EXHIBIT 10.1
AGREEMENT
This Agreement (this "Agreement") dated as of November 20, 2003 is
entered into by and between Euronet Worldwide, Inc., a corporation organized
under the laws of Delaware (together with its successors, "Euronet"), and
Xxxxxxxx International, Ltd., a company organized under the laws of Bermuda
(together with its successors, "Xxxxxxxx").
The parties hereto agree as follows:
1. Purchase and Sale. In consideration of and upon the basis of the
representations, warranties and agreements and subject to the terms and
conditions set forth in this Agreement:
(a) Xxxxxxxx agrees to purchase from Euronet, and Euronet agrees to sell
to Xxxxxxxx on the Closing Date (as defined below), in accordance with
Section 2 below, one million, one hundred thirty-one thousand, three
hundred and sixty-three (1,131,363) shares (the "Initial Shares") of
Euronet's common stock, par value $.02 per share (together with the
associated preferred stock purchase rights under the Rights Agreement
dated March 21, 2003 (the "Rights Agreement") between Euronet and
EquiServe Trust Company, N.A., as Rights Agent, the "Common Stock"),
at a price per share equal to the sum of the Agreement Date Price plus
two dollars ($2.00) (the "Initial Purchase Price"), or twenty million
dollars ($20,000,000) in the aggregate (the "Initial Investment"). The
"Agreement Date Price" means $15.6778.
(b) In addition, Euronet shall issue to Xxxxxxxx on the Closing Date a
certificate in the form attached hereto as Annex A (the "Certificate")
evidencing rights (the "Additional Investment Rights") to purchase
from time to time additional shares of Common Stock at the Additional
Investment Price (as defined in the Certificate) up to an aggregate
purchase price of sixteen million dollars ($16,000,000) (subject to
the adjustments contained in the Certificate and this Agreement, the
"Additional Investment Amount"). Xxxxxxxx shall have the right to
exercise the Additional Investment Rights in the manner, and subject
to the terms, specified in this Agreement and in the Certificate.
(c) The closing (the "Closing") of the transactions contemplated hereby
shall occur on November 21, 2003, or at such other date and time as
Xxxxxxxx and Euronet shall mutually agree (such date, the "Closing
Date").
(d) As used herein, the term "Common Shares" means all shares of Common
Stock issued and/or issuable under any provision of this Agreement or
any provision of the Certificate; the term "Investment Securities"
means the Additional Investment Rights and all Common Shares; the term
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, association,
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trust, unincorporated organization or other entity; the term "Business
Day" means any day on which the Common Stock may be traded on the
Nasdaq, or, if not admitted for trading on the Nasdaq, any day other
than a Saturday, Sunday or holiday on which banks in New York City are
required or permitted to be closed; and the term "Nasdaq" means the
Nasdaq National Market, provided, however, that if the Nasdaq National
Market is not then the principal U.S. trading market for the Common
Stock, then "Nasdaq" shall be deemed to mean the principal U.S.
national securities exchange (as defined in the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) on which the Common
Stock is then traded, or if such Common Stock is not then listed or
admitted to trading on any national securities exchange but is
designated as a Nasdaq SmallCap Market Security by the National
Association of Securities Dealers, Inc. ("NASD"), then such market
system, or if such Common Stock is not listed or quoted on any of the
foregoing, then the OTC Bulletin Board.
2. Closing. The Closing shall take place initially via facsimile on the Closing
Date in the manner set forth below; provided that original certificates
representing the Investment Securities sold and purchased on the Closing Date
shall be delivered via Federal Express or other reputable overnight carrier no
later than the Business Day after and excluding the Closing Date to the address
below, unless Xxxxxxxx otherwise instructs in writing:
Xxxxxx Brothers, Inc.
Attn: Xxxxxx Xxxxx
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
At the Closing, the following deliveries shall be made:
(a) Common Stock and Certificate of Additional Investment Rights. Euronet
shall issue and deliver to Xxxxxxxx (i) eleven (11) stock
certificates, each representing one hundred thousand (100,000) shares
of Common Stock, and one (1) stock certificate representing thirty-one
thousand, three hundred and sixty-three (31,363) shares of Common
Stock, and (ii) one (1) Certificate, each duly executed by Euronet in
definitive form and duly registered on the books of Euronet in the
name of Xxxxxxxx International, Ltd., unless otherwise instructed by
Xxxxxxxx in writing.
(b) Purchase Price. Xxxxxxxx shall cause to be wire transferred to
Euronet, in accordance with the instructions set forth in Section 18,
the aggregate purchase price for the Initial Shares and the Additional
Investment Rights of twenty million dollars ($20,000,000) in
immediately available United States funds.
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(c) Closing Documents. The closing documents required by Sections 12 and
13 shall be delivered to Xxxxxxxx and Euronet, respectively.
(d) Delivery Notice. An executed copy of the delivery notice in the form
attached hereto as Annex B shall be delivered to Xxxxxxxx.
The deliveries specified in this Section 2 shall be deemed to occur
simultaneously as part of a single transaction, and no delivery shall be deemed
to have been made until all such deliveries have been made.
3. Representations and Warranties of Euronet. Euronet hereby represents and
warrants to Xxxxxxxx, unless the representation speaks of as of a certain date,
as of the date hereof and on the Closing Date and on each Additional Investment
Closing Date (as defined in the Certificate), as follows:
(a) Organization. Each of Euronet and its subsidiaries has been duly
incorporated and is validly existing in good standing under the laws
of the jurisdiction of its organization. Each of Euronet and its
subsidiaries is duly qualified and authorized to do business and is in
good standing as foreign corporations in all jurisdictions in which
the nature of their activities and of their properties (both owned and
leased) makes such qualification necessary, except for those
jurisdictions in which failure to do so would not, individually or in
the aggregate, be reasonably expected to have a material adverse
effect on (i) the business affairs, financial condition, assets,
results of operations or prospects of Euronet and its subsidiaries,
taken as a whole, or (ii) the transactions contemplated by, or
Euronet's ability to perform under, this Agreement or the Certificate
(a "Material Adverse Effect").
(b) Authorization. The execution, delivery and performance of this
Agreement and the Certificate by Euronet (including the authorization,
sale, issuance and delivery of the Investment Securities) have been
duly authorized by all requisite corporate action and no further
consent or authorization of Euronet, its Board of Directors or its
stockholders is required. In addition, Euronet has taken all action so
that the execution of this Agreement and the Certificate and the
consummation of the transactions contemplated hereby (including,
without limitation, the exercise of the Additional Investment Rights)
do not and (after taking all actions required pursuant to Section 8(i)
hereof) will not result in the grant of any rights to any Person under
the Rights Agreement (other than the sale of the preferred stock
purchase rights attached to the Common Stock sold hereunder and under
the Additional Investment Rights) or enable, require or cause the
rights under the Rights Agreement to be exercised, distributed or
triggered.
(c) Execution; Binding Agreement. This Agreement has been duly executed
and delivered by Euronet and, when this Agreement is duly authorized,
executed and
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delivered by Xxxxxxxx, will be a valid and binding agreement
enforceable against Euronet in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
generally and to general principles of equity.
(d) Corporate Power and Authority. Euronet has full corporate power and
authority necessary to (i) execute and deliver this Agreement, (ii)
perform its obligations hereunder and under the Certificate
(including, but not limited to, the issuance of the Investment
Securities), (iii) own and operate its properties and assets and (iv)
carry on its business as presently conducted and as proposed to be
conducted.
(e) Required Consents. No consent, approval, authorization or order of any
court, governmental agency or other body is required for execution and
delivery by Euronet of this Agreement or the performance by Euronet of
any of its obligations hereunder and under the Certificate other than
such as may already have been received, other than the approval of the
United States Securities and Exchange Commission (the "SEC") of the
Registration Statement to be filed pursuant to the terms hereof.
(f) Non-contravention. Neither the execution and delivery by Euronet of
this Agreement nor the performance by Euronet of any of its
obligations hereunder and under the Certificate:
(i) violates, conflicts with, results in a breach of, or constitutes
a default (or an event which with the giving of notice or the
lapse of time or both would be reasonably likely to constitute a
default) or creates any rights in respect of any Person under (A)
the certificates of incorporation or bylaws (or similar
organizational documents) of Euronet or any of its subsidiaries,
(B) any decree, judgment, order, law, treaty, rule, regulation or
determination of any court, governmental agency or body, or
arbitrator having jurisdiction over Euronet or any of its
subsidiaries or any of their respective properties or assets, (C)
the terms of any bond, debenture, indenture, credit agreement,
note or any other evidence of indebtedness, or any agreement,
stock option or other similar plan, lease, mortgage, deed of
trust or other instrument to which Euronet or any of its
subsidiaries is a party, by which Euronet or any of its
subsidiaries is bound, or to which any of the properties or
assets of Euronet or any of its subsidiaries is subject, (D) the
terms of any "lock-up" or similar provision of any underwriting
or similar agreement to which Euronet or any of its subsidiaries
is a party or (E) any rule or regulation of the NASD or the
Nasdaq or any rule or regulation of the markets where Euronet's
securities are publicly traded or quoted applicable to Euronet or
the transactions contemplated hereby;
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(ii) results in the creation or imposition of any lien, charge or
encumbrance upon any Investment Securities or upon any of the
properties or assets of Euronet or any of its subsidiaries; or
(iii) will be subject to any preemptive right or rights of first
refusal that have not been properly waived or complied with.
(g) Capitalization. Immediately prior to the Closing Date, the authorized
capital stock of Euronet consisted of 60,000,000 shares of Common
Stock and 10,000,000 shares of preferred stock, par value $.02 per
share (the "Preferred Stock"). Immediately prior to the Closing Date,
(A) 26,970,580 shares of Common Stock and no shares of Preferred Stock
were issued and outstanding, (B) 6,734,598 shares of Common Stock are
currently reserved and subject to issuance upon the exercise of
outstanding stock options, warrants or other convertible rights, (C)
192,607 shares of Common Stock are held in the treasury of Euronet,
(D) up to 90,825 additional shares of Common Stock may be issued under
the 1996, 1998 and 2002 Stock Incentive Plans (the "Benefit Plans"),
and (E) up to 435,036 shares of Common Stock may be issued under the
Euronet 2003 Employee Stock Purchase Plan. All of the outstanding
shares of Common Stock are, and all shares of capital stock which may
be issued pursuant to stock options, warrants or other convertible
rights will be, when issued and paid for in accordance with the
respective terms thereof, duly authorized, validly issued, fully paid
and non-assessable, free of any preemptive rights in respect thereof
and issued in material compliance with all applicable state and
federal laws concerning the issuance of securities. As of the date
hereof, except as set forth above or on Schedule 3(g) attached hereto,
and except for shares of Common Stock or other securities issued upon
conversion, exchange, exercise or purchase associated with the
securities, options, warrants, rights and other instruments referenced
above, no shares of capital stock or other voting securities of
Euronet were outstanding, no equity equivalents, interests in the
ownership or earnings of Euronet or other similar rights were
outstanding, and there were no existing options, warrants, calls,
subscriptions or other rights or agreements or commitments relating to
the capital stock of Euronet or any of its subsidiaries or obligating
Euronet or any of its subsidiaries to issue, transfer, sell or redeem
any shares of capital stock, or other equity interest in, Euronet or
any of its subsidiaries or obligating Euronet or any of its
subsidiaries to grant, extend or enter into any such option, warrant,
call, subscription or other right, agreement or commitment. Attached
hereto as Schedule 3(g) is a complete and correct list as of the date
of this Agreement of all outstanding options, warrants, calls,
subscriptions and other rights or agreements or commitments relating
to the issuance of additional shares of capital stock of Euronet and
with respect to each a description of the number and class of
securities and the exercise price thereof; provided that with respect
to options or shares issued or issuable under the Benefit Plans, such
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schedule shall summarize the total number of shares subject to, the
range of exercise prices under and the average exercise prices of such
options, warrants, calls, or other rights issued under the Benefit
Plans.
(h) Shares Reserved; Issuance of Investment Securities. As of the date
hereof, Euronet has validly reserved one million, one hundred
thirty-one thousand, three hundred and sixty-three (1,131,363) shares
of Common Stock for issuance to Xxxxxxxx as the Initial Shares and two
million, nine hundred and eleven thousand, five hundred twenty-six
(2,911,526) shares of Common Stock for issuance upon exercise of the
Additional Investment Rights. When issued to Xxxxxxxx against payment
therefor, as provided in the Agreement or the Certificate, each Common
Share:
(i) will have been duly and validly authorized, duly and validly
issued, fully paid and non-assessable;
(ii) will be free and clear of any security interests, liens, claims
or other encumbrances; and
(iii) will not have been issued or sold in violation of any preemptive
or other similar rights of the holders of any securities of
Euronet.
(i) Registration and Listing of Common Stock. The Common Stock is
registered pursuant to Section 12(g) of the Exchange Act and Euronet
satisfies all listing and maintenance criteria of the Nasdaq. To
Euronet's knowledge, Euronet has taken no action that would be likely
to, and is aware of no present set of facts or circumstances as of the
date hereof that would (with the passage of time or the giving of
notice or both or neither), cause (i) the termination of the
registration of the Common Stock under the Exchange Act or (ii) the
delisting of the Common Stock from the Nasdaq.
(j) SEC Filings. Euronet has filed in a timely manner all forms, reports
or other documents that Euronet was required to file under the
Securities Act of 1933, as amended (the "Securities Act"), or under
Section 13(a) or 15(d) of the Exchange Act (each an "SEC Filing")
during the 12 months preceding the date hereof. Since September 30,
2000, each of Euronet's SEC Filings, including the financial
statements and schedules of Euronet and results of Euronet's
operations and cash flow contained therein, complied in all material
respects with the SEC's requirements as of their respective filing
dates and did not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements, in the light of the circumstances under which they were
made, not misleading. As of the date hereof and as of the Closing
Date, Euronet's SEC Filings made before and excluding the date hereof
fully disclose all material information concerning Euronet and its
subsidiaries (other than the existence and
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terms of this Agreement, and other than as disclosed by Euronet to
Xxxxxxxx pursuant to the Nondisclosure Agreement by and between
Euronet and Xxxxxxxx dated as of November 19, 2003 (the "Nondisclosure
Agreement")). Xxxxxxxx acknowledges that the existence and terms of
this Agreement will not be publicly disclosed prior to the
distribution of the press release, and the filing by Euronet of the
report on Form 8-K, referenced in Section 8(c) hereof.
(k) Legal Proceedings. Since January 1, 2003 through the Closing Date,
there has not been any pending, or to the best knowledge of Euronet,
threatened action, suit, proceeding or investigation before any court,
governmental agency or body, or arbitrator having jurisdiction over
Euronet or any of its subsidiaries or any of its affiliates that could
cause a Material Adverse Effect, except as disclosed in Euronet's SEC
Filings on or before the date immediately prior to and excluding the
date hereof.
(l) Material Adverse Effect. Since the date of Euronet's most recent SEC
Filing through the Closing Date, there has not been, and Euronet is
not aware of, (i) any development or condition that has resulted, or
is reasonably likely to result, in a Material Adverse Effect, (ii) any
obligation, direct or contingent, that is material to Euronet or its
subsidiaries on a consolidated basis, incurred by Euronet or any of
its subsidiaries, except obligations incurred in the ordinary course
of business and except as disclosed by Euronet to Xxxxxxxx pursuant to
the Nondisclosure Agreement, (iii) any dividend or distribution of any
kind declared, paid or made on the capital stock of Euronet, or (iv)
any loss or damage (whether or not insured) to the physical property
of Euronet or any of its subsidiaries which has been sustained which
has resulted, or is reasonably likely to result in, a Material Adverse
Effect.
(m) Financial Statements. The consolidated financial statements of Euronet
and the related notes contained in Euronet's SEC Filings present
fairly, in accordance with United States generally accepted accounting
principles ("GAAP"), the financial position of Euronet and its
subsidiaries as of the dates indicated, and the results of its
operations and cash flows for the periods therein specified. Such
financial statements (including the related notes) have been prepared
in accordance with U.S. GAAP applied on a consistent basis throughout
the periods therein specified, except as disclosed in Euronet's SEC
Filings.
(n) Exemption from Registration. The offer and sale of the Investment
Securities to Xxxxxxxx pursuant to this Agreement will, subject to the
accuracy of Xxxxxxxx'x representations and warranties contained in
Section 6 hereof and Xxxxxxxx'x compliance with the applicable
covenants and agreements contained in Section 10 hereof, be made in
accordance with an exemption from the registration requirements of the
Securities Act and any applicable state law. Neither Euronet nor any
agent on its behalf has solicited or will solicit any offers to buy or
has
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offered to sell or will offer to sell all or any part of the
Investment Securities or any other securities to any Person or Persons
so as to bring the sale of Investment Securities by Euronet to
Xxxxxxxx within the registration provisions of the Securities Act.
(o) Solvency. The sum of the assets of Euronet, both at a fair valuation
and at present fair salable value, exceeds its liabilities, including
contingent liabilities, and Euronet has sufficient capital with which
to conduct its business as presently conducted and as proposed to be
conducted. Euronet has not incurred debt, and does not intend to incur
debt, beyond its ability to pay such debt as it matures. For purposes
of this paragraph, "debt" means any liability on a claim, and "claim"
means (x) a right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or
unsecured, or (y) a right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured, or
unsecured. With respect to any such contingent liabilities, such
liabilities are computed at the amount which, in light of all the
facts and circumstances existing at the time, represents the amount
which can reasonably be expected to become an actual or matured
liability.
(p) Non-Public Information. Xxxxxxxx has not requested from Euronet and,
other than as disclosed by Euronet to Xxxxxxxx pursuant to the
Nondisclosure Agreement, Euronet has not furnished to Xxxxxxxx, any
material non-public information concerning Euronet or its
subsidiaries.
(q) Equivalent Value. As of the Closing Date, the consideration that
Euronet is receiving from Xxxxxxxx is equivalent in value to the
consideration Xxxxxxxx is receiving from Euronet pursuant to this
Agreement; provided, however, that Euronet does not hereby provide any
warranty or guarantee of the value of the Investment Securities. As of
the Closing Date, under the terms of this Agreement, Euronet is
receiving fair consideration from Xxxxxxxx for the agreements,
covenants, representations and warranties made by Euronet to Xxxxxxxx.
(r) Manipulation of Stock Price. Neither Euronet nor any of its
subsidiaries has taken, nor will they take, in violation of applicable
law, any action outside the ordinary course of business designed to or
that might reasonably be expected to cause or result in unlawful
manipulation of the price of the Common Stock to facilitate the sale
or resale of the Common Shares.
(s) Accountants; Audited Financials. KPMG Polska Sp. z o.o., who expressed
their opinion with respect to the consolidated financial statements
incorporated by reference from Euronet's Annual Report on Form 10-K
for the year ended
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December 31, 2002, are independent accountants as required by the
Securities Act and the rules and regulations promulgated thereunder.
On the date of this Agreement, Euronet has delivered a true, correct
and complete copy of (i) the report of KPMG Polska Sp. z o.o. to the
board of directors and stockholders of Euronet, dated February 7, 2003
(except Note 29, which is dated February 19, 2003), together with the
consolidated balance sheets, consolidated statements of operations and
comprehensive (loss)/income, changes in stockholders' equity/(deficit)
and cash flows for each of the fiscal years in the three-year period
ended December 31, 2002, as such report appears in Euronet's Annual
Report on Form 10-K for the fiscal year ended December 31, 2002 (the
"Audit Report"), and (ii) the written consent of KPMG Polska Sp. z
o.o. to the delivery of the Audit Report to Xxxxxxxx.
(t) Investment Company. Euronet is not an "investment company" or an
entity "controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940, as amended.
4. Registration Provisions.
(a) Euronet shall as soon as practicable and at its own expense, but in no
event later than December 21, 2003, file a Registration Statement (as
defined below) under the Securities Act covering the resale of all of
the Common Shares and shall use its best efforts to cause such
Registration Statement to be declared effective as soon as
practicable, but not later than February 18, 2004 (or, in the event
that the SEC elects to review such Registration Statement, March 19,
2004) (such date, as the case may be, the "Required Registration
Date"). The obligations to have the Registration Statement declared
effective and to maintain such effectiveness with respect to at least
the Registrable Number (as defined below) as provided in this Section
4 (subject to any Blackout Period that does not constitute a Blackout
Violation, in each case, as defined below) are referred to herein as
the "Registration Requirement." Pursuant to the preceding sentence,
Euronet shall initially register pursuant to such Registration
Statement four million, forty-two thousand, eight hundred and
eighty-nine (4,042,889) shares of Common Stock, representing fourteen
and ninety-nine one-hundredths percent (14.99%) of the shares of
Common Stock outstanding as of the date of this Agreement before the
issuance of the Initial Shares (the "Original Number").
(b) Each Common Share is a "Covered Security" and the registration
statement filed or required to be filed under the Securities Act in
accordance with Section 4(a) hereof, together with all amendments and
supplements thereto and any replacement registration statement with
respect to the Covered Securities, is referred to as the "Registration
Statement." Euronet shall provide prompt written notice to Xxxxxxxx
when the Registration Statement has been declared effective by the
SEC.
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(c) Euronet will use its best efforts to: (i) keep the Registration
Statement effective until the earlier of (A) the later of (1) the
second anniversary of the issuance of the last Covered Security that
may be issued, or (2) such time as all of the Covered Securities
issued or issuable to Xxxxxxxx can be sold by Xxxxxxxx or any of its
affiliates within a three-month period without compliance with the
registration requirements of the Securities Act pursuant to Rule 144
under the Securities Act ("Rule 144") or (B) the date all of the
Covered Securities issued or issuable shall have been sold by Xxxxxxxx
and its affiliates (such later period, the "Registration Period");
(ii) prepare and file with the SEC such amendments and supplements to
the Registration Statement and the prospectus used in connection with
the Registration Statement (as so amended and supplemented from time
to time, the "Prospectus") as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of
all Covered Securities by Xxxxxxxx or any of its affiliates; (iii)
furnish such number of Prospectuses and other documents incident
thereto, including any amendment of or supplement to the Prospectus,
as Xxxxxxxx from time to time may reasonably request; (iv) cause all
Covered Securities to be listed on each securities exchange and quoted
on each quotation service on which similar securities issued by
Euronet are then listed or quoted; (v) provide a transfer agent and
registrar for all Covered Securities and a CUSIP number for all
Covered Securities; (vi) otherwise comply with all applicable rules
and regulations of the SEC, the Nasdaq and any other exchange or
quotation service on which the Covered Securities are obligated to be
listed or quoted under this Agreement; and (vii) file the documents
required of Euronet and otherwise obtain and maintain requisite blue
sky clearance in (x) New York and all other jurisdictions in which any
of the Covered Securities were originally sold and (y) all other
states specified in writing by Xxxxxxxx, provided, however, that as to
this clause (y), Euronet shall not be required to qualify to do
business or consent to service of process in any state in which it is
not now so qualified or has not so consented. Xxxxxxxx shall have the
right to approve the description of the selling stockholder, plan of
distribution and all other references to Xxxxxxxx and its affiliates
contained in any Registration Statement and any Prospectus; provided,
however, that Xxxxxxxx shall approve, or modify to Xxxxxxxx'x
reasonable satisfaction, such descriptions and references within two
(2) Business Days after and excluding the date on which Xxxxxxxx is
provided with the final forms of such descriptions and references, and
if such approval or modification is not given to Euronet within such
two (2) Business Day period, Xxxxxxxx shall be deemed to have given
its approval.
(d) Euronet shall furnish to Xxxxxxxx upon request a reasonable number of
copies of a supplement to or an amendment of any Prospectus as may be
necessary in order to facilitate the public sale or other disposition
of all or any of the Covered Securities by Xxxxxxxx or any of its
affiliates pursuant to the Registration Statement.
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(e) With a view to making available to Xxxxxxxx and its affiliates the
benefits of Rule 144 and Form S-3 under the Securities Act, Euronet
covenants and agrees to: (i) make and keep available adequate current
public information (within the meaning of Rule 144(c)) concerning
Euronet during the Registration Period; and (ii) furnish to Xxxxxxxx
upon request, as long as Xxxxxxxx owns any Covered Securities, (A) a
written statement by Euronet that it has complied with the reporting
requirements of the Securities Act and the Exchange Act, (B) a copy of
the most recent annual or quarterly report of Euronet and (C) such
other information as may be reasonably requested in order to avail
Xxxxxxxx and its affiliates of Rule 144 or Form S-3 with respect to
such Covered Securities.
(f) Notwithstanding anything else in this Section 4, if, at any time
during which a Prospectus is required to be delivered in connection
with the sale of any Covered Security, Euronet determines in good
faith and upon advice of counsel that a development has occurred or a
condition exists as a result of which the Registration Statement or
the Prospectus contains a material misstatement or omission, or that a
material transaction in which Euronet is engaged or proposes to engage
would require an immediate amendment to the Registration Statement, a
supplement to the Prospectus or a filing under the Exchange Act or
other public disclosure of material information and the disclosure of
such transaction would be premature or injurious to the consummation
of the transaction, Euronet will promptly notify Xxxxxxxx thereof by
telephone and in writing. Upon receipt of such notification, Xxxxxxxx
and its affiliates will immediately suspend all offers and sales of
any Covered Security pursuant to the Registration Statement. In such
event, Euronet will amend or supplement the Registration Statement and
the Prospectus or make such filings or public disclosures as promptly
as practicable and will use its best efforts to take such other steps
as may be required to permit sales of the Covered Securities
thereunder by Xxxxxxxx and its affiliates in accordance with
applicable federal and state securities laws. Euronet will promptly
notify Xxxxxxxx after it has determined in good faith that such sales
have become permissible in such manner and will promptly deliver
copies of the Registration Statement and the Prospectus (as so amended
or supplemented, if applicable) to Xxxxxxxx in accordance with
paragraphs (c) and (d) of this Section 4. Notwithstanding the
foregoing, (i) under no circumstances shall Euronet be entitled to
exercise its right to suspend sales of any Covered Securities pursuant
to the Registration Statement more than twice in any twelve (12)-month
period, (ii) the period during which such sales may be suspended
(each, a "Blackout Period") shall not exceed thirty (30) days and
(iii) no Blackout Period may commence less than thirty (30) days after
the end of the preceding Blackout Period. If the Registration
Requirement is not satisfied at any time, or if any Blackout Period
shall exceed the duration or frequency limits set forth in clause (i),
(ii) or (iii) (a "Blackout Violation"), then for each month or portion
thereof in which the Registration Requirement is not satisfied or a
Blackout Violation occurs or
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continues, the Additional Investment Amount shall be increased by an
amount equal to five percent (5%) of the Initial Investment, which
increase shall be simple until two (2) months after the Required
Registration Date and shall be compounded monthly from and after the
third (3rd) month following the Required Registration Date, and the
Additional Investment Rights evidenced by the Certificate shall
therefore become exercisable for additional shares of Common Stock at
the Additional Investment Price (as defined in the Certificate) up to
such amount. The provisions of this section shall be in addition to
any other remedies that may be available to Xxxxxxxx under law or
under this Agreement or the Certificate.
(g) Promptly after the commencement of a Blackout Period pursuant to this
Section 4, Xxxxxxxx will notify Euronet of any contract to sell,
assign, deliver or otherwise transfer any Covered Security (each a
"Sales Contract") that Xxxxxxxx or any of its affiliates has entered
into prior to the commencement of such Blackout Period and that would
require delivery of such Covered Securities during such Blackout
Period, which notice will contain the aggregate sale price and
quantity of Covered Securities pursuant to such Sales Contract. Within
two (2) Business Days of receipt of such notice, Euronet will notify
Xxxxxxxx of its election either to (i) terminate the Blackout Period
and, as promptly as practicable, amend or supplement the Registration
Statement or the Prospectus in order to correct the material
misstatement or omission and deliver to Xxxxxxxx copies of such
amended or supplemented Registration Statement and Prospectus in
accordance with paragraphs (c) and (d) of this Section 4, or (ii)
continue the Blackout Period in accordance with this paragraph. If
Euronet elects to continue the Blackout Period (or Euronet elects to
terminate the Blackout Period, but the Blackout Period is not
terminated before the latest date that Xxxxxxxx may consummate the
transaction contemplated by the Sales Contract), and if Xxxxxxxx or
any of its affiliates are therefore unable to consummate the sale of
Covered Securities pursuant to the Sales Contract (such unsold Covered
Securities being the "Unsold Securities"), Euronet will promptly
indemnify each Xxxxxxxx Indemnified Party (as such term is defined in
Section 16(a) below) against any Proceeding (as such term is defined
in Section 16(a) below) that each Xxxxxxxx Indemnified Party may incur
arising out of or in connection with Xxxxxxxx'x breach or alleged
breach of any such Sales Contract, and Euronet shall reimburse each
Xxxxxxxx Indemnified Party for any reasonable costs or expenses
(including reasonable legal fees) incurred by such party in
investigating or defending any such Proceeding. The purpose of the
indemnities set forth in this Section 4(g) shall be to make the
Xxxxxxxx Indemnified Parties whole for all losses, costs and expenses
related to such Blackout Period, and the calculation of any
indemnification payment under this Section 4(g) shall take into
account all relevant factors, including (i) any cash payment made to
any Person to terminate or modify such Sales Contract, (ii) the cost
of covering by purchasing or borrowing Common Stock or other
securities to
12
deliver pursuant to such Sales Contract, (iii) the expected net
benefit to Xxxxxxxx of delivering the Unsold Securities pursuant to
the Sales Contract and (iv) Xxxxxxxx'x mitigation of losses resulting
from sales of the Unsold Securities after the Blackout Period. If
Euronet elects to terminate the Blackout Period, Xxxxxxxx shall use
reasonable efforts to extend the consummation date of such Sales
Contract until after such Blackout Period ends; provided, however,
that Xxxxxxxx shall not be required to take any action with respect to
such Sales Contract that would have a negative financial effect on
Xxxxxxxx.
(h) If the Registration Requirement is not satisfied at any point in time
during the Registration Period, or if a Blackout Violation occurs,
then the Additional Investment Term (as defined in the Certificate)
shall be extended by one day for each day (or portion thereof) that
the Registration Requirement shall not have been satisfied or the
Blackout Violation shall exist, as the case may be. In each instance
in which the Additional Investment Amount is increased pursuant to
this Section 4, the Additional Investment Term shall be extended such
that Xxxxxxxx shall have no less than ninety (90) Business Days to
exercise the Additional Investment Rights, in whole or in part, after
the Registration Statement is effective or reinstated or the Blackout
Violation ceases to exist, as the case may be.
5. Exercise of Additional Investment Rights.
(a) The Additional Investment Rights are exercisable into Common Shares in
accordance with the terms and conditions set forth in the Certificate.
The form of the "Additional Investment Notice" to be executed and
delivered by Xxxxxxxx to Euronet as specified therein is attached as
Exhibit 1 to the Certificate and the form of the "Additional
Investment Delivery Notice" to be executed and delivered by Euronet to
Xxxxxxxx as specified therein is attached as Exhibit 2 to the
Certificate.
(b) If the number of Common Shares issued and issuable under this
Agreement and the Certificate on any date (a "Trigger Date") would
result in Xxxxxxxx receiving more than two million, nine hundred
sixty-four thousand, sixty-seven (2,964,067) Common Shares,
representing ten and ninety-nine one-hundredths percent (10.99%) of
the Original Number, Euronet shall not issue Common Shares to the
extent that the total number of Common Shares issued hereunder
(including upon exercise of the Additional Investment Rights, in whole
or in part) would exceed four million, forty-two thousand, eight
hundred and eighty-nine (4,042,889) Common Shares, representing
fourteen and ninety-nine one-hundredths percent (14.99%) of the
Original Number, and such circumstance would require the approval of
the holders of Common Stock pursuant to the listing requirements or
rules of the Nasdaq (whether or not listed on Nasdaq) (or such other
U.S. national securities exchange on which Common Stock is then
listed). From and after any Trigger Date, Xxxxxxxx shall have the
right to make a Net Basis Settlement (as
13
defined in the Certificate), provided, however, that such Net Basis
Settlement shall not be honored and shall have no effect to the extent
that as a result of following such instructions, the total number of
Common Shares issued (after giving effect to such Net Basis Settlement
and without regard to the gross number of Common Shares used to
compute the net number of Common Shares deliverable thereby) would
exceed four million, forty-two thousand, eight hundred and eighty-nine
(4,042,889) Common Shares, representing fourteen and ninety-nine
one-hundredths percent (14.99%) of the Original Number.
(c) The aggregate number of Common Shares issuable upon exercise of the
Additional Investment Rights shall not exceed the lesser of (i) the
number of Common Shares otherwise issuable under the Additional
Investment Rights without regard to the limitation contained in this
Section 5(c) and (ii) the Maximum Number. The "Maximum Number" is
initially one million, four hundred sixty-eight thousand sixty-seven
(1,468,067) and thereafter shall be automatically increased upon
expiration of a sixty-five (65) day period (the "Notice Period") after
(i) Euronet delivers an Increase Notice (as defined below) by nine and
one-quarter percent (9.25%) of the Increase (as defined below) set
forth in such Increase Notice or (ii) Xxxxxxxx delivers a notice (a
"65 Day Notice") to Euronet designating a new Maximum Number. Euronet
shall deliver a notice (an "Increase Notice") stating the aggregate
number of shares of Common Stock outstanding as of the last day of the
preceding month and the second preceding month and the increase, if
any (the "Increase"), from the second preceding month (or in the case
of the last day of the month immediately following the Closing Date,
the number of shares outstanding specified in Section 3(g)) to the
preceding month. A 65 Day Notice may be given at any time. Unless
expressly waived by Xxxxxxxx, Euronet shall deliver an Increase Notice
to Xxxxxxxx on or before the 10th day of every calendar month from and
including the Closing Date. From time to time following the Notice
Period, Common Stock may be issued to Xxxxxxxx on any Business Day for
any quantity of Common Stock, such that the aggregate number of shares
of Common Stock issued under the Certificate upon exercise of the
Additional Investment Rights is less than or equal to the Maximum
Number.
6. Representations and Warranties of Xxxxxxxx. Xxxxxxxx hereby represents and
warrants to Euronet, as of the date hereof and on the Closing Date and on each
Additional Investment Closing Date (as defined in the Certificate), as follows:
(a) Xxxxxxxx has been duly incorporated and is validly existing in good
standing under the laws of Bermuda.
(b) The execution, delivery and performance of this Agreement by Xxxxxxxx
have been duly authorized by all requisite corporate action and no
further consent or authorization of Xxxxxxxx, its Board of Directors
or its stockholders is required. This Agreement has been duly executed
and delivered by Xxxxxxxx and, when duly
14
authorized, executed and delivered by Euronet, will be a valid and
binding agreement enforceable against Xxxxxxxx in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights generally and to general principles of equity.
(c) Neither the execution and delivery by Xxxxxxxx of this Agreement nor
the performance by Xxxxxxxx of any of its obligations hereunder or
under the Certificate violates, conflicts with, results in a breach
of, or constitutes a default (or an event which with the giving of
notice or the lapse of time or both would be reasonably likely to
constitute a default) or creates any rights in respect of any person
under (i) the certificate of incorporation or by-laws of Xxxxxxxx,
(ii) any decree, judgment, order, law, treaty, rule, regulation or
determination of any court, governmental agency or body, or arbitrator
having jurisdiction over Xxxxxxxx or any of its affiliates or any of
their respective properties or assets, or (iii) the terms of any
agreement, document or other instrument to which Xxxxxxxx or any of
its affiliates is a party, by which Xxxxxxxx or any of its affiliates
is bound, or to which any of the properties or assets of Xxxxxxxx or
any of its affiliates is subject, except such violations, conflicts,
breaches, defaults or rights that would not reasonably be expected to
materially impair Xxxxxxxx'x ability to enter into this Agreement or
to perform its obligations hereunder.
(d) Xxxxxxxx understands that no United States federal or state agency has
passed on, reviewed or made any recommendation or endorsement of the
Investment Securities.
(e) Xxxxxxxx is an "accredited investor" as such term is defined in
Regulation D promulgated under the Securities Act.
(f) Subject to Section 4 hereof, Xxxxxxxx understands that the Investment
Securities have not been registered under the Securities Act and may
not be re-offered or resold in the United States other than pursuant
to registration thereunder or an available exemption therefrom.
(g) Xxxxxxxx is purchasing the Investment Securities for its own account
for investment only and not with a view to, or for resale in
connection with, the public sale or distribution thereof in the United
States, except pursuant to sales registered under the Securities Act
or an exemption therefrom.
(h) Xxxxxxxx understands that the Investment Securities are being or will
be offered and sold to it in reliance on specific exemptions from the
registration requirements of the United States federal securities laws
and that Euronet is relying on the truth and accuracy of, and
Xxxxxxxx'x compliance with, the representations, warranties,
agreements, acknowledgments and understandings of
15
Xxxxxxxx set forth herein in order to determine the availability of
such exemptions and the eligibility of Xxxxxxxx to acquire the
Investment Securities.
(i) Xxxxxxxx has not taken, nor will they take, in violation of applicable
law, any action outside the ordinary course of business designed to or
that might reasonably be expected to cause or result in unlawful
manipulation of the price of the Common Stock to facilitate the sale
or resale of the Common Shares.
7. Future Equity Issuances.
(a) If, on or after the date hereof and prior to the end of the Additional
Investment Term, Euronet engages or participates in (or intends to
engage or participate in) any discussions with any Person regarding,
any Later Issuance (as defined, and subject to the limitations,
below), other than a bona fide public offering of Euronet's Common
Stock, Euronet shall (i) promptly notify Xxxxxxxx of the existence of
Euronet's intentions or discussions with respect to the proposed Later
Issuance and (ii) in connection with such notice, inquire whether
Xxxxxxxx desires to be informed as to the substance of such intentions
or discussions. If Xxxxxxxx notifies Euronet in writing that Xxxxxxxx
elects to become informed with respect to such proposed Later Issuance
by midnight, New York City time, on the Business Day after and
excluding the date on which Euronet so notifies Xxxxxxxx, Euronet
shall use its best efforts to engage in good faith discussions with
Xxxxxxxx regarding the proposed Later Issuance and shall not
consummate such Later Issuance for two (2) full Business Days after
and excluding the date of Xxxxxxxx'x election. For purposes of
clarification, nothing in this subsection shall obligate Euronet to
allow Xxxxxxxx to participate in a Later Issuance.
(b) If, on or after the date hereof and prior to the end of the thirtieth
(30th) day after and excluding the effective date of the Registration
Statement (the "Future Issuance Period"), there is a Later Issuance at
a Later Issuance Price (as defined below) per share that is less than
the Agreement Date Price, then Euronet shall promptly issue, and
deliver certificates to Xxxxxxxx representing, an additional number of
shares of Common Stock equal to the positive difference between (A)
the number of shares calculated by dividing $20,000,000 by the sum of
(1) the Later Issuance Price and (2) $2.00 and (B) the Initial Shares.
(c) If, after the Future Issuance Period and during the Additional
Investment Term, there is a Later Issuance at a Later Issuance Price
that is less than the Agreement Date Price, then Euronet shall
promptly issue, and deliver certificates to Xxxxxxxx representing, an
additional number of shares of Common Stock equal to the positive
difference between (i) the number of shares calculated by dividing
$20,000,000 by N, where "N" is calculated as follows:
N = (Original Number x Initial Purchase Price)) +
(New Number x (Later Issuance Price + $2.00))
---------------------------------------------
16
(Original Number + New Number)
and (ii) the Initial Shares.
(d) Notwithstanding the foregoing, Euronet shall have no obligation to
make an Initial Price Adjustment pursuant to Section 7(a) or Section
7(b) until the Later Issuances, in the aggregate, would result in an
Initial Price Adjustment of more than one percent (1%) of the Initial
Shares, at which time, Euronet would be obligated to make an Initial
Price Adjustment for all such Later Issuances.
(e) "Later Issuance" shall mean (i) a public disclosure of Euronet's
intention or agreement to engage in, or (ii) a consummation of, any
sale or issuance by Euronet, directly or indirectly, to any Person or
Persons (other than Xxxxxxxx or its affiliates) of any shares of, or
securities convertible into, exercisable or exchangeable for, or whose
value is derived in whole or in part from, any shares of any class of
Euronet's capital stock; provided that "Later Issuance" shall not
include (A) a sale or issuance to the sellers of any business or
assets of a business being purchased by Euronet in a bona fide
acquisition whether through purchase, merger, consolidation, exchange
offer or otherwise, (B) a bona fide sale or issuance to any strategic
or joint venture partner, the primary purpose of which is not equity
financing, (C) issuances pursuant to any stock split, dividend or
distribution payable in additional shares of capital stock to holders
of Common Stock, (D) sales or issuances to employees, consultants or
directors of Euronet directly or pursuant to a stock option plan,
employee stock purchase plan or restricted stock plan, or other
similar arrangements related to compensation for services in effect on
the date of this Agreement, or similar plans or arrangements approved
by Euronet's Board of Directors after the date hereof, in each case in
the ordinary course of business consistent with past practices, (F)
issuances issued upon the exercise of any options or warrants to
purchase capital stock outstanding on the date hereof or upon
conversion of any securities convertible into capital stock
outstanding on the date hereof, in each case in accordance with the
terms of such options, warrants or securities in effect on the date
hereof, (G) issuances in connection with the exercise or triggering of
a "poison pill" or similar anti-takeover mechanism or (H) Common
Shares issued or issuable pursuant to this Agreement or upon exercise
of the Additional Investment Rights. "Later Issuance Price" shall mean
the fair market value of the minimum amount of consideration
deliverable by the purchaser in return for each share of Common Stock
(or economic equivalent thereof). The "New Number" shall equal the
number of shares of Common Stock (or economic equivalent thereof)
issued or issuable in the Later Issuance; provided that in the case of
derivative securities with net settlement, cash settlement or
settlement other than through the issuance of the gross number of
reference shares thereunder, the "New Number" shall be the gross
number of reference shares of Common Stock (or economic equivalent
17
thereof) thereunder. An issuance of shares and delivery of
certificates pursuant to Section 7(a) or Section 7(b) is referred to
as an "Initial Price Adjustment."
8. Covenants of Euronet. Euronet covenants and agrees with Xxxxxxxx as follows:
(a) For so long as Xxxxxxxx owns or has the right to purchase any
Investment Securities, and for a period of one (1) year thereafter,
Euronet will (i) use its best efforts to maintain the eligibility of
the Common Shares for listing on the Nasdaq; (ii) use its best efforts
to regain the eligibility of the Common Shares for listing or
quotation on all the Nasdaq in the event that the Common Shares are
delisted by the Nasdaq; and (iii) use its best efforts to cause the
representations and warranties contained in Subsections (a), (b), (c),
(d), (e), (f), (h), (i), (n), (p), (r), and (t) of Section 3 to be and
remain true and correct.
(b) Restatements.
(i) If a Restatement occurs on or before the third
anniversary of the date hereof (or, if later, the end of the
Additional Investment Term), Euronet shall:
(A) deliver to Xxxxxxxx a written notice within five (5)
Business Days of each Restatement, stating the date on which
a Restatement has occurred and including the documents in
which the Restatement was publicly disclosed; and
(B) issue to Xxxxxxxx, within three (3) Business Days of the
date that Xxxxxxxx delivers a written notice to Euronet
electing one of the time periods specified in clause (x) or
(y) of subsection (iii)(A) below, an additional number of
shares of Common Stock, if any, equal to the positive
difference, if any, between (1) the quotient of twenty
million dollars ($20,000,000) divided by the Restatement
Price and (2) the number of Initial Shares.
(ii) "Restatement" means that Euronet restates or announces
its intention to restate any portion of its Closing Date Financial
Statements, except (A) as is required as a result of a change
occurring after the date of this Agreement in applicable law or GAAP,
which change is implemented by Euronet in the manner and at the time
prescribed by such law or such generally accepted accounting principle
and (B) for pro forma financial statements filed with the SEC in
connection with an acquisition, which restatement relates primarily to
the financial statements of the acquired company for the period prior
to the effective date of such acquisition.
(iii) "Restatement Price" means the sum of:
18
(A) the lesser of (1) the Average Price calculated as of, or (2)
the average of the Daily Prices for the five Business Days
ending on and including, either of the following dates, in
the sole discretion of Xxxxxxxx: (x) any date (as elected by
Xxxxxxxx) during the forty (40) Business Days after and
excluding the related Restatement Date or (y) any date (as
elected by Xxxxxxxx) during the forty (40) Business Days
after and excluding any date on which Euronet files restated
financial statements with the SEC with respect to such
Restatement (such amount, the "New Price"), and
(B) the product of (1) two dollars ($2.00), multiplied by (2)
the New Price divided by the Agreement Date Price.
(iv) "Closing Date Financial Statements" means all financial
statements (including the notes thereto) and earnings releases filed
by Euronet with (or furnished by Euronet to) the SEC or publicly
announced by Euronet on or before the Closing Date.
(v) "Restatement Date" means, at the option of and pursuant
to the determination of Xxxxxxxx (as designated in a notice from
Xxxxxxxx to Euronet), any date on which a Restatement occurs
(including, with respect to any Restatement, the date of an
announcement by Euronet of its intention to restate any portion of its
Closing Date Financial Statements or the date on which is filed an
amended Form 10-K, amended Form 10-Q or Form 8-K or issuance of a
press release in respect of the matters described in such announcement
or the date on which such Restatement is filed with the SEC).
(vi) "Average Price" means, with respect to any reference
date, the average of the Daily Prices of the Common Stock for the
thirty (30) Business Days ending on and including such reference date,
subject to adjustment for stock splits, recombinations, stock
dividends and the like.
(vii) "Daily Price" means, on any date, the amount per share
of the Common Stock, equal to (i) the daily volume-weighted average
price on the Nasdaq or, if no such sale takes place on such date, the
average of the closing bid and asked prices on the Nasdaq thereof on
such date, in each case as reported by Bloomberg, L.P. (or by such
other person as Xxxxxxxx and Euronet may agree), or (ii) if such
Common Stock is not then listed or admitted to trading on the Nasdaq,
the fair market value per share thereof determined in good faith by an
independent, nationally recognized appraisal firm selected by Xxxxxxxx
and reasonably acceptable to Euronet (whose fees and expenses shall be
borne by Euronet), subject to adjustment for stock splits,
recombinations, stock dividends and the like.
19
(c) Euronet will provide Xxxxxxxx with a reasonable opportunity (which,
except with respect to the press release described below, shall not be
less than one (1) full Business Day) to review and comment on any
public disclosure by Euronet of information regarding this Agreement
and the transactions contemplated hereby, prior to such public
disclosure. Euronet shall, within one (1) Business Day after the
Closing Date, publicly distribute a press release disclosing the
material terms of this Agreement in the form previously provided by
Euronet to Xxxxxxxx and shall, on or before November 25, 2003, file a
report with the SEC on Form 8-K (i) disclosing the material terms of
this Agreement and any material information provided to Xxxxxxxx
pursuant to the Nondisclosure Agreement, and (ii) filing as an exhibit
thereto a copy of this Agreement, the Certificate, and any and all
documents provided to Xxxxxxxx pursuant to the Nondisclosure
Agreement.
(d) Beginning on the date hereof and for so long as Xxxxxxxx owns any
Investment Securities and for a period of ninety (90) days thereafter,
Euronet will promptly notify Xxxxxxxx immediately following any public
disclosure by Euronet of material information regarding Euronet or its
financial condition, prospects or results of operation.
(e) Euronet will make all filings required by law with respect to the
transactions contemplated hereby.
(f) For so long as Xxxxxxxx holds any Investment Securities, prior to the
filing of each of its quarterly reports on Form 10-Q and annual report
on Form 10-K with the SEC, Euronet shall deliver to Xxxxxxxx a review
report relating to the final consolidated unaudited or audited, as
applicable, financial statements contained therein, prepared by a
nationally recognized accounting firm.
(g) Euronet shall at all times have reserved for issuance four million,
forty-two thousand, eight hundred and eighty-nine (4,042,889) shares
of Common Stock, representing fourteen and ninety-nine one-hundredths
percent (14.99%) of the Original Number.
(h) Euronet shall use its commercially reasonable efforts to cause the
Common Shares to be eligible for book-entry transfer through The
Depository Trust Company (or any successor thereto) as soon as
practicable after the date of this Agreement and thereafter to use
commercially reasonable efforts to maintain such eligibility.
(i) Within five (5) Business Days of the date hereof, Euronet shall have
taken all necessary action such that the full exercise of Xxxxxxxx'x
rights under this Agreement and the Certificate (including, without
limitation, the full exercise of all of the Additional Investment
Rights and the acquisition of securities permitted pursuant to Section
10(e)(i) hereof) does not and will not result in the grant of any
20
rights to any Person under the Rights Agreement (other than the sale
of the preferred stock purchase rights attached to the Common Stock
sold hereunder and under the Additional Investment Rights) or enable,
require or cause the rights under the Rights Agreement to be
exercised, distributed or triggered.
(j) Euronet shall file an appropriate notification form for the listing of
additional shares with the Nasdaq for the listing and admission for
trading of all of the Common Shares no later than November 21, 2003.
Euronet shall use its best efforts to obtain approval of such
additional listing of shares with the Nasdaq as promptly as
practicable and, in the event that such approval shall not have been
obtained before December 8, 2003, Euronet shall deliver to Xxxxxxxx a
written report describing in reasonable detail Euronet's efforts to
obtain such approval. Upon receiving approval of such additional
listing of shares, Euronet shall promptly deliver written notice to
Xxxxxxxx stating the date and time of such approval and the name and
telephone number of the listing agent at Nasdaq who approved of the
additional listing.
9. Change in Control.
(a) If Euronet is a party to any transaction which results in a Change in
Control, Xxxxxxxx and its assigns shall have the rights set forth in
the Certificate regarding any Change in Control in addition to the
rights contained in this Agreement.
(b) Euronet agrees that it will not enter into an agreement with an
Acquiring Person resulting in a Change in Control unless such
agreement expressly obligates the Acquiring Person to assume all of
Euronet's obligations under this Agreement and the Certificate and,
promptly following the date an agreement is entered into with an
Acquiring Person that would result in a Change in Control, Euronet
shall deliver to Xxxxxxxx written notice that the Acquiring Person has
assumed such obligations and, upon request of Xxxxxxxx, the Acquiring
Person shall deliver to Xxxxxxxx a certificate of the chief executive
officer and chief financial officer of such Acquiring Person (which
certificate shall include as an attachment thereto certified copies of
the resolutions of such Acquiring Person's board of directors
approving such assumption) stating that the rights of Xxxxxxxx under
this Agreement and the Certificate (including the Additional
Investment Rights evidenced thereby) shall thereafter continue in full
force and effect and the terms hereof and thereof shall be applicable
to the securities which such Acquiring Person may be required to
deliver upon any exercise of the Additional Investment Rights or the
exercise of any of other rights pursuant to this Agreement or the
Certificate. Euronet shall provide Xxxxxxxx with written notice of any
proposed transaction resulting in a Change in Control as soon as the
existence of such proposed transaction is made public by any Person.
21
(c) "Change in Control" means (i) any acquisition of Euronet by means of
merger or other form of corporate reorganization in which outstanding
shares of capital stock of Euronet are exchanged for securities or
other consideration issued, or caused to be issued, by the Acquiring
Person (as hereinafter defined) or its Parent, Subsidiary or
affiliate, other than a restructuring by Euronet where outstanding
shares of Euronet are exchanged for shares of the Acquiring Person on
a one-for-one basis and, immediately following the exchange, former
stockholders of Euronet own all of the outstanding shares of the
Acquiring Person on the same pro rata basis as prior to the exchange,
(ii) a sale of all or substantially all of the assets of Euronet (on a
consolidated basis) in a single transaction or series of related
transactions, (iii) any other transaction or series of related
transactions by Euronet in which the power to cast the majority of the
eligible votes at a meeting of Euronet's stockholders at which
directors are elected is transferred to a single entity or group
acting in concert, or (iv) a capital reorganization or
reclassification of the capital stock of Euronet (other than a
reorganization or reclassification in which the capital stock of
Euronet is not converted into or exchanged for cash or other property,
and, immediately after consummation of such transaction, the
stockholders of Euronet immediately prior to such transaction own the
capital stock of Euronet in substantially the same proportions
relative to each other as such stockholders owned immediately prior to
such transaction). Notwithstanding anything contained herein to the
contrary, the change in the state of incorporation of Euronet shall
not by itself constitute a Change in Control.
(d) "Acquiring Person" means, in connection with any Change in Control,
(i) the continuing or surviving corporation of a consolidation or
merger with Euronet (if other than Euronet), (ii) the transferee of
all or substantially all of the properties or assets of Euronet, (iii)
the corporation consolidating with or merging into Euronet in a
consolidation or merger in connection with which the Common Stock is
changed into or exchanged for stock or other securities of any other
Person or cash or any other property, (iv) the entity or group acting
in concert acquiring or possessing the power to cast the majority of
the eligible votes at a meeting of Euronet's stockholders at which
directors are elected, or, (v) in the case of a capital reorganization
or reclassification, Euronet, or (vi) at Xxxxxxxx'x election, any
Person that (A) controls the Acquiring Person directly or indirectly
through one or more intermediaries, (B) is required to include the
Acquiring Person in the consolidated financial statements contained in
such Parent's Annual Report on Form 10-K (if such Person is required
to file such a report) or would be required to so include the
Acquiring Person in such Person's consolidated financial statements if
they were prepared in accordance with GAAP and (C) is not itself
included in the consolidated financial statements of any other Person
(other than its consolidated subsidiaries).
10. Covenants of Xxxxxxxx. Xxxxxxxx hereby covenants and agrees with Euronet
that:
22
(a) Neither Xxxxxxxx nor any of its affiliates will at any time offer or
sell any Investment Securities other than pursuant to an effective
registration statement under the Securities Act or pursuant to an
available exemption thereunder.
(b) Neither Xxxxxxxx nor any of its affiliates shall engage an underwriter
for an underwritten public offering of Common Shares, unless such
underwriter shall be reasonably satisfactory to Euronet.
(c) Neither Xxxxxxxx nor any of its affiliates shall engage in "short
sales" (as defined in Rule 3b-3 of the Exchange Act) of Common Stock
or of securities issued by Euronet that are directly or indirectly,
and with or without consideration, convertible, exercisable or
exchangeable into Common Stock. The provisions of this Section 10(c)
shall not be deemed to (i) prohibit Xxxxxxxx or any of its affiliates
from engaging in any transaction in any stock index, portfolio or
derivative of which the Common Stock is a component, or (ii) extend to
any non-affiliated third party, other than a Person (excluding, for
the avoidance of doubt, any bona fide pledgee or financing
counterparty who acquires the Additional Investment Rights upon a
default, foreclosure or similar event) who purchases the Additional
Investment Rights for value.
(d) Xxxxxxxx shall not issue a press release or other public media
announcement regarding the transactions contemplated hereby without
the prior written consent of Euronet (such consent not to be
unreasonably withheld or delayed); provided, that, such consent shall
not be required for limited distributions of materials that contain no
more information regarding the transactions contemplated hereby than
has been publicly disclosed by Euronet.
(e) Xxxxxxxx agrees that neither Xxxxxxxx nor any of its "affiliates" (as
such term is used in the rules of the SEC) will, directly or
indirectly, unless specifically authorized in advance by Euronet's
Board of Directors: (i) acquire, or agree, offer, seek or propose to
acquire, ownership or control of any voting securities of, Euronet or
any subsidiary thereof (other than (x) the Investment Securities
pursuant to this Agreement and the Certificate or (y) shares of Common
Stock acquired for investment purposes and not with the purpose or
effect of causing a Change in Control of Euronet, which, at the time
of acquisition, when combined with shares of Common Stock then
beneficially owned by Xxxxxxxx and its affiliates (as determined
pursuant to Rule 13d-3 under the Exchange Act, provided, that, for the
five (5) Business Days after and excluding the date hereof, the phrase
"within 60 days" contained in subsection (d)(1)(i) thereof shall be
disregarded) would not cause Xxxxxxxx and its affiliates to
beneficially own (as determined pursuant to Rule 13d-3 under the
Exchange Act, provided, that, for the five (5) Business Days after and
excluding the date hereof, the phrase "within 60 days" contained in
subsection (d)(1)(i) thereof shall be disregarded), in the aggregate,
over fourteen and ninety-nine one-hundredths percent (14.99%) of the
23
shares of Common Stock then outstanding), or any assets of Euronet or
any subsidiary or division thereof (other than in the ordinary course
of business) or enter into any merger or business combination with
Euronet; (ii) make any "solicitation" of "proxies" (as such terms are
used in the proxy rules of the SEC) to vote any voting securities of
Euronet or otherwise communicate with the stockholders of Euronet in
their capacities as stockholders, or otherwise seek or propose to
influence or control Euronet's respective management or policies;
(iii) make any public announcement with respect to, or submit a
proposal for or offer of, any extraordinary transaction involving
Euronet or its securities or assets; (iv) form, join or in any way
participate in a "group" (as defined in Section 13(d)(3) of the
Exchange Act) in connection with any of the foregoing; (v) otherwise
act, alone or in concert with others, to seek to control or influence
the management, Board of Directors or policies of Euronet; (vi)
disclose any intention, plan or arrangement inconsistent with the
foregoing; or (vii) advise, assist or encourage any other persons in
connection with the foregoing; provided, however, that nothing in this
Section 10(e) shall prohibit Xxxxxxxx from exercising, or otherwise
limit Xxxxxxxx'x ability to exercise, its rights as a stockholder of
Euronet (including, without limitation, the ability to vote at
stockholder meetings, tender into a tender or exchange offer, or
surrender their shares for consideration offered by any person to
stockholders of Euronet, generally, in connection with a Change in
Control) with respect to any transaction by Euronet or by a third
party that was not solicited by Xxxxxxxx.
11. Legend. Subject to Section 4, Xxxxxxxx understands that the certificates or
other instruments representing the Investment Securities shall bear a
restrictive legend in the following form (and a stop transfer order may be
placed against transfer of such certificates or other instruments):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED
UNLESS (1) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
COVERING SUCH SECURITIES, (2) THE SALE IS MADE IN ACCORDANCE WITH RULE 144
OR A BONA FIDE PLEDGE OR CUSTODIAL ARRANGEMENT WITH RESPECT TO SUCH
SECURITIES OR (3) AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY IS DELIVERED STATING THAT SUCH REGISTRATION IS NOT REQUIRED.
The legend set forth above shall be removed and Euronet shall issue a
certificate without such legend if, unless otherwise required by state
securities laws, the two-year holding period under Rule 144 or another
applicable exemption from the registration requirements under the
24
Securities Act has been satisfied and, at such time, Xxxxxxxx is not an
affiliate of Euronet and has not been an affiliate for the preceding three (3)
months. After such removal, Euronet shall take all actions necessary to permit
Xxxxxxxx or its representative to deposit such certificate, or cause such
certificate to be deposited, upon issuance with the custodian for The Depository
Trust Company ("DTC"), in New York, New York, and registered in the name of DTC
or its nominee, in each case for credit to an account designated in writing by
Xxxxxxxx.
12. Conditions Precedent to Xxxxxxxx'x Obligations. The obligations of Xxxxxxxx
hereunder are subject to the performance by Euronet of its obligations hereunder
and to the satisfaction of the following additional conditions precedent, unless
expressly waived in writing by Xxxxxxxx:
(a) On the Closing Date, (i) the representations and warranties made by
Euronet in this Agreement shall be true and correct, except those
representations and warranties which address matters only as of a
particular date, which representations and warranties shall be true
and correct as of such date; (ii) Euronet shall have complied fully
with all of the covenants and agreements in this Agreement; and (iii)
Xxxxxxxx shall have received a certificate of the Chief Executive
Officer and the Chief Financial Officer of Euronet dated such date and
to such effect.
(b) On the Closing Date, Euronet shall have delivered to Xxxxxxxx an
opinion of Hunton & Xxxxxxxx LLP reasonably satisfactory to Xxxxxxxx,
dated as of the Closing Date, substantially in the form attached
hereto as Annex C.
13. Conditions Precedent to Euronet's Obligations. The obligations of Euronet
hereunder are subject to the performance by Xxxxxxxx of its obligations
hereunder and to the satisfaction (unless expressly waived in writing by
Euronet) of the additional conditions precedent that, on the Closing Date: (i)
the representations and warranties made by Xxxxxxxx in this Agreement shall be
true and correct; (ii) Xxxxxxxx shall have complied fully with all the covenants
and agreements in this Agreement; and (iii) Euronet shall have received on such
date a certificate of an appropriate officer of Xxxxxxxx dated such date and to
such effect.
14. Fees and Expenses. Subject to Sections 15 and 16, each of Xxxxxxxx and
Euronet agrees to pay its own expenses incident to the performance of its
obligations hereunder, including, but not limited to the fees, expenses and
disbursements of such party's counsel, except as is otherwise expressly provided
in this Agreement.
15. Non-Performance.
(a) If Euronet shall fail to deliver the Investment Securities to Xxxxxxxx
required to be delivered pursuant to this Agreement in accordance with
the terms and conditions of this Agreement for any reason other than
the failure of any condition precedent to Euronet's obligations
hereunder or the failure by Xxxxxxxx to comply with its obligations
hereunder, then Euronet shall:
25
(i) indemnify and hold Xxxxxxxx harmless against any loss, claim or
damage arising from or as a result of such failure by Euronet;
and
(ii) reimburse Xxxxxxxx for all reasonable out-of-pocket expenses
incurred by Xxxxxxxx (including reasonable fees and disbursements
of its counsel) in connection with this Agreement and the
transactions contemplated herein and therein.
(b) If Xxxxxxxx shall fail to deliver the purchase price for the
Investment Securities to Euronet required to be delivered pursuant to
this Agreement and the Certificate in accordance with the terms and
conditions of this Agreement and the Certificate for any reason other
than the failure of any condition precedent to Xxxxxxxx'x obligations
hereunder or the failure by Euronet to comply with its obligations
hereunder, then Xxxxxxxx shall:
(i) indemnify and hold Euronet harmless against any loss, claim or
damage (including without limitation, incidental and
consequential damages) arising from or as a result of such
failure by Xxxxxxxx; and
(ii) reimburse Euronet for all reasonable out-of-pocket expenses
incurred by Euronet (including fees and disbursements of its
counsel) in connection with this Agreement and the transactions
contemplated herein and therein.
16. Indemnification.
(a) Indemnification of Xxxxxxxx. Euronet hereby agrees to indemnify
Xxxxxxxx and each of its officers, directors, employees, consultants,
agents, attorneys, accountants and affiliates and each Person that
controls (within the meaning of Section 20 of the Exchange Act) any of
the foregoing Persons (each a "Xxxxxxxx Indemnified Party") against
any claim, demand, action, liability, damages, loss, cost or expense
(including, without limitation, reasonable legal fees and expenses
incurred by such Xxxxxxxx Indemnified Party in investigating or
defending any such proceeding) (all of the foregoing, including
associated costs and expenses being referred to herein as a
"Proceeding"), that it may incur in connection with any of the
transactions contemplated hereby arising out of or based upon:
(i) any untrue or alleged untrue statement of a material fact in any
SEC Filing by Euronet or any of its affiliates or any Person
acting on its or their behalf or omission or alleged omission to
state therein any material fact necessary in order to make the
statements, in the light of the circumstances under which they
were made, not misleading by Euronet or any of its affiliates or
any Person acting on its or their behalf other than any untrue or
alleged untrue statement of a material fact or omission or
alleged omission to state therein any material fact, in any case,
resulting from any
26
information provided by Xxxxxxxx or any of its affiliates in
writing expressly for inclusion in such SEC Filing;
(ii) any of the representations or warranties made by Euronet herein
or in the Certificate being untrue or incorrect at the time such
representation or warranty was made; and
(iii) any breach or non-performance by Euronet of any of its
covenants, agreements or obligations under this Agreement or the
Certificate;
provided, however, that the foregoing indemnity shall not apply to any
Proceeding to the extent that it arises out of or is based upon the gross
negligence, bad faith or willful misconduct of Xxxxxxxx in connection
therewith.
(b) Indemnification of Euronet. Xxxxxxxx hereby agrees to indemnify
Euronet and each of its officers, directors, employees, consultants,
agents attorneys, accountants and affiliates and each Person that
controls (within the meaning of Section 20 of the Exchange Act) any of
the foregoing Persons (each a "Euronet Indemnified Party") against any
Proceeding, that it may incur in connection with any of the
transactions contemplated hereby arising out of or based upon:
(i) any untrue or alleged untrue statement of a material fact by
Xxxxxxxx or any of its affiliates or any Person acting on its or
their behalf included in an SEC Filing by Euronet with the
express written consent of Xxxxxxxx therefor; or any omission or
alleged omission by Xxxxxxxx to state any material fact necessary
in order to make the statements by Xxxxxxxx or any of its
affiliates or any Person acting on its or their behalf included
in an SEC Filing by Euronet with the express written consent of
Xxxxxxxx, in the light of the circumstances under which they were
made, not misleading;
(ii) any of the representations or warranties made by Xxxxxxxx herein
being untrue or incorrect at the time such representation or
warranty was made; and
(iii) any breach or non-performance by Xxxxxxxx of any of its
covenants, agreements or obligations under this Agreement;
provided, however, that the foregoing indemnity shall not apply to any
Proceeding to the extent that it arises out of or is based upon the gross
negligence, bad faith or willful misconduct of Euronet in connection
therewith.
(c) Conduct of Claims.
27
(i) Whenever a claim for indemnification shall arise under this
Section 16 arising out of a third party claim, the party seeking
indemnification (the "Indemnified Party"), shall notify the party
from whom such indemnification is sought (the "Indemnifying
Party") in writing of the Proceeding and the facts constituting
the basis for such claim in reasonable detail;
(ii) Such Indemnifying Party shall have the right to retain the
counsel of its choice in connection with such Proceeding and to
participate at its own expense in the defense of any such
Proceeding; provided, however, that counsel to the Indemnifying
Party shall not (except with the consent of the relevant
Indemnified Party) also be counsel to such Indemnified Party. In
no event shall the Indemnifying Party be liable for fees and
expenses of more than one counsel (in addition to any local
counsel) separate from its own counsel for all Indemnified
Parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the
same general allegations or circumstances; and
(iii) No Indemnifying Party shall, without the prior written consent
of the Indemnified Parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of
which indemnification could be sought under this Section unless
such settlement, compromise or consent (A) includes an
unconditional release of each Indemnified Party from all
liability arising out of such litigation, investigation,
proceeding or claim and (B) does not include a statement as to or
an admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Party.
17. Survival of the Representations, Warranties, etc. The respective
representations, warranties, and agreements made herein by or on behalf of the
parties hereto shall remain in full force and effect, regardless of any
investigation made by or on behalf of the other party to this Agreement or any
officer, director or employee of, or Person controlling or under common control
with, such party and will survive delivery of and payment for any Investment
Securities issuable hereunder.
18. Notices. All communications hereunder shall be in writing and delivered as
set forth below.
(a) If sent to Xxxxxxxx, all communications shall be delivered by hand,
sent by reputable overnight courier or transmitted and confirmed by
facsimile to Xxxxxxxx, unless otherwise notified in writing of a
substitute address, at:
28
Xxxxxxxx International, Ltd.
c/o A. S. & K. Services Ltd.
Xxxxx Xxxxx
00 Xxxxx Xxxxx
Xxxxxxxx XX XX
Bermuda
Attention: Xxxxxxxx Xxxxxx, Corporate Administrator
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Xxxxxxxx Asset Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to (which copy shall not constitute notice):
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If sent to Euronet, all communications shall be delivered by hand,
sent by reputable overnight courier or transmitted and confirmed by
facsimile to Euronet, unless otherwise notified in writing of a
substitute address, at:
Euronet Worldwide, Inc.
000 Xxxxxx Xxxxxxx xx Xxxxxx
00000 Xxxxxxx-xxx-Xxxxx
Xxxxxx
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: 00 000 000 000
Facsimile: 331 4722 3282
with a copy to (which copy shall not constitute notice):
29
Hunton & Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxx
Xxxxx 0000, Xxxxxx Xxxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the extent that any funds shall be delivered to Euronet by wire
transfer, unless otherwise instructed by Euronet, such funds should be
delivered in accordance with the following wire instructions:
Euronet Worldwide, Inc.
Bank of America
Little Rock, AR
ABA Number: 082 000 073
SWIFT: BOFAUS3N
Account Number: 000 000 0000
19. Miscellaneous.
(a) The parties may execute and deliver this Agreement as a single
document or in any number of counterparts, manually, by facsimile or
by other electronic means, including contemporaneous xerographic or
electronic reproduction by each party's respective attorneys. Each
counterpart shall be an original, but a single document or all
counterparts together shall constitute one instrument that shall be
the agreement.
(b) This Agreement shall inure to the benefit of and be binding upon the
parties hereto, their respective successors and assigns and, with
respect to Section 16 hereof, shall inure to the benefit of their
respective officers, directors, employees, consultants, agents,
attorneys, accountants and affiliates and controlling Persons, and no
other Person shall have any right or obligation hereunder. Euronet may
not assign this Agreement. Notwithstanding anything to the contrary in
this Agreement, Xxxxxxxx may assign, pledge, hypothecate or transfer
any of the rights and associated obligations contemplated by this
Agreement (including, but not limited to, the Investment Securities),
in whole or in part, at its sole discretion (including, but not
limited to, assignments, pledges, hypothecations and transfers in
connection with hedging transactions with respect to this Agreement
and the Investment Securities); provided, however, that any such
assignment, pledge, hypothecation or transfer must comply with
applicable federal and state securities
30
laws; provided, further, that any such assignment, pledge,
hypothecation or transfer shall not relieve Xxxxxxxx of any of its
obligations under this Agreement. No Person acquiring Common Stock
from Xxxxxxxx pursuant to a public market purchase shall thereby
obtain any of the rights contained in this Agreement. This Agreement
constitutes the entire agreement and supersedes all prior agreements
and understandings, both written and oral, between the parties hereto
with respect to the subject matter of this Agreement. Except as
provided in this Section 19(b), this Agreement is not intended to
confer upon any Person other than the parties hereto any rights or
remedies hereunder.
(c) This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of New York (including Sections 5-1401
and 5-1402 of the New York General Obligations Law), and each of the
parties hereto hereby submits to the non-exclusive jurisdiction of any
state or federal court in the Southern District of New York and any
court hearing any appeal therefrom, over any suit, action or
proceeding against it arising out of or based upon this Agreement (a
"Related Proceeding"). Each of the parties hereto hereby waives any
objection to any Related Proceeding in such courts whether on the
grounds of venue, residence or domicile or on the ground that the
Related Proceeding has been brought in an inconvenient forum.
(d) Each party represents and acknowledges that, in the negotiation and
drafting of this Agreement and the other instruments and documents
required or contemplated hereby, it has been represented by and relied
upon the advice of counsel of its choice. Each party hereby affirms
that its counsel has had a substantial role in the drafting and
negotiation of this Agreement and such other instruments and
documents. Therefore, each party agrees that no rule of construction
to the effect that any ambiguities are to be resolved against the
drafter shall be employed in the interpretation of this Agreement and
such other instruments and documents.
(e) Without prejudice to other rights or remedies hereunder (including any
specified interest rate), and except as otherwise expressly set forth
herein, interest shall be due on any amount that is due pursuant to
this Agreement and has not been paid when due, calculated for the
period from and including the due date to but excluding the date on
which such amount is paid at the prime rate of U.S. money center banks
as published in The Wall Street Journal (or if The Wall Street Journal
does not exist or publish such information, then the average of the
prime rates of three U.S. money center banks agreed to by the parties)
plus two percent (2%).
(f) Xxxxxxxx and Euronet stipulate that the remedies at law of the parties
hereto in the event of any default or threatened default by the either
party in the performance of or compliance with any of the terms of
this Agreement and the Certificate are not
31
and will not be adequate and that, to the fullest extent permitted by
law, such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an
injunction against a violation of any of the terms hereof or
otherwise.
(g) Any and all remedies set forth in this Agreement and the Certificate:
(i) shall be in addition to any and all other remedies Xxxxxxxx or
Euronet may have at law or in equity, (ii) shall be cumulative, and
(iii) may be pursued successively or concurrently as each of Xxxxxxxx
and Euronet may elect. The exercise of any remedy by Xxxxxxxx or
Euronet shall not be deemed an election of remedies or preclude
Xxxxxxxx or Euronet, respectively, from exercising any other remedies
in the future.
(h) Euronet agrees that the parties have negotiated in good faith and at
arms' length concerning the transactions contemplated herein, and that
Xxxxxxxx would not have agreed to the terms of this Agreement without
each and every of the terms, conditions, protections and remedies
provided herein and in the Certificate. Except as specifically
provided otherwise in this Agreement or in the Certificate, Euronet's
obligations to indemnify and hold Xxxxxxxx harmless in accordance with
Section 16 of this Agreement are obligations of Euronet that Euronet
promises to pay to Xxxxxxxx when and if they become due. Euronet shall
record any such obligations on its books and records in accordance
with GAAP.
(i) This Agreement may be amended, modified or supplemented in any and all
respects, but only by a written instrument signed by Xxxxxxxx and
Euronet expressly stating that such instrument is intended to amend,
modify or supplement this Agreement.
(j) Each of the parties will cooperate with the others and use its best
efforts to prepare all necessary documentation, to effect all
necessary filings, and to obtain all necessary permits, consents,
approvals and authorizations of all governmental bodies and other
third-parties necessary to consummate the transactions contemplated by
this Agreement.
(k) For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires: (i) the terms defined in
this Agreement have the meanings assigned to them in this Agreement
and include the plural as well as the singular, and the use of any
gender herein shall be deemed to include the other gender and neuter
gender of such term; (ii) accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with GAAP;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document
are to designated Articles, Sections, Subsections, Paragraphs and
other subdivisions of this Agreement, unless the context shall
otherwise require; (iv) a reference to a Subsection without
32
further reference to a Section is a reference to such Subsection as
contained in the same Section in which the reference appears, and this
rule shall also apply to Paragraphs and other subdivisions; (v) the
words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
provision; (vi) the term "include" or "including" shall mean without
limitation; (vii) the table of contents to this Agreement and all
section titles or captions contained in this Agreement or in any
Schedule or Exhibit annexed hereto or referred to herein are for
convenience only and shall not be deemed a part of this Agreement and
shall not affect the meaning or interpretation of this Agreement;
(viii) any agreement, instrument or statute defined or referred to
herein means such agreement, instrument or statute as from time to
time amended, modified or supplemented, including (in the case of
agreements or instruments) by waiver or consent and (in the case of
statutes) by succession of comparable successor statues and references
to all attachments thereto and instruments incorporated therein; and
(ix) references to a Person are also to its permitted successors and
assigns and, in the case of an individual, to his or her heirs and
estate, as applicable.
(l) If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule of law or public policy all
other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. If the final judgment of a court of
competent jurisdiction or other authority declares that any term or
provision hereof is invalid, void or unenforceable, the parties agree
that the court making such determination shall have the power to
reduce the scope, duration, area or applicability of the term or
provision, to delete specific words or phrases, or to replace any
invalid, void or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or
provision. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent
possible.
(m) Time shall be of the essence in this Agreement.
(n) All dollar ($) amounts set forth herein or in the Certificate refer to
United States dollars. All payments hereunder and thereunder will be
made in lawful currency of the United States of America.
(o) Notwithstanding anything herein to the contrary, all measurements and
references related to share prices and share numbers herein will be,
in each instance,
33
appropriately adjusted for stock splits, recombinations, stock
dividends and the like.
[SIGNATURE PAGE FOLLOWS]
34
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, all as of the day and year first above written.
EURONET WORLDWIDE, INC.
By:
--------------------------------
Name:
Title:
XXXXXXXX INTERNATIONAL, LTD., by its
duly authorized investment advisor,
XXXXXXXX ASSET MANAGEMENT, INC.
By:
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
By:
--------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Authorized Signatory
35
