DATED 9th August 2012
DATED | 9th August | 2012 |
(1) XXXXX XXXXXXXX AND OTHERS
- and -
(2) VELTI PLC
DEED relating to the variation of an agreement dated 14 November 2011 in relation to the sale and purchase of the entire issued share capital of Mobile Interactive Group Limited | ||
CONTENTS
THIS DEED is made on 9 August, 2012
BETWEEN:
(1) | XXXXX XXXXXXXX AND OTHERS as listed in schedule 2 ("Vendors"); and |
(2) | VELTI PLC, a company incorporated and registered in Jersey with number 103899 which has its registered office at 00 Xxxxxxxxx Xxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX ("Purchaser"). |
BACKGROUND:
A | The parties entered into an agreement for the sale and purchase of the entire issued share capital of Mobile Interactive Group Limited on 14 November 2011 ("Original Agreement"). |
B | The parties have now agreed to vary the terms of the Original Agreement as set out below. |
C | The Vendor's Representative is authorised, pursuant to clause 19 of the Original Agreement, to execute this agreement on behalf of all the Vendors. |
IT IS AGREED as follows:
1. | DEFINITIONS AND INTERPRETATION |
1.1 | In this agreement: |
1.1.1 | unless otherwise defined in this agreement, words and expressions defined in the Original Agreement shall apply to this agreement; and |
1.1.2 | (unless the context otherwise requires) any reference to legislation or a legislative provision includes reference to the legislation or legislative provision as amended or re‑enacted from time to time (whether before or after the date of this agreement) and any prior or subsequent subordinate legislation made under it which is in force from time to time (except to the extent that any amendment, re‑enactment or subordinate legislation made after the date of this agreement would increase or extend the liability of any party under the Original Agreement save as expressly varied in this agreement). |
1.2 | This agreement incorporates the schedules to it. |
2. | VARIATION |
The parties agree and declare that, with effect from the date of this agreement, the Original Agreement is varied as follows:
2.1 | by deleting the definition of "Final DC Payment Date" and replacing it with: |
""Final DC Payment Date" means 31 March 2013 or (if the Purchaser and the Vendors’ Representative agree in writing) 31 January 2013;";
2.2 | by deleting part 2 of schedule 9 in its entirety and replacing it with the words “Intentionally blank”; |
1
2.3 | by deleting paragraph 2 of part 3 of schedule 9 in its entirety and replacing it with the words “Intentionally blank”; |
2.4 | by deleting schedule 10 in its entirety and replacing it with schedule 10 as it appears in schedule 1 to this agreement; and |
2.5 | by deleting the words “part 2 of” before the words “schedule 10” in schedule 1 and paragraph 9.6 of part 4 of schedule 5. |
3. | CONFIRMATION |
3.1 | The parties agree and declare that the Original Agreement shall continue in full force and effect as supplemented, amended, deleted or varied by this agreement. |
3.2 | No variation of this agreement will be valid unless it is in writing and signed by or on behalf of the Purchaser and the Vendors’ Representative. |
4. | SEVERANCE |
4.1 | If any provision of this agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that shall not affect or impair: |
4.1.1 | the legality, validity or enforceability in that jurisdiction of any other provision of this agreement; or |
4.1.2 | the legality, validity or enforceability under the Law of any other jurisdiction of that or any other provision of this agreement. |
4.2 | If any illegal, invalid or unenforceable provision of this agreement would be legal, valid or enforceable if some part or parts of it were deleted, such provision shall apply with the minimum deletion(s) necessary to make it legal, valid or enforceable. |
5. | CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000 |
5.1 | Subject to clause 5.2, a person who is not a party to this agreement will have no right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act. |
5.2 | The parties agree that each of the Vendors shall be entitled to rely upon and enforce all of the rights and benefits under this agreement at all times as if party to this agreement |
6. | COUNTERPARTS |
6.1 | This agreement may be executed in any number of counterparts, and by the Purchaser and the Vendors’ Representative on separate counterparts, but shall not be effective until each such party has executed at least one counterpart. |
6.2 | Each counterpart shall constitute an original of this agreement, but all the counterparts shall together constitute one and the same agreement. |
2
7. | GOVERNING LAW AND JURISDICTION |
7.1 | This agreement and any disputes or claim arising out of this agreement ("Disputes") are governed by and shall be construed in accordance with English Law. |
7.2 | Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any Dispute. |
7.3 | Each party irrevocably agrees that the courts of England and Wales are the most appropriate and convenient courts to settle Disputes and, accordingly, no party will argue to the contrary. Further, each party irrevocably agrees that a judgment in any legal action or proceedings brought in the courts of England and Wales in relation to a Dispute shall be conclusive and binding on the parties and may be enforced in the courts of any other jurisdiction. |
3
SCHEDULE 1:
SCHEDULE 10: CONTINGENT EARN OUT CONSIDERATION
Definition:
"Accounting Requirements" means generally accepted accounting principles in the United States of America as promulgated by the Financial Accounting Standards Board.
1. | The Contingent Payment shall be $28,000,000. |
2. | The Vendors shall be entitled to Contingent Earn Out Consideration in an amount equal to the Contingent Payment less the Management Bonus. The Management Bonus shall be $2,000,000 and the Contingent Earn Out Consideration shall be $26,000,000. |
3. | Intentionally blank. |
4. | $14,500,000 shall be satisfied on the Contingent Earn Out Consideration Payment Date by the issue of Loan Notes in the CC Relevant Percentages to all of the Vendors save for Xxxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxx Xxxxx, Xxxxxx Xxxxxx, X X Xxxxxx Family Settlement, Veritas Trust Foundation and GMS Fund One, LLC, whose entitlements to such part of the Contingent Earn Out Consideration shall be satisfied by the payment in cash (rather than Loan Notes) by the Purchaser into the Nominated Account on behalf of those Vendors. |
5. | Subject to paragraph 8, the balance of the Contingent Earn Out Consideration (being $11,500,000) shall be satisfied by the issue and allotment to the Vendors on the Contingent Earn Out Consideration Payment Date of the Contingent Earn Out Consideration Shares in the CC Relevant Percentages, credited as fully paid. |
6. | If the Contingent Earn Out Consideration Shares are payable and the Purchaser elects to satisfy all or part of such payment by way of the issue and allotment of shares, then the aggregate number of Contingent Earn Out Consideration Shares to be issued shall be equal to X/Y where X is the amount of the Contingent Earn Out Consideration due to be satisfied by the issue of the Contingent Earn Out Consideration Shares which the Purchaser elects not to satisfy by the issue of Loan Notes (or payment in cash) and Y is the average closing price of the Purchaser's ordinary share, as derived from NASDAQ for the 20 Business Days prior to the Final DC Payment Date. |
7. | The Contingent Earn Out Consideration shall be paid within 10 calendar days of the Final DC Payment Date. |
8. | The Purchaser shall be entitled to serve notice on the Vendors’ Representative at any time prior to the Contingent Earn Out Consideration Payment Date indicating that it wishes to satisfy that all or any part of the part of the Contingent Earn Out Consideration which is to be satisfied by the issue of Contingent Earn Out Consideration Shares by the issue of Loan Notes and payment of cash (as set out below), whereupon paragraph 5 shall be read as if some or all of the part of the Contingent Earn Out Consideration which is to be satisfied by the issue of Contingent Earn Out Consideration Shares (as set out in the Purchaser’s notice) were to be satisfied by the issue of Loan Notes in the CC Relevant Percentage to all of the Vendors save for Xxxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxx Xxxxx, Xxxxxx Xxxxxx, X X Xxxxxx Family Settlement, Veritas Trust Foundation and GMS Zukin Fund One, LLC, whose entitlements to such Contingent |
4
Earn Out Consideration shall be satisfied by the payment in cash (rather than Loan Notes) by the Purchaser into the Nominated Account on behalf of those Vendors, with the balance of such amount being satisfied by the issue, in the CC Relevant Percentages, of Contingent Earn Out Consideration Shares, credited as fully paid.
9. | The Purchaser shall instruct its registrars to update the register of members to reflect the issue and allotment of any Consideration Shares pursuant to paragraphs 5 and 8 above and update the register of loan note holders to reflect the issue of any Loan Notes pursuant to paragraphs 4 and 8, in each case within 10 Business Days of the Contingent Earn Out Consideration Payment Date. |
10. | The Purchaser covenants with the Vendors to procure that the Management Bonus shall be paid in cash, net of the adjustment in paragraph 11 below, by the Company (or, failing the Company, shall either procure that another Group Company shall pay or shall itself pay) to managers of the Company as directed by the Vendors’ Representative. For the avoidance of doubt, the parties agree and acknowledge that the Vendors have a legitimate interest in sharing Confidential Information with the Vendors' Representative in order for the Vendors' Representative to agree the allocation of the Management Bonus and accordingly agree that the provisions of clauses 10 and 7.5 shall not apply to the disclosure of Confidential Information (if any) in such circumstances. |
11. | The Management Bonus shall be reduced by an amount computed in accordance with the following formula: |
(Applicable rate of employer’s NICs / (100 + applicable rate of employer’s NICs)) x Management Bonus;
(the resulting net amount being the "Payable Management Bonus"). The Purchaser shall procure that the Company pays the Payable Management Bonus to the managers in accordance with paragraph 10 above subject only to deduction for PAYE and employee’s national insurance contributions, as applicable to each manager.
12. | The Payable Management Bonus shall be paid on the same day that the Contingent Earn Out Consideration is paid or, if the Purchaser and the Vendors’ Representative agree in writing, on the nearest salary payment date. |
5
SCHEDULE 2: THE VENDORS
Name | Address |
Xxxxxxx Xxxxxx | 00 Xxxxxx Xxxx, Xxxx XX0 0XX |
Xxxxx Xxxxxxxx | Xxxx 0, 0 Xxxxxxxxx Xxxx, Xxxxxxxx XX0 0XX |
Xxx Xxxxxx | 00 Xxxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx, Xxxxxx XX0 0XX |
Cressida Grant | Flat 7, 156‑000 Xxxxxxxxxx Xxxxxx X0 0XX |
Xxxxx Xxxxxx | 00 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxx XX0 0XX |
Xxxxxxx Xxxxxx | 0 Xxxxxx Xxxxxx, Xxxxxxx, Xxxx XX0 0XX |
GMS ZUKIN FUND ONE LLC | FAO Xxx Xxxxx, 000 X Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000 XXX |
Xxxxxx Xxxxxx | 00 Xxxxxxxxxx Xxxx, Xxxxxxxxx xxxx Xxxx, Xxxxxxxxxxxx XX00 0XX |
Xxxxx Xxxxxxx | 0 Xxxxx Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxx, Xxxxxx XX00 0XX |
Xxxxxx Xxxx | 00 Xxxxxxxxxx Xxxx, Xxxxxx X0 0XX |
Xxxxx Xxxxxx | 0 Xxxxxx Xxxxxx, Xxxxxxx, Xxxx XX0 0XX |
Xxxxxx Man | 00 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx XX0 0XX |
Xxxx Xxxxxxx | 00 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx XX00 0XX |
Xxxx Xxxxxxxx | 00 Xxxxxx Xxxx, Xxxxx, Xxxx XX00 0XX |
Xxxx Xxxxx Xxxxxxxx | 00 Xxxxxxx Xxxxxxxxx, Xxxxxx XX0 0XX |
Xxxxxxx Trust Foundation | x/x Xxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxx, Xxxx Xxxxxx |
Xxxxxxx Xxxx | 00 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx X0 0XX |
Xxxxxxx Xxxxxxx | 00 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxx XX0 0XX |
Xxxxxx Xxxxx | 0 Xxxxxxxxxx Xxxxx, Xxxxxxx XX0 0XX |
Xxxxx Xxxxxx | 00 Xxxxx Xxxxx, Xxxxxx X0 0XX |
X X Xxxxxx Family Settlement 2002 | 00 Xxxxx Xxxxx, Xxxxxx X0 0XX |
6
Name | Address |
Xxxxx Xxxxx | 0 Xxxxxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxx XX0 0XX |
Xxxxx Xxxx | 0 Xxxxxxx Xxxxx, Xxxxxx XX0 0XX |
Xxx Xxxx | 00 Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxxxxx XX0 0XX |
Xxxxxxx Xxxxxxx | Top Xxxx, 00 Xxxxx Xxxxxx Xxxxx, Xxxxxx XX0 0XX |
Tra An Oileain Management Consultants Limited | 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx XX00 0XX |
Xxxxx Xxxxxxx | 00 Xxxx Xxxx, Xxxxxxx XX00 0XX |
Xxxx Xxxx | 00 Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxx XX0 0XX |
Xxxxxx Xxxxxxx | Xxxx 0, 0 Xxxxx Xxxx, Xxxxxxxxx Xxxxx, Xxxx XX0 0XX |
Xxxx Xxxxxx | Xx 0 Xxxxxxx Xxxx, Xxxxxx XX00 0XX |
Xxxx Xxxxxx | 0 Xxxxx Xxxxxx, Xxxxxx XX0 0XX |
Xxxxx Xxxxxx | 00 Xxxxxxx Xxxx, Xxxxxxxx XX0 0XX |
Xxxxx Xxxxxxxxxx | 000 Xxxxxxxx Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxx X0 0XX |
Xxxxx Xxxxxxx | Xxxx 0, Xxxxxxxxxxx Xxxxx, Xxxxxxxxxxx Xxxx, Xxxxxxxxx XX00 0XX |
Xxxxx Xxxxx | 00 Xxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxx XX00 0XX |
Xxxxx Xxxxx | 00 Xxxxxxxx Xxxx, Xxxxxx XX00 0XX |
Xxxxxx Xxxxxxx | Xxxx 00, 0 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx X0 0XX |
Xxxx Xxxxxxx | 00 Xxxx Xxxx, Xxxxxxxx, Xxxxxx XX00 0XX |
Xxxx Xxxxxxx | 00x Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx XX00 0XX |
Xxxxxx Xxxxxx | 00 Xxxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxx XX0 0XX |
Xxxxxxxx Xxxxxxx | Xxxx 0, Xxxxxxxxxxx Xxxxx, Xxxxxxxxxxx Xxxx, Xxxxxxxxx XX00 0XX |
Will Pickersgill | 00 Xxxxxxx Xxxxx, Xxx, Xxxxxxxxxxxxxx XX0 0XX |
Xxxxxx Xxxxx | 0 Xxxxxxxxxx Xxxxx, Xxxxxxx XX0 0XX |
Xxxxx Xxxxx | Apt 3, 29 Stepping Stones, East Morton, Keighley, Xxxxxxxx XX00 0XX |
7
Name | Address |
Xxxx Xxxxxxxxxx | 00 Xxxxxxxxx Xxxx, Xxxxxx X0 0XX |
Xxxx Xxxxx | Xxxx 0, Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxx XX0 0XX |
Xxxxxx Xxxxxxxx | 00x Xxxxxxxxxxx Xxxxxxxx, Xxxxxxxxxxx XX0 0XX |
8
9
