EXHIBIT 10(ll)
SHARE PURCHASE AGREEMENT
between
MR. GHEORGHE RUSU
MR. EUGEN RUSU
MS. ELENA JUGARIU
MR. GABRIEL GALETEANU
MS. MARIETTA RUSU
MS. CRISTINA FRENT-LUNG
as Sellers
AND
EUROWEB INTERNATIONAL CORPORATION
As Buyer
Dated: May 17, 2000
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THIS AGREEMENT is made by and between:
1. Mr. Gheorghe Rusu, Romanian citizen, married, domiciled in Bucharest,
Ceairului Str. no 3, Block J10, ap.20, sector 3,
holder of the ID GB no 001823, issued by 13 Police Precinct at 11.05.1992;
2. Mr. Eugen Rusu , Romanian citizen, married, domiciled in Bucharest, Matei
Basarab Str, no 96, Block 122, ap.42, sector 3, holder of the ID RT no 055510,
issued by 11 Police Precinct at 15.11.1999;
3. Ms. Elena Jugariu, Romanian citizen, unmarried, domiciled in Bucharest,
Ceahlau Str. no 11, Block 76, ap.15, sector 6, holder of the ID GA no 074039,
issued by 20 Police Precinct at 04.04.1991
4. Mr. Gabriel Galeteanu , Romanian citizen, unmarried, domiciled in Bucharest,
Baba Novac Str.no 22, Block 24C, ap.105, sector 3, holder of the ID RR no
025316, issued by SEP at 10.03.1998;
5. Ms. Marietta Rusu , Romanian citizen, married, domiciled in Bucharest,
Ceairului Str. no 3, Block J10, ap.20, sector 3, holder of the ID GV no 445492,
issued by 13 Police Precinct at 17.08.1996;
6. Ms. Cristina Frent-Lung, Romanian citizen, married, domiciled in Bucharest,
Decebal Blvd, No18, Block S4, ap.12, holder of the ID GR no 084877, issued by
11 Police Precinct at 7.11.1994;
(hereinafter the Sellers);
Euroweb International Corporation., a corporation organized under the laws of
Delaware, USA, having its registered office at 445 Park Avenue, 15th Floor,
New York, NY 10022. USA, represented by Mr. Csaba Toro, Vice President of the
Central & East European Headquarters, 1122 Budapest, Varosmajor utca 13.
Hungary.
(hereinafter the Buyer).
WHEREAS
1. The Sellers are owners of Shares (the Shares) representing the entire
registered capital of the Company Mediator S.A., registered with Bucharest
Register of Commerce under No. J 40/2587/1998, fiscal code No: R 10347830
having its registered office at Piata Alba Iulia no 6, Bloc I 5, entrance 2,
et. 5, apartment 43 sector 3. Bucharest, Romania (the Company). Brief details
of the Company are set out in ANEX 1.
2. Each of the Seller is the owner of the following number of shares,
representing the relevant quota from the registered capital, respectively:
- Mr. Rusu M. Gheorghe -owns 70,000 of shares, representing 87.5000% from the
registered capital;
- Mr. Rusu Ghe.Eugen - owns 4,000 of shares, representing 5.000% from the
registered capital;
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- Ms. Rusu Ghe. Marietta- owns 1,000 of shares, representing 1.2500% from the
registered capital;
- Mr. Galeteanu G. Gabriel- owns 2,000 of shares, representing 2.500% from the
registered capital;
- Ms. Jugariu T.Elena- owns 2,000 of shares, representing 2.500% from the
registered capital;
- Ms. Frent-Lung E. Cristina- owns 1,000 of shares, representing 1.2500%
from the registered capital;
3. Each of the Sellers wishes to transfer all of their Shares together with
all right and obligations in the Company and the Buyer wishes to accept the
transfer of all the Shares in the Company on the terms set out in this
agreement and in reliance upon the representations, warranties and undertakings
set out in this agreement.
NOW, IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
In this agreement
o "Financial statements" means the Company's Balance Sheet and Profit and Loss
Statement as of 12/31/1999 provided by the Seller and attached to this
agreement in ANNEX 2
o "KPMG" means KPMG Romania (Str. Dragoslavele no. 2-4.), or such other firm
of accountants appointed by the buyer
o "KPMG report" means the due diligence report prepared for the purposes of
this agreement evaluating the accuracy of the Financial Statements and prepared
in accordance with the generally accepted principles of accounting practice in
Romania
o "Encumbrance" means any pledge, retention right, option, pre-emption right,
right of first refusal, restriction, fiduciary assignment or transfer of any
right, easement or any third person's right or security interest, or any
agreement or arrangement that may result in an obligation to establish any of
the above right
o "Management contract" means the management contract between the Company and
Mr. Gheorghe Rusu presented as draft in ANNEX 3
o "Warranties" means representations and warranties of the Sellers contained
and referred to in clause 5.
2. CONDITIONS PRECEDENT
(1) The transfer of Shares is conditional on:
a) the completion of the due diligence process investigation the Company to the
satisfaction of the buyer; and
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b) The Buyer obtaining approval of its board of directors
(2) The buyer and sellers shall use all reasonable endeavors to produce that
the conditions in sub-clause (1) are fulfilled on or before the date falling
one month after the date of this agreement.
(3) If the conditions in sub-clause (1) are not fulfilled on or before the date
specified in sub-clause (2) none of the parties (provided they shall have used
all reasonable endeavors as aforesaid) will have any rights or liabilities
under this agreement unless otherwise agreed in writing by all parties.
3. PRICE ADJUSTMENT
(1) If the due diligence process conducted by the Buyer discloses, in the
opinion of the Buyer, a material adverse difference in the value of the Company
from that set out in the Financial Statements, the Buyer will purpose a new
price offer to the Seller.
(2) Should the Seller not agree with the proposal made by the Buyer and should
such Agreement not be reached within 15 days of such proposal, none of the
parties shall have any rights or liabilities under this Agreement, unless
otherwise agreed in writing by the parties.
(3) Prior to any price adjustment under sub-clause (1) above, the Seller shall
have the right to receive a copy of the KPMG report
4. THE PURCHASE PRICE
(1) The purchase price is USD 3,000,000 (three million US dollars), payable as
follows:
(a) the amount of USD 2,100,000, payable in cash into the Seller's account,
upon Completion of the agreement, as defined in art. 6 of the present.
(b) The amount of USD 900,000 payable in cash to Mr. Gheorghe Rusu in three
installments of USD 300,000 each in 12, 24 and respectively 36 month upon
completion of the present agreement. Each installment of USD 300,000 shall be
remitted to Mr. Rusu on the due date, provided that the following conditions
are cumulatively observed:
I. Mr. Rusu did not breach any of the following obligations of non-competition
that he undertook:
- Not to engage in the business of ISP (Internet Service Providing consisting
of providing access, providing content and e-commerce activities) and or data
transmissions on his name and behalf or on the name or behalf of his relatives
up to the fourth grade including;
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- Not to mediate or intermediate business of ISP or transmission of data
between third parties;
- Not to enter into collaboration or employment relations with other Romanian
or foreign companies having as object of activity ISP or transmission of data,
except for the relations with Euroweb subsidiaries or affiliates provided that
the written approval of the legal representatives of the said company or of the
Board of Administration of Mediator SA is obtained;
- Not to participate, in capacity as member of the Board of Administration or
of another decision body of other Romanian or foreign companies, having as
object of activity ISP or transmission of data. An exception from this
obligation is participating to the decision bodies of the companies to which
Euroweb is shareholder and only with the prior written consent of the Board of
Administration of Mediator SA.
- To carry on his activity with good faith so that the interests he represents
are not contrary to the interests of Mediator SA and do not affect the good
reputation of Mediator SA or of Euroweb.
II. Mr. Rusu din not breach any of the following confidentiality obligations
he undertook:
- to keep confidentiality upon all information he holds in carrying on his
attributions, including the confidentiality upon the facts constituting
commercial secrets of Mediator SA, the confidentiality upon the commercial
contracts, the financial status and the commercial practice of Mediator SA or
of Euroweb. The confidentiality obligation shall be valid after the termination
of the employment relations, as well.
- To prevent the access, to the best of his ability, of unauthorised persons to
the documents and materials containing confidential information of Mediator SA.
III. Mr. Rusu shall not leave the company on his initiative or fault,
maintaining his position of employee as Executive Manager,
position that he obtained on execution date of the management agreement.
In the event that, on the employer's (Company's) initiative and regardless of
any fault of Mr. Rusu, the latter mentioned shall be forced to leave the
position of employee of the Company, then the yearly installments established
under point b) shall continue to be paid under the condition that the other
conditions provided under letters I. and II. of the present agreement to be
cumulatively observed.
(2) The parties agree that, immediately after the transfer of property upon
the shares from the Sellers to the Buyer, the Management Agreement, under the
form already agreed upon by Euroweb and Mr. Rusu be signed. By means of the
said agreement Mr. Rusu Gheorghe becomes an employee of the company in the
position of Executive manager. If, for whatever reasons, depending on Euroweb's
will the Management Agreement shall not be signed, Euroweb pledges to pay
to Mr. Rusu the amount of USD 900,000 in the yearly installments established
under point (1) (b). The installments shall be remitted if the other conditions
provided under point (1) (b) letters I and II shall be cumulatively observed.
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5. WARRANTIES
Except as detailed in this report and in Annex 4, each seller declares that:
a) Each Seller represents, warrants and undertakes to the buyer that each of
the Warranties contained in this Contract is true and accurate in all respect,
and not misleading as of the date of this Contract
b) Each Seller acknowledges that the Buyer is entering into this Contract and
into any agreements or arrangements in connection with herewith in reliance
upon each of the Warranties
c) The Company is a company duly incorporated and validly existing under
Romanian Law and all basic corporate acts taken since the Company's
incorporation (including, but not limited to any amendments of its corporate
documents) have been done validly and legally in accordance with the applicable
law
d) The Company has the legal right and full power and authority to carry on
its business and activities as currently being carried on
e) All internal corporate actions required by the Company's constitutional or
internal documents have been taken to enable each Seller to enter this contract
and to exercise his rights and to perform his obligations under this Contract
or any documents referred to herein or be executed in connection herewith and
there is no approval, consent, standpoint or permission required by any
authority or any other person for each Seller to enter into this Contract and
to exercise his rights and perform his obligations under this contract or any
documents referred to herein or to be executed in connection with herewith
f) Each Seller's title to his respective part in the Transferred Interest
Shares Part is good and legally perfect and there are no encumbrances existing
whatsoever (other than pre-emption rights under the Memorandum of Association,
which has been in each case duly, legally and validly waived) in respect of the
Transferred Interest Shares Parts
g) This Contract and all the documents referred to herein or to be executed in
connection with herewith will constitute valid and binding agreements and
obligations of each Seller, enforceable in accordance with their respective
terms and conditions
h) All capital contributions to the Company have been duly and fully paid-up
by the Sellers
i) The Company has no subsidiaries and holds no investment in any other company
j) The Company has not agreed or undertaken to acquire any shares or interests
in any other company
k) All claims, rights and receivables of each Seller towards the Company are
fully and unconditionally satisfied as of the date
of this Contract and therefore the Buyer has unrestricted and unconditional
right freely to exercise all rights arising from the Transferred Interest
Share Parts.
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l) The 1999 Financial Statements have been prepared in accordance the law and
on a proper basis in accordance with the generally accepted accounting
standards as outlined by the regulations of the Ministry of Finance and/or
applied in practice by major accounting firms in Romania at the time of their
preparation, consistently applied.
m) Since 1 January 2000, the Company's business and activities have been
carried on in the ordinary and usual course without interruption, there has
been no major change in the financial or trading position or prospects of the
Company
n) The Company did not give nor offered to give any guarantee or any other
security in respect of any third person's liabilities of any nature whatsoever
o) The Company has submitted to the tax authority all tax returns and tax
statements in accordance with relevant tax and accounting regulations and to
each Sellers' best knowledge, all such tax returns and tax statements are true,
accurate and complete
p) The Company has paid all taxes and other payments to the governmental
agencies that it is liable to pay duly and in time and the Company is not under
any liability to pay any penalty, charge, incremental on taxes or any other
payment obligations of similar nature in connection with any tax.
q) All of assets are owned exclusively by the Company and have been acquired
legally and in accordance with the laws of Romania
r) The Company has not established any Encumbrance over any of its assets
s) The Company does not infringe any third persons Intellectual Property Rights
and there is or has been any dispute, action, or claim made or threatening by
any third person in relation thereto
t) The Company has obtained all licenses, permits and approvals required for
proper carrying out of its business as presently carried on and all such
licenses, permits or approvals are valid and in full force
u) The Company is not in breach of any licences, permits or approvals required
for proper carrying out of business. The Company has taken all actions
desirable or necessary for maintaining all of its licences, permits and
approvals, as may be required under applicable legislation and there is no
threat of any revocation of any of existing licences, permits and
authorizations.
v) The Company has not received any communication from the Romanian
Anti-Monopoly Office relating in any respect to its business, and the Company
has not the dominant position in any relevant market in the meaning of the
Competition Protection Law
w) The Company is no a party to any agreement or arrangement that could be
interpreted as an unfair trade practice or prohibited due to restricting
competition or otherwise in conflict with competition protection legislation
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x) The Company is not involved in any civil, commercial, labour or other
litigation proceeding pendings before any court (whether in Romania or
elsewhere) or arbitration (whether regular or ad hoc and whether in Romania
or elsewhere), whereby the claimed amount against it would be higher than
USD 2,500 or equivalent in other currencies, or whereby such proceedings
may otherwise have material impact in respect of the Company's corporate
existence or carrying on its business or its financial situation
y) The execution and performance of this Contract and other documents and
transactions contemplated in connection therewith will not result in the
Company losing the benefit of any Assets, licence, right, legal relation or
privilege which it recently enjoys or relieve any person from any obligation
towards the Company, or not conflict with, or result in breach of, or institute
any event of default or potential event of default under any agreement or
arrangement to which the Company is a party
6. COMPLETION
(1) Completion shall take place at the offices of the buyers' Lawyers within
five business days after the Buyer has notified the Seller of satisfaction of
the conditions precedent under clause 2, but no later than 1 month from the
signing date.
(2) At completion:
(a) The Seller shall physically deliver the Shares to the Buyer, duly endorsed
to the order of Buyer (upon the delivery of the Shares to the Purchaser, the
full title to the Shares passes unconditionally onto the Buyer and the Shares
become the buyer's sole and exclusive property)
(b) A certificate signed by all of the members of the Company's Board of
Directors, confirming that all Shares being fully paid up in cash by the
Seller and lawfully issued by the Company to the Seller, being delivered to the
Buyer, in form and substance satisfactory to the Buyer
(c) The Buyer appearing duly registered in the Company's Register of Shares and
in the Company' s Register of Shareholders as the holder of Shares.
(d) An affidavit signed by the Company's administrators stating that the
transfer of the Shares was duly registered in the Register of Shares and the
Shareholders Registry
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(3) Upon completion of all the matters set out in sub-clause (2) above, the
Buyer shall immediately pay in cash the amount of 2,100,000 USD provided under
clause 4 point (1) letter (a), into the bank account indicated in due time, in
writing, by the Sellers to the Buyer.
(4) The Sellers and the Buyer hereby agree that the documents set forth under
sub-clause (2) above shall be kept in custody by the Buyer's lawyers until the
date when the Sellers confirm the receipt of the amount of 2,100,000. An
Agreement regarding the custody of the documents shall be signed upon
Completion.
7. NOTICES
All communication between parties in under or in connection with this agreement
shall be in writing and all notices shall be sent to:
For the Sellers
Name: Mr. Gheorghe Rusu,
Address: Bucharest, Piata Ceairului no 3, Block J10, ap.20, sector 3
Buyer
Euroweb International Corporation
Central & East European Headquarters
1122 Budapest, Varosmajor utca 13. Hungary
Contact person: Mr. Csaba Toro, Vice President
Phone: (36)-1-2244000
Fax: (36)-1-2244100
E-mail: [email protected]
8. FINAL PROVISIONS
(1) This Contract shall be governed by the Romanian Law
(2) The Parties hereby agree to submit any dispute not settled amicably to the
jurisdiction of Romanian courts
(3) This Contract has been made and executed in Romanian and English language.
If there is a matter of interpretation of text regarding this Agreement and if
there is any inconsistency between the Romanian and the English version, the
English version shall prevail. Both the Romanian and the English version will
be presented to the Register of Commerce for registration.
(4) This Contract becomes effective between parties on the date of signing by
each of the Parties and shall become effective towards the Company on the date
of the registration of the statement subscribed by each of the Seller and the
Buyer regarding the share transfer in the Shares Register of the Company
(5) In the event that any provision of this Contract becomes invalid, illegal
or enforceable under any jurisdiction, the validity and enforceability of the
remaining provisions shall not be affected thereby in any way under such
jurisdiction, not the Contract as a whole in any other jurisdiction
(6) The present Contract shall supersede any other prior verbal or written
agreements
(7) This contract has been made in 9 counterparts in English language and 9
counterparts in Romanian Language, one original of each version for each of the
parties, for the Notary Public and for the purposes of registration of
transfers hereunder
(8) This Contract includes 3 ANNEXES, namely:
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ANNEX 1 - particulars of the Company
ANNEX 2 - financial statement of 1999
ANNEX 3 - the draft of the management contract with Mr. Gheorghe Rusu
The Parties hereby declare that they have entered into this contract on their
own free will and they have signed it today, the date of the legalization of
their signatures.
THE SELLERS:
MR. GHEORGHE RUSU /s/____________________
MR. EUGEN RUSU /s/____________________
MS. ELENA JUGARIU /s/_____________________
MR. GABRIEL GALETEANU /s/ _____________________
MS. MARIETTA RUSU /s/_____________________
MS. CRISTINA FRENT-LUNG /s/_____________________
THE PURCHASER
EUROWEB INTERNATIONAL CORPORATION
By: Mr. Toro Csaba /s/________________________
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Additional Act
to the Shares Sale-Purchase Agreement
legalized under No. 1965/17.05.2000
Concluded between:
Mr. Gheorghe Rusu, Romanian citizen, domiciled in Bucharest, Ceairului street
no 3, Block J10, entrance B, 1st floor, ap.20, sector 3, holder of the ID GB
no 001823, issued by 13 Police Precinct at 11.05.1992;
Mr. Eugen Rusu, Romanian citizen, domiciled in Bucharest, Matei Basarab St.,
No. 96, block L 122, 3rd entrance, suite 42, sector 3, identified with identity
card series RT No. 055510 issued by 11 Police Precinct at 15.11.1999;
Ms. Elena Jugariu, Romanian citizen, domiciled in Bucharest, Ceahlau St.,
no 11, Block 76, entrance A, ap.15, sector 6, holder of the ID GA no 074039,
issued by 20 Police Precinct at 04.04.1991;
Mr. Gabriel Galeteanu , Romanian citizen, domiciled in Bucharest, Baba Novac
St. no 22, Block 24C, entrance B, 11th floor, ap.105, sector 3, holder of the
Identity card series RR No. 025316, issued by SEP on 10.03.1998;
Ms. Marietta Rusu , Romanian citizen, domiciled in Bucharest, Ceairului St.
no 3, Block J10, entrance B, 1st floor, ap.20, sector 3, holder of the ID
series GV no. 445492, issued by 13 Police Precinct at 17.08.1996;
Ms. Cristina Frentz-Lung, Romanian citizen, domiciled in Bucharest, Decebal
St. No18, Block S4, entrance 1, 1st floor, ap.2, sector 3, holder of the ID
GR no 084877, issued by 11 Police Precinct at 7.11.1994, hereinafter referred
to as the Sellers,
and
Euroweb International Corporation, a corporation organized under the laws of
Delaware, USA, having its registered office at 445 Park Avenue, 15th Floor,
New York, NY 10022. USA, represented by Mr. Gregg Betz, hereinafter referred
to as the Buyer,
The parties agreed upon the concluding of the present Additional Act modifying
the Shares Sale-Purchase Agreement legalized under No. 1965/17.05.2000 at the
Notary Public Office Marius Luca, as follows:
Article 1. Article 4 - The Purchase Price shall have the following contents:
(1) The purchase price is USD 2,580,000 (two million five hundred eighty
thousands US dollars), payable as follows:
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(a) the amount of USD 2,040,000, payable in cash at the Closing Date as defined
in art. 6 of the present into the Seller's account opened on Mr. Rusu
Gheorghe's personal account as per the separate agreement concluded in this
respect by the Sellers, with the following coordinates:
Account No. 115413-020 USD
Bank Code: BACXROBU
Bank Austria Creditanstalt Romania SA,
Millenium Branch,
Calea Victoriei No. 88, Ro-70104, Bucharest
(b) The amount of USD 540,000 payable in cash to Mr. Gheorghe Rusu in three
installments of USD 180,000 each in 12, 24 and respectively 36 month upon
completion of the present agreement. Each installment of USD 180,000 shall be
remitted to Mr. Rusu on the due date, provided that the following conditions
are cumulatively observed:
I. Mr. Rusu did not breach any of the following obligations of non-competition
that he undertook:
- Not to engage in the business of ISP (Internet Service Providing consisting
of providing access, providing content and e-commerce activities) and or data
transmissions on his name and behalf or on the name or behalf of his relatives
up to the fourth grade including;
- Not to mediate or intermediate business of ISP or transmission of data
between third parties;
- Not to enter into collaboration or employment relations with other Romanian
or foreign companies having as object of activity ISP or transmission of data,
except for the relations with Euroweb subsidiaries or affiliates provided that
the written approval of the legal representatives of the said company or of the
Board of Administration of Mediator SA is obtained;
- Not to participate, in capacity as member of the Board of Administration or
of another decision body of other Romanian or foreign companies, having as
object of activity ISP or transmission of data. An exception from this
obligation is participating to the decision bodies of the companies to which
Euroweb is shareholder and only with the prior written consent of the Board of
Administration of Mediator SA.
- To carry on his activity with good faith so that the interests he represents
are not contrary to the interests of Mediator SA and do not affect the good
reputation of Mediator SA or of Euroweb.
II. Mr. Rusu din not breach any of the following confidentiality obligations he
undertook:
- to keep confidentiality upon all information he holds in carrying on his
attributions, including the confidentiality upon the facts constituting
commercial secrets of Mediator SA, the confidentiality upon the commercial
contracts, the financial status and the commercial practice of Mediator SA or
of Euroweb. The confidentiality obligation shall be valid after the termination
of the employment relations, as well.
- To prevent the access, to the best of his ability, of unauthorised persons to
the documents and materials containing confidential information of Mediator SA.
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III. Mr. Rusu shall not leave the company on his initiative or fault,
maintaining his position of employee as Executive Manager,
position that he obtained on execution date of the Management Agreement.
In the event that, on the employer's (Company's) initiative and regardless of
any fault of Mr. Rusu, the latter mentioned shall be forced to leave the
position of employee of the Company, then the yearly installments established
under point b) shall continue to be paid under the condition that the other
conditions provided under letters I. and II. of the present agreement to be
cumulatively observed.
(2) The parties agree that, immediately after the transfer of property upon
the shares from the Sellers to the Buyer, the Management Agreement, under the
form already agreed upon by Euroweb and Mr. Rusu is signed. By means of the
said agreement Mr. Rusu Gheorghe becomes an employee of the company in the
position of Executive manager.
If, for whatever reasons, depending on Euroweb's will the Management Agreement
shall not be signed, Euroweb pledges to pay to Mr. Rusu the amount of
USD 540,000 in the yearly installments established under point (1) (b). The
installments shall be remitted if the other conditions provided under point
(1) (b) letters I and II shall be cumulatively observed."
(3) The amount of USD 540,000 may be decreased with any amount representing
taxes and duties liability arising from the activity carried out by Mediator
until the Closing Date.
Article 2. In any other part of the Shares Sale-Purchase Agreement where
references shall be made to the purchase price, such price shall be the one
stipulated in the present Additional Act, payable in the modality described in
the present.
Article 3. Mr. Rusu Gheorghe personally, undertakes to transfer to Mediator SA
all the contracts and assets from Intercomp as agreed upon with the Buyer. Mr.
Rusu personally agrees to undertake any fiscal and legal negligence resulting
from the Intercomp-Mediator relationship.
The other provisions of the Shares Sale-Purchase Agreement and the subsequent
documents concluded on its basis remain unchanged.
Concluded in Bucharest today, the day of legalization of signatures, in 9
originals in Romanian language and 9 originals in English language. In case of
discrepancies between the two versions, the English version shall prevail.
/s/ SELLERS /s/ BUYER
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