Share Exchange Agreement among New Generation Holdings, Inc., New Generation Partners, Inc., and Minerva Shareholders

Summary

This agreement, dated February 28, 2001, is between New Generation Holdings, Inc. (NGH), its subsidiary New Generation Partners, Inc. (NGP), and the shareholders of Minerva SoftCare NV and related companies. Under the agreement, the Minerva Shareholders will transfer their remaining equity in the Minerva Group to NGP in exchange for shares of NGH common stock. The agreement also provides for board representation for both parties and requires that related party transactions be conducted at arm's length. The agreement includes standard representations and warranties regarding ownership and legal standing.

EX-10.1 2 a2040708zex-10_1.txt EX-10.1 EXHIBIT 10.1 SHARE EXCHANGE AGREEMENT This AGREEMENT, dated as of February 28, 2001, by and among New Generation Holdings, Inc. ("NGH"), a Delaware Corporation, with offices at 400 West Broadway, New York, New York 10012, New Generation Partners, Inc. ("NGP"), a Delaware Corporation, with offices at 400 West Broadway, New York, New York 10012 (NGH, NGP and any of their affiliates are referred to collectively herein as the "Company"), on one hand, and Bob Jordaens ("BJ"), a Belgian individual, BJ's wholly owned management company, Icare BVBA ("Icare"), a Belgian Corporation, with offices at Jachthoornlaan 9, Zoersel, Belgium, Rene De Vleeschauwer ("RdV"), a Belgian individual, RdV's wholly owned management company Rapide BVBA ("Rapide"), a Belgian Corporation, with offices at Boterbloemlaan 82, Halle-Zoersel, Belgium, BJ, Icare, RdV and Rapide collectively herein referred to as the "Minerva Shareholders", on the other. RECITALS WHEREAS, Minerva SoftCare NV ("Minerva"), a Belgian Corporation, Case Belgie NV ("Case Be"), a Belgian Corporation, Case Nederland BV ("Case Nl"), a Dutch Corporation and Case France SA ("Case Fr"), a French Societe Anonyme (Minerva, Case Be, Case Nl and Case Fr are referred to collectively herein as the "Minerva Group") are in the business of writing and marketing software, as well as providing consulting services to the users of their software; and WHEREAS, NGH through its wholly owned subsidiary, NGP is engaged in the business of providing emerging ventures with capital and consulting services to assist in the development and expansion of their businesses; and WHEREAS, pursuant to that certain Share Exchange Agreement dated as of November 17, 2000 (the "Prior Agreement"), the Company acquired 312,500 shares of existing stock of Minerva (representing 25%), through NGP's wholly owned subsidiary New Generation Partners, BV, from Icare and Rapide in exchange for 1,931,974 shares of the common stock of NGH; and. WHEREAS, Icare and Rapide equally own the remaining outstanding equity of Minerva; and WHEREAS, RdV and BJ equally own sixty percent (60%) of Case Be and its wholly owned subsidiary, Case Nl and eighty percent (80%) of Case Fr; and WHEREAS, RdV, BJ, Icare and Rapide desire to transfer all of the remaining equity of the Minerva Group, with the exception of the QiD participation, to NGP in exchange for certain shares common stock of NGH on terms and conditions as set forth herein. NOW THEREFORE, the parties hereby agree as follows: 1. SHARE EXCHANGE AND RELATED MATTERS. (A) SHARE EXCHANGES At the Closing (as defined herein in Section 4): (i) INITIAL NGP EXCHANGES. (A) Icare shall transfer 468,750 shares of Minerva to NGP in exchange for 2,682,671 shares of NGH common stock (the "Exchange Shares"); and (B) Rapide shall transfer 468,750 shares of Minerva to NGP in exchange for 2,682,671 Exchange Shares. (ii) BJ EXCHANGES. (B) BJ shall transfer shares representing 30% of the outstanding equity of Case Be to Minerva in exchange for 10,883 newly issued shares of common stock of Minerva; and (C) BJ shall transfer shares representing 40% of the outstanding equity of Case Fr to Minerva in exchange for 725 newly issued shares of common stock of Minerva. (iii) RDV EXCHANGES. (A) RdV shall transfer shares representing 30% of the outstanding equity of Case Be to Minerva in exchange for 10,882 newly issued shares of common stock of Minerva; and (B) RdV shall transfer shares representing 40% of the outstanding equity of Case Fr to Minerva in exchange for 726 newly issued shares of common stock of Minerva. (iv) FINAL NGP EXCHANGES. (A) BJ shall transfer 11,608 shares of Minerva to NGP in exchange for 66,461 Exchange Shares; and (B) RdV shall transfer 11,608 shares of Minerva to NGP in exchange for 66,461 Exchange Shares. (b) RESTRICTION. The Exchange Shares shall be restricted shares issued pursuant to Regulation S. (c) BOARD OF MINERVA GROUP. The Company shall have the right to nominate two (2) members of the Board(s) of Directors of Minerva and the Minerva Shareholders agree to vote for the election of such member(s). Initially, the Company designates Paul Hokfelt and Marcel Rokegem as directors. (d) BOARDS OF NGH AND NGP. The Minerva Shareholders shall have the right to nominate two (2) members of the Board(s) of Directors of NGH and NGP and the Company agrees to take such action as may be necessary to increase the size of the Boards and to recommend the election of such nominees by the existing Directors of the Company. Initially, the Minerva Shareholders designate RdV and BJ as directors. -2- (e) RELATED PARTY TRANSACTIONS. The parties agree that all arrangements and agreements that the Company and the Minerva Group and any party that is related to the either of the Company or the Minerva Group shall be concluded at arms length. 2. REPRESENTATIONS AND WARRANTIES OF THE MINERVA GROUP AND THE MINERVA SHAREHOLDERS. The Minerva Group and the Minerva Shareholders hereby make the following representations and warranties to the Company. (a) ORGANIZATION. Each entity of the Minerva Group is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and is duly authorized to carry on the business presently conducted by it. Icare and Rapide equally own one hundred percent (100%) of the outstanding equity of Minerva, RdV and BJ equally own sixty percent (60%) of Case Be and its wholly owned subsidiary, Case Nl and eighty percent (80%) of Case Fr. All of the foregoing issued and outstanding shares (the "Shares") of capital stock are owned by the Minerva Shareholders free and clear of all liens and encumbrances of any kind. Except for the existing minority interests in Case Be and Case Fr, the Shares represent all of the issued and outstanding shares, of all types or classes, of the Minerva Group and there are no outstanding options, warrants, convertible or exchangeable securities or other rights to purchase shares of capital stock of any entity in the Minerva Group. (b) PENDING CLAIMS. Except as disclosed in Schedule 2(b), there is no litigation, suit, action, claim, arbitration, administrative or legal or other proceeding, or governmental investigation pending or, to the Minerva Group's or the Minerva Shareholders' knowledge threatened, against any member of the Minerva Group and there are no unasserted claims possible of assertion involving the business of the Minerva Group which the Minerva Group has notice or knowledge; there are no audits by a governmental authority, claims for unpaid taxes of any kind, or other similar actions, proceedings or disputes pending or, to the Minerva Group's knowledge, threatened against or affecting the business of the Minerva Group; there are no unpaid judgments of any kind against the Minerva Group or the Minerva Shareholders relating to the business; and neither the Minerva Group nor the Minerva Shareholders are charged with or, to either the Minerva Group's or the Minerva Shareholders' knowledge threatened, with a charge or violation or, to either the Minerva Group's or the Minerva Shareholders' knowledge, is it under investigation with respect to any alleged violation of any provision of any federal, state, local or foreign law or administrative ruling or regulation relating to any aspect of the business. To the best knowledge of the Minerva Group and the Minerva Shareholders, there are no liabilities or potential liabilities of the Minerva Group which in the aggregate exceed Fifty Thousand Dollars ($50,000). (c) TITLE TO ASSETS. Each member of the Minerva Group is the sole and exclusive owner of, and has good and marketable title to, all of its assets, rights, properties, claims, contracts and business of every kind, nature, character and description, tangible and intangible, personal, real or mixed, wherever located, free and clear of all liens, mortgages, pledges, claims, encumbrances, security interests, covenants, easements, rights of way, equities, options, rights of first refusal, assessments, defects in title, encroachments, charges or any other burden of restriction of any kind or nature (collectively, "Liens"); and no other person, firm or corporation has or will have on the Closing Date any interest whatsoever in any of such assets. (d) NO BREACH OR VIOLATION. The execution, delivery and performance of this Agreement and any other agreements contemplated hereby between the parties hereto by the -3- Minerva Group and the consummation of the transactions contemplated by this Agreement or any other agreements contemplated hereby will not (i) result in or constitute a breach or an event that, with notice or lapse of time or both, would be a default, breach or other violation of the articles of organization of any member of the Minerva Group; (ii) violate (with or without the giving of notice or the lapse of time or both), or require any consent, approval, filing or notice under, any provision of any law, rule or regulation, court or administrative order, writ, judgment or decree applicable to the Minerva Group, the business or any of the assets of the Minerva Group, and (iii) with or without the giving of notice or the lapse of time or both (A) violate or conflict with, or result in the breach, suspension or termination of any provision of, or constitute a default under, or result in the acceleration of the performance of the obligations of any of the Minerva Group under, or (B) result in the creation of any Liens upon all or any portion of the properties, assets or the business of the Minerva Group pursuant to, the articles of organization of any member of the Minerva Group, or any indenture, mortgage, deed of trust, lease, agreement, contract or instrument to which a member of the Minerva Group is a party or by which any member of the Minerva Group, its assets or business is bound. (e) CORPORATE DOCUMENTS. The Minerva Group have furnished to the Company for its examination true and correct copies of the articles of organization, bylaws and minute books of each member of the Minerva Group. (f) CONDUCT OF BUSINESS. From the date of this Agreement until the Closing, the Minerva Group shall operate its business in the ordinary course and in a commercially reasonable manner and will make all reasonably necessary efforts to preserve intact its business, its relationships with third parties, all memberships, if any, that it presently holds, the goodwill it has accrued and the services, to the extent practicable, of its existing officers, employees, and directors 3. THE COMPANY'S REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to the Minerva Group and the Minerva Shareholders, their respective successors and assigns, that: (a) ORGANIZATION .The Company is a corporation duly organized, existing and in good standing under the laws of the State of Delaware, and is not presently and has not since its incorporation been the subject of any governmental or quasi-governmental inquiry or review which would materially adversely effect its business or operations, nor to the knowledge of the Company, is any such inquiry or review pending or threatened. (b) AUTHORITY. The Company has taken all necessary corporate action on its part as may be required under the laws of the jurisdiction of organization and under its charter documents to authorize the execution, delivery and carrying out of this Agreement on behalf of the Company. (c) ENFORCEABILITY. The Company has the full right, power, legal capacity and authority to enter into and perform its respective obligations under this Agreement. The execution, delivery and performance by the Company of this Agreement and any other agreements contemplated hereby and the consummation by them of the transactions contemplated hereby and thereby have been duly authorized by the by the Board of Directors of the Company. No other corporate or stockholder action is necessary for the authorization, execution, delivery and performance by the Company of this Agreement and any other agreements between the parties contemplated hereby and the consummation by the Company of -4- the transactions contemplated hereby or thereby. This Agreement has been duly executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against each of them in accordance with the terms hereof. (d) NO BREACH OR VIOLATION. The execution, delivery and performance of this Agreement and any other agreements contemplated hereby between the parties hereto by the Company and the consummation of the transactions contemplated by this Agreement or any other agreements contemplated hereby will not (a) result in or constitute a breach or an event that, with notice or lapse of time or both, would be a default, breach or other violation of the articles of incorporation or bylaws of the Company; (b) violate (with or without the giving of notice or the lapse of time or both), or require any consent, approval, filing or notice under, any provision of any law, rule or regulation, court or administrative order, writ, judgment or decree applicable to the Company; and (c) with or without the giving of notice or the lapse of time or both violate or conflict with, or result in the breach, suspension or termination of any provision of, or constitute a default under, or result in the acceleration of the performance of any obligations of the Company. (e) SEC FILINGS. Each of the documents filed by the Company with the SEC (including all financial statements included therein) (the "SEC Filings") at the time of filing thereof conformed with the requirements of the Securities Act of 1933, as amended and the Rules and Regulations promulgated thereto, and none of the SEC Filings at the time of filing thereof contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein and necessary to make the statements therein in light of the circumstances under which they were made, not misleading. 4. THE CLOSING. The closing ("Closing") of the Share Exchange and any other transactions contemplated by this Agreement shall take place at the offices of the Company at 9:00 a.m., on February 28, 2001, or at such other place and time and on such other date, as the parties may agree upon in writing ("Closing Date"). Notwithstanding the foregoing, the delivery of shares required under Section 1(a)(i) shall be consummated on or prior to the date hereof. 5. OBLIGATIONS OF THE MINERVA SHAREHOLDERS. At the Closing, the Minerva Shareholders shall cause the Minerva's official share registry to reflect the delivery to the Company of the Minerva Shares, in form and substance reasonably satisfactory to the Company. 6. OBLIGATIONS OF THE COMPANY. At the Closing, the Company shall deliver or cause to be delivered to the Minerva Shareholders the Exchange Shares in form and substance reasonably satisfactory to the Minerva Shareholders. 7. MISCELLANEOUS. (a) ASSIGNMENT. This Agreement may not be assigned by any party without the prior written consent of the other parties. (b) WAIVERS. Any delay or forbearance by either party in exercising any right hereunder shall not be deemed a waiver of that right. (c) SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, then the meaning -5- of such provision shall be construed so as to render it enforceable, to the extent feasible; and if no feasible interpretation would save such provision, it shall be severed from this Agreement and the remainder shall remain in full force and effect. However, in the event such provision is considered an essential element of this Agreement, the parties shall promptly negotiate a replacement thereof. (d) PARTIAL INVALIDITY. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. (e) GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of Belgium, without regard to conflicts of law principles. (f) BINDING EFFECT. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors, and permitted assigns. (g) NEGOTIATED AGREEMENT. This Agreement is the result of negotiations between the parties. Accordingly, no party to this Agreement shall be deemed to be the author of this Agreement and there shall be no presumption that this Agreement is to be construed for or against any party to this Agreement on the basis of the authorship of this Agreement. (h) HEADINGS. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement. (i) COUNTERPARTS. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same instrument. This Agreement may be executed by facsimile signatures. (Signatures follow on next page) -6- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the day and year first above written. NEW GENERATION HOLDINGS, INC. ICARE BVBA By: By: ------------------------------- ------------------------------- ============================ ============================ Name: Jacques Mot Name: Bob Jordaens Title: Chairman Title: NEW GENERATION PARTNERS, INC. RAPIDE BVBA By: By: ------------------------------- ------------------------------- ============================ ============================ Name: Paul Hokfelt Name: Rene De Vleeschauwer Title: Chief Executive Officer Title: --------------------- ============================ Bob Jordaens --------------------- ============================ Rene De Vleeschauwer -7-