Schedule 13D Exhibit I
Schedule TO Exhibit (a)(i)
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ASSET PURCHASE AGREEMENT
AND OFFER AMENDMENT
DATED AS OF JULY 26, 2000
BETWEEN
INVENSYS HOLDINGS LIMITED
AND
INVENSYS PLC
ON THE ONE HAND
AND
BAAN COMPANY N.V.
AND
BAAN SOFTWARE B.V.
ON THE OTHER HAND
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<PAGE>
TABLE OF CONTENTS
PAGE
PREAMBLE............................................................... 1
RECITALS............................................................... 1
TERMS AND CONDITIONS................................................... 2
ARTICLE 1 - GENERAL PROVISIONS................................... 2
1.1 Definitions.......................................... 2
1.2 Other Definitions and Meanings;
Interpretation....................................... 2
ARTICLE 2 - PURCHASE AND SALE.................................... 3
2.1 Transaction.......................................... 3
2.2 Acquired Assets...................................... 3
2.3 Assumed Liabilities.................................. 4
2.4 Purchase Price....................................... 4
2.5 Adjustment........................................... 4
2.6 Payment of the Purchase Price........................ 4
(A) Payment at Closing.............................. 4
(B) Final Payment................................... 4
2.7 Refund of Price...................................... 4
2.8 Method of Payment.................................... 4
2.9 Allocation of Consideration.......................... 4
ARTICLE 3 - ACTIONS BEFORE CLOSING............................... 4
3.1 Access to Records.................................... 4
3.2 Interim Conduct of the Business...................... 5
3.3 Invensys Holdings' Approval of Certain Transactions.. 5
3.4 Consents to Assignment............................... 6
3.5 Interim Management Services.......................... 6
3.6 Interim Financing.................................... 6
3.7 Subsequent Offering Period........................... 6
3.8 Extraordinary General Meeting........................ 6
3.9 Amendment to Schedule TO............................. 7
3.10 Coordination of Public Announcements................. 7
ARTICLE 4 - CONDITIONS........................................... 7
4.1 Conditions to Invensys Holdings' Obligations......... 7
4.2 Conditions to the Baan Sellers' Obligations.......... 8
4.3 Parties' Best Efforts................................ 9
ARTICLE 5 - CLOSING.............................................. 9
5.1 The Closing.......................................... 9
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5.2 Time and Date of Closing............................. 9
5.3 Place of Closing..................................... 9
5.4 Invensys' Holdings Obligations....................... 9
5.5 The Baan Sellers' Obligations........................ 9
ARTICLE 6 - ACTIONS AFTER CLOSING................................ 10
6.1 Further Conveyances.................................. 10
6.2 Further Consents to Assignment....................... 10
6.3 Liquidation of Baan.................................. 10
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES....................... 11
7.1 The Baan Sellers' Representations and Warranties..... 11
(A) Organization and Existence...................... 11
(B) Power and Authority............................. 11
(C) Authorization................................... 11
(D) Binding Effect.................................. 11
(E) No Default...................................... 11
(F) Finders......................................... 11
(G) Fairness Opinion................................ 11
(H) Ownership of Acquired Assets.................... 11
(I) Subsidiaries.................................... 11
(J) Representations and Warranties
True and Complete............................... 12
7.2 Invensys Holdings' Representations and Warranties.... 12
(A) Organization and Existence...................... 12
(B) Power and Authority............................. 12
(C) Authorization................................... 12
(D) Binding Effect.................................. 12
(E) No Default...................................... 12
(F) Finders......................................... 12
(G) Representations and Warranties
True and Complete............................... 12
ARTICLE 8 - EMPLOYEES............................................ 12
8.1 The Baan Sellers' Employees ......................... 12
8.2 Subsidiary Employees................................. 13
ARTICLE 9 - AMENDMENT TO OFFER AGREEMENT......................... 13
9.1 Partial Waiver....................................... 13
9.2 Amended Condition.................................... 13
9.3 Public Announcement.................................. 13
9.4 Waiver of Other Conditions........................... 13
9.5 Contemplated Transactions............................ 13
9.6 Legal Orders......................................... 14
9.7 No Further Amendment................................. 14
ARTICLE 10 - AMENDMENT, WAIVER, TERMINATION, AND CANCELLATION ... 14
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10.1 Amendment .......................................... 14
10.2 Waiver .......................................... 14
10.3 Termination.......................................... 14
10.4 Cancellation......................................... 14
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ARTICLE 11 - MISCELLANEOUS....................................... 15
11.1 Cooperation.......................................... 15
11.2 Severability......................................... 15
11.3 Costs and Expenses................................... 15
11.4 Notices .......................................... 15
11.5 Assignment .......................................... 15
11.6 No Third Parties..................................... 16
11.7 Incorporation by Reference........................... 16
11.8 Governing Law........................................ 16
11.9 Counterparts......................................... 16
11.10 Complete Agreement................................... 16
11.11 Unconditional Guarantee.............................. 16
APPENDICES
Appendix A - Definitions
Appendix B - Subsidiaries
Appendix C - Documents to Be Delivered by the Baan Sellers at the
Closing
Appendix D - Documents to Be Delivered by Invensys Holdings at the
Closing
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ASSET PURCHASE AGREEMENT
AND OFFER AMENDMENT
This document is an ASSET PURCHASE AGREEMENT AND OFFER AMENDMENT (this
"Purchase Agreement"), is dated as of July 26, 2000, and is among
INVENSYS HOLDINGS LIMITED ("Invensys Holdings"), a private
limited company organized under the laws of England and Wales, and
INVENSYS PLC ("Invensys"), a public limited company organized under
the laws of England and Wales, on the one hand,
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BAAN COMPANY N.V. ("Baan"), a public limited company (naamloze
vennootschap) organized under the laws of The Netherlands, and its
wholly-owned subsidiary, BAAN SOFTWARE B.V. ("Baan Software"), a
private limited company (besloten vennootschap) organized under the
laws of The Netherlands, on the other hand. (Baan and Baan Software
are hereinafter jointly referred to as the "Baan Sellers".)
RECITALS
A. On May 31, 2000, Invensys, Invensys Holdings B.V., i.o. ("Original
Purchaser"), a Dutch private limited company (besloten vennootschap)
and a wholly-owned subsidiary of Invensys in formation, Invensys B.V.,
i.o. ("Original Offer Sub"), a Dutch private limited company (besloten
vennootschap) and a wholly-owned subsidiary of Original Purchaser in
formation, on the one hand, and Baan, on the other hand, entered into
an Offer Agreement (the "Offer Agreement") pursuant to which Original
Offer Sub agreed to make an offer (the "Offer") to purchase all of
Baan's outstanding common shares, par value NLG 0.06 per share (the
"Shares), at a price of Euro 2.85 per Common Share, subject to certain
conditions set forth in the Offer Agreement.
B. Between May 31, 2000, and June 14, 2000, with the consent of Baan,
Original Purchaser and Original Offer Sub, assigned all of their
rights and delegated all of their duties under the Offer Agreement to
Invensys Holdings.
C. On June 14, 2000, Invensys Holdings made the Offer as provided in the
Offer Agreement.
D. On July 13, 2000, the Offer was scheduled to expire, but the condition
precedent that at least 95% of the outstanding shares be tendered or
held (directly or indirectly) by Invensys (the "Minimum Condition") to
Invensys Holdings' obligation to accept for payment and pay for Shares
tendered had not then been satisfied.
E. On July 14, 2000, pursuant to the second sentence of Section 1.1(b) of
the Offer Agreement, Invensys, on behalf of Invensys Holdings,
extended the Offer until 3:00 p.m. (Amsterdam time) on July 25, 2000.
F. The Minimum Condition was not duly satisfied at the expiration of the
Offer on July 25, 2000.
G. The Baan Management Board and Supervisory Board continue to have
serious reason to doubt the continued viability of the Baan Sellers if
Invensys Holdings elects not to waive the Minimum Condition.
H. In order to assure the continued viability of the Baan Sellers'
business (the "Business") of designing, developing, selling,
installing, and servicing enterprise business software, in order to
protect as best as possible the interests of the Baan Sellers'
employees, customers, suppliers, shareholders and other stakeholders,
and in order to induce Invensys Holdings to waive partially and amend
the conditions precedent to the Offer, the Baan Sellers' Management
Board and Supervisory Board desire, in order to facilitate the
completion of the Offer, subject to the approval of Baan's
shareholders and the positive advice of Baan's Works Council, to sell
the Business to Invensys Holdings (or its nominee) on the terms and
conditions set forth in this Purchase Agreement.
I. Invensys Holdings is willing to waive partially and amend the
conditions precedent to the Offer only if Baan enters into this
Purchase Agreement pursuant to which Invensys Holdings (and/or its
assignee(s)) will purchase the Business from the Baan Sellers on and
subject to the terms and conditions contained in this Purchase
Agreement.
TERMS AND CONDITIONS
In consideration of the matters recited above and of other good and
valuable consideration, and intending to be legally bound by this Purchase
Agreement, Invensys Holdings and the Baan Sellers hereby agree as follows:
ARTICLE 1 - GENERAL PROVISIONS
1.1 DEFINITIONS. Appendix A sets forth the definitions of certain terms
used in this Purchase Agreement. Those terms shall have the meanings
set forth on Appendix A where used in this Purchase Agreement and
identified with initial capital letters.
1.2 OTHER DEFINITIONS AND MEANINGS; INTERPRETATION. For purposes of this
Purchase Agreement, except where the context otherwise requires --
(A) The term "parties" means Invensys Holdings and Invensys, on one
hand, and Baan and Baan Software, on the other hand.
(B) The term "person" includes any natural person, firm, association,
partnership, corporation, limited liability company or
partnership, governmental agency, or other entity other than the
parties.
(C) The term "today" means July 26, 2000.
(D) When introducing a series of items, the term "including" is not
intended to limit the more general description which precedes the
items listed.
(E) The Table of Contents and the headings of the Articles and
Sections are included for convenience of reference only and are
not intended to affect the meaning of the operative provisions to
which they relate.
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ARTICLE 2 - PURCHASE AND SALE
2.1 TRANSACTION. On and subject to the terms and conditions of this
Purchase Agreement,
(A) At the Closing, Invensys Holdings will purchase from the Baan
Sellers, and the Baan Sellers will sell, transfer, and assign to
Invensys Holdings, all of the Acquired Assets;
(B) At the Closing, Invensys Holdings will assume and become directly
and solely responsible for the payment or discharge when due of
all of the Assumed Liabilities; and
(C) Invensys Holdings will pay the Baan Sellers the Purchase Price as
provided in Section 2.6.
2.2 ACQUIRED ASSETS. For purposes of this Purchase Agreement, the term
"Acquired Assets" means all of the Baan Sellers' right, title, and
interest in and to each one's respective assets, properties, and
rights that are held by or for the benefit of the Baan Sellers or
otherwise used by or on behalf of each of the Baan Sellers in the
conduct of each one's respective Business as the same exist as of the
Closing, including all assets that are reflected on the consolidating
balance sheet of the Business as of the Closing. Without limiting the
generality of the foregoing, the Acquired Assets will include all of
the Baan Sellers' rights, title, and interests in and to the following
assets, properties, and rights as the same shall exist as of the
Closing:
(A) All Cash;
(B) All Accounts Receivable;
(C) All Prepaid Items;
(D) All Inventories;
(E) All Real Property;
(F) All Personal Property;
(G) All Purchase Contracts;
(H) All Sales Contracts;
(I) All Leases;
(J) All Third-Party Claims;
(K) All Intellectual Property;
(L) All Permits;
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(M) All Business Records;
(N) All goodwill associated with the Business; and
(O) The Subsidiary Shares.
The Acquired Assets, however, will not include the Purchase Price.
2.3 ASSUMED LIABILITIES. For purposes of this Purchase Agreement the term
"Assumed Liabilities" means all liabilities and obligations of the
Baan Sellers, including all liabilities that are reflected on the
balance sheet of the Business as of the Closing and all liabilities
arising under the Interim Loan Agreement described in Section 3.6
below.
2.4 PURCHASE PRICE. For purposes of this Purchase Agreement, the term
"Purchase Price" means Euros 762 million plus or minus the amount of
the Adjustment.
2.5 ADJUSTMENT. The parties anticipate that Baan will be liquidated and
liquidation payments will be made to Baan shareholders within 12
months after the completion of the Offer. Immediately before such
liquidation payment is made, the parties will in good faith compute an
adjustment to the Purchase Price (the "Adjustment") equal to Euro 762
million minus the total amount that otherwise would be distributed to
shareholders upon liquidation of Baan, such that Baan will be able to
distribute to its shareholders Euro 2.85 per share on liquidation of
Baan.
2.6 PAYMENT OF PURCHASE PRICE. Invensys Holdings will pay the Purchase
Price as follows:
(A) PAYMENT AT CLOSING. At the Closing, Invensys Holdings will pay
Baan Euro 762 million; and
(B) FINAL PAYMENT. If the Adjustment is a positive amount, then
promptly after the amount of the Adjustment has been determined,
and immediately before the liquidation distributions made,
Invensys Holdings will pay Baan the amount of the Adjustment.
2.7 REFUND OF PURCHASE PRICE. If the Adjustment is a negative amount, then
promptly after the amount of the Adjustment has been determined Baan
will refund to Invensys Holdings the amount of the Adjustment.
2.8 METHOD OF PAYMENT. Invensys Holdings will pay Baan the Purchase Price
at the Closing in immediately available funds to a banking account
which has been designated by Baan at least three days before the
Closing or, if Baan has not made any such designation, by bank check.
2.9 ALLOCATION OF CONSIDERATION. The total consideration paid by Invensys
Holdings to purchase the Acquired Assets from the Baan Sellers is the
sum of the Purchase Price plus the book amount of the Assumed
Liabilities as of the Closing. Between today and the Closing the
parties will negotiate in good faith the allocation of the total
consideration among the Acquired Assets.
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ARTICLE 3 - ACTIONS BEFORE CLOSING
3.1 ACCESS TO RECORDS. From today until the Closing, the Baan Sellers will
continue to afford duly authorized representatives of Invensys and
Invensys Holdings free and full access during normal business hours to
all of the assets, properties, books, and non-privileged records of
the Business and will continue to permit such representatives to make
abstracts from, or take copies of, such books, records, or other
documentation, or to obtain temporary possession of any thereof as may
be reasonably required by Invensys Holdings and the Baan Sellers will
furnish to Invensys Holdings such information concerning the Business,
and its assets, liabilities, and condition as Invensys Holdings may
reasonably request.
3.2 INTERIM CONDUCT OF THE BUSINESS. From today until the Closing, the
Baan Sellers will continue to conduct the Business, and will cause
each of the Subsidiaries to continue to conduct the Business, only in
the ordinary and usual course, subject to Invensys Holdings' approval
of certain transactions pursuant to Section 3.3. Without limiting the
generality of the foregoing, insofar as the Business is concerned, and
except as may be inconsistent with Baan's obligations under the Offer
Agreement, any Ancillary Document (as defined in the Offer Agreement,
this Purchase Agreement, the Interim Management Services Agreement
(described in Section 3.5 below), or the Interim Loan Agreement (as
described in Section 3.6 below), the Baan Sellers will use their best
efforts to:
(A) Preserve substantially intact the Business' goodwill and the Baan
Sellers' and the Subsidiaries' relationships with suppliers,
customers, employees, creditors, and others having business
dealings with the Business;
(B) Maintain in full force and effect its existing policies of
insurance which materially affect the Business;
(C) Maintain all Intellectual Property to be included as part of the
Acquired Assets in substantially the same standing as exist today
and continue the prosecution of all applications therefor;
(D) Maintain all Business Records in the ordinary and usual manner on
a basis consistent with past practice; and
(E) Continue performance in the ordinary course of its obligations
under contracts, commitments, or other obligations to be included
as part of the Acquired Assets.
3.3 INVENSYS HOLDINGS' APPROVAL OF CERTAIN TRANSACTIONS. Except as may
otherwise be required under this Purchase Agreement, from today until
the Closing, insofar as the Business is concerned the Baan Sellers
will not do any of the following without the prior approval with
written confirmation of Invensys Holdings, which approval shall not be
unreasonably withheld:
(A) Incur or permit the incurrence of any material debt for borrowed
money or incur any obligation or other material liability that
would constitute an Assumed Liability;
(B) Purchase or dispose of any real property or real property
interest to be included as part of the Acquired Assets;
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(C) Enter into any lease of real or personal property or any renewals
thereof involving a term of more than one year or rental
obligation exceeding Euros 1,000,000 per annum in any single
case;
(D) Voluntarily permit to be incurred any material Encumbrances on
any of the Acquired Assets except in the ordinary course of
business;
(E) Except for normal merit or cost-of-living increases for employees
who are not officers or Board members, increase the rate of
compensation for any of the employees of the Business or
otherwise enter into or alter any employment, consulting, or
managerial services agreement primarily affecting the Business
except in accordance with past practice;
(F) Other than as required by applicable law, commence, enter into,
or alter any pension, retirement, profit-sharing, employee stock
option or stock purchase, bonus, deferred compensation, incentive
compensation, life insurance, health insurance, fringe benefit,
severance, or other employee benefit plan or arrangement
affecting employees of the Business;
(G) Make any single new commitment or increase any single previous
commitment for capital expenditures in an amount of Euros
1,000,000;
(H) Accelerate or delay the sale of Products except as may be
necessary in the ordinary course of business;
(I) Sell, assign, transfer, license, or convey any of the
Intellectual Property to be included as part of the Acquired
Assets; or
(J) Otherwise take any action of the nature described in Section
5.2(b) of the Offer Agreement.
3.4 CONSENTS TO ASSIGNMENT. From today until the Closing, the Baan Sellers
will use their reasonable best efforts to obtain the consents or
approvals (or effective waivers thereof) of all persons whose consents
or approvals are required for the assignment or transfer of the Baan
Sellers' rights under material contracts, leases, licenses, permits,
approvals, and other similar items constituting part of the Acquired
Assets.
3.5 INTERIM MANAGEMENT SERVICES. Simultaneously with the execution and
delivery of this Purchase Agreement, the Baan Sellers and Invensys
Holdings are entering into a Management Services Agreement (the
"Interim Management Services Agreement") pursuant to which Invensys
Holdings will provide Baan with interim management services from today
until the Closing.
3.6 REVOLVING CREDIT AGREEMENT. Simultaneously with the execution and
delivery of this Purchase Agreement, Baan and Invensys are entering
into a Interim Loan Agreement (the "Revolving Credit Agreement")
pursuant to which Invensys Holdings will provide Baan with secured
interim financing from today until the Closing.
3.7 SUBSEQUENT OFFERING PERIOD. Concurrently with the public announcement
described in Section 9.3, Invensys Holdings will provide holders of
Shares with a subsequent offering period (the "Subsequent Offering
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Period") in accordance with Rule 14d-11 under the U.S. Securities
Exchange Act of 1934, as amended, beginning no later than the business
day following the expiration of the Offer and ending at 3:00 P.M. on
the 19th business day thereafter.
3.8 EXTRAORDINARY GENERAL MEETING. Promptly after the execution and
delivery of this Purchase Agreement, Baan will convene an
extraordinary annual general meeting (the "EGM") of its shareholders
for 9:00 A.M. (Dutch Time) on Tuesday, August 15, 2000, or as soon
thereafter as possible to:
(A) Consider and adopt Baan's financial accounts for the fiscal year
ended December 31, 1999,
(B) Elect Baan's Management Board,
(C) Elect Baan's Supervisory Board,
(D) Consider, authorize, and approve the execution, delivery, and
performance by Baan of this Purchase Agreement and the
transactions contemplated by this Purchase Agreement, and
(E) Discussion of such other and further business as may properly be
brought before such meeting.
3.9 AMENDMENT TO SCHEDULE TO. After the execution and delivery of this
Purchase Agreement, Invensys will file an amendment to its Schedule TO
filing concerning the Offer with the U.S. Securities and Exchange
Commission as required by law.
3.10 COORDINATION OF PUBLIC ANNOUNCEMENTS. From today until the Closing,
the parties will cooperate in the planning, preparation, and
publication of any and all public announcements concerning this
Purchase Agreement and the transactions contemplated by this Purchase
Agreement.
ARTICLE 4 - CONDITIONS
4.1 CONDITIONS TO INVENSYS HOLDINGS' OBLIGATIONS. The obligation of
Invensys Holdings to consummate the transactions contemplated by this
Purchase Agreement (other than the transactions described in Sections
3.5, 3.6, 3.7. 3.9, and 3.10 and Article 9 of this Purchase Agreement)
is subject to the satisfaction of the following conditions at or
before the Closing:
(A) The representations and warranties of the Baan Sellers contained
in Section 7.1 of this Purchase Agreement shall be true,
accurate, and complete in all material respects as of today and
as of the Closing;
(B) The condition to the Offer set forth in clause (i) of the first
sentence of Exhibit A to the Offer Agreement, as amended by this
Purchase Agreement, shall have been satisfied;
(C) The Fairness Opinion shall not have been withdrawn, rescinded, or
modified in any way;
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(D) The Interim Management Services Agreement shall continue to be in
full force and effect in all material respects in accordance with
its terms and Baan shall not be in material Default under the
Interim Management Services Agreement;
(E) The Interim Loan Agreement shall continue to be in full force and
effect in all material respects in accordance with its terms and
Baan shall not be in material Default under the Interim Loan
Agreement;
(F) The Baan Works Council shall have given its positive advice
concerning the transactions contemplated by this Purchase
Agreement;
(G) The execution, delivery, and performance of this Purchase
Agreement and the transactions contemplated by this Purchase
Agreement shall have been duly authorized and approved by the
Baan shareholders at the EGM;
(H) The Baan Sellers shall have performed and complied in all
material respects with all agreements and conditions required by
this Purchase Agreement to be performed or satisfied by the Baan
Sellers, and the Baan Sellers shall have delivered to Invensys
Holdings all documents, certificates, and instruments required to
be delivered by the Baan Sellers under the terms of this Purchase
Agreement, including the documents referred to on Appendix C;
(I) All corporate and other proceedings or actions to be taken by the
Baan Sellers in connection with the transactions contemplated by
this Purchase Agreement, and all documents incidental thereto,
shall be reasonably satisfactory in form and substance to
Invensys Holdings;
(J) All requisite governmental approvals, consents, and
authorizations necessary for consummation of the transactions
contemplated by this Purchase Agreement shall have been duly
issued or granted; and
(K) There shall not have been issued and in effect any injunction or
similar legal order prohibiting or restraining consummation of
any of the transactions contemplated in this Purchase Agreement
and no legal action or governmental investigation or inquiry
which might reasonably be expected to result in any such
injunction or order shall be pending.
4.2 CONDITIONS TO THE BAAN SELLERS' OBLIGATIONS. The obligation of the
Baan Sellers to consummate the transactions contemplated by this
Purchase Agreement is subject to the satisfaction of the following
conditions at or before the Closing:
(A) The representations and warranties of Invensys Holdings contained
in Section 7.2 shall be true, accurate, and complete in all
material respects as of today and as of the Closing;
(B) Invensys Holdings shall have performed and complied in all
material respects with all agreements and conditions required by
this Purchase Agreement to be performed or satisfied by Invensys
Holdings, and Invensys Holdings shall have delivered all
documents, certificates, and instruments required to be delivered
by Invensys Holdings under the terms of this Purchase Agreement,
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including the documents referred to on Appendix C;
(C) The Fairness Opinion shall not have been withdrawn, rescinded, or
modified in any way;
(D) The Interim Management Services Agreement shall continue to be in
full force and effect in all material respects in accordance with
its terms and Invensys Holdings shall not be in material Default
under the Interim Management Services Agreement;
(E) The Interim Loan Agreement shall continue to be in full force and
effect in all material respects in accordance with its terms and
Invensys Holdings shall not be in material Default under the
Interim Loan Agreement;
(F) The Baan Works Council shall have given its positive advice
concerning the transactions contemplated by this Purchase
Agreement;
(G) Invensys Holdings shall have taken all corporate and other
proceedings to be taken by it in connection with the transactions
contemplated by this Purchase Agreement;
(H) All requisite governmental approvals and authorizations necessary
for consummation of the transactions contemplated by this
Purchase Agreement shall have been duly issued or granted;
(I) There shall not have been issued and in effect any injunction or
similar legal order prohibiting or restraining consummation of
any of the transactions contemplated in this Purchase Agreement
and no legal action or governmental investigation or inquiry
which might reasonably be expected to result in any such
injunction or order shall be pending; and
(J) The execution, delivery, and performance of this Purchase
Agreement and the transactions contemplated by this Purchase
Agreement shall have been duly authorized and approved by the
Baan shareholders at the EGM.
4.3 PARTIES' BEST EFFORTS. From today until the Closing, each party will
cooperate and use its respective best efforts to cause the conditions
set forth in this Article 4 over which such party has influence or
control to be satisfied on or before the Closing Date.
ARTICLE 5 - CLOSING
5.1 THE CLOSING. For purposes of this Purchase Agreement, the term
"Closing" means the time at which the transactions contemplated by
this Purchase Agreement will be consummated after satisfaction or
waiver of the conditions set forth in Article 4 of this Purchase
Agreement.
5.2 DATE AND TIME OF CLOSING. The Closing will occur on a mutually
agreeable date (the "Closing Date") as soon as reasonably practicable
after the EGM. The Closing will be deemed to have occurred as of 11:59
P.M. (the "Closing Time") on the Closing Date.
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5.3 PLACE OF CLOSING. The Closing will take place at the offices of Stibbe
Simont Monahan Duhot at Strawinskylaan 2001, Amsterdam, The
Netherlands, or at such other place as the parties may agree in
writing.
5.4 INVENSYS HOLDINGS' OBLIGATIONS. At the Closing, Invensys Holdings will
deliver to the Baan Sellers the following:
(A) The documents, certificates, and other items referred to in
Section 4.2(B);
(B) The Purchase Price, and
(C) An executed and notarized instrument pursuant to which Invensys
Holdings assumes the Assumed Liabilities as of the Closing.
5.5 THE BAAN SELLERS' OBLIGATIONS. At the Closing, the Baan Sellers will
deliver to Invensys Holdings the following:
(A) The documents, certificates, and other items referred to in
Section 4.1(B),
(B) Ownership of the Acquired Assets as contemplated in this Purchase
Agreement, and
(C) Executed and notarized deeds, bills of sale, and such other
instruments pursuant to which Baan convey the Acquired Assets to
Invensys Holdings.
ARTICLE 6 - ACTIONS AFTER CLOSING
6.1 FURTHER CONVEYANCES. After the Closing, the Baan Sellers will execute
and deliver to Invensys Holdings (at no additional cost to Invensys
Holdings) such additional instruments of conveyance, and will take
such other and further actions, as Invensys Holdings may reasonably
request more completely to sell, transfer, and assign to Invensys
Holdings and vest in Invensys Holdings Ownership to the Acquired
Assets.
6.2 FURTHER CONSENTS TO ASSIGNMENT. If and to the extent the Baan Sellers
fail to obtain before Closing the consent or approval (or an effective
waiver thereof) of any person or persons with respect to any item
described in Section 3.4, then after the Closing,
(A) Until such consent or approval (or an effective waiver thereof)
has been obtained,
(1) On behalf of the Baan Sellers, Invensys Holdings will
perform all of the Baan Sellers' duties with respect to such
item, and
(2) On behalf of Invensys Holdings, the Baan Sellers will
exercise all of the Baan Sellers' rights with respect to
such item as directed by Invensys Holdings.
(B) The parties will use reasonable efforts to obtain from such
person or persons the consents or approvals (or effective waivers
thereof).
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(C) If the parties are unable to obtain any such consent, approval,
or waiver, then
(1) This Purchase Agreement shall not constitute or be deemed to
be a contract to assign or transfer the same if an attempted
assignment or transfer without such consent, approval, or
waiver would constitute a breach of such item or create in
any party thereto the right or power to cancel or terminate
such item, and
(2) The Baan Sellers will cooperate with Invensys Holdings in
any reasonable arrangement designed to provide Invensys
Holdings with the benefit of the Baan Sellers' rights under
such item, including enforcement (at Invensys Holdings'
expense) of any and all rights of the Baan Sellers against
such person as Invensys Holdings may reasonably request.
6.3 LIQUIDATION OF BAAN. Invensys Holdings will cause Baan to be
liquidated in accordance with Dutch law and the provisions of the
Purchase Agreement between January 1, 2001, and the first anniversary
of the termination of the Offer.
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES
7.1 THE BAAN SELLERS' REPRESENTATIONS AND WARRANTIES. The Baan Sellers
hereby represent and warrant to Invensys Holdings the following:
(A) ORGANIZATION AND EXISTENCE. Baan is a public limited company
(naamloze vennootschap) duly organized and validly existing under
the laws of The Netherlands. Baan Software is a private limited
company (besloten vennootschap) duly organized and validly
existing under the laws of The Netherlands.
(B) POWER AND AUTHORITY. Subject only to the approval of Baan's
shareholders as described in Section 3.6 above and the positive
advice of the Baan Works Council, the Baan Sellers have full
power and authority under its constitutive documents and the laws
of The Netherlands to execute, deliver, and perform this Purchase
Agreement.
(C) AUTHORIZATION. Subject only to the approval of Baan's
shareholders as described in Section 3.6 above and the positive
advice of the Baan Works Council, the execution, delivery, and
performance of this Purchase Agreement by the Baan Sellers has
been duly authorized by all requisite corporate action on the
part of the Baan Sellers.
(D) BINDING EFFECT. Subject only to the approval of Baan's
shareholders as described in Section 3.6 above, this Purchase
Agreement is a valid, binding, and legal obligation of the Baan
Sellers.
(E) NO DEFAULT. Neither the execution and delivery of this Purchase
Agreement nor the Baan Sellers' full performance of their
respective obligations under this Purchase Agreement will violate
or breach, or otherwise constitute or give rise to a Default
under, the terms or provisions of the Baan Sellers' constitutive
documents or of any material contract, commitment, or other
obligation to which either of the Baan Sellers is a party.
- 11 -
(F) FINDERS. With the sole exception of Lazard Freres & Co. LLC, the
Baan Sellers have not engaged and are not directly or indirectly
obligated to any person acting as a broker, finder, or similar
capacity in connection with the transactions contemplated by this
Purchase Agreement or as otherwise disclosed in writing to
Invensys.
(G) FAIRNESS OPINION. The Baan Sellers' have delivered to Invensys
Holdings simultaneously with the execution and delivery of this
Purchase Agreement a true and correct copy of the letter (the
"Fairness Opinion") dated today's date from Lazard Freres & Co.
LLC concerning Baan.
(H) OWNERSHIP OF THE ACQUIRED ASSETS. The Baan Sellers Own all of the
Acquired Assets.
(I) SUBSIDIARIES. All of the material Subsidiaries are listed on
Appendix B. Except as otherwise disclosed on Appendix B, (1) the
Subsidiaries are the only material business entities in which the
Baan Sellers have an equity interest (directly or indirectly);
(2) each of the Subsidiaries has full corporate power and
authority to own its properties and conduct the Business as the
same has been and is being conducted; (3) except as indicated on
Appendix B, Baan Owns (directly or indirectly) all of the issued
and outstanding equity capital of each of the Subsidiaries; (4)
all of the Subsidiaries Shares have been duly issued, have been
fully paid, and are nonassessable; and (5) neither the Baan
Sellers nor any of the Subsidiaries has issued or granted to any
person any option, warrant, conversion right, or other right of
any kind to acquire any other equity capital of any Subsidiary.
(J) REPRESENTATIONS AND WARRANTIES TRUE AND COMPLETE. All
representations and warranties of the Baan Sellers in this
Purchase Agreement are true, accurate, and complete and will be
true, accurate, and complete as of the Closing.
7.2 INVENSYS HOLDINGS' REPRESENTATIONS AND WARRANTIES. Invensys Holdings
hereby represents and warrants to the Baan Sellers the following:
(A) ORGANIZATION AND EXISTENCE. Invensys Holdings is a private
limited company duly organized and validly existing under the
laws of England and Wales.
(B) POWER AND AUTHORITY. Invensys Holdings has full corporate power
and authority under its constitutive documents and under the laws
of England and Wales to execute, deliver, and perform this
Purchase Agreement.
(C) AUTHORIZATION. The execution, delivery, and performance of this
Purchase Agreement have been duly authorized by all requisite
corporate actions on the part of Invensys Holdings.
(D) BINDING EFFECT. This Purchase Agreement is a valid, binding, and
legal obligation of Invensys Holdings.
(E) NO DEFAULT. Neither the execution and delivery of this Purchase
- 12 -
Agreement nor Invensys Holdings' full performance of its
obligations under this Purchase Agreement will violate or breach,
or otherwise constitute or give rise to a Default under, the
terms or provisions of Invensys Holdings' constitutive documents
or of any material contract, commitment, or other obligation to
which Invensys Holdings is a party.
(F) FINDERS. With the sole exception of Goldman Sachs International,
neither Invensys nor Invensys Holdings has engaged or is directly
or indirectly obligated to any person acting as a broker, finder,
or other similar capacity in connection with the transactions
contemplated by this Purchase Agreement.
(G) REPRESENTATIONS AND WARRANTIES TRUE AND COMPLETE. All
representations and warranties of Invensys Holdings in this
Purchase Agreement are true, accurate, and complete and will be
true, accurate, and complete as of the Closing.
ARTICLE 8 - EMPLOYEES
8.1 THE BAAN SELLERS' EMPLOYEES. At the Closing, as the Baan Sellers'
successor in interest to the Business, Invensys Holdings' will assume
and become solely responsible for all employment contracts and pension
rights of the Baan Sellers employees by operation of law.
8.2 SUBSIDIARY EMPLOYEES. The terms and conditions of employment of
employees of the Subsidiaries, including their respective pension
rights, will not be affected by the sale of Subsidiary Shares to
Invensys Holdings.
ARTICLE 9 - AMENDMENT TO OFFER AGREEMENT
9.1 PARTIAL WAIVER. The parties each hereby waive any right that any of
them may have to terminate the Offer Agreement pursuant to Section
6.1(b)(iii) of the Offer Agreement upon termination or expiration of
the Offer for failure of any condition precedent to the Offer.
9.2 AMENDED CONDITION. The parties hereby amend the Offer Agreement as
follows:
(A) The second sentence of Section 1.1(a) of the Offer Agreement is
hereby amended to read as follows:
"The obligation of Offer Sub, and of Parent to
cause Offer Sub, to commence the Offer and to
accept for payment, and to pay for any Common
Shares tendered pursuant to the Offer shall be
subject only to the conditions set forth in
Exhibit A (including the condition that the number
of Common Shares that, together with the Common
Shares then owned by Parent and its subsidiaries,
represent at least a majority of the outstanding
Common Shares be validly tendered and not
withdrawn prior to completion of the Offer, and
the terms and conditions of this Agreement (the
'Offer Conditions')"; and
- 13 -
(B) Clause (i) of the first sentence of Exhibit A to the Offer
Agreement is hereby amended to read as follows:
"there shall have been validly tendered and not
withdrawn prior to completion of the Offer, a
number of Common Shares that, together with the
Common Shares then owned by Parent and its
Subsidiaries, represent at least a majority of the
outstanding Common Shares (the 'Minimum
Condition') and".
9.3 PUBLIC ANNOUNCEMENT. Promptly after the execution and delivery of this
Purchase Agreement, Invensys Holdings will announce the amended
condition to the Offer and afford Baan shareholders a period of five
business days in which to tender additional Shares or withdraw Shares
which have previously been tendered.
9.4 WAIVER OF OTHER CONDITIONS. Invensys and Invensys Holdings hereby
waive the conditions contained in paragraphs (d) and (g) of Exhibit A
to the Offer Agreement.
9.5 CONTEMPLATED TRANSACTIONS. The transactions contemplated by the
Purchase Agreement, the Interim Management Services Agreement, the
Interim Loan Agreement, and all other documents ancillary to those
transactions are "transactions contemplated by this Agreement" for
purposes of Section 5.8(b) of the Offer Agreement.
9.6 LEGAL ORDERS. Consistent with the conditions set forth in the Offer
Agreement and Exhibit A (both as amended by this Purchase Agreement),
the obligation of Invensys Holdings to purchase Shares tendered
pursuant to the Offer (as amended by this Purchase Agreement) is
subject to the condition that, with respect to this Purchase
Agreement, there shall not have been issued and in effect any
injunction or similar legal order prohibiting or restraining
consummation of any of the material transactions contemplated by this
Purchase Agreement and no legal action or governmental investigation
or inquiry which is reasonably likely to result in any such injunction
or order shall be pending.
9.7 NO FURTHER AMENDMENT. Except as provided in this Article 9, the Offer
Agreement will remain in full force and effect.
ARTICLE 10 - AMENDMENT, WAIVER, TERMINATION, AND CANCELLATION
10.1 AMENDMENT. The parties may amend this Purchase Agreement at any time
before the Closing, but only by written instrument executed by both
parties. In addition, until Invensys, directly or indirectly, owns at
least 95% of the outstanding Shares, any amendment of this Purchase
Agreement shall also require the prior written consent of the
"Continuing Members" under the Offer Agreement.
10.2 WAIVER. Either party may at any time waive compliance by the other
with any covenants or conditions contained in this Purchase Agreement
but only by written instrument executed by the party waiving such
compliance. No such waiver, however, shall be deemed to constitute the
waiver of any such covenant or condition in any other circumstance or
- 14 -
the waiver of any other covenant or condition. In addition, until
Invensys, directly or indirectly, owns at least 95% of the outstanding
Shares, any waiver of any covenant or condition contained in this
Purchase Agreement shall also require the prior written consent of the
"Continuing Members" under the Offer Agreement.
10.3 TERMINATION. The parties may terminate this Purchase Agreement at any
time before the Closing, but only by written instrument signed by all
of the parties. This Purchase Agreement will terminate automatically,
and without further action by either party, if all of the conditions
set forth in Article 4 have not been duly waived or satisfied by
December 31, 2000.
10.4 CANCELLATION. Invensys reserves the right to cancel this Purchase
Agreement unilaterally if the number of Shares validly tendered and
not withdrawn pursuant to the Offer and accepted for payment prior to
completion of the Offer, together with other Shares then owned
directly or indirectly by Invensys, constitute a majority of the total
number of Shares then outstanding. Both parties reserve the right to
cancel this Purchase Agreement unilaterally if the Offer is terminated
without Invensys Holdings accepting for payment all the Shares
tendered and not withdrawn at the time of the termination. Both
parties also reserve the right to cancel this Purchase Agreement
unilaterally if the number of Shares validly tendered and not
withdrawn pursuant to the Offer and during the Subsequent Offering
Period and that are accepted for payment by Invensys Holdings,
together with other Shares then owned directly or indirectly by
Invensys, equal 95% or more of the total number of Shares then
outstanding.
ARTICLE 11 - MISCELLANEOUS
11.1 COOPERATION. Each of Invensys Holdings and the Baan Sellers will
cooperate with the other parties, at any other party's request and
expense, in furnishing information, testimony, and other assistance in
connection with any actions, proceedings, arrangements, and disputes
with other persons or governmental inquiries or investigations
involving the Business or the transactions contemplated by this
Purchase Agreement.
11.2 SEVERABILITY. If any provision of this Purchase Agreement is finally
determined to be unlawful, then such provision will be deemed to be
severed from this Purchase Agreement and replaced by a lawful
provision which carries out, as closely as possible, the intention of
the parties and preserves the economic bargain contemplated by this
Purchase Agreement and, in such case, each and every other provision
of this Purchase Agreement will remain in full force and effect.
11.3 COSTS AND EXPENSES. Each party will bear its own expenses incurred in
connection with this Purchase Agreement and the transactions
contemplated by this Purchase Agreement, whether or not the
transactions are consummated.
11.4 NOTICES. All notices, requests and other communications under this
Purchase Agreement shall be in writing and shall be deemed to have
been duly given at the time of receipt if delivered by hand or
communicated by electronic transmission (with confirmation by mail or
courier), or, if sent by courier, two days after delivery to an
international courier service with guaranteed two-day delivery,
addressed or communicated as follows:
- 15 -
If to Invensys and Invensys Holdings Limited
Invensys Holdings, to: c/o Invensys plc
Carlisle Place
London SW1P 1BX
United Kingdom
Attention: Company Secretary
Telefax: 44.20.7821.3806
If to the Baan Sellers, to: Baan Company N.V.
Baron van Nagellstraat 89
3770 AC Barneveld
The Netherlands
Attention: Secretary to the Board
Telefax: 1.703.234.6720
Either party may change its notice address above to a different
address by giving the other party written notice of such change.
11.5 ASSIGNMENT. This Purchase Agreement will be binding upon and inure to
the benefit of the successors of each of the parties hereto, but shall
not be assignable by either party without the prior written consent of
the other. Invensys Holdings may, however, if it so elects, assign all
of its rights and delegate all of its duties to another company under
the ownership and control of Invensys by giving the Baan Sellers
notice of such assignment and delegation and Invensys' unconditional
guarantee of the assignee's performance.
11.6 NO THIRD PARTIES. Neither this Purchase Agreement nor any provisions
set forth in this Purchase Agreement is intended to, or shall, create
any rights in or confer any benefits upon any person other than the
parties to this Purchase Agreement.
11.7 INCORPORATION BY REFERENCE. The Appendices to this Purchase Agreement
constitute integral parts of this Purchase Agreement and are hereby
incorporated into this Purchase Agreement by this reference.
11.8 GOVERNING LAW. This Purchase Agreement will governed and construed in
accordance with the internal substantive laws of The Netherlands and
any action brought to enforce this Purchase Agreement will be brought
in and decided by Dutch courts. Nothing in this Purchase Agreement,
however, shall constitute an amendment to governing law provisions of
Section 7.5 of the Offer Agreement (as amended by this Purchase
Agreement), which will continue to apply as written.
11.9 COUNTERPARTS. More than one counterpart of this Purchase Agreement may
be executed by the parties hereto, and each fully executed counterpart
shall be deemed an original without production of the others.
11.10 COMPLETE AGREEMENT. This Purchase Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter
of this Purchase Agreement and supersedes all prior letters of intent,
- 16 -
agreements, covenants, arrangements, communications, representations,
or warranties, whether oral or written, by any officer, employee, or
representative of either party relating thereto.
11.11 UNCONDITIONAL GUARANTEE. Invensys hereby unconditionally and
irrevocably guarantees to the Baan Sellers the full and punctual
performance of all of Invensys Holdings' obligations under this
Purchase Agreement. Invensys agrees that any and all modifications,
additions, or alterations which may be made in the terms of this
Purchase Agreement or in the obligations to be performed thereunder,
or any payments to be made on account thereof, or any grace, waiver,
or forbearance on the part of either Invensys or the Baan Sellers to
the other, shall not in any way release Invensys from continuing and
undiminished liability hereunder. Invensys hereby waives notice of any
such modifications, additions, adjustments, grace, forebearance, or
waiver except as required under this Purchase Agreement.
- 17 -
<PAGE>
To evidence their agreement as stated above, INVENSYS HOLDINGS LIMITED and
INVENSYS PLC, on the one hand, and BAAN COMPANY N.V. and BAAN SOFTWARE
B.V., on the other hand, have each caused their respective duly authorized
directors, officers, and/or attorneys to execute this ASSET PURCHASE
AGREEMENT AND OFFER AMENDMENT in Amsterdam, The Netherlands, as of July 26,
2000.
INVENSYS HOLDINGS LIMITED BAAN COMPANY N.V.
By: /s/ Frans D. Rosendaal By: /s/ Joost Van Lanschot
------------------------------- ------------------------------
Frans D. Rosendaal Joost van Lanschot
Attorney-in-Fact Attorney-in-Fact
INVENSYS PLC BAAN SOFTWARE N.V.
By: /s/ Frans D. Rosendaal By: /s/ Joost Van Lanschot
------------------------------- ------------------------------
Frans D. Rosendaal Joost van Lanschot
Attorney-in-Fact Attorney-in-Fact
- 18 -
<PAGE>
Appendix A
CERTAIN DEFINITIONS
The following terms identified with initial capital letters are
defined in the following Sections of the Purchase Agreement:
TERM CROSS REFERENCE
---- ---------------
Acquired Assets ...................................... Section 2.2
Assumed Liabilities .................................. Section 2.3
Baan.................................................. Preamble
Baan Sellers.......................................... Preamble
Baan Software......................................... Preamble
Business ............................................. Recital H
Closing .............................................. Section 6.1
Closing Date ......................................... Section 6.2
Closing Time ......................................... Section 6.2
EGM ................................................ Section 3.8
Fairness Opinion ..................................... Section 7.1(G)
Interim Management Services Agreement ................ Section 3.5
Invensys ............................................. Preamble
Invensys Holdings .................................... Preamble
Offer ................................................ Recital A
Offer Agreement ...................................... Recital A
Original Offer Sub ................................... Recital A
Original Purchaser ................................... Recital A
Purchase Price ....................................... Section 2.1(C)
Purchase Agreement ................................... Preamble
Revolving Credit Agreement ........................... Section 3.6
Subsequent Offering Period ........................... Section 3.7
In addition, the following terms have the meanings set forth below
where used in the Purchase Agreement and identified with initial capital
letters:
TERM MEANING
---- -------
Accounts Receivable Notes and accounts receivable arising
out of the conduct of the Business.
- i -
Business Employees All full-time employees of the
Business other than employees of the
Subsidiaries.
Business Records Business books and records, including
financial, operating, inventory,
legal, personnel, payroll, and
customer records and all sales and
promotional literature,
correspondence, and records.
Cash Cash and cash equivalent items held by
the Baan Sellers as of the Closing,
including certificates of deposit,
time deposits, marketable securities,
and the proceeds of accounts
receivable paid on or before the
Closing Date.
Default An occurrence which constitutes a
breach or default under a contract,
order, or other commitment, after the
expiration of any grace period
provided without cure.
Encumbrance Any encumbrance or lien, including,
without limitation, any mortgage,
judgment lien, materialman's lien,
mechanic's lien, security interest,
encroachment, easement, or other
restriction, in each case having a
material adverse effect on the thing
or right so encumbered.
Intellectual Property Rights consisting of, conferred by, or
otherwise relating to:
(1) Patents and patent applications
(including all renewals,
extensions, or modifications
thereof);
(2) Trade secrets, including without
limitation, know-how,
inventions, computerized data
and information, computer
programs, business records,
files and data, discoveries,
formulae, production outlines,
product designs, manufacturing
information, processes and
techniques, testing and quality
control processes and
techniques, drawings and
customer lists;
(3) Trademarks, service marks, and
applications therefor;
(4) Copyrights; and
(5) Trade names.
- ii -
Inventories Inventories, wherever located,
including inventories of raw
materials, components, assemblies,
subassemblies, work-in-process,
finished goods, replacement parts,
spare parts, operating supplies, and
packaging.
Law Any law, statute, ordinance, rule,
regulation, order, judgment, or
decree, whether promulgated by The
Netherlands, the United States, or any
other country or by any governmental
entity.
Leases Leases, licensed, and similar rights
affording the right to use or enjoy
tangible or intangible property or
property rights.
Owns or Ownership Such ownership as confers upon the
party or person having it good and
marketable title to and control over
the thing or right owned, free and
clear of any and all Encumbrances
other than Permitted Encumbrances.
Permits Permits, approvals, and qualifications
issued by any government or
governmental unit, agency, board,
body, or instrumentality and all
applications for such items.
Permitted Encumbrances The following: (i) liens for Taxes
accrued but not yet payable, (ii)
liens arising as a matter of Law in
the ordinary course of business,
provided that the obligations secured
by such liens are not delinquent, and
(iii) such imperfections of title and
other encumbrances, if any, which,
singly or taken together, do not and
are not likely to have a material
adverse effect on the business,
operations, results of operations,
assets, or condition (financial or
otherwise) of the Baan Sellers and the
Subsidiaries taken as a whole.
Prepaid Items Prepaid and similar items arising out
of the conduct of the Business,
including prepaid expenses, deferred
charges, advance payments, and other
prepaid items.
Personal Property Tangible personal property (whether
owned, leased, or otherwise),
including all machinery, equipment,
tooling, dies, molds, jigs, patterns,
gauges, materials handling equipment,
furniture, office equipment, cars,
trucks, and other vehicle.
Purchase Contracts Orders, contracts, and commitments for
the purchase of goods and/or services,
such items relating to the purchase of
capital, tooling, products, and
supplies.
- iii -
Real Property Real property including all land,
buildings, improvements, fixtures, and
appurtenances thereto, and all such
items under construction.
Sales Contracts Orders, contracts, commitments, and
proposals for the sale of Products,
including such items relating to
repair, restoration, maintenance,
preservation, and similar operations.
Subsidiaries The Baan subsidiaries listed on
Appendix B.
Subsidiary Shares Shares of equity capital of the
Subsidiaries.
Taxes Any national, federal, state, local,
or foreign income, gross receipts,
property, sales, use, license, excise,
franchise, employment payroll,
premium, withholding, ad valorem,
transfer, or excise tax, or any other
tax, custom, duty, governmental fee,
or other like assessment or charge of
any kind whatsoever, together with any
interest or penalty, imposed by any
governmental entity.
Third-Party Claims Causes of action, rights of action,
and warranty and product liability
claims against other persons.
- iv -
<PAGE>
Appendix B
SUBSIDIARIES
The following are the material Subidiaries [FN1]:
Baan International B.V.
Baan Development B.V.
Baan Austria GmbH
Baan (Schweiz) AG
Baan Nederland B.V.
Baan Belgium N.V.
Baan France S.A.
Baan Nordic AB
Baan Nordic A/S
Baan UK Ltd.
Baan Holding Central Europe GmbH under which are Blizzard Deutschland
GmbH, Coda GmbH and Matrix Information Systeme GmbH)
Baan U.S.A., Inc.
Baan Canada, Inc.
Baan Brasil Sistemas de Informatica Ltd.
Baan Argentina Ltd.
Baan Info Systems India Pvt. Ltd.
Baan Software India Pvt. Ltd.
Baan Japan Co. Ltd.
Baan (Malaysia) Sdn. Bhd. (under which is Blizzard Singapore Pte. Ltd.)
Baan Education Asia Pacific (M) Sdn Bhd.
Baan Asia Pacific Pte. Ltd.
Baan Korea Co. Ltd.
Baan Australia Pty. Ltd. (under which is Blizzard New Zealand Ltd.)
Baan Espana y Portugal S.A.
Baan Italia S.r.l.
Baan China Ltd.
Matrix Holding B.V.
Baan Front Office Systems A/S
CAPS Logistics, Inc.
CODA Plc.
Compact 3000 Ltd.
Proloq Holding B.V. (under which are Proloq International B.V. and
Proloq USA, Inc.)
Global Maintenance Group Ltd.
Meta Software MS., S.A. (13% Owned)
BLGS Holding S.A. (Minority Interest)
Baan Eastern Europe Localisation Centre (Minority Interest)
Shenyang New-Baan Software Co., Ltd. (Minority Interest)
----------
1 100% Owned except as noted.
<PAGE>
Appendix C
DOCUMENTS TO BE
DELIVERED BY THE BAAN SELLERS AT THE CLOSING
Baan will deliver the following documents to Invensys Holdings at the
Closing:
1. A certificate signed by the Secretary to the Board of Baan dated as of
the Closing Date as to the incumbency and signatures of officers of
Baan.
2. A certificate signed by the Secretary to the Board of Baan Software
dated as of the Closing Date as to the incumbency and signatures of
officers of Baan Software.
3. Certified resolutions verifying the authorization of the execution,
delivery, and performance of the Purchase Agreement by Baan and the
consummation of the transactions contemplated by the Purchase
Agreement.
4. Certified resolutions verifying the authorization of the execution,
delivery, and performance of the Purchase Agreement by Baan Software
and the consummation of the transactions contemplated by the Purchase
Agreement.
5. A certificate signed by the Interim Chief Executive Officer and the
Chief Financial Officer of Baan dated as of the Closing Date
confirming that all of the representations and warranties of Baan
contained in Sections 7.1 of the Purchase Agreement were true,
accurate, and complete in all material respects as of the date of the
Purchase Agreement and continue to be true, accurate, and complete in
all material respects as of the Closing.
<PAGE>
Appendix D
DOCUMENTS TO BE
DELIVERED BY INVENSYS HOLDINGS AT THE CLOSING
Invensys Holdings will deliver the following documents to Baan at the
Closing:
1. A certificate signed by the Secretary of Invensys dated as of the
Closing Date confirming the incumbency and signatures of officers of
Invensys.
2. A certificate signed by a Director or attorney of Invensys and the
Secretary of Invensys dated as of the Closing Date verifying the
authorization of the execution, delivery, and performance of the
Purchase Agreement by Invensys and the consummation of the
transactions contemplated by the Purchase Agreement.
3. A certificate signed by a Director or attorney of Invensys dated as of
the Closing Date confirming that all of the representations and
warranties of Invensys contained in Sections 7.2 of the Purchase
Agreement were true, accurate, and complete in all material respects
as of the date of the Purchase Agreement and continue to be true,
accurate, and complete in all material respects as of the Closing.
