Exhibit 4.39
Dated November, 2000
THE PARTIES LISTED AS VENDORS
IN THE FIRST SCHEDULE HERETO
and
TRINTECH GROUP PLC
SALE AND PURCHASE AGREEMENT
for the purchase of the share capital of
EXCEPTIS TECHNOLOGIES LIMITED
_____________________________
A & L GOODBODY
Solicitors
International Financial Services Centre
North Wall Quay
Dublin 1
TABLE OF CONTENTS
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1. DEFINITIONS AND INTERPRETATION
2. SALE OF SHARES
3. COMPLETION AND CONDITIONS
4. ACTION PENDING COMPLETION
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
6. ACTION POST COMPLETION
7. WARRANTIES
8. RESTRICTIONS ON VENDORS
9. MISCELLANEOUS PROVISIONS
FIRST SCHEDULE THE COMPANY AND THE VENDORS
SECOND SCHEDULE SUBSIDIARIES
THIRD SCHEDULE DIRECTORS
FOURTH SCHEDULE WARRANTIES
1. Vendors' Capacity and Title
2. Accuracy of Information
3. Financial Information
4. General Business Information
5. Employment
6. Pensions and Benefit Schemes
7. Environmental
8. Insurance
9. Other Corporate Information
10. Assets
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11. General Legal Compliance
12. Properties
13. Tax
14. Intellectual Property
15. The Computer System and Software
16. Systems Compliance
17. Year 2000 Compliance for Products and Services
FIFTH SCHEDULE COMPANY IPR
SIXTH SCHEDULE SHARE OPTION SCHEMES
SEVENTH SCHEDULE DEFERRED CONSIDERATION
EIGHTH SCHEDULE AGREED PAYMENTS
NINTH SCHEDULE FINANCIAL INFORMATION
TENTH SCHEDULE REIMBURSEMENT LETTER
* Certain schedules and exhibits to the Sale and Purchase Agreement by and
between Trintech Group PLC and Exceptis Technologies Limited dated November
2000, are not being filed herewith pursuant to Item 601(b)(2) of Regulation S-
K. We undertake to furnish supplementally a copy of any omitted schedule to
the Securities and Exchange Commission upon request.
THIS AGREEMENT is dated November, 2000 and made between
(1) The parties listed as Principal Vendors in the First Schedule (the
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"Principal Vendors"); and
(2) TRINTECH GROUP PLC whose registered office is at Trintech Building,
South County Business Park, Leopardstown, Dublin 18 (the "Purchaser").
RECITALS:
A. Exceptis Technologies Limited is a company whose particulars are set out in
the First Schedule.
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B. The Vendors are the beneficial owners of the entire issued share capital of
the Company and the Principal Vendors will at Completion be the beneficial
owners of the number of ordinary shares in the capital of the Company set
out against each Principal Vendors name in Column 4 of the table in the
First Schedule, which will be registered in the Company's register of
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members in the manner set out in the same Schedule.
C. The Principal Vendors have agreed to sell and the Purchaser has agreed to
purchase the Principal Vendors' Shares on the terms and conditions in this
Agreement.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, unless the context otherwise requires:
"Accounting Standards" means accounting principles, standards and
practices generally accepted in Ireland at the date of this
Agreement;
the "Accounts", in relation to a Group Company, means its audited
profit and loss account and balance sheet (and, where prepared, the
audited consolidated profit and loss account and balance sheet of the
Group Company and its subsidiaries) for the period ended on the
Balance Sheet Date, including the notes and the related directors'
and auditors' reports, together with all documents which are required
by law to be attached, copies of all of which are In the Disclosure
Letter or an attachment thereto;
the "Balance Sheet", in relation to a Group Company, means the
balance sheet (and, where prepared, consolidated balance sheet)
comprised in its Accounts;
the "Balance Sheet Date" means 30th June, 2000;
a "Breach", in relation to a Warranty, means any instance of the
Warranty being untrue or misleading in any respect;
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"Business Day" means any day on which banks are generally open for
business in Dublin;
"Business Hours" means the hours of 0900 to 1730 on a Business Day in
the place to which notice or other written communication is sent
pursuant to this Agreement;
the "1963 Act" means the Companies Act, 1963;
the "1990 Act" means the Companies Act, 1990;
the "Company" means the company referred to in recital A;
"Company IPR" means:
(a) the registered trademarks, service marks and applications
therefor and all other business names, brand names, trade marks
(whether in fancy script or otherwise); devices, logos, get up
and designs (and whether or not registered or applied for) owned
by the Company together with all goodwill associated with or
symbolised by any of the foregoing;
(b) all confidential technical, commercial and other proprietary
information and techniques owned or used by the Company in the
course of its business including (without prejudice to the
generality of the foregoing) know-how of any nature, drawings,
formulae, processes, specifications, trade secrets, test
reports, operating and testing procedures, practices,
instruction manuals, tables of operating conditions, lists and
particulars of customers and suppliers, marketing methods,
pricing, credit and payment policies, profit margins, discounts
and rebates other than in respect of any of the foregoing that
are at the relevant time in the public domain ("the Company
Confidential Information");
(c) all copyright, database rights, moral rights or any other rights
in the nature of copyright in relation to or comprised in the
Products;
(d) all Intellectual Property currently owned by or licensed to the
Company;
"Company Options" means any options in respect of shares in the
Company (or Parallel Options) which have not vested, or which, having
vested have not been exercised at Completion under the Share Incentive
Schemes as detailed in Part II of the Sixth Schedule;
"Completion" means completion of the sale and purchase of the Shares
under clause 3;
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"Computer System" means the computer systems including all its
equipment, hardware, firm work, software and accessories used in the
business of the Company;
"Consideration" means the Initial Consideration and the Deferred
Consideration (if any) to be paid by the Purchaser to the Vendors for
the Shares and the Deferred Consideration (if any) which may be
payable by the Purchaser to the employees of the Company pursuant to
Clause 2.4;
"Consideration Shares" means each of the Initial Consideration Shares,
the Transfer Shares and the Deferred Consideration Shares (if any) to
be issued by the Purchaser to the Vendors (and to the employees of the
Company pursuant to this Agreement);
"Covenantors" means each of the Warrantors other than Delta Management
Partners Limited;
the "Deed of Tax Covenant" means the Deed of Covenant between the
Principal Vendors and the Purchaser in relation to tax in the agreed
form;
"Deferred Consideration" means the amount of Deferred Consideration
(if any) to be paid by the Purchaser to the Vendors (and to the
employees of the Company pursuant to this Agreement) for the Shares
pursuant to Clause 2.4, calculated in accordance with the Seventh
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Schedule, which will be satisfied by the allotment of Deferred
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Consideration Shares to the Vendors, pursuant to the Seventh Schedule;
"Deferred Consideration Shares" means the ordinary shares in the
capital of the Purchaser to be issued by the Purchaser to the Vendors
(and where applicable to the employees of the Company in accordance
with the provisions of this Agreement) in satisfaction of the Deferred
Consideration (if any) the number of which is to be determined in
accordance with the provisions of the Seventh Schedule;
"Delta Termination Deed" means an agreement to be entered into by the
Purchaser at Completion with Delta Equity Fund Limited Partnership,
acting through its nominee Delta Management Partners Limited, the
Company and the parties named in Part I of the First Schedule to the
Share Subscription Agreement terminating that Share Subscription
Agreement, as detailed in that Deed;
the "Directors" means those listed as such in the Third Schedule and
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the "Continuing Directors" means those described as such in the same
Schedule;
the "Disclosure Letter" means the letter of the same date as this
Agreement from the Vendors' Solicitors to the Purchaser's Solicitors
disclosing exceptions to the Warranties;
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the "EC Treaty" means the treaty establishing the European Community
(Treaty of Rome);
"Enterprise Ireland Termination Agreement" means an agreement in the
agreed form to be entered into by the Purchaser at Completion with
each of Mr. Brian Caulfield, Mr. William O'Connor, Enterprise Ireland
and the Company, terminating the shareholders agreement made on 12th
August, 1997 between those parties (other than the Purchaser), as
detailed in that Agreement;
the "Group" means any one or more or (as the context permits) each of
the Group Companies;
a "Group Company" means the Company or a Subsidiary;
"Indemnity Termination Deed" means an agreement in the agreed form to
be entered into by the Purchaser at Completion with each of Mr. Brian
Caulfield, Mr. William O'Connor and Delta Equity Fund Limited Partners
and the Company terminating a Deed of Indemnity made on the 8th of
November, 1996 between those parties (other than the Purchaser), as
detailed in that Deed;
"Initial Consideration" means the consideration to be paid by the
Purchaser to the Vendors for the Shares and for the Transfer Shares
pursuant to Clause 2.3. The Initial Consideration shall be deemed to
be satisfied by the allotment of 866,775 Initial Consideration Shares
to the Vendors on Completion pursuant to Clause 2.3 and by the
allotment by the Purchaser of 42,316 Transfer Shares pursuant to
Clause 2.3;
"Initial Consideration Shares" means the ordinary shares (each
ordinary share representing 2 American depository shares) in the
capital of the Purchaser to be issued by the Purchaser to the Vendors
in partial satisfaction of the Initial Consideration;
"Intellectual Property" means all patents, registered designs, know-
how, rights in trade secrets and confidential information; registered
or unregistered trademarks, service marks and applications therefor
and all other business names, brand names, devices, logos, get up and
designs (and whether or not registered or applied for) with all the
goodwill associated with or symbolised by any of the foregoing; all
other inventions (whether or not capable of protection by patent or
other form of registration); all copyright, rights in the nature of
copyright, sui generis rights, design rights, semiconductor topography
rights, moral rights, database rights and all other like rights in all
parts of the world whether present or vested future or contingent in
any software, object code, source code, database (including extraction
rights), interface, text, drawing, design, artwork, sound recording,
film, video, photograph, mould, three dimensional artistic work or any
other material; all other intellectual property rights throughout the
world for the full term of the rights concerned and including: all
registrations and pending registrations relating to any such rights
and the benefit of any pending applications for any
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such registrations; all reversions, extensions and renewals of such
rights; and all accrued rights of action in relation to such rights
(including the right to sue for and recover damages for past
infringements);
"Ireland" means Ireland excluding Northern Ireland;
"Licences" means the licences, agreements, contracts, permissions,
undertakings and understandings listed in part A of the Fifth Schedule
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being legal arrangements pursuant to which the Company is entitled to
utilise any Intellectual Property owned by any third party in the
development of Products;
"Licensed Software" means that Software which is used by the Company
pursuant to the Licences;
"Licensors" means the licensors under the Licences;
"Management Accounts" means the unaudited profit and loss accounts and
balance sheet and cash flow statements of the Company for the period
commencing 1st July, 2000 and ending 30th October, 2000, copies of
which are In the Disclosure Letter or attached thereto;
"Management Accounts Date" means 30th October, 2000;
"Minority Shareholders" means any person who is a member of the
Company at Completion other than the Principal Vendors;
"Minority Shareholder Declaration" means an agreement to be entered
into by each Minority Shareholder with the Purchaser on Completion in
the agreed form;
the "Mergers Act" means the Mergers, Take-overs and Monopolies
(Control) Act, 1978 (as amended);
"Mr. Caulfield's Employment Agreement" means an agreement to be
entered into on Completion by Mr. Caulfield with the Company in the
agreed form;
"Mr. O'Connor's Resignation Letter" means the letter to be signed by
Mr. O'Connor confirming his resignation from employment in the Company
in the agreed form.
"Option Consent" means a consent to be signed by each holder of
options in the Company in the agreed form and delivered at Completion;
"Dr. McWade's Employment Agreement" means an agreement to be entered
into on Completion by Dr. McWade with the Company in the agreed form;
"Parallel Options" means options granted by certain shareholders of
the Company as provided for under the Share Incentive Schemes;
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"Placement Shares" means such number of the Initial Consideration
Shares which, having been allotted to the Vendors on Completion, may
be sold by the Placement Vendors as detailed in Column 6 of the Table
in the First Schedule. That Column 6 provides that certain of the
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Placement Vendors shall be entitled to sell a specified number of
shares in the Purchaser, and that the balance of the Placement Vendors
shall be entitled to realise a specified amount of money as stated in
US dollars by the sale of such number of their shares in the Purchaser
as is required to realise such amount. The sale of the Placement
Shares is to be assisted by the Purchaser pursuant to clause 6.2;
"Placement Vendors" means the Vendors which are entitled to sell
Placement Shares as detailed in Column 6 of the table in the First
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Schedule;
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"Pounds" and the designation "IR(Pounds)" mean the currency of
Ireland;
"Products" means all products offered for sale or licensed to third
parties at any time by or on behalf of the Company;
the "Properties" means the properties of the Group listed In the
Disclosure Letter or an attachment thereto;
the "Purchaser's Accountants" means Ernst & Young;
the "Purchaser's Solicitors" means Messrs. A & L Goodbody;
"Reimbursement Amount" means the aggregate amount of
IR(Pounds)121,300 owed by certain of the Principal Vendors to the
Company as detailed in the Reimbursement Letter.
"Reimbursement Letter" means the letter dated 17th November,
2000 from each of William O'Connor, Brian Caulfield and Delta
Management Partners Limited to the Company, a signed copy of which
letter is attached hereto as the Tenth Schedule;
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"Revenue and Profit Targets Schedule" means the schedule of revenue
and profit targets to be achieved by the Company set out in Part I of
the Ninth Schedule;
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the "SDCA" means the Stamp Duties Consolidation Act, 1999;
"Securities Act" means the United States Securities Act of 1933, as
amended;
the "Shares" means the entire issued share capital of the Company;
"Secondary Minority Shareholder Declaration means an agreement to be
entered into by Gary Ramsey, Eamonn Keating and Adele Cooper with the
Purchaser on Completion in the agreed form;
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"Share Incentive Schemes" means the share option schemes of the
Company in place at Completion, as detailed in the Sixth Schedule
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hereto;
"Share Subscription Agreement" means the Subscription Agreement made
on the 8th of November 1996 between the parties named in Part 1 of the
first schedule thereto, Delta Equity Fund Limited Partnership and the
Company;
"Software" means all computer programs and all related object code and
source code and databases used by the Company in connection with its
business and/or Products.
"Stock Compensation Charge" means the aggregate charge to be
recognised by the Purchaser upon the substitution of options over
Trintech Shares for the Company Options. The charge represents that
portion of the intrinsic value at the date of Completion of the
options over the Trintech Shares that the future service or vesting
period bears to the total vesting period comprising the service period
prior to Completion and the remaining service period to vest fully in
the options over the Trintech Shares. An estimate of the stock
compensation charge is provided in the Ninth Schedule based on the
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closing price of the Purchaser's shares as at 16th November, 2000;
the "Subsidiaries" means the companies listed in the Second Schedule;
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"Tax" means all forms of taxation, duties, imposts and levies whether
of Ireland or elsewhere, including (but without limitation) income
tax, corporation tax, corporation profits tax, advance corporation
tax, dividend withholding tax, capital gains tax, capital acquisitions
tax, residential property tax, wealth tax, value added tax, customs
and other import and export duties, excise duties, stamp duty, capital
duty, social insurance, social welfare or other similar contributions
and other amounts corresponding thereto whether payable in Ireland or
elsewhere, and any interest, surcharge, penalty or fine in connection
therewith;
the "TCA" means the Taxes Consolidation Act, 1997;
"Transfer Shares" means the ordinary shares in the Purchaser to be
issued by the Purchaser to holders of the Company Options pursuant to
Clause 2.3.2 on the exercise of such Company Options;
"United States Dollars" and the designation "US$" means the currency
of the United States of America;
"Vendors" means the Principal Vendors and the Minority Shareholders;
"Vendors' Shares" means the ordinary shares in the capital of the
Company registered in the names of the Vendors at Completion;
the "Vendors' Accountants" means Ernst & Young;
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the "Vendors' Solicitors" means Messrs. McCann FitzGerald;
the "Warranties" means the warranties, representations and
undertakings in clause 7 and the Fourth Schedule;
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"Warrantors" means each of the Principal Vendors other than
Enterprise Ireland;
a "Warranty Claim" means a claim for a Breach of the Warranties;
and
"Year 2000 Compliant" means, in relation to each of the Products,
that neither its performance nor its functionality is or will be
affected by dates prior to, during or after the year 2000, and in
particular:
(a) no value for current date causes or will cause any
interruption in its operation;
(b) no value for any date element in any data used as input by
the Software cause or will cause any interruption in the
operation of the Software, which will either correctly
interpret the date element (where it is a valid date) or
else detect and report it as an invalid date and continue
processing accordingly;
(c) date-based functionality behaves and will behave
consistently for dates prior to, during and after year 2000
and produces and will produce correct results in accordance
with the Software's specifications;
(d) in all interfaces and data storage, the century in any date
is and will be specified either explicitly or by unambiguous
algorithms or inferencing rules; and
(d) the year 2000 is and will be recognised as a leap year.
1.2. The Schedules referred to in this Agreement form an integral part
of this Agreement, and references to this Agreement include
reference to them.
1.3. Headings are inserted for convenience only and do not affect the
construction of this Agreement.
1.4. All references in this Agreement to costs, charges or expenses
include any value added tax or similar tax charged or chargeable
in respect of this Agreement.
1.5. The Warranties and the indemnities set out in clause 7.1 and the
Deed of Tax Covenant are given and entered into by the Warrantors
(other than Delta Management Partners Limited) jointly and
severally. The Warranties and the
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indemnities set out in clause 7.1 and the Deed of Tax Covenant
are given and entered into by Delta Management Partners Limited
severally only.
1.6. Unless the context otherwise requires:
1.6.1. words importing the singular include the plural and vice versa,
words importing the masculine include the feminine, and words
importing persons include corporations;
1.6.2. where something is defined in the singular, the plural of the
defined term will be taken to mean two or more of those things
which fall within the definition; and where something is defined
in the plural or collectively, the singular of the defined term
will be taken to mean any one of those things which fall within
the definition;
1.6.3. reference to writing or similar expressions includes transmission
by fax or electronic means;
1.6.4. a word or phrase the definition of which is contained or referred
to in section 2 of the 1963 Act has the meaning attributed to it
by that definition;
1.6.5. references to Acts, statutory instruments and other legislation
are to legislation operative in Ireland and to such legislation
amended, extended or re-enacted before the date of this Agreement
and any subordinate legislation made under that legislation
before the date of this Agreement, and includes equivalent laws
in any other jurisdiction;
1.6.6. reference to any document includes that document as amended or
supplemented, whether before or after the date of this Agreement;
1.6.7. where any Warranty is given on terms that it is to the best of
the knowledge and belief of the Warrantors after making due and
careful enquiries, or as far as the Warrantors are aware, the
Warrantors will be deemed to have the knowledge, belief and
awareness which they would have had if they had made due and
careful enquiries of each of Eamon Keating, Gary Ramsay, Helen
McDonnell, Margaret Twomey, and Adele Cooper and of each member
of the board of directors of the Company at the date hereof and
had received full disclosure in response.
1.6.8. The expression "agreed form" means, in relation to any document,
such document in the terms agreed between the parties thereto and
hereto and for the purposes of identification signed by or on
behalf of each of the parties thereto.
2. SALE OF SHARES
2.1. Each Principal Vendor shall sell as beneficial owner, free from
all liens, charges and encumbrances and together with all rights
attaching now or in the
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future, the number of Shares listed opposite that Principal
Vendors name in the First Schedule and the Purchaser shall
purchase the aforesaid shares, together with the shares held by
each Minority Shareholder at Completion, for the Consideration.
2.2. The Purchaser will not be obliged to complete the purchase of any
Shares unless the purchase of all of the Shares is completed
simultaneously.
2.3. The Initial Consideration shall be satisfied by:
2.3.1. the allotment of 866,775 in aggregate Initial
Consideration Shares by the Purchaser to the Vendors on
Completion. The number of Initial Consideration Shares
to be allotted to each Vendor at Completion shall be
that number set out opposite each Vendors name in
column 5 of the table in the First Schedule; and
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2.3.2. the allotment by the Purchaser of options over, and the
issuance upon exercise of such options of 42,316
Transfer Shares to the holders of Company Options in
the amounts and as detailed in the Sixth Schedule and
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pursuant to clause 6.5
provided that if any holders of Company Options which have vested
under the terms of the Share Incentive Scheme have not exercised
such Company Options by Completion, then the figures in clauses
2.3.1 and 2.3.2 shall be adjusted accordingly.
2.4. The Deferred Consideration payable to the Vendors (and to the
employees of the Company pursuant to the terms of this Agreement)
(if any) shall be calculated in accordance with the Seventh
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Schedule and satisfied by the allotment of the Deferred
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Consideration Shares which shall be allotted by the Purchaser to
the Vendors pursuant to the terms of the Seventh Schedule. The
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number of Deferred Consideration Shares (if any) to be allotted
by the Purchaser to the Vendors and, where relevant to the
employees of the Company pursuant to the terms of this Agreement
at the end of each of Year 1 and Year 2 (as defined in the
Seventh Schedule) shall be determined in the manner provided for
in the Seventh Schedule.
2.5. None of the Principal Vendors shall be entitled to assign,
novate, transfer or otherwise dispose of his right to payment of
the Deferred Consideration arising out of this Agreement.
2.6. Each of the Principal Vendors hereby waives any and all pre-
emption rights which he may have in relation to the purchase by
the Purchaser of the Shares hereunder, whether arising under the
Articles of Association of the Company or otherwise.
3. COMPLETION AND CONDITIONS
3.1. Completion:
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The Principal Vendors and the Purchaser shall take all reasonable
steps and shall use their respective reasonable endeavours
insofar as it is in their capacity to do so to ensure that the
conditions in clause 3.3 are fulfilled at least two Business Days
prior to 30th November, 2000 , which is the target date for
Completion and when the Purchaser is satisfied at its absolute
discretion that the conditions are fulfilled it shall so inform
the Principal Vendors by notice and Completion shall take place
on the second Business Day thereafter at the offices of the
Purchaser's Solicitors or on such later date as may be agreed
between the parties hereto. Provided that the Principal Vendors
shall not be obliged to complete the transactions contemplated by
this Agreement unless and until they are satisfied in their
absolute discretion (but without prejudice to their obligations
under this clause) that the conditions set out in Clauses 3.3.1,
3.3.3 and 3.3.4 (as regards obligations of the Purchaser) and
3.3.7, 3.3.10 and 3.3.13 are fulfilled (provided further,
however, that Delta Management Partners Limited shall not be
entitled to refuse to complete the transaction on the grounds
that the conditions set out in clauses 3.3.3, 3.3.10 and 3.3.13
have not been completed where such failure is due to their
inaction).
3.2. Non-fulfilment of conditions:
If the conditions in clause 3.3 are not fulfilled by the second
Business Day before the target date referred to in clause 3.1 or
such later date (if any) as may be agreed by the parties then
this Agreement and any other agreement entered into pursuant
hereto shall, subject as hereinafter provided, cease to have all
further legal effect and each party shall be released from its
obligations hereunder and thereunder without any further action
of the parties and none of the parties shall have any claim or
liability to the other.
3.3. Conditions:
The conditions referred to in clauses 3.1 and 3.2 are:
3.3.1. Mergers Act:
3.3.1.1. the Minister for Enterprise, Trade and
Employment stating in writing that it does
not intend to make an order under section 9
of the Mergers Act in relation to the
proposed purchase of the Shares; or
3.3.1.2. (if it makes an order subject to conditions)
the Purchaser and the Vendors accepting those
conditions; or
3.3.1.3. (if no such order is made and the Minister
does not state in writing that it does not
intend to make such an order), that the
relevant period within the meaning of section
6 of the Mergers Act elapses;
3.3.2. Company Options
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3.3.2.1. Any scheme of the Company relating to Company
Options shall have been amended to provide
for the issue of shares in the Purchaser (the
"Transfer Shares") rather than shares in the
Company on the basis of one share in the
Purchaser for every 13.069 shares in the
Company as detailed in the Sixth Schedule.
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3.3.2.2. All grantees of unvested or vested but
unexercised Company Options at Completion
shall have consented to the issue of Transfer
Shares instead of shares in the Company on
the basis of one Transfer Share for every
13.069 shares in the Company that they would
otherwise have been entitled to receive as
detailed in the Sixth Schedule.
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3.3.3. Consents and Waivers:
3.3.3.1. The Principal Vendors procuring all necessary
consents or waivers from each of the Vendors
in respect of the sale of the Shares as
contemplated by this Agreement;
3.3.3.2. the Principal Vendors procuring that on
Completion the 100,000 3% Redeemable
Preference Shares which Enterprise Ireland
holds in the capital of the Company are
redesignated as ordinary shares in the
capital of the Company; and
3.3.3.3. the Principal Vendors procuring that on
Completion the 200,000 Redeemable Preference
Shares which Delta Management Partners
Limited holds in the Capital of the Company
are redesignated as ordinary shares in the
capital of the Company.
3.3.4. Permits and Licences:
The Principal Vendors and the Purchaser procuring that
all material permits, licences, consents and other
sanctions as may be necessary to enable the Purchaser
to complete the acquisition of the Shares and for the
carrying on of business by the Group following its
acquisition by the Purchaser have been obtained.
3.3.5. Property Title:
The Group having good marketable title to the
Properties; and
3.3.6. Title to Subsidiaries' Share Capital:
The Company having good title to the share capital of
the Subsidiaries
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without, in the case of any of clauses 3.3.1 to 3.3.4,
the imposition of any unduly burdensome conditions or
restrictions, as determined in the sole judgement of
the Purchaser.
3.3.7. Placement Shares
The Placement Vendors being satisfied that arrangements
are in place whereby the Purchaser shall assist the
holders of the Placement Shares to procure a financial
institution acceptable to the Placement Vendors to
assist the holders of the Placement Shares to sell the
Placement Shares immediately following Completion.
3.3.8. Bad Debtors
The List of bad debtors of the Company as at Completion
being acceptable to the Purchaser, acting reasonably.
3.3.9. Minority Shareholders Declaration
Each of the Minority Shareholders agreeing to execute
and delivering to the Purchaser at Completion a share
transfer form in respect of the Shares held by them at
Completion and a duly executed Minority Shareholder
Declaration in the agreed form.
3.3.10. Delta Converting Zero Coupon Convertible Loan Notes
Delta Management Partners Limited converting the Zero
Coupon Convertible Loan Notes in the amount of
(Pounds)500,000, constituted by a loan note instrument
created by the Company on 25th June, 1999 and held by
Delta Nominees (DEF) Limited into 625,000 ordinary
shares of IR(Pounds)0.005 each in the capital of the
Company, and the Company entering Delta Management
Partners Limited in the share register of the Company
as the registered holder of such shares.
3.3.11. Enterprise Ireland Consents
The Principal Vendors obtaining the written consent of
Enterprise Ireland to the purchase by the Purchaser of
the Shares on Completion pursuant to each of the
following agreements:
3.3.11.1. Targeted Marketing Consultancy Programme
Agreement, made 8th December, 1998;
3.3.11.2. Grant Agreement, made 22nd September, 1999
towards the operating costs on a project for
the design, development and implementation of
the Company's ICS and MERCS products;
3.3.11.3. Grant Agreement, made 30th July, 1998 for
assistance of the Company under the
Application Developments Initiative;
16
3.3.11.4. Grant Agreement, made 8th January, 1997
towards the costs of employing a financial
controller for the Company;
3.3.11.5. Grant Agreement, made 12th August, 1997
towards the costs of employing additional
employees of the Company;
3.3.12. James Mountjoy Option
The Company and the Principal Vendors obtaining the
written consent of Mr. James Mountjoy, in a form
satisfactory to the Purchaser, consenting to the
cancellation of an option to purchase 125,000 shares in
the Company, granted to Mr. Mountjoy on the 18th of
August, 2000.
3.3.13. Section 60
The Principal Vendors procuring that prior to
Completion the payment by the Company of the costs and
expenses of the Principal Vendors pursuant to Clause
9.2 hereof be approved by the Company in compliance
with the provisions of Section 60 of the Companies Act,
1963.
3.4. Principal Vendors' obligations at Completion:
Upon Completion the Principal Vendors shall:
3.4.1. repay any indebtedness then owed by Principal Vendors
to the Group, subject to the terms of the Reimbursement
Letter, and procure that any other company which is a
subsidiary of any Principal Vendor repays any
indebtedness then owed by it to the Group (other than
indebtedness arising in the ordinary course of business
of the Group);
3.4.2. release the Group from all security, fixed or floating
charges and debentures, guarantees, cross-guarantees
and indemnities given by or binding upon the Group in
relation to any debt or obligation of Principal
Vendors, and procure that any other Company which is a
subsidiary of any of the Principal Vendors, so releases
the Group and the Principal Vendors will indemnify and
keep indemnified the Purchaser as trustee for itself
and the Group against all costs, claims and demands
arising in connection with those securities, fixed or
floating charges and debentures, guarantees, cross-
guarantees or indemnities;
3.4.3. deliver to the Purchaser:
3.4.3.1. transfers of the Shares duly executed by the
registered holders in favour of the Purchaser
or as it may direct together with the related
share certificates or, in the case of any
lost share
17
certificate, an indemnity in terms
satisfactory to the Purchaser; and
3.4.3.2. any waivers or consents which the Purchaser
may require to enable the Purchaser or its
nominees to be registered as holders of the
Shares.
3.4.4. cause each of Cyril McGuire, Paul Byrne and Kevin Shea
to be validly appointed as additional directors of the
Group and Paul Byrne to be validly appointed as
Secretary of the Group, and then cause the Directors
(other than the Continuing Directors) and the secretary
of the Group (being Helen McDonnell) to retire from
office, each one delivering to the Purchaser a letter
under seal acknowledging that he has no claim
outstanding for compensation for loss of office,
redundancy, unfair dismissal or otherwise;
3.4.5. cause the revocation of all bank mandates, the giving
of authority to each of Cyril McGuire, Paul Byrne,
Kevin Shea, Brian Caulfield and Terry McWade to operate
all bank accounts on terms such that all cheques drawn
against and all instructions given in relation to the
Company's bank account must be signed by not less than
two of the aforementioned nominees, and further that
all cheques drawn against the Company's bank accounts
for all sums equal to or greater than IR(Pounds)10,000
must be signed by not less than one of Cyril McGuire,
Paul Byrne or Kevin Shea, and the delivery to the
Purchaser of all Group credit or debit cards except
those issued to Continuing Directors;
3.4.6. exercise all voting rights and other powers of control
which they have in relation to the Company to procure
that the Board of the Company approve the transfer by
the Vendors of the Shares and procure that the Company
shall issue the appropriate share certificates to the
Purchaser in respect of the Shares;
3.4.7. hold a meeting of the Board of the Company at which the
Directors of the Company shall resolve:
3.4.7.1. to approve the sale by the Vendors of the
Shares;
3.4.7.2. to approve the Deed of Tax Covenant;
3.4.7.3. to approve the Delta Termination Deed in the
agreed form;
3.4.7.4. to approve the Indemnity Termination Deed in
the agreed form;
3.4.7.5. to approve the Enterprise Ireland Termination
Agreement in the agreed form;
3.4.7.6. to approve Mr. Caulfield's Employment
Agreement in the agreed form;
18
3.4.7.7. to approve Mr. McWade's Employment Agreement
in the agreed form;
3.4.7.8. to accept Mr. O'Connor's Resignation Letter.
3.4.8. deliver to the Purchaser for itself and as agent for
the Group;
3.4.8.1. this Agreement duly executed by each of the
Principal Vendors;
3.4.8.2. the Deed of Tax Covenant duly executed by the
covenantors named in it as such, and by the
Group;
3.4.8.3. share transfer forms duly executed in favour
of the Purchaser and certificates in respect
of the Shares;
3.4.8.4. the Delta Termination Deed duly executed by
the parties thereto;
3.4.8.5. the Indemnity Termination Deed duly executed
by the parties thereto;
3.4.8.6. the Enterprise Ireland Termination Agreement
duly executed by the parties thereto;
3.4.8.7. a copy of the memorandum and articles of
association of each Group Company certified
by the secretary of that Group Company to be
a true and complete copy as at Completion;
3.4.8.8. the leases to the Properties;
3.4.8.9. all the Group's statutory and other books
(duly written up to date), certificates of
incorporation and common seals;
3.4.8.10. insofar as they are not in the custody of the
Group, all the Group's financial and
accounting books and records; and
3.4.8.11. certificates in respect of the whole of the
Subsidiaries' issued share capital.
3.4.8.12. Mr. Caulfield's Employment Agreement duly
executed by Mr. Caulfield;
3.4.8.13. Dr. McWade's Employment Agreement duly
executed by Dr. McWade;
3.4.8.14. an acknowledgement from each of the Principal
Vendors to the Purchaser and the Company
executed under seal to the effect that save
in relation to remuneration or reimbursement
of
19
expenses incurred in relation to his or her
employment, there is no outstanding
indebtedness owing at Completion from the
Company to such Principal Vendor or vice
versa;
3.4.8.15. the Disclosure Letter;
3.4.8.16. an acknowledgement from each of Eamonn
Keating, Gary Ramsay and Gerry Geilty to the
Company, executed under seal (in the agreed
form) acknowledging that certain payments
made or to be made constituted or, when made,
will constitute full and final settlement of
the pension entitlements of each of those
aforementioned persons up to the date of
Completion and confirming payments to be made
to them in lieu of their pension entitlements
from the date of Completion as detailed in
each such acknowledgement;
3.4.8.17. a signed Share Transfer form duly executed by
each of the Minority Shareholders in respect
of all Shares held by each such Minority
Shareholder, together with a Minority
Shareholder Declaration in the agreed form
duly executed by each of the Minority
Shareholders (other than Gary Ramsey, Eamonn
Keating and Adele Cooper) and a Secondary
Minority Shareholder Declaration in the
agreed form duly executed by each of Gary
Ramsey, Eamonn Keating and Adele Cooper.
3.4.8.18. Written consents from Enterprise Ireland to
the acquisition by the Purchaser of the
shares on Completion, as detailed in Clause
3.3.11 hereof;
3.4.8.19. written confirmation from Mr. James Mountjoy
agreeing to the cancellation of his share
option rights, as detailed in Clause 3.3.12
hereof;
3.4.8.20. Mr. O'Connor's Resignation Letter.
3.4.8.21. an Option Consent duly executed by each
person holding options in the Company in the
agreed form.
3.4.9. exercise all voting rights and other powers of control
which they have in relation to the Company to procure
that shareholders' resolutions are passed
(i) altering the authorised share capital of the
Company to convert the various classes of
shares currently authorised to be issued in
the Company's authorised share capital into
ordinary shares such that each Principal
Vendor at Completion holds the number of
ordinary shares in the capital of the Company
set out opposite that Principal Vendors name
in Column 4 of the table in the First
-----
Schedule;
--------
20
(ii) adopting the Articles of Association noting
such alteration in the Company's authorised
share capital; and
(iii) amending the terms of the Share Incentive
Schemes as required pursuant to clause 3.3.2.
3.5. Purchaser's obligation to pay:
3.5.1. On Completion, subject to due compliance by the
Principal Vendors with clause 3.4, the Purchaser shall,
in consideration for the Principal Vendors selling to
the Purchaser as beneficial owners the number of Shares
listed after each Principal Vendor's name in the First
Schedule, and in consideration of the delivery by each
Minority Shareholder of share transfer forms in respect
of the shares held by such person in the Company and a
duly executed Minority Shareholder Declaration in the
agreed form on Completion, allot the Initial
Consideration Shares to the Vendors.
3.5.2. On Completion, subject to due compliance by the
Principal Vendors with Clause 3.4, the Purchaser shall
deliver to the Vendors' Solicitors (whose receipt shall
be a sufficient discharge):
3.5.2.1. a counterpart of the Deed of Tax Covenant
duly executed by the Purchaser;
3.5.2.2. a counterpart of the Delta Termination Deed
duly executed by the Purchaser;
3.5.2.3. a counterpart of the Indemnity Termination
Deed duly executed by the Purchaser;
3.5.2.4. a counterpart of the Enterprise Ireland
Termination Agreement, duly executed by the
Purchaser;
3.5.3. In consideration for the Principal Vendors selling to
the Purchaser as beneficial owners the number of Shares
listed after each Principal Vendor's name in the First
Schedule, and in consideration of the delivery by each
Minority Shareholder of share transfer forms in respect
of the shares held by such person in the Company and a
duly executed Minority Shareholder Declaration in the
agreed form, the Purchaser shall allot such number of
Deferred Consideration Shares (if any) to the Vendors
(and the employees of the Company pursuant to the terms
of this Agreement) as the Purchaser shall be obliged to
issue pursuant Clauses 2.4.
3.6. Principal Vendors to act as Purchaser's Nominees:
21
Prior to the registration of the transfers, the Principal Vendors
shall co-operate in any manner required by the Purchaser for the
convening and conduct of general meetings of the Company, shall
execute on a timely basis all proxy forms, appointments of
representatives, documents of consent to short notice and such
like that the Purchaser may require, and shall generally act in
all respects as the nominees and at the direction of the
Purchaser in respect of the Vendors Shares and all attached
rights and interests.
3.7. Completion obligations not complied with, or Breach of Warranty:
If in any respect the provisions of clause 3.4 are not complied
with on the date for Completion established under clauses 3.1 and
3.2 or a material Breach of any Warranty has, in the reasonable
opinion of the Purchaser, occurred, the Purchaser may:
3.7.1. defer Completion to a date not more than 28 days after
that date (or after any later date to which Completion
was previously deferred) selected by the Purchaser, in
which case the provisions of this clause 3.7 will apply
to Completion as deferred;
3.7.2. proceed to Completion as far as practicable; or
3.7.3. rescind this Agreement
and this will not (in any of these cases) prejudice the
Purchaser's other rights and remedies under or otherwise relating
to this Agreement.
4. ACTION PENDING COMPLETION
4.1. Ordinary course of business:
Pending Completion, the Principal Vendors (other than Enterprise
Ireland) shall ensure that without the prior written consent of
the Purchaser (such consent not to be unreasonably withheld or
delayed) the Group:
4.1.1. in all respects, both individually and as a whole,
carries on business only in the ordinary course and in
the same manner as prior to today's date, save as
otherwise agreed in writing by the Purchaser;
4.1.2. does not borrow any money (other than pursuant to
existing overdraft facilities);
4.1.3. does not create, extend, grant or issue, or agree to
create, extend, grant or issue any mortgage, any fixed
or floating charge, lien (other than a lien arising by
operation of law), debenture, security, or other
encumbrance over the whole or any part of its
undertaking, property or assets (other than as a result
of withdrawals made pursuant to existing overdraft
facilities);
22
4.1.4. does not make any loan or advance or give any credit
(other than normal trade credit) to any person;
4.1.5. does not give any guarantee or indemnity to secure the
liabilities or obligations of any person;
4.1.6. does not issue any shares (other than in consequence of
the exercise of any Vested Options between the date of
this Agreement and Completion) or any debentures or
other securities convertible into shares (other than
the allotment of options to new employees pursuant to
the Share Incentive Schedule) or debentures or any
share warrants or any options in respect of shares;
4.1.7. save insofar as necessitated by the terms of this
Agreement, does not pass any resolution of its members
in general meeting or make any alterations to the
memorandum and articles of association of any Group
Company;
4.1.8. does not pay or agree to pay any of its directors,
officers or employees any increased, remuneration or
additional emolument or benefit save for the payments
detailed in the Eighth Schedule hereto;
4.1.9. does not acquire or agree to acquire any assets on hire
purchase or deferred sale terms otherwise than in the
ordinary course of business;
4.1.10. does not dispose of or agree to dispose of any of its
fixed assets otherwise than in the ordinary course of
business;
4.1.11. does not enter or agree to enter into any contract
involving capital expenditure or capital commitment in
excess of IR(Pounds)10,000 in any one case or
IR(Pounds)50,000 in aggregate;
4.1.12. uses all reasonable endeavours to procure that the
employees and customers of the Group do not cease to be
employed by or have dealings with the Group Companies;
4.1.13. does not write off or release any debts;
4.1.14. does not knowingly permit any of its normal insurances
to lapse or do anything to make any policy of insurance
void or voidable;
4.1.15. does not enter into any material contracts or amend the
terms of or terminate any material contracts otherwise
than in the ordinary course of business;
4.1.16. does not commence, or settle any litigation;
4.1.17. does not make any payments in excess of
IR(Pounds)10,000 to any person or entity, other than in
the ordinary course of business; and
23
4.1.18. carries on business only in accordance with applicable
law;
and shall forthwith notify the Purchaser of the occurrence of any
unusual or extraordinary events affecting the Group.
4.2. The Principal Vendors (other than Enterprise Ireland) shall
further ensure that there are no exceptional drawings from or
distributions or payments made by any Group Company to any
director, employee or consultant of any Group Company.
4.3. Access to records:
The Purchaser and its agents will, upon reasonable notice, be
allowed access to, and to take copies of, the books and records
of the Group including, without limitation, the statutory books,
minute books, leases, contracts, supplier lists and customer
lists in the Group's possession or control, but excluding any
information which is reasonably regarded as confidential to the
activities of the Vendors otherwise than in connection with the
Group or which is subject to confidentiality obligations owed by
any member of the Group to any third party.
4.4. Consultation:
4.4.1. The Purchaser may designate representatives for the
purposes of Clauses 4.4.2 and 4.4.3 who shall at all
times act reasonably.
4.4.2. The Principal Vendors shall consult, and cause the
Group to consult, with the representatives and advisers
with respect to any action which may materially affect
the business of the Group.
4.4.3. The Principal Vendors will provide, and will cause the
Group to provide, the representatives and advisers with
any information which they may reasonably request for
this purpose subject to confidentiality obligations
owed to third parties.
4.5. Announcements:
Save for:
(i) any announcement in the agreed form to be made by Delta
Management Partners Limited to its shareholders, which
announcement may only be made after the Purchaser has
publicly announced the acquisition by it of the Shares
(which announcement will be made as soon as practicable
following Completion), and
(ii) an announcement to be made by the directors of the
Company to all the staff of the Company (on condition
that each such staff member signs a
24
Minority Shareholder Declaration or a Secondary
Minority Shareholder Declaration (as the case may be)
the Principal Vendors and the Purchaser (save as required by law
or in the case of the Purchaser by any securities exchange,
regulatory or government body) shall not make any announcement to
shareholders, employees, customers or suppliers, or to securities
markets or other authorities or to the media or otherwise,
regarding the subject-matter of this Agreement without the prior
written consent of the other parties hereto and in the case of
any such announcement which is required by law, or any securities
exchange, regulatory or government body such announcing party
shall first consult with the other parties to this Agreement.
5. Representations and Warranties of the Purchaser
5.1. The Purchaser represents and warrants to the Vendors that the
statements contained in this Clause 5 are at the date hereof true
and not misleading and further that they will have been complied
with in all respects, as if they had been entered into afresh at
Completion and if, after the signing of this Agreement and before
Completion, any matter arises which results or may result in such
statements becoming untrue or misleading, the Purchaser shall
immediately notify the Principal Vendors fully in writing prior
to Completion.
5.2. The Purchaser is a corporation duly formed and validly existing
under the laws of Ireland, with full power and authority to enter
into this Agreement and the Deed of Tax Covenant, which
constitute legal obligations which are valid and binding on the
Purchaser in accordance with their terms, and has full power and
authority to perform those obligations.
5.3. Neither entering into this Agreement nor performing its
obligations has resulted or will result in a breach of any
obligation of the Purchaser under:-
5.3.1. its Memorandum and Articles of Association, statutes,
bye-laws or the terms of charter or corporate
regulations;
5.3.2. any law or any order, judgement or decree of any court
or governmental agents; or
5.3.3. any contract or agreement.
5.4. For the avoidance of doubt the Purchaser warrants that the
Consideration Shares upon their delivery to the Vendors (and, if
applicable, to the employees of the Company) in accordance with
the provisions of this Agreement, shall have been duly and
validly authorised, issued and delivered by the Purchaser free
from all encumbrances (save for any lock in arrangements
contemplated by this Agreement) and will be fully paid for and
shall rank pari passu in all respects with the existing ordinary
shares in the capital of the Purchaser. The Purchaser undertakes
that, on Completion each allottee shall be entered in the
register of members of the Purchaser as holder of the Initial
Consideration
25
Shares in the capital of the Purchaser allotted to him hereunder
and as holder of the Deferred Consideration Shares (if any) in
the capital of the Purchaser allotted to him hereunder on the
date(s) upon which Deferred Consideration Shares are required to
be allotted in him hereunder and so far as regards any dividend
declared or paid by reference to a record date falling in the
case of the Initial Consideration on or after the date of
Completion and in the case of the Deferred Consideration (if any)
the date upon which any Deferred Consideration Shares shall be
required to be allotted hereunder, rank as if they had been
issued fully paid on and from the date of Completion or as
applicable at the date upon which Deferred Consideration Shares
are allotted.
6. ACTION POST COMPLETION
6.1.1. Each of the Principal Vendors undertakes, subject to
Clause 6.1.2 and 6.1.3, not to sell, offer to sell,
grant an option to purchase or otherwise transfer or
dispose of ("Transfer") his or her Consideration Shares
(other than the Placement Shares) during the period of
180 days from Completion. Thereafter, each Principal
Vendor shall not transfer more than:
(a) 25% (in aggregate) of his or her Consideration
Shares after 180 days of Completion but within 360
days of Completion;
(b) 50% (in aggregate) of his or her Consideration
Shares after 360 days of Completion but within 540
days of Completion;
(c) 75% (in aggregate) of his or her Consideration
Shares after 540 days of Completion but before the
second anniversary of Completion.
After the second anniversary of Completion, the Vendors
shall be free to Transfer any or all of their
Consideration Shares.
6.1.2. Notwithstanding the terms of Clause 6.1.1 above:
(a) Mr. Brian Caulfield shall be entitled to sell all
his Placement Shares at any time on or after
Completion;
(b) Dr. Terry McWade shall be entitled to sell all his
Placement Shares at any time on or after
Completion;
(c) Enterprise Ireland shall be entitled to sell all
its Placement Shares at any time on or after
Completion and the balance of its Consideration
Shares at any time on or after 180 days after the
date of Completion;
(d) Mr. William O'Connor shall be entitled to sell all
his Placement Shares at any time on or after
Completion.
26
(e) Mrs. Helen McDonnell shall be entitled to sell all
her Placement Shares at any time on or after
Completion and the balance of her Consideration
Shares at any time on or after the first
anniversary of the date of Completion;
(f) Delta Management Partners Limited shall be
entitled to sell all its Placement Shares at any
time on or after Completion and the balance of the
Consideration Shares at any time on or after 180
days after the date of Completion.
6.1.3. Notwithstanding the terms of Clause 6.1.1 above, each
of the Warrantors shall, following any determination
that such Warrantor is liable in respect of a Breach of
the Warranties and/or pursuant to the Deed of Tax
Covenant (a "Liability"), be entitled to Transfer such
number of his Consideration Shares as shall be
necessary to realise an amount equal to the amount of
the Liability, less the total of (i) all cash amounts
previously received by such Warrantor in respect of the
sale of his Placement Shares and, (ii) if applicable,
the aggregate of all cash amounts previously received
by such Warrantor in respect of the sale of any of his
Consideration Shares save that where any such cash
amounts have already been taken into account in
calculating the amount of Consideration Shares which a
Warrantor may transfer pursuant to the foregoing
provisions in respect of one Liability they shall not
be taken into account in respect of any other
Liability.
6.2. The Purchaser hereby undertakes to the Placement Vendors that it
shall, as soon as practicable following Completion, request a
reputable investment bank, to be selected by the Purchaser but
satisfactory to the Placement Vendors, to assist each of the
Placement Vendors to sell such number of Placement Shares so
that, in so far as possible, the holders of those Placement
Shares may sell the number of shares in the Purchaser or realise
the gross sum set out opposite that Placement Vendor's name (as
the case may be) in Column 6 of the table in the First Schedule.
--------------
6.3. Each Principal Vendor acknowledges that the Purchaser will be
entitled to refuse to register any subsequent transfer of the
Consideration Shares if such transfer is not made in accordance
with Regulation S of the Securities Act, pursuant to registration
under the Securities Act. Each Principal Vendor acknowledges that
they are aware of the provisions of Rule 144 promulgated under
the Securities Act which permits limited resale of shares subject
to the satisfaction of certain conditions, which include, among
other things, the resale occurring not less than one year after a
party has purchased and paid for the security to be sold, the
sale being effected through a "brokers transaction" or in
transactions directly with a "market maker" and the number of
shares being sold during any three month period not exceeding
specified limitations.
6.4. With a view to making available to the Vendors the benefits of
certain rules and regulations of the Securities and Exchange
Commission which may permit
27
the sale of the Consideration Shares to the public without
registration, the Purchaser agrees to use its best efforts to:
6.4.1. make and keep public information available, as those
terms are understood and defined in Rule 144 under the
Securities Act;
6.4.2. use its best efforts to file with the Securities and
Exchange Commission in a timely manner all reports and
other documents required of the Purchaser under the
Securities Act and the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); and
6.4.3. so long as the Principal Vendors own any Consideration
Shares, co-operate with the Principal Vendors in
providing information necessary to effect a sale,
including furnishing to the Principal Vendors forthwith
upon request a written statement by the Purchaser as to
its compliance with the reporting requirements of the
Securities Act (including Rule 144 promulgated under
such Act) and the Exchange Act and a copy of the most
recent annual or quarterly report of the Purchaser
filed with the Securities and Exchange Commission.
6.5. Each of the parties hereto shall exercise all voting rights and
other powers of control which they have to procure that on
Completion the provisions of the Share Incentive Schemes shall be
amended to provide that:
(i) all subsisting options under the Share Incentive
Schemes (including Parallel Options) shall be cancelled
and substituted with options over the Transfer Shares
in accordance with clause 2.3.2;
(ii) no further options shall be granted under the Share
Incentive Schemes;
(iii) the Share Incentive Schemes shall continue to be
administered by the Company such that the Company
Options shall vest upon the dates and at the exercise
price as detailed in the Sixth Schedule;
(iv) the Vesting Period for Options in the Share Incentive
Schemes shall be reduced from five to four years; and
(v) upon exercise of all the Company Options held by the
persons detailed in the Sixth Schedule, each such
person shall be issued the number of Transfer Shares
set out opposite such persons name in the Sixth
-----
Schedule in place of shares in the Company.
--------
6.6. Each of the parties hereto shall exercise all voting rights and
other powers of control which they have to procure that, prior to
Completion, all consents necessary with regard to the amendments
to the Share Incentive Schemes detailed at Clause 6.5 are
obtained and to take all other necessary action to otherwise
facilitate such amendments.
28
6.7. Each of the parties hereto shall exercise all voting rights and
other powers of control which they have, and shall comply with
all reasonable requests which the Purchaser may make and shall
do, make and sign all documentation which the Purchaser may
request each of the other parties to so do, make or sign in
connection with any application by the Purchaser or the Company
to the Irish Revenue Commissioners for relief from stamp duty
arising on the purchase by the Purchaser of the Shares and from
capital duty arising on the allotment by the Purchaser of the
Consideration Shares.
6.8. In accordance with their obligations as detailed in the
Reimbursement Letter, each of the following Principal Vendors
hereby undertakes to the Company to reimburse to the Company the
amounts set out opposite each such Principal Vendor's name in the
table set out below:
Principal Vendor Reimbursement Amount
---------------- --------------------
William O'Connor IR(Pounds) 46,970
Brian Caulfield IR(Pounds) 55,809
Delta Management Partners Limited IR(Pounds) 50,435
Helen McDonnell IR(Pounds) 20,105
------------------
Total: IR(Pounds) 173,319
Further each such Principal Vendor undertakes that he shall
reimburse the amount owed by him to the Company, as detailed
above out of the proceeds of the sale by him of his Placement
Shares, immediately upon receipt by him of such proceeds, and in
any case will have reimbursed the amount owed by him to the
Company by 31st January, 2001 at the latest.
7. INDEMNITIES AND WARRANTIES
7.1. The Warrantors (other than Dr. Terry McWade in the case of a
claim made under Clause 7.1.2 only) shall indemnify, defend and
hold harmless the Purchaser and the Company and keep indemnified
the Purchaser and the Company against all and any expenses,
costs, claims, demands, losses, damages and other liabilities
whatsoever whether direct or consequential suffered or incurred
by the Company or the Purchaser arising under or in respect of:
7.1.1. any claim against the Company or the Purchaser by any
broker, finder, financial adviser or other person
retained by the Vendors or the Company in connection
with this agreement or the transactions effected by
this agreement but excluding fees payable to McCann
FitzGerald, KPMG Corporate Finance Limited and Ernst &
Young pursuant to clause 9.2;
7.1.2. any claim against the Company or the Purchaser arising
by any employee of the Company out of any claim by such
employee of the Company relating to sexual harassment
or assault of such employee
29
alleged to have taken place prior to Completion
provided however that nothing in this Sub Clause 7.1.2
shall be deemed to provide an indemnity to the
Purchaser or to the Company for any loss of profits,
business, goodwill or anticipated savings or for any
direct or indirect consequential loss whatsoever
arising out of any such claim made by any employee of
the Company against the Company or the Purchaser;
7.1.3. any dispute or contractual, tortious or other claim or
proceedings brought against the Company or the
Purchaser by a third party alleging infringement of the
Company IPR; or
7.1.4. any claim arising due to the fact that the terms of the
Share Incentive Schemes of the Company creating Company
Options, and the Company Options themselves, or any
other amendment required to give effect to the terms of
clause 6.5 have not been amended so as to refer to
Transfer Shares rather than shares in the Company being
issued upon exercise of such options, on the terms as
set out in Clause 3.3.2
provided that the provisions of clauses 7.5.1.2, 7.5.1.3, 7.5.2
and 7.8.2 shall apply mutatis mutandis to the indemnities
contained in this clause 7.1.
7.2. Warranties:
7.2.1. The Warrantors warrant and represent to and undertake
with the Purchaser in relation to each member of the
Group in the terms set out in the Fourth Schedule
---------------
(provided however that each of the Principal Vendors
warrant and represent and undertake with the Purchaser
in the terms set out in warranties 1.1 and 1.2 of the
Fourth Schedule) subject only to any exceptions fairly
---------------
disclosed in the Disclosure Letter and any matter
expressly provided for in this Agreement.
7.2.2. The Warrantors acknowledge that the Purchaser has
entered into this Agreement in reliance upon (inter
alia) the Warranties.
7.2.3. Each of the Warranties is separate and independent and
is not limited by reference to any other paragraph of
the Fourth Schedule or by anything in this Agreement
---------------
(other than the provisions of this clause 7) or the
Deed of Tax Covenant.
7.2.4. Subject to Clause 7.2.1 and 7.13 a Warranty Claim may
be made by the Purchaser for a Breach of the Warranties
whether or not the Purchaser knew of or could have
discovered the Breach (whether by any investigation
made by him or on its behalf into the affairs of the
Group or otherwise) prior to signing this Agreement .
7.2.5. The benefit of the Warranties may be assigned in whole
or in part and without restriction by the person for
the time being entitled to them at any time following
the second anniversary of Completion provided that
30
no assignee shall be entitled to a greater sum of damages
or other compensation than the sum to which the Purchaser
would have been entitled had it not assigned the benefit
of the Warranties and provided further that any such
assignee shall be required to adhere to the provisions of
this Clause 7, relating to limitations on liability,
undertakings regarding the conduct of claims etc.
7.2.6. Any payments made by the Warrantors to the Purchaser in
respect of claims under the Indemnities, Warranties or
under the Deed of Tax Covenant shall so far as possible
be treated by the parties as a reduction in the
consideration for the Shares.
7.2.7. All sums payable by the Warrantors under this Agreement
shall be paid free and clear of all deductions or
withholdings unless the deduction or withholding is
required by law.
7.3. Warranties Repeated:
The Warrantors further warrant and represent to and undertake
with the Purchaser that:
7.3.1. the Warranties will be true and not misleading, and will
have been complied with, in all respects, as if they had
been entered into afresh at Completion; and
7.3.2. if, after the signing of this Agreement and before
Completion, any material Breach of the Warranties occurs
or any matter arises which results or may result in a
material Breach of the Warranties, the Warrantors shall
immediately notify the Purchaser fully in writing prior
to Completion and the Warrantors shall make any
investigation concerning the event or matter which the
Purchaser may require
but no Warranty Claim will arise in respect of a Breach
occurring after the signing of this Agreement and before
Completion whether or not this Agreement is rescinded as
a result under clause 3.7, if the event or matter in
question could not reasonably have been avoided or
prevented by the Vendors or the Directors and the Breach
was duly notified in accordance with this clause 7.3.
7.4. Liability under the Warranties:
7.4.1. In the event of a Warranty Claim, the Purchaser will be
entitled to recover damages measured as either the cost
of remedying the Breach or the amount by which the value
of the Shares is less than it would have been if the
Breach had not occurred, whichever is the greater.
7.4.2. The Purchaser enters into this Agreement with the
intention that subject to the provisions of paragraph 4
of part A of the Seventh Schedule the business of the
Group will or may be continued as a going
31
concern utilising all the assets and subject only to the
liabilities to which, in accordance with the terms of
this Agreement, the Group would be entitled and subject
on Completion if there were no Breach, and damages for
any Breach are to be assessed on that basis.
7.5. Limitations:
Notwithstanding the provisions of clauses 7.2 to 7.4, the
Warrantors will not be liable for any Warranty Claim unless:
7.5.1. Time:
7.5.1.1. for any claim not relating to Tax, notice of it
is given in writing by the Purchaser to the
Warrantors setting out brief particulars of the
grounds on which the Warranty Claim is based
within two years following Completion (and to
the extent that such claim has not been
satisfied or settled, legal proceedings in
respect of the Breach have been both issued and
served on the Warrantors within six months of
the second anniversary of Completion);
7.5.1.2. for any claim relating to Tax, notice of it is
given by the Purchaser to the Warrantors (other
than Delta Management Partners Limited),
setting out brief particulars of the grounds on
which the Warranty Claim is based within seven
years following Completion (and to the extent
that such claim has not been satisfied or
settled, legal proceedings in respect of the
Breach have been both issued and served on the
Warrantors (other than Delta Management
Partners Limited) within six months of the
Seventh anniversary of Completion); and
7.5.1.3. for any claim relating to Tax, notice of it is
given in writing by the Purchaser to Delta
Management Partners Limited setting out brief
particulars of the grounds on which the
Warranty Claim is based within four years
following Completion (and to the extent that
such claim has not been satisfied or settled,
legal proceedings in respect of the Breach have
been both issued and served on Delta Management
Partners Limited within six months of the date
which is 1278 days (3.5 years) after the date
of Completion); and
7.5.2. De minimis:
The amount of any duly notified claim exceeds $20,000 and
unless the aggregate amount of the Warrantors' liability
for all duly notified claims exceeds US$75,000, in which
case all such duly notified claims will lie
32
but the limitations and exclusions in this clause 7.5
will not apply to any Warranty Claim relating to:
- The Warrantors' title to, or the status or
validity of, the Shares;
- any statutory or criminal fine or penalty;
- any claim which arises or is delayed as a result
of fraud, wilful misconduct or wilful concealment
by the Warrantors or any officer or employee of
the Warrantors or Directors; or
- any claim under Clause 7.1.
7.6. Deed of Tax Covenant:
The Warrantors will not be liable for a Warranty Claim to
the extent that the loss occasioned by the relevant
Breach has been recovered under the Deed of Tax Covenant.
The terms of clauses 7.5.1.2, 7.5.1.3 and 7.5.2 shall
apply mutatis mutandis to any claim under the Deed of Tax
Covenant.
7.7. No Representation etc:
Information supplied by or on behalf of the Group to the
Warrantors or any of their subsidiaries or their agents
or professional advisers prior to Completion in
connection with the Warranties or the exceptions, or the
information disclosed in the Disclosure Letter or Deed of
Tax Covenant or otherwise in relation to the business and
affairs of the Group will not constitute a
representation, warranty or guarantee as to its accuracy,
and the Warrantors hereby assign to the Purchaser any
claims which they might otherwise have against the Group
or its employees or officers in respect of that
information, and undertake not to bring any action or
proceedings in relation to it.
7.8. Further Limitations on liability under Warranties:
The Warrantors shall not be liable in respect of any
claim for Breach or non-fulfilment of any of the
Warranties:
7.8.1. Other Recovery: if and to the extent that the
loss occasioned by any Breach has already been
recovered under any of the other Warranties, or
under the Deed of Tax Covenant;
7.8.2. Cap on Claims: The aggregate liability of each of
the Warrantors hereunder and under the Deed of
Tax Covenant shall not in the case of any
Warrantor exceed the total of the following
amounts: (a) the cash proceeds received by such
Warrantor following the sale of the Placement
Shares allotted to it hereunder; (b) where at the
date of determination of such Warrantor's
liability in respect of a claim for any
33
Breach or under the Deed of Tax Covenant Initial
Consideration Shares allotted to such Warrantor
are subject to the lock-in provisions in clause
6.1.1, the value of such shares on the date of
such determination; (c) the value of the Initial
Consideration Shares on the maturity of the lock-
in provisions (d) the value of any Deferred
Consideration (if any) actually received by such
Warrantor, provided that no value for any Initial
Consideration Share shall be counted more than
once in calculating such aggregate liability;
7.8.3. Acts by Purchaser/the Group: in the case of
claims arising from any matter, act, omission or
circumstance, which would not have occurred but
for any voluntary act, omission or transaction of
the Group or its directors or employees, the
Purchaser or its directors or employees, carried
out or occurring after Completion otherwise than
in the ordinary course of business as carried on
prior to Completion; excluding claims which arise
pursuant to a binding commitment entered into by
any Group Company prior to Completion or claims
which arise where it is not reasonably
foreseeable that a claim will arise from any such
voluntary act, omission or transaction at the
time it is carried on or entered into;
7.8.4. Other Exceptions: to the extent that:
7.8.4.1. the matter giving rise to the claim was
taken into account in the Accounts or
was referred to in, or would reasonably
be inferred from the notes to the
Accounts or the loss in respect of
which the claim is made has
specifically been taken into account in
the Management Accounts and for which
there is a specific allowance,
provision or reserve in the Management
Accounts.
7.8.4.2. it arises or is increased as a result
of an increase in rates of Taxation
after the date of this Agreement or
such breach or claim occurs as a result
of any legislation, subordinate
legislation, or Revenue Commissioners
enunciated practice enacted, made, in
force or allowed (as appropriate),
after the date of this Agreement
whether with or without retrospective
effect;
7.8.4.3. the loss giving rise to such claim has
been recovered by the Purchaser or the
Group from any third party or under any
policy of insurance, and in this regard
the Purchaser shall not do anything, or
omit to do anything, which would make
any of the Group's insurance void or
voidable;
7.8.4.4. it arises as a result primarily of any
material change in the accounting
policy or practice or in the financial
year end of any Group Company after
Completion;
34
7.8.4.5. such claim arises or is increased as a
result of new Tax legislation or any
change in applicable law, regulation or
regulatory requirements or practice
made after Completion whether with or
without retrospective effect;
7.8.4.6. any tax for which the Group is or may
be assessed is extinguished as a result
of a payment of Tax already made in
respect of that event;
7.8.4.7. such claim if in respect of Tax, would
not have arisen but for the fact that
the treatment of any such assets or
liabilities or of the Tax attributable
to timing differences in future
accounts of any Group Company is
different from the treatment in the
Accounts;
7.8.4.8. such claim, if in respect of Tax, would
not have arisen but for or has been
increased by:
(i) a disclaimer, claim or election
made or notice or consent given
after Completion by the Purchaser
or any Group Company, the making
or doing of which was taken into
account in computing the provision
for Tax in the Accounts and which
is specifically outlined in the
Accounts or has been disclosed in
the Disclosure Letter to the
Purchaser; or
(ii) a failure or omission by any Group
Company to make any claim,
election, surrender or disclaimer
to give any notice or consent or
do any other thing after
Completion, the making or doing of
which was taken into account in
computing the provision for Tax in
the Accounts where the making or
doing of which was specifically
outlined in the Accounts or was
disclosed to the Purchaser;
7.8.4.9. a defence of a third party claim giving
rise to a Warranty claim is compromised
or adversely affected by loss or
destruction of records of any Group
Company by the Purchaser after
Completion.
7.8.4.10. Such claim is based upon a liability
which is contingent only unless and
until such contingent liability becomes
an actual liability and is due and
payable.
7.9. Remedies for breach of Warranties
The Purchaser's rights in respect of any matter which
amounts to a Breach of Warranties shall be limited to
damages. The Purchaser shall not be entitled to rescind the
Agreement.
35
7.10. Notification of breaches of Warranties
If the Purchaser becomes aware of a matter which appears
likely to the Purchaser to give rise to a claim against
the Warrantors for Breach of any of the Warranties, the
Purchaser shall as soon as reasonably practicable give
notice of that fact to the Warrantors.
7.11. Conduct of third party claims leading to Warranty claims
Subject to the provisions of Clause 7.15 hereof:
7.11.1. if the claim in question is as a result of or in
connection with a claim by or liability to a
third party, the Warrantors and the Purchaser
shall consult with each other regarding the
conduct of such claim. Further, the Purchaser
shall and shall ensure that the Company will
provide to the Warrantors and their advisers
reasonable access to premises and personnel and
to relevant assets, documents and records as are
in the Purchaser' power or control for the
purposes of investigating the matter.
7.11.2. the Purchaser shall keep the Warrantors fully
informed of the progress of any such claim and
the defence thereof and consult with and have due
regard for the Warrantors' reasonable
representations.
7.11.3. where the Purchaser or any Group Company has
brought a claim against a third party (including
any Taxation authority or insurer), the Purchaser
shall procure that reasonable endeavours are used
(subject to the Warrantors indemnifying the
Purchaser for the reasonable costs and expenses
thereof) to recover any amounts due from any such
third party and, in the event that the Warrantors
have paid to the Purchaser an amount in respect
of which the Purchaser or the relevant Group
Company has a right of recovery from a third
party, the Purchaser shall as soon as reasonably
practicable after recovery from such third party
pay to the Warrantors an amount equivalent to the
amount so recovered.
7.12. Mitigation
Nothing in this Agreement shall be deemed to relieve the
Purchaser or the Group Companies from their common law
duty to mitigate their loss.
7.13. The Purchaser warrants to the Vendors that neither it nor
any member of the Purchaser's Group is aware at the date
of this Agreement of any fact or matter which may mean
that any warranty is untrue inaccurate or misleading.
7.14. If the Purchaser becomes aware of a matter which might
give rise to a claim and if such claim is as a result of
or in connection with a claim by or a liability to a third
party:
36
7.14.1. the Warrantors shall have no liability in respect
of the claim until the claim by or liability to
the third party has been settled or finally
determined;
7.14.2. the Purchaser shall, and shall ensure that the
Company will, provide to the Warrantors and their
advisers reasonable access to premises and
personnel and to relevant assets, documents and
records within the Purchaser's power or control
for the purposes of investigating the matter and,
in the case of a claim made against the
Warrantors pursuant to Clause 7.1.(2) hereof
only, enabling the Warrantors to take the action
referred to in Clause 7.15;
7.14.3. the Vendors (at their cost) may take copies of
the documents or records, and photograph the
premises or assets, referred to in paragraph
7.14.2;
7.15. In the case of a claim made against the Warrantors
pursuant to Clause 7.1.(2) hereof, only
7.15.1. the Purchaser shall and shall procure that the
Company shall take any action and institute any
proceedings, and give any information and
assistance, as the Warrantors may reasonably
request to dispute, resist, appeal, compromise,
defend, remedy, settle or mitigate the matter or
enforce against a person the rights of the
Purchaser in relation to the matter and in
connection with proceedings related to the matter
use advisers nominated by the Warrantors on the
basis that the Warrantors shall indemnify the
Purchaser for all reasonable costs incurred as a
result of any such request by the Warrantors; and
7.15.2. the Purchaser shall not admit liability in
respect of, or compromise or settle, the matter
without the prior written consent of the
Warrantors (not to be unreasonably withheld or
delayed).
7.16. If the Warrantors pay to the Purchaser an amount in
respect of a claim pursuant to the Warranties and any
member of the Purchaser's Group subsequently recovers from
another person an amount which is referable to the matter
giving rise to the Breach:
(a) if the amount paid by the Vendors in respect of
the Breach is more than the amount recovered, the
Purchaser shall immediately pay to the Warrantors
the sum recovered (less reasonable costs incurred
by the Purchaser in recovering such amount); and
(b) if the amount paid by the Warrantors in respect
of the Breach is less than or equal to the amount
recovered, the Purchaser shall immediately pay to
the Warrantors an amount equal to the amount paid
by each Warrantor (less reasonable costs incurred
by the Purchaser in recovering such amount).
37
8. RESTRICTIONS ON VENDORS
8.1. Restrictions:
For the purpose of assuring to the Purchaser the full
benefit of the business and goodwill of the Group:
8.1.1. each Covenantor undertakes with the Purchaser as
trustee for itself and the Group that for the
period of two years after Completion that
Covenantor will not carry on or be engaged,
concerned or interested in carrying on the
businesses of the provision of exception management
solutions for credit card issuers, acquirers,
processors and merchants within Ireland, the United
Kingdom, Germany or the United States of America,
either on its own behalf or in conjunction with or
on behalf of any other person, firm or body
corporate, but this restriction will not apply to
the mere holding of up to 5% of a class of
securities which are traded on a recognised
securities market; provided that this clause 8.1.1
shall not apply to the specified activities of
Brian Caulfield detailed in the Disclosure Letter,
provided further that this clause shall not
prohibit Mr. William O'Connor from accepting short
term contractual engagements in relation to the
matters referred to in this clause 8.1.1, where the
entity or entities with whom he accepts such short
term contractual engagements do not prominently
carry on the business of development and/or
marketing of software applications or secure
payments within electronic banking or mobile
commerce.
8.1.2. for the period of two years after Completion no
Covenant shall (either on its own account or in
conjunction with or on behalf of any other person,
firm or body corporate) solicit or entice away from
the Group:
8.1.2.1. any officer or employee, whether or not
that person would commit a breach of its
contract of employment by reason of
leaving service (although any officer or
employee will be entitled to respond to a
public advertisement of employment); or
8.1.2.2. any person, firm or body corporate who
will have been a customer of the Group
within six months before Completion, or
since Completion; and
8.1.3. each Covenant shall procure that no body corporate
owned or controlled directly or indirectly by such
Covenant will act in such a way as would be a
contravention of the obligations contained in this
clause 8.1 if such Covenantor were to so act.
8.2. Modification:
38
Whilst the restrictions in clause 8.1 are considered by the
parties to be reasonable and indispensable in all the
circumstances as at the date of this Agreement, it is
acknowledged that restrictions of that nature may be
invalid because of changed circumstances or other
unforeseen reasons; therefore, if any restrictions are held
to be void by any court or regulatory authority but would
be valid if part of the wording were amended or the
relevant period or scope reduced, those restrictions will
apply with the modifications necessary to make them valid
and effective, and those modifications will not affect the
validity of any other restrictions in this Agreement.
9. MISCELLANEOUS PROVISIONS
9.1. Restricted Financial Transfers:
The Vendors hereby declare for the purpose of the Financial
Transfers Act, 1992 that they are not resident in any
jurisdiction to which financial transfers (within the
meaning of the said Act) are restricted by order of the
Minister for Finance in accordance with the provisions of
that Act and do not hold any Shares, and will not receive
any part of the consideration, as nominee for any persons
so resident, and the Purchaser declares for the purpose of
the same Act that it is not so resident, is not acquiring
the Shares as nominee for any persons so resident and that
the Purchaser is not to its knowledge controlled directly
or indirectly by persons so resident.
9.2. Costs and Expenses:
The Purchaser will pay its own costs of and incidental to
this Agreement and its implementation. The Company shall,
subject to the provisions of Section 60 of the Companies
Act 1963 pay the legal, accounting and financial advisors
costs of the Principal Vendors (not to exceed the amount of
IR(Pounds)[ ] in aggregate) arising out of the Agreement,
provided however, and for the avoidance of doubt, that
neither the Company, or the Purchaser, shall have any
obligation to pay any costs in relation to the sale by any
Principal Vendor of its Placement Shares.
9.3. Severability:
All the terms and provisions of this Agreement are distinct
and severable, and if any term or provision is held or
declared to be enforceable, illegal or void in whole or in
part by any court, regulatory authority or other competent
authority it will to that extent be deemed not to form part
of this Agreement, and the enforceability, legality and
validity of the remainder of this Agreement will not be
affected.
9.4. Confidentiality:
39
9.4.1. The Principal Vendors acknowledge that they have
been exposed to information about the Company which
is either a trade secret, confidential or
commercially sensitive and which may not be readily
available to others engaged in a similar business
to that of the Company or to the general public and
which if disclosed may cause harm to the Company or
the Purchaser.
9.4.2. The Principal Vendors shall keep secret and shall
not at any time, for whatever reason, use
communicate or reveal to any person for their own
or another's benefit, any Company Confidential
Information which shall have come to their
knowledge prior to Completion. The Principal
Vendors shall as soon as reasonably practicable
inform the Purchaser of any disclosure or use of
any such information of which they become actually
aware knowing it to be Company Confidential
Information.
9.4.3. The restrictions contained in sub-clause 9.4.2
shall not apply to:
(a) any disclosure or use authorised in writing
by the Purchaser or required in the ordinary
and proper course of the particular Principal
Vendor's service agreement with the Company
or in or as required law or any securities
exchange, regulatory or government body; or
(b) any information which was known to the
Principal Vendor concerned prior to the
commencement of his employment or engagement
by the Company or is in the public domain
otherwise than as a result of a breach of
this clause.
9.4.4. Except:
(a) as may be required by law or in the case of
the Purchaser by any securities exchange,
regulatory or government body; or
(b) as may be required to vest the full benefit
of this agreement in the Purchaser, including
informing any employee, consultant, trade
contact or customer connection of the Company
or of the Purchaser of the change of
ownership of the Company,
the provisions of this agreement and all
negotiations relating to this agreement are
strictly confidential and no announcement or
disclosure of or publicity relating to the sale and
purchase hereunder and terms of this agreement
shall be made by the parties to any third party
(other than their professional advisers) without
the written agreement of the other parties.
9.5. Whole Agreement:
This Agreement (together with any documents to be executed
under clause 3) and the Disclosure Letter supersede all
prior representations, arrangements,
40
understandings and agreements, and sets forth the entire,
complete and exclusive agreement and understanding between
the parties
9.6. Survival:
The provisions of this Agreement which have not been
performed at Completion will remain in full force and
effect notwithstanding Completion.
9.7. Remedies Cumulative:
The provisions of this Agreement and the rights and
remedies of the parties are cumulative and are without
prejudice and in addition to any rights or remedies which a
party may have at law or in equity. The exercise by a party
of any one right or remedy under this Agreement or at law
or in equity will not (unless expressly provided in this
Agreement or at law or in equity) operate so as to hinder
or prevent the exercise by that party of any other right or
remedy.
9.8. Waiver:
Any liability to the Purchaser under this Agreement may be
wholly or partially released, varied, compounded or
compromised by the Purchaser in its absolute discretion as
regards any of the Vendors or any other party without in
any way prejudicing or affecting its rights against any
other party under the same or a similar liability, whether
joint and several or otherwise. A waiver by the Purchaser
of any breach by any party of any of the terms, provisions
or conditions of this Agreement, or the acquiescence of the
Purchaser in any act (whether commission or omission) which
but for such acquiescence would be a breach, will not
constitute a general waiver of the term, provision or
condition or of any subsequent act which is inconsistent
with it.
9.9. Further Assurance:
At the request of the Purchaser, the Vendors shall (and
shall procure that any other necessary parties will)
execute and do all such documents, acts and things as may
reasonably be required subsequent to Completion by the
Purchaser for assuring to or vesting in the Purchaser
(including its nominee or nominees) the beneficial
ownership of the Shares.
9.10. Notices:
9.10.1. Any notice or other communication to be given or
served under this Agreement shall be in writing,
addressed to the relevant party and expressed to
be a notice or communication under this Agreement
and, without prejudice to the validity of another
method of service, may be
41
delivered or sent by pre-paid registered post or
facsimile addressed as follows:
The Purchaser:
Trintech Group plc
Trintech House
South County Business Park
Leopardstown
Dublin 18
F.A.O. Paul Byrne
Facsimile: 01 2074300
The Vendors:
William O'Connor
Apartment 6
2 Wilton Place
Dublin 2
Brian Caulfield and Helen McDonnell
71 The Green
Beaumont Woods
Beaumont
Dublin 9
Terry McWade
7 Leahy Terrace
Sandymount
Dublin 4
Delta Management Partners Limited
ICL South County Business Park
Leopardstown
Dublin 18
F.A.O. Shay Garvey, Esq.
Facsimile: 294 0877
Enterprise Ireland
Wilton Park House
Wilton Place
Dublin 2
or to such other address or telecopier number as
the addressee may have previously substituted by
notice.
9.10.2. A notice or other communication will be deemed to
have been duly served or given:
42
9.10.2.1. in the case of delivery, at the time of
delivery;
9.10.2.2. in the case of posting, 48 hours after
posting (and proof that the envelope
containing the notice or communication
was properly addressed, prepaid,
registered post will be sufficient
evidence that the notice or other
communication has been duly served or
given); or
9.10.2.3. in the case of facsimile, upon receipt
by the addressee of the complete text
in legible form
but if a notice is given or served at business
premises other than during usual business hours on
a Business Day, it will be deemed to be given or
served on the next following Business Day.
9.10.3. A party giving or serving a notice or other
communication hereunder by facsimile shall also
give or serve a copy by post, but without
prejudice to the validity and effectiveness of the
service by facsimile.
9.10.4. All notices or other communications shall be in
the English language.
9.11. Governing Law:
This Agreement and all relationships created by it will in
all respects be governed by and construed in accordance
with Irish law.
9.12. Jurisdiction:
It is irrevocably agreed that the Irish courts are to have
exclusive jurisdiction to settle any disputes which may
arise out of or in connection with this Agreement or its
performance and accordingly that any suit, action or
proceedings so arising may be brought in such courts.
IN WITNESS whereof this Agreement has been entered into the date and year first
herein written.
43
SEVENTH SCHEDULE
----------------
Deferred Consideration
Part A
1.1. The Target Revenues for Year 1 are IR(Pounds)5,362,698.
The Target Losses for Year 1 are IR(Pounds)1,640,292.
The Target Revenues for Year 2 are IR(Pounds)16,861,015;
The Target Profits for Year 2 are IR(Pounds)1,213,578.
1.2. Within 60 days of the Deferred Consideration Accounts of the Company
being approved in the manner set out in paragraph 2 below, provided
the Deferred Consideration Accounts confirm that the Company has
achieved the targets referred to below the Purchaser shall pay the
Deferred Consideration as calculated in accordance with paragraphs 1.3
and 1.4 below.
1.3. Year 1
1.3.1. The Deferred Consideration (if any) payable in respect of
Year 1 Target Revenues shall be calculated as follows:
1.3.1.1. if Revenues in Year 1 are less than
IR(Pounds)4,826,428, the Deferred Consideration
payable to the Vendors shall be US$0;
1.3.1.2. if Revenues in Year 1 are equal to or greater
than IR(Pounds)4,826,428 but less than
IR(Pounds)5,362,698 the Deferred Consideration
shall be US$1,666,667;
1.3.1.3. if Revenues in Year 1 are equal to or greater
than IR(Pounds)5,362,698 but less than
IR(Pounds)5,898,968 the Deferred Consideration
shall be US$2,222,222;
1.3.1.4. if Revenues in Year 1 equal or exceed
IR(Pounds)5,898,968 the Deferred Consideration
shall be US$2,777,778.
1.3.2. The Deferred Consideration (if any) payable in respect of
Year 1 Target Losses shall be calculated as follows:
1.3.2.1. if Losses in Year 1 are greater than
IR(Pounds)1,804,321, the Deferred Consideration
payable to the Vendors shall be US$0;
1.3.2.2. if Losses in Year 1 are equal to or less than
IR(Pounds)1,804,321 but are greater than
IR(Pounds)1,640,292, the Deferred Consideration
shall be US$833,333;
99
1.3.2.3. if Losses in Year 1 are equal to or less than
IR(Pounds)1,640,292 but are greater than
IR(Pounds)1,476,263, the Deferred Consideration
shall be US$1,111,111.
1.3.2.4. if Losses in Year 1 are equal to or less than
IR(Pounds)1,476,263 the Deferred Consideration
shall be US$1,388,889.
1.4. Year 2
1.4.1. The Deferred Consideration (if any) payable in respect of
Year 2 Target Revenues shall be calculated as follows:
1.4.1.1. if Revenues in Year 2 are less than
IR(Pounds)15,174,914, the Deferred Consideration
payable to the Vendors shall be US$0;
1.4.1.2. if Revenues in Year 2 are equal to or greater
than IR(Pounds)15,174,914 but less than
IR(Pounds)16,861,015, the Deferred Consideration
shall be US$3,333,334;
1.4.1.3. if Revenues in Year 2 are equal to or greater
than IR(Pounds)16,861,015 but less than
IR(Pounds)18,547,117, the Deferred Consideration
shall be US$4,444,445.
1.4.1.4. if Revenues in Year 2 are equal to or exceed
IR(Pounds)18,547,117, the Deferred Consideration
shall be US$5,555,556.
1.4.2. The Deferred Consideration (if any) payable in respect of
Year 2 Target Profits shall be calculated as follows:
1.4.2.1. if Profits in Year 2 are less than
(Pounds)1,092,220, the Deferred Consideration
payable by the Purchaser to the Vendors shall be
US$0;
1.4.2.2. if Profits in Year 2 are equal to or greater
than IR(Pounds)1,092,220 but less than
IR(Pounds)1,213,578, the Deferred Consideration
shall be US$1,666,667;
1.4.2.3. if Profits in Year 2 are equal to or greater
than IR(Pounds)1,213,578 but less than
IR(Pounds)1,334,935, the Deferred Consideration
shall be US$2,222,222.
1.4.2.4. if Profits in Year 2 are equal to or greater
than IR(Pounds)1,334,935, the Deferred
Consideration shall be US$2,777,778;
1.5. For the avoidance of doubt, the Deferred Consideration will be payable
if any of the Deferred Consideration is payable in respect of Target
Revenues regardless of the fact that the Deferred Consideration
relating to Target Profits/Losses may not be payable and vice versa.
100
1.6. In the event that the Company achieves the Target Revenue or Target
Profits/ Losses in Year 1 or Year 2 as set out in clauses 1.3.1.3,
1.3.2.3, 1.4.1.3 or 1.4.2.3 (as appropriate), the Purchaser shall
pay to the Vendors the Deferred Consideration as set out in clauses
1.3.1.3, 1.3.2.3, 1.4.1.3 or 1.4.2.3 (as appropriate) and the
balance of the Deferred Consideration payable in accordance with
clauses 1.3.1.4, 1.3.2.4, 1.4.1.4 or 1.4.2.4 shall be paid to the
employees of the Company pursuant to Clause 2.5 of the Agreement.
1.7. Any such payments to be made pursuant to this paragraph:
(a) shall be made within 60 days of the relevant Deferred
Consideration Accounts being approved; and
(b) shall be satisfied by the payment of Deferred Consideration in
accordance with the terms of the Agreement, equal to the amount
of the Year 1 Deferred Consideration and the Year 2 Deferred
Consideration, as the case may be.
1.8. The aggregate number of shares in the capital of the Purchaser to be
allotted in satisfaction of the Year 1 and Year 2 Deferred
Consideration shall be determined as follows:
(1) where the value of the shares in the capital of the Purchaser
at the Payment Date is more than US$28 the number of shares
shall be the amount of the Deferred Consideration divided by
that value;
(2) where the value of the shares in the capital of the Purchaser
at the Payment Date is less than US$28, the number of shares
shall be the amount of the Deferred Consideration divided by
US$28.
1.9. Notwithstanding clause 2.5, the aggregate number of Deferred
Consideration Shares to be issued to the Vendors at the end of each
of Year 1 and Year 2 shall be apportioned between the Vendors as set
out in Part E of this Schedule.
1.10. Notwithstanding clause 2.5, the aggregate number of Deferred
Consideration Shares (if any) to be issued to the employees of the
Company at the end of each of Year 1 and Year 2 pursuant to the
terms of this Agreement shall be apportioned between those persons
who are employees of the Company on 31st July, 2001 in the case of
Year 1, and 31st July, 2002 in the case of Year 2 in the manner
determined by board of directors of the Company on the advice of
management of the Company.
2. The Year 1 and Year 2 Losses/Profits and Revenues shall be
determined as follows:
2.1 The Purchaser shall procure that, as soon as reasonably practicable
following the end of Year 1 or Year 2 (as the case may be) (and in
any event within 90 days of the end of Year 1) or Year 2 (as the
case may be) the draft Deferred Consideration Accounts are prepared
in accordance with the general principles, accounting policies and
procedures set out in part B of this schedule and delivered to the
Vendors' Accountants;
101
2.2 The Principal Vendors shall procure that the Vendors' Accountants
shall notify the Purchaser within 30 days of receipt of such draft
Deferred Consideration Accounts whether or not they accept them for
the purposes of this Agreement;
2.3 If the Vendors' Accountants notify the Purchaser that the Principal
Vendors do not accept such draft Deferred Consideration Accounts:
(a) the Principal Vendors shall procure that the Vendors'
Accountants shall set out in detail reasons for such non-
acceptance and specify the adjustments which, in their opinion,
should be made to the draft Deferred Consideration Accounts in
order to comply with the requirements of this Agreement; and
(b) the parties shall use all reasonable endeavours to meet and
discuss the objections of the Vendors' Accountants and to reach
agreement upon the adjustments (if any) required to be made to
the draft Deferred Consideration Accounts.
2.4 If the Vendors' Accountants are satisfied with the draft Deferred
Consideration Accounts (either as originally submitted or after
adjustments agreed between the Vendors' Accountants and the
Purchaser) or if the Vendors' Accountants fail to notify the
Purchaser in writing of the Vendors' non-acceptance of the draft
Deferred Consideration Accounts within the 30 day period referred to
in paragraph 2.2, then the draft Deferred Consideration Accounts
(incorporating any agreed adjustments) shall be deemed to constitute
the Deferred Consideration Accounts for the purposes of this Part A.
2.5 If the Vendors' Accountants and the Purchaser do not reach agreement
within 30 days of the Vendors' Accountants notice of non acceptance
under paragraph 2.3, then the matters in dispute shall be referred,
on the application of either party, for determination by an
independent firm of internationally recognised chartered accountants
to be agreed upon by the Vendors and the Purchaser or, failing
agreement, to be selected by the President for the time being of the
Institute of Chartered Accountants in Ireland. The following terms
of reference shall apply:
(a) the Purchaser and the Vendors' Accountants shall each promptly
prepare a written statement on the matters in dispute which
(together with the relevant documents) shall be submitted to
such independent firm for determination;
(b) in giving such determination the firm shall state what
adjustments (if any) are necessary to the draft Deferred
Consideration Accounts in respect of the matters in dispute in
order to comply with the requirements of this agreement;
(c) any such firm shall act as an expert (and not as an arbitrator)
in making any such determination which shall be final and
binding on the parties;
(d) the expenses of any such determination by an independent firm
of accountants shall be borne between the Vendors' and the
Purchaser in such proportions as the firm shall in its
discretion determine.
102
2.6 When the Vendors' Accountants and the Purchaser reach (or pursuant
to paragraph 2.4 are deemed to reach) agreement on the Deferred
Consideration Accounts or the Deferred Consideration Accounts are
finally determined at any stage in the procedures set out in this
paragraph 2, then the Deferred Consideration Accounts as so agreed
or determined shall be the Deferred Consideration Accounts for the
purposes of this Part A and shall be final and binding on the
parties.
2.7 The Purchaser shall ensure that the Company provides the Principal
Vendors and the Vendors' Accountants with such access to the
employees, accounts, working papers and other financial information
of the Company as is reasonably necessary for the purposes of
determining the Year 1 and Year 2 Deferred Consideration and to seek
reasonable explanations of any matter.
3. Save with the written consent of the Vendors (such consent not to be
unreasonably withheld or delayed in the event of the Vendor and the
Purchaser agreeing to an appropriate adjustment to the Deferred
Consideration Accounts) the Purchaser shall procure that the Company
shall not petition for the liquidation of the Company or permit or
procure the passing of a resolution to wind-up the Company
voluntarily.
4.
4.1 The Purchaser shall not, during the period commencing on the
date of Completion and ending 30th June, 2002, in relation to
the Company take any action or fail to take any action with the
express intention of restricting the ability of the Company to
earn such level of profits and turnover which the Company might
reasonably have expected to have earned in the normal and
ordinary course of business;
4.2 Without prejudice to the generality of Clause 4.1 the Purchaser
shall not without the prior written consent of the Principal
Vendors:
(a) dispose of the whole or any part of the Company's business
or any asset required for the conduct thereof or reduce
the nature and extent of the Company's business as carried
on at the date of this Agreement;
(b) sell the Shares;
(c) relocate any key employees of the Company (key employees
for the purpose of this clause being employees earning
more than IR(Pounds)50,000 per annum) within the
Purchaser's Group.
4.3 The Purchaser shall in respect of each of the periods ended on
each of 1st January 2001 ("First Review"), 30th June 2001
("Second Review") and 1st January, 2002 review ("Third Review")
review the performance of the Company's business by examining:
(a) in the case of the First Review the monthly management
accounts of the Company for the six month period from 1st
July 2000 to 31st December, 2000;
103
(b) in the case of the Second Review the monthly management
accounts of the Company for the six month period from 1st
January 2001 to 30th June 2001; and
(c) in the case of the Third Review the monthly management
accounts of the Company for the six month period form 1st
July 2001 to 1st January 2002.
If on completing any such review the Purchaser is of the
opinion that the Company has failed to meet both the revenue
target and profit target for any of the relevant six month
periods, as detailed in the Revenue and Profit Targets
Schedule, then the Purchaser shall be entitled to terminate the
rights of the Principal Vendors as detailed in Clause 4.2 with
immediate effect, provided that the rights of the Purchaser
under this clause 4.3 shall be without prejudice to the
provisions of Clause 4.1 or to the entitlement of the Vendors
to earn the Deferred Consideration.
104
Part B
1. The following provisions shall apply for the purpose of calculating
the Year 1 and Year 2 Deferred Consideration Accounts:
(a) no account shall be taken of (i) professional fees relating to
this Agreement; (ii) Stock Compensation Charges; or (iii) other
matters arising from the transaction contemplated by this
Agreement;
(b) capital receipts and expenditure, otherwise than from the
disposal or acquisition of fixed assets (but not plant and
machinery) in the ordinary course of business as carried on up to
Completion shall be disregarded save that any interest earned or
saved in consequence of the same shall be taken into account and
calculated in accordance with paragraph 1(f);
(c) depreciation attributable to any revaluation of plant and
machinery or freehold property or other capital assets made after
Completion or any capital receipt or expenditure referred to in
paragraph 1(b) shall be disregarded;
(d) to the extent that the Company shall pay any management or
administration charge or charge for goods or services or any
facility to any member of the Purchaser's Group and (i) the
amount of such charges exceeds the amount which the company in
question would have had to pay on an open market arm's length
basis or (ii) the goods or services or facility in question were
not required by the company in question (or would not have been
required had such company not been a subsidiary of any member of
the Purchaser's Group) the Deferred Consideration Accounts shall
be adjusted to eliminate such excess;
(e) to the extent that the Company shall provide goods or services or
any facility to any person and the amount payable for such goods
services or facilities is less than the amount that the Company
would have been likely to obtain on an open arms length basis,
the Deferred Consideration Accounts shall be adjusted to
eliminate such deficit or loss;
(f) notwithstanding the actual cost of funds, interest on all
borrowings including all sums loaned from any company in the
Purchaser's Group (otherwise than under hire-purchase or lease
agreements) shall be deemed to accrue at a yearly rate of 2 per
cent. above the prime rate of the Bank of Ireland from time to
time in force;
(g) no account shall be taken of any profit or loss of any business,
company or other undertaking acquired by the Company following
Completion or any joint venture or profit or loss sharing
arrangement entered into other than in the ordinary course of
business as carried on prior to Completion or any costs and
expenses borne by the Company
105
in respect of any such business, company, undertaking, venture or
arrangement.
106
Part C
Set-off
1.1 If the Purchaser shall have notified the Warrantors in accordance with the
Agreement of any claim under clause 7 of the Agreement or the Deed of Tax
Covenant, the Purchaser shall, subject to compliance with the provisions of
this part C, have the right to set-off such amount in respect of any claim
or claims so notified as shall either:
(a) be agreed in writing by the Warrantors or the Vendors' solicitors on
their behalf;
(b) be the subject of a final judgment of a court of competent
jurisdiction against the Warrantors in respect of that claim (for
which there shall be no right of appeal or any time for the bringing
of an appeal has expired without any appeal being made); or
(c) be in the case of any claim for Taxation, the subject of a final and
binding assessment of the relevant revenue authority in respect of
that claim
against any part of the Deferred Consideration for the Shares remaining
unsatisfied provided, however, that this right of set-off shall not entitle
the Purchaser to reduce the amount of Deferred Consideration (if any)
payable to Enterprise Ireland hereunder, but rather shall only reduce, pro
rata, the amount of Deferred Consideration payable to each of the
Warrantors and the employees of the Company hereunder.
1.2 The rights of set-off set out in this part C are without prejudice to any
other right or remedy which the Purchaser may have against the Warrantors
or any of them, whether under the terms of this agreement or otherwise, but
other than as set out in this Part C, the Purchaser shall have no right to
withhold the payment of the Deferred Consideration, due under this
agreement or claim any other form of set-off, deduction or withholding from
such amounts.
1.3 Any exercise by the Purchaser of its right of set-off under paragraph 1.1
shall not operate to prevent or delay settlement of any part of the
Deferred Consideration then due.
107
Part D
Definitions
"Deferred Consideration Accounts" means the accounts prepared pursuant to
paragraph 2 of this Schedule in order to determine the Year 1 Deferred
Consideration or the Year 2 Deferred Consideration (as the case may be) and
in accordance with the principles, policies and procedures set out in part
B of this Schedule;
"Purchaser's Group" means the Purchaser and any company which is a
Subsidiary or Holding Company of the Purchaser;
"Year 1" means the accounting period commencing on 1 July 2000 and ending
30 June 2001;
"Year 1 Deferred Consideration" means the Year 1 Deferred Consideration
payable in respect of Year 1 Revenues and/or Year 1 Profits calculated in
accordance with part A of this Schedule;
"Year 2" means the accounting period commencing on 1 July 2001 and ending
30 June 2002;
"Year 2 Deferred Consideration" means the Year 2 Deferred Consideration
payable in respect of Year 2 Revenues and/or Year 2 profits calculated in
accordance with part A of this Schedule;
108
Part F
Schedule of Deferred Consideration
===============================================================================
Vendors Percentage of Deferred Consideration
Shares
(%)
- -------------------------------------------------------------------------------
Principal Vendors
- -------------------------------------------------------------------------------
Brian Caulfield 21.233
- -------------------------------------------------------------------------------
Delta Management Partners Limited 16.204
- -------------------------------------------------------------------------------
Bill O'Connor 15.071
- -------------------------------------------------------------------------------
Helen McDonnell 6.506
- -------------------------------------------------------------------------------
Enterprise Ireland 5.015
- -------------------------------------------------------------------------------
Terry McWade 12.104
- -------------------------------------------------------------------------------
Minority Shareholders
- -------------------------------------------------------------------------------
Gary Ramsay 3.202
- -------------------------------------------------------------------------------
Eamon Keating 3.096
- -------------------------------------------------------------------------------
Ruth Clarke 1.394
- -------------------------------------------------------------------------------
Gerry Gielty 1.394
- -------------------------------------------------------------------------------
Linda Harte 0.959
- -------------------------------------------------------------------------------
Adele Cooper 1.403
- -------------------------------------------------------------------------------
Michael Foley 0.892
- -------------------------------------------------------------------------------
Nigel Eades 0.800
- -------------------------------------------------------------------------------
Sheila Gallen 0.035
===============================================================================
109
===============================================================================
Niamh Redmond 0.117
- -------------------------------------------------------------------------------
Mairead Fagan 0.053
- -------------------------------------------------------------------------------
Breda Hanley 0.053
- -------------------------------------------------------------------------------
Edel Egan 0.053
- -------------------------------------------------------------------------------
Bernadette Fleming 0.053
- -------------------------------------------------------------------------------
Catherine Roche 0.053
- -------------------------------------------------------------------------------
Sharon Walsh 0.027
- -------------------------------------------------------------------------------
Lisa McMahon 0.019
- -------------------------------------------------------------------------------
Michael O'Sullivan 0.019
- -------------------------------------------------------------------------------
Aidan Leonard 0.025
- -------------------------------------------------------------------------------
Sarah Eustace 0.025
- -------------------------------------------------------------------------------
Orna Kearney 0.012
- -------------------------------------------------------------------------------
Joanna Cheong 0.012
- -------------------------------------------------------------------------------
Josie Quinn 0.012
- -------------------------------------------------------------------------------
Pauline McCormack 0.021
- -------------------------------------------------------------------------------
Margaret Twomey 0.011
- -------------------------------------------------------------------------------
Aoife McAuliffe 0.011
- -------------------------------------------------------------------------------
Paul Walshe 0.018
- -------------------------------------------------------------------------------
Rachel Gallen 0.014
- -------------------------------------------------------------------------------
Laura Kelly 0.007
- -------------------------------------------------------------------------------
Aileen Taylor 0.007
===============================================================================
110
===============================================================================
Cillin Hearns 0.007
- -------------------------------------------------------------------------------
Jonathan Roche 0.007
- -------------------------------------------------------------------------------
Damien Joyce 0.007
- -------------------------------------------------------------------------------
Diane O'Brien 0.007
- -------------------------------------------------------------------------------
Eamonn Cummins 0.007
- -------------------------------------------------------------------------------
Sarah McArtain 0.007
- -------------------------------------------------------------------------------
Ramesh Maturi 0.007
- -------------------------------------------------------------------------------
Elaine Strumble 0.007
- -------------------------------------------------------------------------------
Niamh Murphy 0.007
- -------------------------------------------------------------------------------
Rachel O'Connor 0.007
- -------------------------------------------------------------------------------
Employees 10.00%
- -------------------------------------------------------------------------------
Total 100%
===============================================================================
111