EXHIBIT 4.24
ASSET PURCHASE AGREEMENT
by and among
TRINTECH TECHNOLOGIES LIMITED,
XXXXX XXXXXXX
and
XXXXXXX XXXXXXXXXXX
Dated as of
September 12, 2000
TABLE OF CONTENTS
Page
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ARTICLE I.................................................................... 1
1.1 Purchase and Sale................................................ 1
ARTICLE II................................................................... 2
2.1 Purchase Price................................................... 2
2.2 Payments to the Vendors at Closing............................... 2
2.3 Second Purchase Payment.......................................... 2
2.4 Contingent Payments.............................................. 3
2.5 Sales and Other Taxes............................................ 5
ARTICLE III CLOSING.......................................................... 6
3.1 Date, Time and Place of Closing.................................. 6
3.2 Closing Deliveries............................................... 6
3.3 Taking of Further Action......................................... 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE VENDORS..................... 7
4.1 Due Execution.................................................... 7
4.2 No Conflict...................................................... 7
4.3 Consents......................................................... 8
4.4 Tax Matters...................................................... 8
4.5 Litigation....................................................... 8
4.6 Brokers' and Finders' Fees....................................... 8
4.7 Compliance with Laws............................................. 9
4.8 Complete Copies of Materials..................................... 9
4.9 Powers of Attorney............................................... 9
4.10 Intellectual Property of the Vendors............................. 9
4.11 Representations Complete......................................... 12
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.................... 12
5.1 Organization, Standing and Power................................. 12
5.2 Authority........................................................ 12
5.3 No Conflict...................................................... 13
5.4 Consents......................................................... 13
5.5 Brokers' and Finders' Fees....................................... 13
ARTICLE VI ADDITIONAL AGREEMENTS............................................. 13
6.1 Conduct of Business Prior to Closing............................. 13
6.2 Conduct of Vendors............................................... 14
6.3 Access to Information............................................ 14
6.4 Confidentiality.................................................. 14
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TABLE OF CONTENTS
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6.5 Expenses......................................................... 15
6.6 Public Disclosure................................................ 15
6.7 Exclusive Dealing................................................ 16
6.8 Notification of Certain Matters.................................. 16
6.9 Employment Compensation.......................................... 16
6.10 Noncompetition Agreement......................................... 16
6.11 Payments to Employees............................................ 16
6.12 Subsidiary Company Lease......................................... 17
6.13 Additional Documents and Further Assurances...................... 17
ARTICLE VII CONDITIONS TO THE CLOSING........................................ 17
7.1 Conditions to Obligations of the Vendors......................... 17
7.2 Conditions to the Obligations of the Purchaser................... 18
ARTICLE VIII POST-CLOSING COVENANTS.......................................... 20
8.1 General.......................................................... 20
8.2 Confidentiality.................................................. 20
ARTICLE IX SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNITY............. 21
9.1 Survival of Representations, Warranties and Covenants............ 21
9.2 Agreement to Indemnify........................................... 21
9.3 Survival of Indemnity; Time Limit................................ 21
9.4 Procedure for Asserting Claims................................... 22
ARTICLE X TERMINATION, AMENDMENT AND WAIVER.................................. 22
10.1 Termination...................................................... 22
10.2 Effect of Termination............................................ 23
10.3 Amendment........................................................ 24
10.4 Extension; Waiver................................................ 24
ARTICLE XI................................................................... 24
11.1 Employees........................................................ 24
11.2 Employee Liability............................................... 24
ARTICLE XII GENERAL PROVISIONS............................................... 25
12.1 Notices.......................................................... 25
12.2 Interpretation................................................... 26
12.3 Counterparts..................................................... 26
12.4 Entire Agreement; Assignment..................................... 26
12.5 Severability..................................................... 26
12.6 Other Remedies................................................... 26
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TABLE OF CONTENTS
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12.7 Arbitration...................................................... 26
12.8 Governing Law.................................................... 27
12.9 Currency......................................................... 27
12.10 Rules of Construction............................................ 27
Exhibits and Schedules
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Schedule 1 - Disclosure Schedule
Schedule 1.1(a) - SurSoft Software
Schedule 4.10(f) - License Agreements
Schedule 7.2(l) - Key Employees
Exhibit A - Certain Defined Terms
Exhibit B - Performance Milestones
Exhibit 2.2(a) - Form of Escrow Letter
Exhibit 3.2 - Form of General Assignment of Intellectual Property and
Copyright Assignment
Exhibit 6.10 - Form of Noncompetition Agreement
Exhibit 7.1(i) - Form of Share Subscription Agreement
Exhibit 7.1(j) - Form of Second Subscription Agreement
Exhibit 7.1(k) - Form of Guarantee
Exhibit 7.2(h) - Form of Opinion of Xxx. Xxxxxx Xxxxxx
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into as
of September 12, 2000 by and among Trintech Technologies Limited, a company
organized under the laws of Ireland (the "Purchaser") and Xxxxxxx Xxxxxxxxxxx
("Xxxxxxxxxxx") and Xxxxx Xxxxxxx ("Xxxxxxx"), (collectively, the "Vendors" and
individually, a "Vendor").
RECITALS
A. Other than as fully and specifically described herein, the Vendors are
the owners of all rights, title and interest in and to the Transferred Assets
(as defined below).
B. The Purchaser wishes to purchase from the Vendors and the Vendors wish
to sell to the Purchaser all of the Vendors' rights, title and interest in and
to the Transferred Assets.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged the parties agree as
follows:
ARTICLE I
PURCHASE AND SALE OF SURSOFT SOFTWARE AND INTELLECTUAL PROPERTY
1.1 Purchase and Sale. Subject to the terms and conditions set
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forth in this Agreement, on the Closing Date (as defined below), the Vendors
hereby agree to convey, sell, transfer, assign and deliver to the Purchaser and
the Purchaser agrees to purchase from the Vendors, all of the Vendors' right,
title and interest in and to:
(a) all software included in that certain diskette previously
provided to the Purchaser by the Vendors receipt of which is hereby
acknowledged, plus the software developed by the Vendors commonly referred to as
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the "SurSoft Software" specifically described in Schedule 1.1(a) attached
hereto, free and clear of all liens, pledges, charges, claims, security
interests or other encumbrances of any sort (collectively, "Liens") (the
"SurSoft Software"); and
(b) all other intellectual property related to the SurSoft
Software, including databases, market information, research and development,
patents, patent applications, copyrights, copyright registration applications,
trademarks and service marks and related applications, trade names, trade
secrets, proprietary information, technology rights and licenses, proprietary
rights and processes, research and development in progress, and all domain names
or email domains, and any and all other intellectual property including, all
things authored, discovered, developed, made, perfected, improved, designed,
engineered, devised, acquired, produced, conceived or first reduced to practice
by the Vendors and that pertain to or are used in connection with the SurSoft
Software, or that are relevant to an understanding or to the development of the
SurSoft Software or to the performance of the SurSoft Software of its intended
function or purpose, whether tangible or intangible, in any stage of
development, including enhancements, designs, technology, improvements,
inventions, works of authorship, formulas, processes, routines, subroutines,
techniques, concepts, object code, flow
charts, diagrams, coding sheets, source code, listings and annotations,
programmers' notes, information, workpapers, work product and other materials of
any types whatsoever, excepting any such property that is situate in Ireland,
and all rights of any kind in or to any of the foregoing (any such other
intellectual property referred to as the "Additional Intellectual Property" and
together with the SurSoft Software, hereinafter referred to as the "Transferred
Assets").
(c) For the purposes of this Agreement, "Deliverables" shall mean
all tangible Transferred Assets where title is capable of passing by delivery
and "Non-Deliverables" shall mean all intangible Transferred Assets where title
is not capable of passing by delivery.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price.
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(a) As sole consideration of the conveyance, sale, transfer,
assignment and delivery of the Non-Deliverables, the Purchaser, in full payment
for the Non-Deliverables, (i) shall pay to the Vendors the Non-Deliverables
Payment and (ii) has previously paid to the Vendors the Commitment Amount (as
each such term is defined in Exhibit A attached hereto).
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(b) As sole consideration of the conveyance, sale, transfer,
assignment and delivery of the Deliverables, the Purchaser shall pay to the
Vendors, in full payment for the Deliverables, the Initial Deliverables Payment,
the Contingent Payments and, subject to Section 2.3(b), the Conditional
Deliverables Payment (as each such term is defined in Exhibit A attached
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hereto).
(c) For the purposes of this Agreement, "Purchase Price" shall
mean, collectively, the Non-Deliverables Payment, the Commitment Amount, the
Initial Deliverables Payment, the Conditional Deliverables Payment and the
Contingent Payments.
2.2 Payments to the Vendors at Closing.
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(a) At the closing of the transaction of purchase and sale
contemplated hereby, the Purchaser shall (i) pay to or to the order of the
Vendors or any attorney-in-fact duly authorized by each Vendor or their
respective and duly evidenced heirs the Non-Deliverables Payment, by check or
wire transfer of immediately available funds and (ii) deposit with Xxxxx &
Regules, as escrow agent (the "Escrow Agent") the Initial Deliverables Payment
to be held in escrow pursuant to the terms of the escrow letter as Exhibit
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2.2(a) (the "Escrow Letter").
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(b) Subject to the terms and conditions of this Agreement, each
Vendor shall receive an amount equal to 50% of the Initial Deliverables Payment
and the Non-Deliverables Payment,
2.3 Second Purchase Payment.
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(a) Subject to Section 2.3(b), on the date that is no later than
twelve months and 10 days after the Closing Date (the "Second Payment Date"),
the Purchaser shall pay the Conditional Deliverables Payment by (i) paying to or
to the order of the Vendors or any attorney-in-fact duly authorized by each
Vendor or their respective and duly evidenced heirs the First Amount of (as
defined in Exhibit A attached hereto) by check or wire transfer of
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immediately available funds and (ii) depositing with Xxxxx & Xxxxxxx, as escrow
agent, the Escrowed Amount to be held in escrow pursuant to the terms of the
Escrow Letter.
(b) Unless otherwise specifically stated herein, the payment by
the Purchaser of Conditional Deliverables Payment is subject to the conditions
set forth in Exhibit B attached hereto being fulfilled or performed
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by the Vendors on or prior to the date which is twelve months after the Closing
Date (the "Performance Milestones"). The Purchaser and the Vendors shall
mutually determine whether and to what extent the Performance Milestones have
been met.
(c) Upon the Vendors' written request (such request not to occur
more than once every four calendar months) the Purchaser shall designate an
officer to review whether and to what extent the Milestones have been achieved.
In the event that such designated officer determines that the Milestones have
been achieved prior to the expiration of the 12 month period following the
Closing Date, the Conditional Deliverables Payment shall be paid to the Vendors
in accordance with the terms of this Agreement.
(d) Subject to Sections 2.3(a), 2.3(b) and 2.3(c) of this
Agreement, each Vendor shall receive an amount equal to 50% of the Conditional
Deliverables Payments.
2.4 Contingent Payments. On the dates which are thirty days after the end
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of each of the first five year anniversaries of the Closing Date, each Vendor
shall be entitled to earn Contingent Payments (as defined in Exhibit A attached
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hereto); provided that:
(a) the annual Business Revenue (as defined in Exhibit A attached
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hereto) shall be calculated according to U.S. generally accepted accounting
principles ("GAAP"), as of each of the first five year anniversaries of the
Closing Date;
(b) the auditors of the Purchaser, Ernst & Young, shall deliver to
the Vendors a letter representing that all Business Revenues for such year have
been accounted for in accordance with the terms and provisions of this
Agreement;
(c) if at any time on or prior to the third anniversary of the
Closing Date either Vendor voluntarily terminates his employment with the
Purchaser, the Subsidiary Company (as defined in Section 7.2(l) below), the
wholly-owned subsidiary company of Trintech Group PLC to be organized pursuant
to the laws of Uruguay (the "Local Company") or their affiliates or subsidiaries
no Contingent Payments shall be earned by such Vendor on and after the date of
such termination (provided, however, that such Vendor shall be entitled to earn
a final Contingent Payment based on the portion of the year elapsed since the
Closing Date or the last Contingent Payment, as applicable up to and including
the date of such termination, such final Contingent Payment being determined as
the greater of (a) 12.5% of the Business Revenue for the portion of the
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year elapsed since the Closing Date or the last Contingent Payment, as
applicable or (b) the amount determined on a pro rata basis of the fixed amount
(as defined in Exhibit A under "Contingent Payment") corresponding to the year
in which termination occurred);
(d) if at any time following the third anniversary of the Closing
Date either Vendor voluntarily terminates his employment with the Purchaser, the
Subsidiary Company, the Local Company or their affiliates or subsidiaries such
Vendor shall be entitled to continue to earn Contingent Payments on and after
the date of such termination;
(e) if at any time during the first five years following the
Closing Date either Vendor's employment with the Purchaser, the Subsidiary
Company, the Local Company or their affiliates or subsidiaries is terminated by
the Purchaser, the Subsidiary Company, the Local Company or their affiliates or
subsidiaries without Cause, such Vendor or his duly evidenced heirs shall be
entitled to continue to earn Contingent Payments on and after the date of such
termination;
(f) if at any time during the first five years following the
Closing Date either Vendor's employment with the Purchaser, the Subsidiary
Company, the Local Company or their affiliates or subsidiaries is terminated by
the Purchaser, the Subsidiary Company, the Local Company or their affiliates or
subsidiaries with Cause, no Contingent Payments shall be earned by such Vendor
on and after the date of such termination (provided, however, that such Vendor
shall be entitled to earn a final Contingent Payment based on the portion of the
year elapsed since the Closing Date or the last Contingent Payment, as
applicable up to and including the date of such termination, such final
Contingent Payment being determined as the greater of (a) 12.5% of the Business
Revenue for the portion of the year elapsed since the Closing Date or the last
Contingent Payment, as applicable or (b) the amount determined on a pro rata
basis of the fixed amount (as defined in Exhibit A under "Contingent Payment")
corresponding to the year in which termination occurred); and
(g) if at any time after the Closing Date either Vendor's
employment with the Purchaser, the Subsidiary Company, the Local Company or
their affiliates or subsidiaries is terminated by virtue of the Vendor's death
or Total Disability, such Vendor or his duly evidenced heirs shall be entitled
to continue to earn Contingent Payments on and after the date of such death or
Total Disability.
(h) For the purposes of this Agreement:
"Cause" in relation to a Vendor, means (i) any act of personal dishonesty
taken by a Vendor in connection with his responsibilities as an employee or
consultant of the Purchaser, the Subsidiary Company, the Local Company or their
affiliates or subsidiaries; (ii) the conviction of a Vendor for an unlawful or
criminal act; (iii) an act by a Vendor which constitutes gross, negligent or
willful misconduct and which is injurious to the Purchaser, the Subsidiary
Company, the Local Company or their affiliates or subsidiaries; or (iv) failure
to perform reasonably assigned duties after notice and a period of thirty (30)
days to cure such failure;
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"Total Disability" in relation to a Vendor, shall be deemed to have
occurred if a Vendor's physical and/or mental condition is such that the Vendor
is unable to perform those duties and responsibilities as directed by the Board
of Directors of either the Subsidiary Company or the Local Company, as the case
may be and such inability can reasonably be expected to continue and does
continue for a period of not less than six months. The determination that the
Vendor suffers from a Total Disability shall be made by a committee of
physicians to be chosen as follows. Upon either the Purchaser, the Subsidiary
Company or the Local Company on the one hand or the Vendor on the other
providing written notice to the other of such Vendor's disability ("Notice of
Disability"), the Vendor on the one hand and either the Purchaser, the
Subsidiary Company or the Local Company on the other shall each designate one
(1) physician within five (5) calendar days after receipt of the Notice or
Disability. Such designated physicians shall mutually agree upon and shall
designate a third physician. The final decision of a majority of such designated
physicians shall be furnished to the Vendors, the Purchaser, the Subsidiary
Company and the Local Company in writing and shall constitute a conclusive
determination of whether the Vendor is totally disabled for the purposes of this
Agreement and shall be binding upon all parties and shall not be contested by
any of them. The Purchaser agrees to pay or cause to be paid all costs and
expenses associated with the foregoing.
"termination" means, notwithstanding applicable notice provisions and
Uruguay legal requirements, the date upon which the Vendor provides or receives
notice to or from the Purchaser, the Subsidiary Company, the Local Company or
one of their affiliates or subsidiaries of the termination of his employment.
(i) Notwithstanding the foregoing, if on or prior to the second
anniversary of the Closing Date the Vendors have not delivered to the Purchaser
all in-line code comments, variable names, database entries etc. related to the
SurSoft Software translated into English ( the "English Translation"), the
Purchaser shall be entitled to deduct from each remaining Contingent Payment an
amount that is equal to the percentage of the English Translation that has not
been translated into English as determined by the Purchaser in its reasonable
discretion, multiplied by $250,000.
(j) The Contingent Payments in no way form a part of the
consideration being given under this Agreement for the Non-Deliverables.
Contingent Payments due by the Purchaser to the Vendors shall be made by check
or wire transfer of immediately available funds to or to the order of the
Vendors or any attorney-in-fact duly authorized by each Vendor or their
respective and duly evidenced heirs on the date determined in accordance with
Section 2.2
2.5 Sales and Other Taxes. Each party hereto agrees that it or he shall
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be responsible for and shall pay and discharge promptly when due the entire
amount of any and all taxes incurred by such party by reason of or in connection
with the sale and transfer of the Transferred Assets.
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ARTICLE III
CLOSING
3.1 Date, Time and Place of Closing. The closing (the "Closing") of the
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transaction of purchase and sale contemplated by this Agreement shall occur at
the offices of Xxxxx & Xxxxxxx, Xxxxx Xxxxxxxxxxxxx 000, XX 11.100 Montevideo,
Uruguay at 1p.m., local time, on the fifth business day following the
satisfaction or waiver of all conditions to the obligations of the parties
hereto to consummate the transactions contemplated (other than conditions with
respect to actions the respective parties hereto will take at the Closing
itself) or on such other date as the parties hereto shall agree (the "Closing
Date").
3.2 Closing Deliveries.
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(a) At the Closing:
(i) the Vendors will deliver to the Purchaser the
various certificates, instruments, and documents referred to in Section 7.2
below;
(ii) the Purchaser will deliver to the Vendors the
various certificates, instruments, and documents referred to in Section 7.1
below;
(iii) the Vendors will execute, acknowledge (if
appropriate) and deliver to the Purchaser all endorsements, assignments,
consents to assignments to the extent obtained and other instruments and
documents as may reasonably be requested to sell, convey, assign, transfer and
deliver to the Purchaser good title to all of the Non-Deliverables free clear of
any and all Liens, including a General Assignment of Intellectual Property and a
Copyright Assignment in substantially the forms attached as Exhibit 3.2;
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(iv) the Vendors and the Purchaser each acknowledge
that, subject to the payment of the Purchase Price, all of the Vendors' right,
title and interest in and to each Deliverable shall pass to the Purchaser
immediately upon delivery of the same without requiring the execution and
delivery of any instrument or instruments of assignment;
(v) the Vendors shall cause the SurSoft Software to be
delivered electronically to the Purchaser's order. The Vendors shall be
obligated to retain its existing tangible embodiments of the SurSoft Software
until it is notified in writing by the Purchaser to destroy such tangible
embodiments. The Vendors shall, within five days of such notification, destroy
all tangible embodiments of the SurSoft Software, such destruction to be
verified in writing by a notary public and thereupon, the Vendors shall not
retain any tangible embodiments of the SurSoft Software. The Vendors agree to
forward to the Purchaser the written verification made by such notary public
upon receipt thereof;
(vi) the Vendors shall cause the Additional
Intellectual Property, including, all works of authorship, formulas, processes,
routines, subroutines, techniques, concepts, object
-6-
code, flow charts, diagrams, coding sheets, source code, listings and
annotations, programmers' notes, information, workpapers, work product, manuals
and other materials of any type whatsoever that pertain to or are used in
connection with the SurSoft Software or that are relevant to an understanding or
to the development of the SurSoft Software, or to the performance of the SurSoft
Software of its intended function or purpose to be delivered to the Purchaser;
and
(vii) as consideration for the Deliverables, the
Purchaser shall deliver to the Escrow Agent the Initial Deliverables Payment and
as consideration for the Non-Deliverables, the Purchaser shall pay to or to the
order of the Vendors the Non-Deliverables Payment.
3.3 Taking of Further Action. If, at any time after the Closing Date, any
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further action is necessary or desirable to carry out the purposes of this
Agreement and to vest the Purchaser with full right, title, interest and
possession to all the Transferred Assets, the Vendors, or any one of them, shall
take all such necessary, or desirable action.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE VENDORS
Except as set forth in the disclosure schedule attached hereto as Schedule
1 (the "Disclosure Schedule"), each Vendor, severally and not jointly, hereby
represents and warrants to the Purchaser that the statements contained in this
Article IV are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout
this Article IV. The Disclosure Schedule will be arranged in paragraphs
corresponding to the lettered and numbered paragraphs contained herein.
4.1 Due Execution. Each of this Agreement and the Related Agreements has
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been duly and validly executed and delivered by, or on behalf of, such Vendor
and, assuming due authorization, execution and delivery by the other parties
hereto and thereto, constitutes a valid and binding obligation of such Vendor,
enforceable against such Vendor in accordance with its terms.
The "Related Agreements" shall mean the Noncompetition Agreements (as such
term is defined below).
4.2 No Conflict. Neither the execution and delivery of each of this
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Agreement and the Related Agreement nor the performance by such Vendor of his
respective obligations hereunder and thereunder, violate, conflict with, or
constitute a default under any agreement or commitment to which such Vendor is a
party, or violate any statute or law or any judgment, decree, order, regulation
or rule of any court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign (each a "Governmental Entity")
applicable to such Vendor that would preclude such Vendor from entering into
this Agreement and the Related Agreement, or consummating the transactions
contemplated hereby and thereby.
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4.3 Consents. No consent, waiver, approval, order or authorization of, or
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declaration, filing or registration with, any Governmental Entity or any third
party is required to be made or obtained by such Vendor in connection with the
execution and delivery by such Vendor of each of this Agreement and the Related
Agreement or the performance by such Vendor of his respective obligations
hereunder and thereunder or the consummation by such Vendor of the transactions
contemplated herein or therein.
4.4 Tax Matters.
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(a) Definition of Taxes. For the purposes of this Agreement, "Tax"
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or, collectively, "Taxes", means (i) any and all federal, state, province, local
and foreign taxes, assessments and other governmental charges, duties,
impositions and liabilities, including taxes based upon or measured by gross
receipts, income, profits, sales, use and occupation, and value added, ad
valorum, goods and services, transfer, franchise, withholding, payroll,
recapture, employment, excise and property taxes, together with all interest,
penalties and additions imposed with respect to such amounts; and (ii) any
liability for the payment of any amounts of the type described in clause (i) as
a result of being a member of an affiliated, consolidated, combined or unitary
group for any period; and (iii) any liability for the payment of any amounts of
the type described in clause (i) or (ii) as a result of any express or implied
obligation to indemnify any other person or as a result of any obligations under
any agreements or arrangements with any other person with respect to such
amounts and including any liability for taxes of a predecessor entity.
(b) Tax Returns. As of the Closing Date, to the extent the
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failure to do so would materially and adversely affect such Vendor, the
Transferred Assets or such Vendor's ownership or use of the Transferred Assets,
such Vendor will have prepared and timely filed or made a timely request for
extension for all required federal, state, province, local and foreign returns,
estimates, information statements and reports ("Returns") which he is required
to file; and (ii) will have paid or accrued all Taxes he is required to pay or
accrue as shown on the Returns. There are (and immediately following the Closing
there will be) no Liens or similar encumbrances on the Transferred Assets
relating or pertaining to Taxes, except with respect to Taxes not yet due and
payable. Neither Vendor has any knowledge of any basis for the assertion of any
claim relating or attributable to Taxes which, if adversely determined, would
result in any Lien on the Transferred Assets or would otherwise materially and
adversely affect either Vendor or the Transferred Assets.
4.5 Litigation. There is no action, suit, claim, proceeding or
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arbitration of any nature pending, threatened against such Vendor or the
Transferred Assets that may affect the Transferred Assets. There is no
investigation pending or, to such Vendor's knowledge, threatened against such
Vendor or the Transferred Assets by or before any court or other Governmental
Entity that may affect the Transferred Assets.
4.6 Brokers' and Finders' Fees. Such Vendor has not incurred, nor will he
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incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
any transaction contemplated hereby.
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4.7 Compliance with Laws. Such Vendor has complied with all laws,
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regulations, rules and orders (including those relating to environmental
matters) of any Governmental Entity applicable to him which relates to the
Transferred Assets. Such Vendor has not received any written notice of any
asserted violation of any such laws, regulations, rules or orders. Such Vendor
has not received any written notice that any investigation or review by any
Governmental Entity with respect to the Transferred Assets is pending or that
any such investigation or review is contemplated, except where the outcome of
such investigation or review would not have a material adverse effect on the
ownership of the Transferred Assets.
4.8 Complete Copies of Materials. Prior to the Closing, the Vendors have
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delivered to the Purchaser true and complete copies of each agreement, contract,
commitment or other document (or summaries of same) that is referred to in the
Disclosure Schedule or that has been requested by the Purchaser or its counsel.
4.9 Powers of Attorney. There are no outstanding powers of attorney
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executed on behalf of such Vendor in respect of the Transferred Assets.
4.10 Intellectual Property of the Vendors.
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(a) For the purposes of this Agreement, "Intellectual Property
Rights" shall mean any or all of the following and all rights in, arising out
of, or associated therewith: (i) all United States non-United States (excepting
Ireland) foreign patents and applications therefor and all reissues, divisions,
renewals, extensions, provisional, continuations and continuations-in-part
thereof; (ii) all inventions (whether patentable or not), invention disclosures,
improvements, trade secrets, proprietary information, technology, technical data
and customer lists, and all documentation relating to any of the foregoing;
(iii) all copyrights, copyrights registrations, domain names and email domains
and applications therefor, and all other rights corresponding thereto throughout
the world (except Ireland); (iv) all mask works, mask work registrations and
applications therefor, and all other rights corresponding thereto throughout the
world (except Ireland); (v) all industrial designs and any registrations and
applications therefor throughout the world (except Ireland); (vi) all trade
names, logos, common law trademarks and service marks; trademark and service
xxxx registrations and applications therefor throughout the world (except
Ireland); (vii) all databases and data collections and all rights therein
throughout the world (except Ireland); and (vii) all computer software including
all source code, object code, firmware, development tools, files, records and
data, all media on which any of the foregoing is recorded, and all documentation
related to any of the foregoing throughout the world (except Ireland).
(b) Section 4.10(b) of the Disclosure Schedule lists all United
States, Uruguay and all other jurisdictions: (i) patents, patent applications
(including provisional applications) related to the SurSoft Software and the
Additional Intellectual Property; (ii) registered trademarks, applications to
register trademarks, intent-to-use applications, or other registrations related
to trademarks, related to the SurSoft Software and the Additional Intellectual
Property; (iii) registered copyrights, domain names and email domains and
applications therefore related to the SurSoft Software and the Additional
Intellectual Property; (iv) mask work registrations and applications to register
mask works, related to the SurSoft Software and the Additional Intellectual
Property; and (v) any other
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Intellectual Property Rights of each Vendor, related to the SurSoft Software and
the Additional Intellectual Property, that is the subject of an application,
certificate or registration issued by or recorded by any state, government or
other public legal authority (collectively, the "Registered Intellectual
Property"), none of which is situate in Ireland.
(c) Section 4.10(c) of the Disclosure Schedule lists any proceedings
or actions before any court, tribunal (including the United States Patent Office
or equivalent authority anywhere in the world) related to any of the Registered
Intellectual Property.
(d) Such Vendor has complied with all applicable disclosure
requirements and has not committed any fraudulent act in the application for and
maintenance of any patent, trademark or copyright related to the SurSoft
Software and the Additional Intellectual Property.
(e) Each item of Registered Intellectual Property is and will be
following the Closing Date, valid and subsisting, for the term listed in Section
4.10(e) of the Disclosure Schedule all necessary registration, maintenance and
renewal fees in connection with such Registered Intellectual Property have been
made and all necessary documents and certificates in connection with such
Registered Intellectual Property have been filed with the relevant patent,
copyright, trademark or other authorities in the United States, Uruguay or other
jurisdictions, as the case may be, for the purposes of maintaining such
Registered Intellectual Property. Section 4.10(d) of the Disclosure Schedule
lists all actions and payments that must be made in the six month period
following the Closing Date in connection with the preservation or maintenance of
the Registered Intellectual Property.
(f) The contracts, licenses and agreements listed on Schedule
4.10(f) include all contracts, licenses and agreements, to which such Vendor or
a Company is a party with respect to any intellectual property related to the
SurSoft Software or the Additional Intellectual Property with a potential value
or cost in excess of $10,000.
(g) Except as noted in Section 4.10(g) of the Disclosure Schedule,
such Vendor has not and to the extent a Company (as defined below) is a party,
such Company has not, breached, violated or defaulted under, or received notice
that he has breached, violated or defaulted under, any of the material terms or
conditions of (i) the contracts, licenses and agreements listed in Schedule
4.10(f) attached hereto (collectively, the "License Agreements") to which such
Vendor or a Company, as the case may be, is a party in connection with the use
of the SurSoft Software, and (ii) such Vendor is not aware of any event that
would constitute such a breach, violation or default with the lapse of time,
giving of notice or both. Each License Agreement is in full force and effect
and, except as otherwise disclosed in Section 4.10(g) of the Disclosure
Schedule, is not subject to any default thereunder of which such Vendor is aware
by any party obligated to a Vendor thereto
(h) Except as set forth in Section 4.10(h) of the Disclosure
Schedule: (i) no person has any rights to use any of the SurSoft Software or the
Additional Intellectual Property; and (ii) such Vendor has not granted to any
person, nor authorized any person to retain any rights in the SurSoft Software
or the Additional Intellectual Property.
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(i) Except as set forth on Section 4.10(i) of the Disclosure
Schedule the Vendors owns and have good and exclusive title to the SurSoft
Software and the Additional Intellectual Property, including all Registered
Intellectual Property listed on Section 4.10(b) of the Disclosure Schedule, free
and clear of any Lien or encumbrance.
(j) The SurSoft Software and the Additional Intellectual Property
have not, do not and will not infringe or misappropriate any rights of any other
person including Intellectual Property Rights or constitute unfair competition
or trade practices under the laws of any jurisdiction.
(k) Except as listed on Section 4.10(k) of the Disclosure Schedule,
there are no contracts, licenses and agreements between such Vendor and any
other person with respect to the SurSoft Software and the Additional
Intellectual Property under which there is any dispute regarding the scope of
such agreement, or performance under such agreement including with respect to
any payments to be made or received by the Vendors thereunder.
(l) Except as listed on Section 4.10(l) of the Disclosure Schedule,
no person has or is infringing or misappropriating any rights in any of the
Transferred Assets (including the SurSoft Software and the Additional
Intellectual Property).
(m) Each of the SurSoft Software and the Additional Intellectual
Property is not subject to any proceeding or outstanding decree, order,
judgment, or stipulation restricting in any manner the use or licensing thereof
by the Vendors or their licensees', or which may affect the validity, use or
enforceability of the SurSoft Software or the Additional Intellectual Property.
(n) Except as set forth in Schedule 4.10(b), the SurSoft Software
and the Additional Intellectual Property and any other copyrighted work included
in the Transferred Assets constitutes an original work of Vendors.
(o) To the extent that the SurSoft Software and the Additional
Intellectual Property and any other copyrighted work included in the Transferred
Assets has been developed or created by any person other than the Vendors, the
Vendors have a written agreement with such person with respect thereto and the
Vendors thereby have obtained ownership of, and is the exclusive owners of, all
such SurSoft Software, Additional Intellectual Property or work and all
Intellectual Property Rights therein by operation of law or by valid assignment.
(p) For the SurSoft Software and the Additional Intellectual
Property, the Vendors, provided that the Purchaser shall bear all costs and
expenses associated therewith, will cooperate fully and assist the Purchaser in
the preparation, execution, filing and preparation of the documents necessary to
register the copyright in all versions of all of the SurSoft Software and the
Additional Intellectual Property with the United States Copyright Office (or
equivalent authority anywhere in the world).
(q) Each version of the SurSoft Software currently marketed or
supported by the Vendors performs substantially in accordance with its
respective documentation. The Vendors, prior to the Closing Date, scanned and
disinfected the SurSoft Software using a then-current version of
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commercially available third party antivirus software. Such Vendor is not aware
of the SurSoft Software containing any virus, Trojan horse, worm, or other
Software designed to permit unauthorized access to the SurSoft Software or any
part or component thereof or to cause any damage, disability, loss of data,
denial of access or of service, or which will cause the SurSoft Software or any
part thereof to be disabled, erased, shut down, inoperable or otherwise
incapable of being used by the Purchaser or its customers or any back door, time
bomb, software lockout key or device, drop dead routine, or other Software
designed to disable the SurSoft Software or cause or facilitate any of the
foregoing.
(r) None of the Vendors' Intellectual Property Rights in the SurSoft
Software or the Additional Intellectual Property or the Registered Intellectual
Property is situate in Ireland.
4.11 Representations Complete. None of the representations or warranties
------------------------
made in this Article IV (as modified by the Disclosure Schedule), nor any
statement made in any schedule or certificate furnished by the Vendors pursuant
to this Agreement contains, as of the date hereof, any untrue statement of a
material fact, or omits, as of the date hereof, to state any material fact
necessary in order to make the statements contained herein or therein, in the
light of the circumstances under which made, not misleading. There is no event,
fact or condition that materially and adversely affects on the ownership or use
of the Transferred Assets, or that reasonably could be expected to do so, that
has not been set forth in this Agreement or in the Disclosure Schedule.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Vendors that the statements
contained in this Article V are correct and complete as of the Closing Date and
will be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Article V).
5.1 Organization, Standing and Power. The Purchaser is a corporation
--------------------------------
duly organized and validly existing under the laws of Ireland. The Purchaser has
the corporate power and authority to own its properties and to carry on its
business as now being conducted and is duly qualified to do business and is in
good standing in each jurisdiction in which the failure to be so qualified would
have a material adverse effect on the business, assets, financial condition, or
results of operations of the Purchaser or the ability of the Purchaser to
consummate the transactions contemplated hereby.
5.2 Authority. The Purchaser has all requisite corporate power and
---------
authority to enter into this Agreement and the Related Agreements and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Related Agreements and the consummation of
the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on the part of the Purchaser and no further
action is required on the part of the Purchaser to authorize this Agreement and
the Related Agreements, and the transactions
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contemplated hereby and thereby, except as expressly set forth elsewhere herein.
This Agreement and the Related Agreements have been duly executed and delivered
by the Purchaser and, assuming due authorization, execution and delivery by the
other parties hereto and thereto, constitute the valid and binding obligation of
the Purchaser, enforceable in accordance with their respective terms, except as
such enforceability may be limited by principles of public policy and subject to
the laws of general application relating to bankruptcy, insolvency, liquidation,
re-organization, administration and examination, the fraudulent preference of
creditors and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies.
5.3 No Conflict. The execution and delivery of this Agreement and the
-----------
Related Agreements, and the consummation of the transactions contemplated hereby
and thereby will not, conflict with, or result in any violation of, or default
under (with or without notice or lapse of time, or both), or give rise to a
right of termination, cancellation or acceleration of any obligation or to loss
of a material benefit under (i) any provision of the memorandum and the articles
of association of the Purchaser or (ii) any mortgage, indenture, lease, contract
or other agreement or instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to either the Purchaser or its properties or assets, other than any such
conflicts, violations, defaults, terminations, cancellations or accelerations
which would not have a material adverse effect on the ability of the Purchaser
to consummate the transactions contemplated hereby and thereby.
5.4 Consents. No consent, approval, order or authorization of, or
--------
registration, declaration or filing with, any Governmental Entity, or any third
party is required by or with respect to the Purchaser in connection with the
execution and delivery of this Agreement and the Related Agreements by the
Purchaser or the consummation by the Purchaser of the transactions contemplated
hereby and thereby, except for (i) such consents, approvals, orders,
authorizations, registrations, declarations and filings as may be required under
applicable state and federal securities laws and the laws of any country, and
(ii) such other consents, authorizations, filings, approvals and registrations
which if not obtained or made would not have a material adverse effect on the
ability of the Purchaser to consummate the transactions contemplated hereby and
thereby.
5.5 Brokers' and Finders' Fees. No broker, finder or investment banker
--------------------------
is entitled to any brokers', finders' or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Purchaser or the Parent.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Conduct of Business Prior to Closing. During the period commencing
------------------------------------
on the close of business on the date hereof and ending on the Closing Date (the
"Interim Period"), the Vendors will cause Demasur Trading, S.A. ("Demasur"),
Teraplus S.A. ("Teraplus") and SMS Limitada ("SMS") (collectively, the
"Companies" and individually a "Company") to conduct their business and
operations in the ordinary course of business consistent with past practices of
each Company ("Ordinary Course of Business").
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(a) Without limiting the generality of the foregoing, the Vendors
will cause each Company to:
(i) use its best efforts to preserve intact its current
business organization, keep available the services of its present employees,
agents and consultants on terms no less favorable to the Companies than those
existing on May 4, 2000; and
(ii) use its best efforts to maintain good relations with, and
the goodwill of, its suppliers, customers, landlords, creditors, distributors,
and all other persons having business relationships with such Company.
6.2 Conduct of Vendors . During the Interim Period, the Vendors agree
------------------
that they will use their best efforts to preserve intact the Transferred Assets.
Except as contemplated in this Agreement, without the prior written consent of
the Purchaser, the Vendors shall not:
(a) sell, convey, transfer, assign or license to any person or
entity any rights to the Transferred Assets;
(b) enter into or amend any agreements pursuant to which any other
party is granted marketing, distribution or similar rights of any type or scope
with respect to Transferred Assets;
(c) amend or otherwise modify (or agree to do so) or violate the
terms of any License Agreement;
(d) commence any litigation related to the Transferred Assets; enter
into any license agreement with respect to the Transferred Assets or any
intellectual property of any third party for the purpose of its use with the
Transferred Assets; or
(f) agree in writing or otherwise to take any of the actions
described in Sections 6.2(a) through (e) above, or take (or agree in writing not
to take) any other action, of any kind, with respect to the Transferred Assets
or that would prevent the Vendors from performing or cause the Vendors not to
perform their covenants hereunder.
6.3 Access to Information. During the Interim Period, the Vendors shall
---------------------
afford the Purchaser and its accountants, counsel and other representatives
(collectively, the "Representatives") reasonable access during normal business
hours upon reasonable notice to all of the properties, books, contracts,
commitments, records and all other information concerning the Transferred Assets
as the Purchaser may reasonably request. No information or knowledge obtained in
any investigation pursuant to this Section 6.3 shall affect or be deemed to
modify any representation or warranty contained herein or the conditions to the
obligations of the parties to consummate the transactions contemplated hereby.
6.4 Confidentiality.
---------------
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(a) Each party to this Agreement (the "Receiving Party") will use
its reasonable best efforts to keep confidential and will not use for any
improper purpose or disclose to any person (other than its Representatives) any
information or knowledge obtained from any other party (the "Disclosing Party")
pursuant to the investigation pursuant to Section 6.2 or pursuant to the
negotiation and execution of this Agreement or the effectuation of the
transactions contemplated hereby ("Confidential Information"). Notwithstanding
the foregoing, Confidential Information does not include such information or
knowledge that (i) is or becomes generally available to the Receiving Party on a
non-confidential basis from a source other than the Disclosing Party or its
Representatives, unless the Receiving Party knows that such source is prohibited
from disclosing the information to the Receiving Party by a contractual,
fiduciary or other legal obligation to the Disclosing Party, (ii) is disclosed
with the prior written approval of the Disclosing Party, (iii) was independently
developed by the Receiving Party without any use of the Confidential Information
and by employees or other agents of (or independent contractors hired by) the
Receiving Party who have not been exposed to Confidential Information, (iv) was
in the public domain at the time it was disclosed or becomes in the public
domain through no fault of the Receiving Party, (v) was known to the Receiving
Party on a non-confidential basis before its disclosure by the Disclosing Party
to the Receiving Party, or (vi) is disclosed pursuant to the order or
requirement of a court, administrative agency, or other governmental body;
provided, however, that the Receiving Party shall provide prompt notice thereof
to enable the Disclosing Party to seek a protective order or otherwise prevent
such disclosure.
(b) Each party shall use its reasonable best efforts, including the
execution of proprietary non-disclosure agreements with employees and
consultants, and legal action, to enforce compliance with the provisions of this
Section 6.4 by its Representatives, partners, directors, officers, employees and
any third party having access to the other party's Confidential Information.
(c) Unauthorized use by either party of Confidential Information
provided to it by the other party hereunder will diminish the value to the other
party of such information. If either party breaches any of its obligations with
respect to confidentiality and unauthorized use of Confidential Information
hereunder, the other party shall be entitled to equitable relief to protect its
interests therein, including injunctive relief as well as money damages.
6.5 Expenses. Whether or not the Closing of the transactions
--------
contemplated hereby occurs, all fees and expenses incurred in connection with
the consummation of the transactions contemplated by this Agreement and the
Related Agreements, including all legal, accounting, financial advisory,
consulting and all other fees and expenses of third parties incurred by a party
in connection with the negotiation of the terms and conditions of this Agreement
and the Related Agreement and the consummation of the transactions contemplated
hereby and thereby, shall be the obligation of the respective party incurring
such fees and expenses.
6.6 Public Disclosure. No party to this Agreement shall issue any press
-----------------
release or make any public announcement relating to the subject matter of this
Agreement prior to the Closing without the prior written approval of the other
parties hereto. Notwithstanding the foregoing, any party hereto may make any
public disclosure it believes in good faith is required by applicable law or any
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listing or trading agreement concerning its publicly-traded securities (in which
case the disclosing party will use its reasonable best efforts to advise the
other parties hereto prior to making the disclosure).
6.7 Exclusive Dealing. During the Interim Period, the Vendors shall not,
-----------------
directly or indirectly, solicit, initiate and encourage any inquiries or
proposals from, discuss or negotiate with, provide any non-public information
to, or consider the merits of any inquiries or proposals from, any person (other
than the Purchaser) relating to any transaction involving the sale of the
Transferred Assets, the sale of any shares of the Companies held by the Vendors
or the issuance of new shares of the Companies (other than as permitted in this
Agreement). The Vendors will notify the Purchaser immediately if any person
makes any proposal, offer, inquiry or contact with respect to any of the
foregoing.
6.8 Notification of Certain Matters. The Vendors shall give prompt
-------------------------------
notice to the Purchaser of (i) the occurrence or non-occurrence of any event,
the occurrence or non-occurrence of which may cause any representation or
warranty of the Vendors or the Purchaser contained in this Agreement to be
untrue or inaccurate at the Closing Date and (ii) any failure of the Vendors to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by it or them hereunder; provided, however, that the delivery of
any notice pursuant to this Section 6.8 shall not limit or otherwise affect any
remedies available to the party receiving such notice.
6.9 Employment Compensation. On and after the Closing Date, each of
-----------------------
Xxxxxxx or Xxxxxxxxxxx is entitled to receive as compensation for his services
as an employee of either the Purchaser, the Subsidiary Company or the Local
Company, as the case may be, of $125,000 per annum as a base salary (the "Base
Compensation"). The Base Compensation shall be paid periodically in accordance
with normal payroll practices of the Purchaser or the Subsidiary Company, as the
case may be, and subject to the withholding as required by the laws of Uruguay.
If either Xxxxxxx or Xxxxxxxxxxx, as the case may be, is terminated or released
by the Purchaser, the Subsidiary Company or the Local Company for any reason
whatsoever, including for Cause or Total Disability, he shall not be entitled to
receive any further compensation for his services (including the right to
receive any payments with respect to Base Compensation) or any severance
payment, except such payments as he may be entitled to pursuant to (i) this
Agreement and/or (ii) the laws of Uruguay.
6.10 Noncompetition Agreement. On or prior to the Closing Date, the
------------------------
Purchaser, the Subsidiary Company and the Local Company and each of Xxxxxxxxxxx
and Xxxxxxx shall enter into a non-competition agreement (the "Noncompetition
Agreements") in substantially the form attached hereto as Exhibit 6.10.
------------
6.11 Payments to Employees. At Closing, the Vendors agree to distribute
---------------------
an amount not less than the Employee Amount (as defined in Exhibit A attached
---------
hereto) of the Non-Deliverables Payment to those employees of each Company as of
the Closing Date. On the Second Payment Date, the Vendors agree to distribute an
amount not less than the Employee Amount of the Conditional Deliverables Payment
to the employees of the Purchaser, the Subsidiary Company, the Local Company or
their affiliates or subsidiaries at such date who were employed by a Company at
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Closing. The Vendors further agree to notify the Purchaser of each of the
foregoing distributions within five days of the occurrence of the same.
6.12 Subsidiary Company Lease. The Purchaser agrees to use its reasonable
------------------------
best efforts to enter into a binding lease agreement, (the "Lease Agreement")
with respect to the Subsidiary Company with the appropriate governmental
authorities in Uruguay within ten (10) business days of the date hereof.
6.13 Additional Documents and Further Assurances. Subject to the terms
-------------------------------------------
and conditions provided in this Agreement, each of the parties hereto shall use
its reasonable best efforts to take promptly, or cause to be taken, all actions,
and to do promptly, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated hereby to obtain all necessary waivers, consents
and approvals and to effect all necessary registrations and filings and to
remove any injunctions or other impediments or delays, legal or otherwise, in
order to consummate and make effective the transactions contemplated by this
Agreement for the purpose of securing to the parties hereto the benefits
contemplated by this Agreement; provided, however, that the Purchaser shall not
be required to agree to any divestiture by the Purchaser or its subsidiaries or
affiliates of shares of capital stock or of any business, assets or property of
the Purchaser or its subsidiaries or affiliates or the imposition of any
material limitation on the ability of any of them to conduct their businesses or
to own or exercise control of such assets, properties and capital stock. Each
party hereto, at the request of the other party hereto, shall execute and
deliver such other instrument and do and perform such other acts and things as
may be reasonable necessary or desirable for effecting completely the
consummation of this Agreement and the transactions contemplated hereby.
ARTICLE VII
CONDITIONS TO THE CLOSING
7.1 Conditions to Obligations of the Vendors. The obligations of the
----------------------------------------
Vendors to consummate and effect this Agreement and the transactions
contemplated hereby shall be subject to the satisfaction at or prior to the
Closing Date of each of the following conditions, any of which may be waived, in
writing, by the Vendors:
(a) The representations and warranties of the Purchaser contained in
this Agreement shall be true and correct in all respects on and as of the
Closing Date as though such representations and warranties were made on and as
of such time;
(b) The Purchaser shall have performed and complied in all material
respects with all covenants, obligations and conditions of this Agreement
required to be performed and complied with by it as of the Closing Date;
(c) The Vendors shall have been provided with a certificate, dated
the Closing Date and executed on behalf of the Purchaser by its Chief Operating
Officer or any Vice President to the
-17-
effect that each of the conditions specified in Section 7.1(a) and Section
7.1(b) have been satisfied in all respects;
(d) There shall not be in effect any order of a court of competent
jurisdiction preventing consummation of the transaction, nor shall there have
been taken any action, or any statute, rule, regulation or order enacted,
promulgated or issued or deemed applicable to the transaction contemplated
hereby by a Governmental Entity that makes consummation of the transactions
contemplated hereby illegal;
(e) Trintech Group plc, the Local Company and the Subsidiary Company
shall have executed an agreement pursuant to which Trintech Group plc, the Local
Company and the Subsidiary Company agree to guarantee to the Vendors the full
and prompt payment when due of the Second Deliverables Payment and the
Contingent Payments in accordance with the terms set forth herein subject to
conditions reasonably satisfactory to the parties thereto;
(f) Trintech Group plc and the Purchaser shall have executed the
Escrow Letter; The Vendors shall have received the legal opinion of counsel to
the Purchaser and Trintech Group plc in form and substance satisfactory to the
Vendors acting reasonably;
(h) The Purchaser shall have delivered (i) to the Vendors, the Non-
Deliverable Payment and (ii) to the Escrow Agent, the Initial Deliverables
Payment subject to, and in accordance with, the terms of this Agreement
(i) The agreement entitled share subscription agreement in
substantially the form attached hereto as Exhibit 7.1(i) (the "Share
--------------
Subscription Agreement") shall have been executed by Trintech Group plc;
(j) The agreement entitled second share subscription agreement in
substantailly the form attached hereto as Exhibit 7.1(j) (the "Second
--------------
Subscription Agreement") shall have been executed by Trintech Group plc; and
(k) The guarantee agreement in substantially the form attached
hereto as Exhibit 7.1(k) shall have been executed by Trintech Group plc, the
Subsidiary Company and the Local Company.
7.2 Conditions to the Obligations of the Purchaser. The obligations of
----------------------------------------------
the Purchaser to consummate and effect this Agreement and the transactions
contemplated hereby shall be subject to the satisfaction at or prior to the
Closing Date of each of the following conditions, any of which may be waived, in
writing, by the Purchaser:
(a) The representations and warranties of each Vendor in this
Agreement shall be true and correct in all respects on and as of the Closing
Date as though such representations and warranties were made on and as of such
time;
-18-
(b) Each Vendor shall have performed and complied in all material
respects with all covenants, obligations and conditions of this Agreement
required to be performed and complied with by it or him as of the Closing Date;
(c) The Purchaser shall have been provided with a certificate, dated
the Closing Date and executed by each Vendor to the effect that each of the
conditions specified in Section 7.2 (a) and Section 7.2(b) have been satisfied
in all respects;
(d) The parties hereto shall have received all other consents,
waivers, and approvals listed on the Disclosure Schedule or as otherwise may be
required to be obtained in order to enable the Purchaser to continue to enjoy
all of its material rights and benefits following consummation of the
transactions contemplated hereby shall have been obtained;
(e) The parties shall not be aware of any temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal or regulatory restraint or prohibition
challenging the transactions contemplated hereby or the Related Agreement nor
shall any proceeding brought by any Governmental Entity, in the United States,
Ireland, Uruguay or otherwise, seeking any of the foregoing be pending. In
addition, all Uruguay and Ireland regulatory approvals which are necessary have
been obtained;
(f) No action, suit, claim or proceeding of any nature shall be
pending or threatened against either Vendor arising out of, in any way connected
with, or seeking to prevent the closing of the transactions contemplated by the
terms of this Agreement;
(g) During the Interim Period, there shall not have occurred any
changes that had or are likely to have a material adverse effect on the
business, assets (including the Transferred Assets), financial condition,
results of operations or prospects of Demasur, Teraplus and SMS, respectively;
(h) The Purchaser and Trintech Group plc shall have received the
legal opinion of Xxx. Xxxxxx Xxxxxx, counsel to the Vendors, in substantially
the form attached hereto as Exhibit 7.2(h);
--------------
(i) The Noncompetition Agreements shall have been duly executed and
delivered by the parties thereto and shall be in full force and effect;
(j) On or prior to the Closing Date, the Vendors shall have
delivered to each party to the License Agreements listed on Schedule 4.10(f) a
notice of termination of each such License Agreement according to the provisions
contained therein or in accordance with the laws of Uruguay;
(k) The Purchaser shall have received evidence satisfactory to it of
the incorporation of the Xxxx Xxxxxx company by the Purchaser (the "Subsidiary
Company") and that the Lease Agreement has been registered and approved in and
by the appropriate governmental authorities in Uruguay;
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(l) The Vendors shall have made their best efforts to cause each
"Key Employees" listed in the employee list attached hereto as Schedule 7.2(l)
(the "Key Employees") to accept the Purchaser's, the Subsidiary Company's or the
Local Company's offer of employment;
(m) The Purchaser shall have received evidence satisfactory to it
that each current and former employee of each Company has executed a written
agreement with such Company or the Vendors that such employee has assigned all
copyright and waived all other rights (including moral rights) and claims, if
any, in and to the SurSoft Software, the Additional Intellectual Property and
all Intellectual Property Rights contained therein;
(n) The Purchaser shall be satisfied that, prior to Closing, the
Vendors have caused Demasur to convey, transfer, assign and deliver all of
Demasur's right, title and interest in and to the SURCARD trademark to one of
the Vendors;
(o) The Share Subscription Agreement has been executed by the
Vendors;
(p) The Second Subscription Agreement has been exeucted by the
Vendors; and
(q) All actions to be taken by the Vendors in connection with the
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments and other documents required to effect the transactions
contemplated hereby will be satisfactory in form and substance to the Purchaser.
ARTICLE VIII
POST-CLOSING COVENANTS
8.1 General. In case at any time after the Closing any further action is
-------
necessary to carry out the purposes of this Agreement, each of the parties
hereto will take such further action (including the execution and delivery of
such further instruments and documents) as any other party reasonably may
request, all at the sole cost and expense of the requesting party (unless the
requesting party is entitled to indemnification therefor under Article IX
below).
8.2 Confidentiality. The Vendors will treat and hold as such all of the
---------------
Confidential Information, refrain from using any of the Confidential Information
except in connection with this Agreement, and deliver promptly to the Purchaser
or destroy, at the request and option of the Parent, all tangible embodiments
(and all copies) of the Confidential Information which are in his possession. In
the event that either of the Vendors is requested or required (by oral question
or request for information or documents in any legal proceeding, interrogatory,
subpoena, civil investigative demand, or similar process) to disclose any
Confidential Information, such Vendor will notify the Purchaser promptly of the
request or requirement so that the Purchaser may seek an appropriate protective
order or waive compliance with the provisions of this Section 8.2. If, in the
absence of a protective order or the receipt of a waiver hereunder, either
Vendor is, on the advice of counsel, compelled to disclose any Confidential
Information to any tribunal or else stand liable for
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contempt, such Vendor may disclose the Confidential Information to the tribunal;
provided, however, that the disclosing Vendor shall use his reasonable best
efforts to obtain, at the reasonable request of the Purchaser, an order or other
assurance that confidential treatment will be accorded to such portion of the
Confidential Information required to be disclosed as the Purchaser shall
designate.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNITY
9.1 Survival of Representations, Warranties and Covenants. All
-----------------------------------------------------
representations and warranties of each Vendor in this Agreement or in any
instrument delivered pursuant to this Agreement and all covenants to be
performed prior to the Closing Date shall survive the Closing for a period
ending on the date two (2) years from the Closing Date; provided, however, that
the representations and warranties set forth in Section 4.4 (Taxes) shall
survive for a period ending on the date five (5) years from the Closing Date.
9.2 Agreement to Indemnify. Each Vendor (the "Indemnitors") agrees,
----------------------
severally and not jointly, to indemnify and hold the Purchaser and its
affiliates, officers, directors, employees and shareholders (collectively, the
"Purchaser Indemnitees") harmless against any losses, claims, damages, costs,
expenses or other liabilities (including reasonable attorneys' fees and
expenses) (collectively, "Damages") resulting from (i) any breach of or
inaccuracy in any representations and warranties of any Indemnitor set forth in
this Agreement, or (ii) any breach or default by any Indemnitor of any covenant,
obligation or other agreement of any Indemnitor under this Agreement or under
the Related Agreements, or (iii) any liabilities associated with any Company, or
(iv) the execution, acknowledgement, and delivery to the Purchaser of the
General Assignment of Intellectual Property and Copyright Assignment (each, a
"Purchaser Indemnified Claim"). Notwithstanding the foregoing, the several and
not joint indemnity obligations of each Indemnitor shall be limited to (other
than with respect to claims of the Purchaser Indemnitees against the
Indemnitors, or any one of them, for fraud or willful breach or with respect to
claims arising as a result of Section 9.2(iii) for which the dollar amount of
the indemnification shall be unlimited) the Indemnity Amount (as defined in
Exhibit A attached hereto). This indemnification shall survive the Closing for a
---------
period ending on the date two (2) years from the Closing Date; provided,
however, any Purchaser Indemnified Claim related to a breach of the
representations and warranties set forth in Sections 4.4 (Tax) and shall survive
for a period ending on the date five (5) years from the Closing Date (the
"Indemnity Termination Date").
9.3 Survival of Indemnity; Time Limit. The indemnification obligations
---------------------------------
of each Indemnitor pursuant to Section 9.2 shall apply only to those claims for
indemnification as to which the Purchaser Indemnitees have given written notice
thereof on or prior to the Indemnity Termination Date; provided that the
foregoing shall not limit the liability of the Indemnitors for Damages resulting
from a Purchaser Indemnifiable Claim incurred by Purchaser Indemnitees after the
Indemnity Termination Date as long as Purchaser Indemnitees have made claims
prior to the Indemnity Termination Date in respect of such Damages.
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9.4 Procedure for Asserting Claims.
------------------------------
(a) If the Purchaser Indemnitees wishes to assert a claim for
indemnific pursuant to this Article IX (a "Claim"), the Purchaser Indemnitees
shall prepare and deliver to the Indemnitors a certificate signed by an officer
of the Purchaser or the Parent (an "Officer's Certificate") providing notice of
such Claim and specifying in reasonable detail the date the Damages relating to
such Claim were paid, incurred or otherwise arose, and the nature of the
misrepresentation or breach to which such Damages are related. The Purchaser
Indemnitees shall act reasonably and in good faith in preparing any such
Officer's Certificate and in specifying any alleged Damages.
(b) If the Indemnitors wish to dispute a Claim set forth in an
Officer's Certificate, the Indemnitors shall provide written notice to the
Purchaser Indemnitees of such disagreement within fifteen (15) days of the
receipt from the Purchaser Indemnitees of the Officer's Certificate. In the
event the Purchaser Indemnitees receives such notice, the Purchaser Indemnities
shall have fifteen (15) days from the date of receipt to respond in a written
statement to the objection of the Indemnitors. If after such fifteen (15) day
period there remains a dispute as to any Claim, the Indemnitors and the
Purchaser Indemnitees shall attempt in good faith for thirty (30) days to agree
upon the rights of the respective parties with respect to such Claim. If no such
agreement can be reached after such good faith negotiation, the Indemnitors or
the Purchaser Indemnitees may, by written notice to the other parties, demand
arbitration of the matter in accordance with Section 12.7; provided, however,
that if the amount of the damage or loss is at issue in pending litigation with
a third party, the arbitration shall not be commenced until such amount is
ascertained or both parties agree to arbitration. The decision of the
arbitrators as to the validity and amount of any Claim in such Officer's
Certificate shall be binding and conclusive upon the Indemnitors and the
Purchaser Indemnitees. The Officer's Certificate as finally determined by the
Accountant shall become the "New Officer's Certificate" for the purposes of that
Claim.
(c) If the Indemnitors do not object to a Claim in the manner set
forth in subsection 9.4(b) or if the arbitrators have finally determined the
amount of such Claim, the Purchaser shall deduct the amount of the Claim (as set
out in the Officer's Certificate or the New Officer's Certificate, as
applicable) from the Contingent Payments that the Vendors are entitled to earn
pursuant to Section 2.2 until the full amount of the Claim, subject to the
limitation of liability set forth in Section 9.2, has been satisfied.
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1 Termination. This Agreement may be terminated at any time prior to
-----------
the Closing Date:
(a) by mutual consent of all the parties hereto; or
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(b) by any party hereto if the Closing has not occurred on or before
October 31, 2000 other than due to the failure of the party seeking to terminate
this Agreement to perform its obligations under this Agreement which are
required to be performed at or prior to the Closing Date; or;
(c) by the Purchaser or the Vendors if there shall be an order of a
court of competent jurisdiction in effect preventing consummation of the
transactions contemplated hereby; or there shall be any action taken, or any
statute, rule, regulation or order enacted, promulgated or issued or deemed
applicable to the transactions contemplated by this Agreement by any
Governmental Entity which would (i) make the consummation of the transactions
contemplated hereby illegal; (ii) prohibit ownership by the Purchaser of the
Transferred Assets; or (iii) compel the Purchaser to dispose of all or a
material portion of the business or assets of the Purchaser as a result of the
transactions contemplated hereby; or
(d) by the Purchaser if it is not in material breach of its
obligations under this Agreement and there has been a breach of any material
representation, warranty, covenant or agreement contained in this Agreement on
the part any Vendor and such material breach has not been cured by such Vendor
within fifteen (15) days of receipt of notice from the Vendors of such material
breach; or
(e) by the Purchaser upon the happening of an insolvency (however
evidenced) or the commission of any act of insolvency by a Vendor or the filing
of any petition or the commencement of any proceeding by or against a Vendor for
any relief under any bankruptcy or insolvency laws, or any laws relating to the
relief of debtors which has not been cured within fifteen (15) days of the
occurrence of the same; or
(f) by the Vendors upon the happening of an insolvency (however
evidenced) or the commission of any act of insolvency by the Purchaser or the
filing of any petition or the commencement of any proceeding by or against the
Purchaser for any relief under any bankruptcy or insolvency laws, or any laws
relating to the relief of debtors which has not been cured within fifteen (15)
days of the occurrence of the same; or
(g) by the Vendors if they are not in breach of their obligations
under this Agreement and there has been a breach of any material representation,
warranty, covenant or agreement contained in this Agreement on the part of the
Purchaser, and such material breach has not been cured by the Purchaser within
fifteen (15) days of receipt of notice from the Purchaser of such material
breach.
10.2 Effect of Termination. In the event of termination of this Agreement
---------------------
as provided in Section 10.1, this Agreement shall forthwith become void and
there shall be no liability or obligation on the part of the Purchaser, any
Vendor or their respective officers, directors or shareholders; provided,
however, that each party shall remain liable for any breaches of this Agreement
prior to its termination; and provided further that the provisions of Sections
6.4, 6.5, 10.2 and 12.7 and Articles VIII and IX of this Agreement shall remain
in full force and effect and survive any termination of this Agreement.
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10.3 Amendment. This Agreement may be amended by the parties hereto at
---------
any time by execution of an instrument in writing signed by or on behalf of each
of the parties hereto.
10.4 Extension; Waiver. At any time prior to the Closing Date, the
-----------------
Purchaser, on the one hand, and the Vendors, on the other, may, to the extent
legally allowed, (a) extend the time for the performance of any of the
obligations of the other party hereto, (b) waive any inaccuracies in the
representations and warranties made to such party contained herein or in any
document delivered pursuant hereto, and (c) waive compliance with any of the
agreements or conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
ARTICLE XI
EMPLOYEES
11.1 Employees.
---------
(a) At Closing, the Vendors shall provide the Purchaser with an up-
to-date list of the employees of the Companies. Subject to the Closing, the
Purchaser agrees to cause the Subsidiary Company or the Local Company to offer
employment effective as of the Closing Date on substantially similar terms and
conditions of employment existing on the Closing Date to all of Key Employees.
(b) The Vendors shall not attempt in any way to discourage Key
Employees from accepting any offer of employment made by the Purchaser and shall
not solicit the services of any of the Key Employees for a three year period
following the Closing Date.
11.2 Employee Liability. The Purchaser, the Subsidiary Company and the
------------------
Local Company shall not be responsible for:
(a) any liabilities for salary, wages, bonuses, commission, vacation
pay and other compensation and all liabilities under employee pension and
benefit plans of the Companies relating to employment of all persons by the
Companies prior to the Closing Date;
(b) any severance payments, damages for wrongful dismissal and all
related costs in respect of the termination by the Companies of the employment
of any person who does not accept the Purchaser's, the Subsidiary Company's or
the Local Company's offer of employment referred to in Section 11.1 and in
respect of any person who is not offered employment by the Purchaser, the
Subsidiary Company or the Local Company; and
(c) All liabilities for claims for injury, disability, death or
workers' compensation arising from or related to employment by the Companies
prior to the Closing Date.
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ARTICLE XII
GENERAL PROVISIONS
12.1 Notices. All notices and other communications required or permitted
-------
hereunder shall be in writing and shall be delivered by hand or delivered by
overnight courier, freight prepaid, or sent via facsimile (with acknowledgment
of complete transmission) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to the Purchaser or the Subsidiary Company or the Local
Company, to:
Trintech Technologies Limited
Xxxxx Xxxxxxx Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxx 00
Attention: Corporate Secretary
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
(b) if to Xxxxxxxxxxx, to: Xxxxxxx Xxxxxxxxxxx
Xxxxxx xx Xxxxxxxxx Xx. 0000
Xxxxxxxxxx, Xxxxxxx
Facsimile No.: (0000) 000-0000
(c) if to Xxxxxxx, to: Xxxxx Xxxxxxx
Xxxxx Xxxxx Xx. 0000
Xxxxxxxxxx, Xxxxxxx
Facsimile No.: (0000) 000-0000
in each case of (b) and (c)
with a copy to: KPMG Ltda.
Xxxxx xx Xxxxxxxx 0000 X.0
Xxxxxxxxxx, Xxxxxxx
Attention: Xxxxxx Xxxxxx
Facsimile No.: (0000) 000-0000
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective when received, and shall in any event be
deemed to have been received when delivered, if delivered personally or sent by
telecopy and confirmed in writing.
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12.2 Interpretation. The words "include," "includes" and "including" when
--------------
used herein shall be deemed in each case to be followed by the words "without
limitation." The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. When a reference is made in this Agreement to
Exhibits, such reference shall be an Exhibit to this Agreement unless otherwise
indicated. As used in this Agreement, the phrase "to the best of [a party's]
knowledge," "to [a party's] knowledge," "[a party] is not aware," and similar
phrases shall mean the knowledge of such party, or of the officers and directors
of such party, after careful consideration of the matters set forth in the
representation that is so qualified and a reasonably diligent review of all
files, documents, agreements and other materials in such person's possession or
subject to his or her control.
12.3 Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
12.4 Entire Agreement; Assignment. This Agreement, the schedules and
----------------------------
Exhibits hereto, and the documents and instruments and other agreements among
the parties hereto referenced herein: (a) constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof; (b) are not intended to confer upon any
other person any rights or remedies hereunder; and (c) shall not be assigned, by
operation of law or otherwise, except as otherwise specifically provided and
except that the Purchaser or the Parent may assign their respective rights and
delegate their respective obligations hereunder to any wholly owned subsidiary,
directly or indirectly, of the Parent.
12.5 Severability. In the event that any provision of this Agreement, or
------------
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
12.6 Other Remedies. Except as otherwise provided herein, any and all
--------------
remedies herein expressly conferred upon a party will be deemed cumulative with,
and not exclusive of, any other remedy conferred hereby or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
12.7 Arbitration. Except if any dispute arises with respect to the
-----------
enforceability of this Section 12.7, if any dispute arises with respect to this
Agreement or the Related Agreements or the transaction contemplated hereby or
thereby, then any party (the "Demanding Party") may demand, by written notice to
each other party to the dispute (collectively, the "Responding Party"), that
such issue shall be settled by binding arbitration to be held in San Francisco,
California (an "Arbitration
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Agreement"). All claims shall be settled by three arbitrators in accordance with
the Commercial Arbitration Rules then in effect of the American Arbitration
Association (the "Arbitration Rules"). The Demanding Party and the Responding
Party shall each designate one (1) arbitrator within fifteen (15) calendar days
after the delivery of the Arbitration Demand. Such designated arbitrators shall
mutually agree upon and shall designate a third arbitrator (the "third
arbitrator"). The final decision of a majority of the arbitrators shall be
furnished to Demanding Party and the Responding Party in writing and shall
constitute a conclusive determination of the issue in question, binding upon all
parties and shall not be contested by any of them. The non-prevailing party
shall bear all costs and expenses associated with such arbitration, including
all arbitrators' fees and attorneys' fees.
12.8 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of Uruguay, without regard to applicable principles of
conflicts of laws thereof.
12.9 Currency. All references in this Agreement to dollars or to "$",
--------
unless otherwise specifically indicated, are expressed in U.S. currency.
12.10 Rules of Construction. The parties hereto agree that they have been
---------------------
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, each party hereto has caused this Asset Purchase
Agreement to be duly executed on its behalf, all as of the date first written
above.
Given under the common seal of:
TRINTECH TECHNOLOGIES LIMITED
By____________________________
Name:Xxxxx X. Xxxx
Title: Chief Operating Officer
______________________________
Xxxxxxx Xxxxxxxxxxx
______________________________
Xxxxx Xxxxxxx
Exhibits and Schedules
----------------------
Schedule 1 - Disclosure Schedule
Schedule 1.1(a) - SurSoft Software
Schedule 4.10(f) - License Agreements
Schedule 7.2(l) - Key Employees
Exhibit A - Certain Defined Terms
Exhibit B - Performance Milestones
Exhibit 2.2(a) - Form of Escrow Letter
Exhibit 3.2 - Form of General Assignment of Intellectual Property and
Copyright Assignment
Exhibit 6.10 - Form of Noncompetition Agreement
Exhibit 7.1(i) - Form of Share Subscription Agreement
Exhibit 7.1(j) - Form of Second Subscription Agreement
Exhibit 7.1(k) - Form of Guarantee
Exhibit 7.2(h) - Form of Opinion of Xxx. Xxxxxx Xxxxxx
* Certain schedules and exhibits to the Asset Purchase Agreement by and among
Trintech Technologies Limited, Xxxxx Xxxxxxx and Xxxxxxx Xxxxxxxxxxx, dated as
of September 12, 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.
EXHIBIT A
---------
Certain Defined Terms
As used in the Agreement, the following terms have the following meanings:
"Business" means the SurSoft Software product line and services in
existence as of the Closing Date and any new product line and services generated
by the Vendors for the benefit of the Purchaser, the Subsidiary Company, the
Local Company or Trintech Group plc after the Closing Date.
"Commitment Amount" means the $399,000 paid to the Vendors by the
Purchaser upon the execution of the letter of intent dated May 4, 2000, the
payment of which is hereby acknowledged.
"Conditional Deliverables Payment" means $3,800,000 which amount shall be
the aggregate of the First Amount and the Escrowed Amount.
"Contingent Payments" with respect to each Vendor means:
year one - the greater of 12.5% of all revenues recognized by
Trintech Group plc or any of its subsidiaries or
affiliates (including the Purchaser, the Subsidiary
Company or the Local Company) calculated in accordance
with U.S. generally accepted accounting principles
during the immediately preceding year from the Business
as determined by the Purchaser in its sole discretion
(the "Business Revenue") and $200,000 ;
year two - the greater of 12.5% of Business Revenue and $200,000;
year three - the greater of 12.5% of Business Revenue and $212,500;
year four - the greater of 12.5% of Business Revenue and $225,000;
and
year five - the greater of 12.5% of Business Revenue and $237,500.
"Employee Amount" means the amount of money that is not less than $300,000.
"Escrowed Amount" means $1,500,000.
"First Amount" means $2,300,000.
"Indemnity Amount" with respect to each Vendor, means for any one claim or
series of claims, $250,000 in the aggregate.
"Initial Deliverables Payment" means $2,000,000.
"Non-Deliverables Payment" means $2,300,000.
EXHIBIT B
---------
Performance Milestones
1. The payment by the Purchaser of the Second Purchase Payment is subject
to the following conditions being fulfilled or performed by the Vendors on or
prior to the Second Payment Date:
(a) A full set of "Trintech" branded sales and marketing collateral of
the SurSoft Software is developed;
(b) A "Trintech" branded, English language sales demo of the SurSoft
Software is developed;
(c) The SurSoft Software is completely branded with the "Trintech"
brand in all documentation, code, and user interface;
(d) All documentation related to the SurSoft Software, including what
is shipped to customers and what is maintained for internal references, is
translated into English;
(e) The Purchaser and the Vendors shall have agreed in the methodology
for the product testing, taking into account the Purchaser's Quality Assurance
methodology;
(f) The SurSoft Software is packaged and released by the Purchaser's
release management organization in either Ireland or Uruguay; and
(g) A two-week training class for technical personnel with Course
Guide and training database related to the SurSoft Software has been developed.
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