise and act on behalf of the Shareholders with
respect to this Share Purchase Agreement and any agreements and/or any disputes
related to or resulting from this agreement, without prejudice to the
obligations of the civil law notary of Caron & Stevens/Baker & McKenzie to all
parties with respect to the execution of the share transfer deed.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement in two or more counterparts, each of which shall be deemed one and the
same instrument, as of the day and year first above written.
HOLDING:
-------
INTERSIL HOLDING CORPORATION
Name:
-----------------------------------
Title:
-----------------------------------
BUYER:
-----
INTERSIL B.V.
Name:
-----------------------------------
Title:
-----------------------------------
COMPANY:
-------
NO WIRES NEEDED B.V.
Name:
-----------------------------------
Title:
-----------------------------------
SHAREHOLDERS:
------------
GILDE It FUND B.V.
Name:
-----------------------------------
Title:
-----------------------------------
-28-
<PAGE>
SHAREHOLDERS (continued)
PARNIB B.V.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
3COM CORPORATION
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
KENNET I L.P.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
HANS B. VAN DER HOEK
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
R.A. BROCKMANN
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
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<PAGE>
SHAREHOLDERS (continued)
R.J. RISSEEUW
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
R. BLOKKER
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
A.P.A. BLUM
By:
----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
A.R. ZWEMMER
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
P.VAN GEEST
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
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<PAGE>
SHAREHOLDERS (continued)
H.J. KOUWENHOVEN
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
W.W. SQUIRE
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
M. HOEBEN
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
B. RISSEEUW
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
S.M. BROCKMANN
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
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<PAGE>
SHAREHOLDERS (continued)
B.H. VAN DEN HEUVEL
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
PROCESSOR LEUSDEN B.V.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Q4 HOLDING B.V.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
S. JONKER
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
N. JONKER
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
-32-
<PAGE>
SHAREHOLDERS (continued)
R.W. JONKER BEHEER B.V.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
J.H. KNIBBE
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
C.I. KOUWENHOVEN
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
H. VAN LEEUWEN
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
F.M.A. VAN LIESHOUT
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
-33-
