EXHIBIT 10.1
SHARE PURCHASE AGREEMENT
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This Agreement dated as of April 3, 1998 is entered into by and among
Xxxxxxx Systems PLC, a public limited company incorporated in the Republic of
Ireland (the "Company"), and BHA Pty. Ltd. ACN 009 937 606, a company
incorporated in Queensland, Australia (the "Purchaser").
WHEREAS, the Company, Xxxxxxx Systems Aust. Pty. Ltd. ACN 080 026 551, a
company incorporated in Queensland, Australia and a wholly-owned subsidiary of
the Company ("Xxxxxxx Australia"), BHA Computer Pty. Ltd. ACN 068 883 429, a
company incorporated in Queensland, Australia and the Purchaser are entering
into a Business Acquisition Agreement on the date hereof (the "Acquisition
Agreement"), pursuant to which the Company and Xxxxxxx Australia will acquire
the Business (as defined in the Acquisition Agreement); and
WHEREAS, as a condition to the completion of the transactions contemplated
by the Acquisition Agreement, the Company is required to sell, and the Purchaser
is required to purchase, Ordinary Shares, $0.0025 nominal value per share, of
the Company (the "Ordinary Shares") on the terms set forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the Company and the Purchaser agree as follows:
1. Authorization and Sale of Shares.
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1.1 Authorization. The Company has, or before the Closing (as
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defined in Section 2) will have, duly authorized the sale and issuance, pursuant
to the terms of this Agreement, of 283,698 Ordinary Shares ranking equally with
the other Ordinary Shares of the Company.
1.2 Sale of Shares. Subject to the terms and conditions of this
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Agreement, at the Closing the Company will sell and issue to the Purchaser, and
the Purchaser will purchase, 283,698 Ordinary Shares for the purchase price of
US$49.5126 per share (equal to the average closing sale price of the Company's
American Depositary Receipts ("ADRs") on the Nasdaq National Market for the five
trading days preceding April 2, 1998). The Ordinary Shares being sold under
this Agreement are referred to as the "Shares."
2. The Closing. The closing ("Closing") of the sale and purchase of the
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Shares under this Agreement shall take place at the offices of Xxxxxxx Xxx, 000
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx, Xxxxxxxxx at 2:00 p.m. (local time) on
April 3, 1998. At the Closing, the Company shall deliver to the Purchaser a
facsimile copy of the certificate for the number of Shares being purchased by
the Purchaser, registered
in the name of the Purchaser, against payment to the Company of the purchase
price therefor, by wire transfer, check, or other method acceptable to the
Company. In addition, at the Closing, the Company shall deliver by facsimile a
certification of the Company's registrar and transfer agent certifying as to the
truth and accuracy of such facsimile share certificate. The Company has
instructed its registrar and transfer agent to deliver by facsimile a copy of
the register for the Ordinary Shares which lists the Purchaser as the owner of
the Shares to the Purchaser. Such facsimiles shall be sent x/x Xxxxxx Xxxxxxx
(xxxxxxxxx # 00 0 0000 0000), Attn: X. X. Xxxxxxxx. The date of the Closing is
hereinafter referred to as the "Closing Date."
3. Representations and Warranties of the Company.
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3.1 Organization and Good Standing. The Company is a corporation duly
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organized, validly existing and in good standing as a public limited company
under the laws of the Republic of Ireland.
3.2 Issuance of Shares. The issuance, sale and delivery of the Shares
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in accordance with this Agreement have been duly authorized by all necessary
corporate action on the part of the Company, and all such Shares have been duly
reserved for issuance. The Shares when so issued, sold and delivered against
payment therefor in accordance with the provisions of this Agreement will be
duly and validly issued, fully paid and non-assessable, will have no personal
liability attaching to the ownership thereof and will be free and clear of
liens, charges, restrictions, claims and encumbrances imposed by or through the
Company. Assuming the accuracy of the represenations and warranties of the
Purchaser in Section 4 hereof, the issuance of the Shares to the Purchaser
pursuant to this Agreement is (i) exempt from registration under the U.S.
Securities Act of 1933, as amended (the "Securities Act") and (ii) will not give
rise to a public offer within the meaning of the Companies Act (Ireland), 1963
to 1990.
3.3 American Depositary Receipts. The issuance and delivery of the
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ADRs against the Shares in accordance with the provisions of the Deposit
Agreement (the "Deposit Agreement") between the Company and The Bank of New
York, as Depositary, (the "Depositary") have been duly authorized by all
necessary corporate action on the part of the Company, and all such ADRs have
been duly reserved for issuance. Other than the procedures set forth in the
Deposit Agreement, no consent, approval, order or authorization of any third
party is required for the deposit of the Shares by the Purchaser with the
Depositary. Upon the issuance by the Depositary of the ADRs against the Shares,
such ADRs will be duly and validly issued, and the holder of such ADRs will be
entitled to the rights specified therein and in the Deposit Agreement.
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4. Representations and Warranties of the Purchaser. The Purchaser
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represents and warrants to the Company and agrees with the Company as follows:
4.1 The Purchaser has full power and authority to enter into and to
perform this Agreement in accordance with its terms. The Purchaser has not been
organized, reorganized or recapitalized specifically for the purpose of
acquiring the Shares.
4.2 The Purchaser has received a copy of a Confidential Offering
Memorandum dated March 27, 1998 from the Company (the "Offering Memorandum").
The Purchaser acknowledges that no federal or state agency has made any finding
or determination as to the fairness of the terms of this offering. The Shares
have not been recommended or endorsed by any federal, state or foreign
securities commission or regulatory agency nor have any of the foregoing
authorities confirmed the accuracy or determined the adequacy of the Offering
Memorandum.
4.3 The Purchaser is acquiring the Shares for its own account, for
investment and not with a view to the distribution thereof within the meaning of
the Securities Act.
4.4 The Purchaser agrees that the Company may place a legend on the
certificates delivered hereunder in substantially the following form:
"These Shares have not been registered under the Securities Act of
1933, as amended (the 'Securities Act') and may not be offered or
transferred by sale, assignment, pledge or otherwise prior to the end
of the restricted period specified in Regulation S of the Securities
Act, in the United States or to a US person unless the Shares are
registered under the Securities Act, or an exemption from the
registration requirements of the Securities Act is available. Terms
used herein that are defined in Regulation S of the Securities Act are
used herein as defined therein."
4.5 The Purchaser is not a U.S. person (as defined in Securities Act
Rule 902(k)) and is not acquiring the Shares for the account or benefit of any
U.S. person.
4.6 The Purchaser will resell the Shares only in accordance with (A)
the provisions of Regulation S promulgated under the Securities Act, (B)
pursuant to an effective registration statement under the Securities Act, or (C)
pursuant to an available exemption from registration under the Securities Act.
4.7 Other than pursuant to an effective registration statement under
the Securities Act, the Purchaser will not offer or sell the Shares to a U.S.
person or to
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or for the account or benefit of a U.S. person prior to the expiration of the
applicable period under Regulation S under the Securities Act.
4.8 The Purchaser was represented and advised by counsel in
connection with the purchase of the Shares and the execution of this Agreement
by the Purchaser.
5. Conditions to Closing.
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5.1 The obligation of the Company and the Purchaser to consummate the
transactions contemplated by this Agreement is subject to the execution of the
Acquisition Agreement and the completion by each of them of the transactions
contemplated thereby.
5.2 The obligation of the Company to consummate the transactions
contemplated by this Agreement is subject to the further condition that the
representations and warranties of the Purchaser set forth in Section 4 hereof
shall be true and correct on and as of the Closing Date.
6. Registration Rights.
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6.1 Registration of Shares. The Company shall file with the United
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States Securities and Exchange Commission (the "SEC") within 15 days following
the Closing, a registration statement on Form S-3 covering the resale to the
public by the Purchaser of the Shares (the "Registration Statement"). The
Company shall use its best efforts to cause the Registration Statement to be
declared effective by the SEC as soon as possible. The Company shall cause the
Registration Statement to remain effective for a period of 24 months after the
Closing or until such earlier time as the Shares then subject to the
Registration Statement are freely tradeable pursuant to Rule 144 under the
Securities Act without regard to volume limitations or are otherwise freely
tradable pursuant to Rule 144(k) under the Securities Act.
6.2 Limitations on Registration Rights.
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(a) The Company may delay filing the Registration Statement with the
SEC in the event that the Company is engaged in or plans to engage in a public
offering of its securities, acquisition or any other activity that the Company
in good faith determines might be adversely affected by the filing of the
Registration Statement; provided such right to delay a filing may not be
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exercised more than once in any 12 month period and any such delay shall be for
not more than 180 days. In addition, the Company may, by written notice to the
Purchaser, suspend the Registration Statement and require that the Purchaser
immediately cease sales of Shares pursuant to the Registration Statement, in any
period during which the Company is engaged in any activity or transaction or
preparations or negotiations for
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any activity or transaction ("Company Activity") that the Company desires to
keep confidential for business reasons, if the Company determines in good faith
that the public disclosure requirements imposed on the Company under the
Securities Act in connection with the Registration Statement would require
disclosure of the Company Activity. To the Company's knowledge, none of the
events referred to in the first clause of this Section 6.2(a) is occurring as of
the date of this Agreement.
(b) If the Company suspends the Registration Statement or requires the
Purchaser to cease sales of Shares pursuant to paragraph (a) above, the Company
shall, as promptly as practicable following the termination of the circumstance
which entitled the Company to do so, take such actions as may be necessary to
reinstate the effectiveness of the Registration Statement and/or give written
notice to the Purchaser authorizing them to resume sales pursuant to the
Registration Statement. If the prospectus included in the Registration
Statement has been amended to comply with the requirements of the Securities
Act, the Company shall enclose such revised prospectus with the notice to the
Purchaser given pursuant to this paragraph (b), and the Purchaser shall make no
offers or sales of Shares pursuant to the Registration Statement other than by
means of such revised prospectus.
6.3 Registration Procedures.
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(a) In connection with the filing by the Company of the Registration
Statement, the Company shall furnish to the Purchaser a reasonable number of
copies of the prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act.
(b) The Company shall use its best efforts to register or qualify the
Shares covered by the Registration Statement under the securities laws of such
states of the United States as the Purchaser shall reasonably request; provided,
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however, that the Company shall not be required in connection with this
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paragraph (b) to qualify as a foreign corporation or execute a general consent
to service of process in any jurisdiction.
(c) If the Company has delivered preliminary or final prospectuses to
the Purchaser and after having done so the prospectus is amended to comply with
the requirements of the Securities Act, the Company shall promptly notify the
Purchaser and, if requested by the Company, the Purchaser shall immediately
cease making offers or sales of shares under the Registration Statement and
return all prospectuses to the Company. The Company shall promptly provide the
Purchaser with revised prospectuses and, following receipt of the revised
prospectuses, the Purchaser shall be free to resume making offers and sales
under the Registration Statement.
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(d) The Company shall pay all expenses incurred by the Company in
complying with this Section 6 including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and expenses of
counsel for the Company, United States state securities laws fees and expenses,
and the expense of any special audits incident to or required by any such
registration, but excluding underwriting discounts, selling commissions and the
fees and expenses of the Purchaser's own counsel (if any).
6.4 Requirements of Purchaser. The Company shall not be required to
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include any Shares in the Registration Statement unless:
(a) the Purchaser furnishes to the Company in writing such information
regarding the Purchaser, the contemplated distribution of the Shares held by the
Purchaser and such other information regarding the proposed sale of Shares by
the Purchaser as the Company may reasonably request in writing in connection
with such Registration Statement or as shall be required in connection therewith
by the SEC or any state securities law authorities;
(b) the Purchaser shall have provided to the Company its written
agreement:
(i) to indemnify the Company and each of its directors and
officers against, and hold the Company and each of its directors and officers
harmless from, any losses, claims, damages, expenses or liabilities (including
reasonable attorneys fees) to which the Company or such directors and officers
may become subject by reason of any statement or omission in the Registration
Statement made in reliance upon, or in conformity with, a written statement by
such Purchaser furnished pursuant to this Section 6.4; and
(ii) to report to the Company sales made pursuant to the
Registration Statement.
6.5 Indemnification. The Company agrees to indemnify and hold
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harmless the Purchaser against any losses, claims, damages, expenses or
liabilities to which the Purchaser may become subject by reason of any untrue
statement of a material fact contained in the Registration Statement or any
preliminary or final prospectus or any omission to state therein a fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, expenses or liabilities arise
out of or are based upon information furnished to the Company by or on behalf of
the Purchaser for use in the Registration Statement. The Company shall have the
right to assume and control the defense and settlement of any claim or suit for
which the Company may be responsible for indemnification under this Section 6.5.
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6.6 Assignment of Rights. The Purchaser may not assign any of its
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rights under this Section 6.
7. Additional Covenants of the Company.
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7.1 Listing of the Shares. Promptly after the Closing, and in any
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event prior to the deposit of such Shares by the Purchaser with the Depositary,
the Company will file an application to list the ADRs representing the Shares on
the Nasdaq National Market. The Company does not know of any reason why the ADRs
will not be approved for listing on the Nasdaq National Market. The Company
shall pay all expenses incurred by the Company in complying with this Section
7.1.
7.2 Stamp Duties. The Company shall pay all stamp duties, levies or
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taxes assessed by or in the Republic of Ireland required to be paid by the
Purchaser in connection with the issuance of the Shares.
8. Miscellaneous.
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8.1 Notices. All notices, requests, consents, and other
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communications under this Agreement shall be in writing and shall be delivered
by hand or mailed by first class certified or registered mail, return receipt
requested, postage prepaid:
If to the Company, at Xxxxxxx Systems PLC, Xxx Xxx xx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, XXX, Attention: Xxxxxxx Xxxxx, Esq., or at
such other address or addresses as may have been furnished in writing by the
Company to the Purchaser;
If to the Purchaser, at its address set forth on Schedule I, or at such
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other address or addresses as may have been furnished to the Company in writing
by the Purchaser.
Notices provided in accordance with this Section 6.5 shall be deemed
delivered upon personal delivery or three business days after deposit with a
reputable international express delivery service.
8.2 Brokers. Each of the Company and the Purchaser (i) represents
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and warrants to the other party hereto that it has retained no finder or broker
in connection with the transactions contemplated by this Agreement, and (ii)
will indemnify and save the other party harmless from and against any and all
claims, liabilities or obligations with respect to brokerage or finders' fees or
commissions, or consulting fees in connection with the transactions contemplated
by this Agreement asserted by any person on the basis of any statement or
representation alleged to have been made by such indemnifying party.
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8.3 Entire Agreement. This Agreement embodies the entire agreement
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and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
8.4 Amendments and Waivers. Except as otherwise expressly set forth
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in this Agreement, any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and the Purchaser. Any amendment or waiver effected in accordance
with this Section 8.4 shall be binding upon each holder of any Shares, each
future holder of all such securities and the Company. No waivers of or
exceptions to any term, condition or provision of this Agreement, in any one or
more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
8.5 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
6.6 Section Headings. The section headings are for the convenience
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of the parties and in no way alter, modify, amend, limit, or restrict the
contractual obligations of the parties.
8.7 Severability. The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
8.8 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware, USA.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
COMPANY
XXXXXXX SYSTEMS PLC
By: /s/ Xxxx X. Xxxxx, III
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Xxxx X. Xxxxx, III,
President and Chief
Executive Officer
PURCHASER
BHA PTY. LTD.
By: /s/ Xxxx Xxxxxx Xxxxxx
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Chairman
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