1
EXHIBIT 2.1
SHARE PURCHASE AGREEMENT
BY AND AMONG
S1 EUROPE HOLDINGS N.V.
(A BELGIAN CORPORATION IN THE PROCESS OF INCORPORATION, REPRESENTED BY
SECURITY FIRST TECHNOLOGIES CORPORATION)
AND
THE STOCKHOLDERS OF FICS GROUP N.V.,
AND FOR THE LIMITED PURPOSES STATED HEREIN
SECURITY FIRST TECHNOLOGIES CORPORATION
AND
FICS GROUP N.V.
DATED AS OF
MAY 16, 1999
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I THE TRANSACTION................................................. 1
1.1. The Transaction.................................................. 1
1.2. Closing.......................................................... 1
1.3. Purchase Amount.................................................. 2
1.4. FICS Securities Transfers........................................ 2
1.5. Deliveries at Closing............................................ 3
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE SELLERS.................. 5
2.1. Organization of Sellers.......................................... 5
2.2. Authorization of Transaction..................................... 6
2.3. Noncontravention................................................. 6
2.4. Broker's Fees.................................................... 7
2.5. FICS Securities.................................................. 7
2.6. Absence of Bankruptcy Proceedings................................ 7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF FICS AND SELLERS............ 7
3.1. Corporate Organization........................................... 8
3.2. Capitalization................................................... 8
3.3. Authority; No Violation.......................................... 9
3.4. Consents and Approvals........................................... 10
3.5. Financial Statements; Books and Records.......................... 10
3.6. Broker's Fees.................................................... 11
3.7. Absence of Certain Changes or Events............................. 11
3.8. Legal Proceedings................................................ 12
3.9. Taxes and Tax Returns............................................ 12
3.10. Employee Plans.................................................. 14
3.11. Employees....................................................... 15
3.12. Certain Contracts............................................... 15
3.13. Environmental Matters........................................... 16
3.14. Properties and Assets........................................... 17
3.15. Insurance....................................................... 18
3.16. Compliance with Applicable Laws................................. 18
3.17. FICS Information................................................ 18
3.18. Intellectual Property........................................... 19
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF S1
HOLDINGS AND S1....................................................... 22
4.1. Corporate Organization........................................... 22
4.2. Authority; No Violation.......................................... 23
4.3. Consents and Approvals........................................... 24
ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS....................... 25
5.1. Covenants relating to FICS....................................... 25
-i-
3
5.2. Covenants of Sellers............................................. 27
5.3. Covenants of S1.................................................. 28
5.4. Compliance with Antitrust Laws................................... 28
ARTICLE VI ADDITIONAL AGREEMENTS.......................................... 29
6.1. Regulatory Matters............................................... 29
6.2. Access to Information............................................ 30
6.3. Shareholder Meeting.............................................. 31
6.4. Reserved......................................................... 31
6.5. FICS Year 2000 Officer........................................... 31
6.6. Subsequent Interim Financial Statements.......................... 31
6.7. Advice of Changes................................................ 32
6.8. Current Information.............................................. 32
6.9. Transaction Expenses of FICS..................................... 33
ARTICLE VII CONDITIONS PRECEDENT.......................................... 33
7.1. Conditions to Each Party's Obligation To Effect the
Transaction.................................................... 33
7.2. Conditions to Obligations of S1 Holdings......................... 34
7.3. Conditions to Obligations of the Sellers......................... 35
ARTICLE VIII TERMINATION AND AMENDMENT.................................... 37
8.1. Termination...................................................... 37
8.2. Effect of Termination............................................ 38
8.3. Amendment........................................................ 38
8.4. Extension; Waiver................................................ 39
ARTICLE IX GENERAL PROVISIONS............................................. 39
9.1. Expenses......................................................... 39
9.2. Notices.......................................................... 39
9.3. Interpretation................................................... 41
9.4. Counterparts..................................................... 41
9.5. Entire Agreement................................................. 41
9.6. Governing Law.................................................... 41
9.7. Enforcement of Agreement......................................... 41
9.8. Severability..................................................... 42
9.9. Publicity........................................................ 42
9.10. Assignment; Limitation of Benefits.............................. 42
9.11. Additional Definitions.......................................... 42
ARTICLE X INDEMNIFICATION................................................. 43
10.1. Survival........................................................ 43
10.2. Indemnification of the Sellers.................................. 43
10.3. Akkermans Indemnification....................................... 44
10.4. Pledge Agreement................................................ 45
10.5. Claim for Indemnification....................................... 45
10.6. Third Party Claims.............................................. 45
10.7. Cumulative Remedies............................................. 46
10.8. Release of Claims............................................... 46
4
PAGE
----
EXHIBITS
A. Form of Pledge Agreement
B. Form of S1 Stockholder Agreement
SCHEDULES
A. Schedule of holders of all FICS Capital Stock and Securities Convertible
into FICS Capital Stock
5
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT, dated as of May 16, 1999 (this
"Agreement"), is entered into by and among S1 Europe Holdings N.V., a Belgian
corporation ("S1 Holdings") in the process of incorporation, represented
pursuant to Article 13 bis of the Belgian company law by Security First
Technologies Corporation, a Delaware corporation ("S1"), each of the
stockholders and bondholders of FICS Group N.V., a Belgian corporation ("FICS"),
listed on the signature page to this Agreement (individually, a "Seller," and
collectively, the "Sellers"), and for the limited purposes stated herein, S1 and
FICS.
WHEREAS, the Sellers collectively own all of the issued and outstanding
capital stock of FICS (the "FICS Capital Stock"), and all of the issued and
outstanding securities otherwise convertible into capital stock of FICS (the
"FICS Stock Equivalents," and together with FICS Capital Stock, the "FICS
Securities"), in the name and the amounts set forth on Schedule A; and
WHEREAS, S1 Holdings, through its representative S1, and each of the
Sellers have determined that it is in their best interests to consummate the
transaction provided for herein in which, subject to the terms and conditions
set forth herein, S1 Holdings will acquire all of the issued and outstanding
FICS Securities in exchange for the Transaction Consideration as defined in
Section 1.3 hereunder;
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained herein, and intending to be legally bound
hereby, the parties agree as follows:
ARTICLE I
THE TRANSACTION
1.1. THE TRANSACTION.
At the Closing (as defined below at Section 1.2), and subject to the terms
and conditions of this Agreement, the Sellers hereby agree to sell to S1
Holdings, and S1 Holdings hereby agrees to purchase from the Sellers, the FICS
Securities (the "Transaction").
1.2. CLOSING.
Subject to the terms and conditions of this Agreement, the closing of the
Transaction (the "Closing") will take place at 10:00 a.m. at the offices of
Xxxxx & Xxxxxxx L.L.P., 000 Xxxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX and, as to the
recordation of change of ownership of the FICS Capital Stock, at the offices of
Xxxxx & Xxxxxxx L.L.P., Xxxxxx xxx Xxxx 00, 0000 Xxxxxxxx, Xxxxxxx, on (i) the
fifth
6
business day after the latest to occur of (x) the date the last of any required
governmental or regulatory approvals is received and all applicable statutory or
regulatory waiting periods have expired or been terminated, and (y) the date on
which the approval of S1's stockholders is obtained, or (ii) such other date,
place and time as the parties may mutually agree (the "Closing Date").
Notwithstanding the foregoing, any of Akkermans, General Atlantic Partners 20,
L.P., GAP Coinvestment Partners, L.P., General Atlantic Partners 52, L.P., or
GIMV N.V. (together the "Majority Sellers"), acting together, or S1 Holdings,
may extend the Closing Date by up to 90 days (but not later than March 31, 2000)
if, in the case of S1 Holdings, any of the conditions set forth at Sections 7.1
and 7.2 are not met as of the date which would otherwise be the Closing Date
under the preceding sentence, and, in the case of the Majority Sellers, if any
of the conditions set forth at Sections 7.1 and 7.3 are not met as of the date
which would otherwise be the Closing Date under the preceding sentence.
1.3. PURCHASE AMOUNT.
(a) At the Closing and subject to the terms and conditions of this
Agreement, S1 Holdings hereby agrees to purchase the FICS Securities for an
aggregate purchase price (the "Transaction Consideration") of the lower of
either (i) $1,080,000,000 or (ii) the product of (x) the stock price, as quoted
on the Nasdaq Stock Market or such other national exchange on which the common
stock of S1, par value $.01 per share ("S1 Common Stock"), as of the close of
business on the third business day prior to the Closing Date is then traded, of
a share of S1 Common Stock at the close of business on the date which is three
business days prior to the Closing Date (the "Closing Market Price") multiplied
by (y) 20,000,000 (after adjustment for any stock splits, combinations or
dividends or distributions in the S1 Common Stock between the date of this
Agreement and the date three business days prior to the Closing Date). The
Transaction Consideration for each FICS Ordinary Share and for each share of
FICS Series B1 Preferred Stock, FICS Series B2 Preferred Stock and FICS Series C
Preferred Stock issued and outstanding immediately before the Closing shall
equal the Transaction Consideration divided by the sum of (x) 146,604 plus (y)
the aggregate number of shares subject to options granted by FICS Group
Holding, Inc. at such time.
(b) The Transaction Consideration shall be payable in cash, if S1
Holdings is able to arrange third party financing for such amount on terms
which are reasonably acceptable to S1 Holdings.
1.4. FICS SECURITIES TRANSFERS.
Each of the Sellers covenants that it shall not in any way transfer or
assign any of its FICS Securities prior to the Closing. Concurrently with the
execution of this Agreement, FICS shall make a notation in its share registry,
that prior to Closing, no transfer of FICS Securities shall be recorded in
FICS's share registry from the date hereof, and within two business days of the
date hereof shall have such stock
-2-
7
transfer book delivered to a Belgian notary mutually acceptable to FICS and S1
Holdings, which notary shall hold such stock transfer book until the Closing (or
the termination of this Agreement, if earlier). The fees of such notary shall be
paid by S1 Holdings.
1.5. DELIVERIES AT CLOSING.
(a) In addition to the other items required pursuant hereto,
including without limitation the documents and items required under Article VII
below, at the Closing, each Seller shall deliver or cause a representative of
all Sellers (the "Custodian") to deliver, as the case may be, to S1 Holdings the
following:
1. If the Seller is not a natural person, a copy of the resolutions
or other corporate documentation, certified by the Secretary (or, if
the Seller is a partnership, a general partner) of such Seller as
being true, correct and complete and then in full force and effect,
authorizing the Transaction, the execution, delivery and performance
of this Agreement by the Seller, and the performance of the Seller's
obligations hereunder.
2. A certificate of the Seller certifying that the representations
and warranties of such Seller made herein are true, complete and
correct as of the date of this Agreement and are true and correct as
of the Closing Date, and that such Seller has performed and complied
with all covenants and agreements required to be performed or
complied with by him or it on or prior to the Closing.
3. Such other certificates, instruments or documents as S1 Holdings
may reasonably request in order to effect and document the
transactions contemplated hereby.
4. The irrevocable instruction of each Seller to record in the share
registry of FICS the transfer of its FICS Securities to S1 Holdings.
5. An update of the Seller Disclosure Schedule reflecting any change
required as if the Agreement were being executed as of the date of
the Closing.
(b) In addition to the other items required pursuant hereto,
including without limitation the documents and items required under Article VII
below, at the Closing, FICS shall deliver, or cause to be delivered, as the case
may be, to S1 Holdings the following:
-3-
8
1. A copy of the resolutions of the Board of Directors of FICS,
certified by the Secretary of FICS as being true, correct and
complete and then in full force and effect, authorizing the
execution, delivery and performance of this Agreement by FICS, and
the performance of FICS' obligations hereunder.
2. A certificate of FICS signed by the managing director of FICS
certifying that the representations and warranties of FICS made
herein are true, complete and correct as of the date of this
Agreement and are true and correct as of the Closing Date, and FICS
has performed and complied with all covenants and agreements
required to be performed or complied with by it on or prior to the
Closing.
3. Such other certificates, instruments or documents as S1 Holdings
may reasonably request in order to effect and document the
transactions contemplated hereby.
4. An update of the FICS Disclosure Schedule reflecting any change
required as if the Agreement were being executed as of the date of
the Closing.
5. The stock transfer register of FICS, certified by the Managing
Director of FICS as then being true, accurate and complete.
(c) In addition to the other items required pursuant hereto,
including without limitation the documents and items required under Article VII
below, at the Closing, S1 Holdings shall deliver, or cause to be delivered, as
the case may be, to each Seller the following:
1. A copy of the resolutions of the Board of Directors of S1
Holdings, certified by the Managing Director of S1 Holdings as being
true, correct and complete and then in full force and effect,
authorizing the Transaction, the execution, delivery and performance
of this Agreement by S1 Holdings, and the performance of S1
Holdings's obligations hereunder.
2. Such other certificates, instruments or documents as the Sellers
may reasonably request in order to effect and document the
transactions contemplated hereby.
3. The Transaction Consideration.
(d) In addition to the other items required pursuant hereto,
including without limitation the documents and items required under Article VII
below, at the Closing, S1 shall deliver, or cause to be delivered, as the case
may be, to each Seller the following:
-4-
9
1. A copy of the resolutions of the Board of Directors of S1,
certified by the Secretary of S1 as being true, correct and complete
and then in full force and effect, authorizing the Transaction, the
execution, delivery and performance of this Agreement by S1, and the
performance of S1's obligations hereunder.
2. A certificate of S1 signed by the President of S1 certifying that
the representations and warranties of S1 made herein are true,
complete and correct as of the date of this Agreement and are true
and correct as of the Closing Date, and S1 has performed and
complied with all covenants and agreements required to be performed
or complied with by it on or prior to the Closing.
3. Such other certificates, instruments or documents as the Sellers
may reasonably request in order to effect and document the
transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers severally and not jointly hereby makes the following
representations and warranties to S1 Holdings as set forth in this Article II,
each of which is being relied upon by S1 Holdings as a material inducement to
enter into and perform this Agreement. All of the disclosure schedules of the
Sellers referenced below and thereby required of the Sellers pursuant to this
Agreement, which disclosure schedules shall be cross-referenced to the specific
sections and subsections of this Agreement and delivered herewith, are referred
to herein as the "Sellers' Disclosure Schedule."
2.1. ORGANIZATION OF SELLERS.
If such Seller is not a natural person, such Seller is duly organized and
validly existing under the laws of the jurisdiction of its formation.
2.2. AUTHORIZATION OF TRANSACTION.
(a) If such Seller is not a natural person, such Seller has full
power and authority to execute and deliver this Agreement and to perform his,
her or its obligations hereunder. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all requisite action on the part of such Seller and no other
proceedings on the part of such Seller are necessary to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Seller and (assuming due authorization, execution
and delivery by FICS and S1 Holdings of this Agreement) will constitute a valid
and legally binding obligation of
-5-
10
such Seller, enforceable in accordance with its terms, except as enforcement may
be limited by general principles of equity, whether applied in a court of law or
a court of equity and by bankruptcy, insolvency and similar laws affecting
creditors' rights and remedies generally. Except as set forth in Section 2.2(a)
of the Sellers' Disclosure Schedule, such Seller need not give any notice to,
make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
(b) Such Seller acknowledges that he, she or it has read this
Agreement and has been provided with, or been granted access to, all information
necessary to make his or her decision to execute this Agreement. Such Seller
acknowledges that his, her or its signature on this Agreement shall be deemed
his, her or its written consent, in his, her or its capacity as a shareholder of
FICS, to the execution of the Agreement by a representative of FICS on behalf of
FICS, and to the consummation of all of the transactions contemplated by this
Agreement. Such Seller hereby waives any right of first refusal, preemptive
right or other right which he, she or it may have (including, without
limitation, rights arising under Article 11 of the FICS Restated Articles of
Association (Statuten)) to acquire any of the FICS Securities and the FICS Bonds
to be sold by any other Seller pursuant to this Agreement.
2.3. NONCONTRAVENTION.
Neither the execution and the delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (A) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which such Seller is subject, (B) conflict with, result in a breach of,
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, note, bond,
mortgage, deed of trust, or other arrangement to which such Seller is a party or
by which he or it is bound or to which any of his or its assets is subject or
(C) if such Seller is not a natural person, violate any provisions of its
organizational documents.
2.4. BROKER'S FEES.
Except for the agreement described in Section 3.6, such Seller has no
liability or obligation to pay any fees or commissions to any broker, finder, or
agent with respect to the transactions contemplated by this Agreement nor has
such Seller created any such liability or obligation which, upon consummation of
the Transaction, will become an obligation of FICS or any FICS Subsidiary
(defined below), or S1 Holdings or S1.
-6-
11
2.5. FICS SECURITIES.
Such Seller holds of record and owns beneficially the FICS Securities set
forth next to his, her or its name in Section 2.5 of the Sellers' Disclosure
Schedule, free and clear of any restrictions on transfer (other than the rights
of S1 Holdings hereunder and the rights in favor of FICS and certain other
Sellers which are described in Section 2.5 of the Sellers' Disclosure Schedule),
taxes, security interests, options, warrants, purchase rights, contracts,
commitments, equities, claims, and demands. Such Seller is not a party to any
option, warrant, purchase right, call, or other contract or commitment that
could require such Seller to sell, transfer, or otherwise dispose of any capital
stock of FICS. Except as set forth at Section 2.5 of the Sellers' Disclosure
Schedule, such Seller is not a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of any capital stock of
FICS.
2.6. ABSENCE OF BANKRUPTCY PROCEEDINGS.
There are no bankruptcy, reorganization or arrangement proceedings pending
against, being contemplated by, or threatened against such Seller.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF FICS AND AKKERMANS
FICS and Michel Akkermans ("Akkermans") hereby jointly and not severally
make the following representations and warranties to S1 Holdings as set forth in
this Article III, each of which is being relied upon by S1 Holdings as a
material inducement to enter into and perform this Agreement. All of the
disclosure schedules of FICS or Akkermans referenced below and thereby required
pursuant to this Agreement, which disclosure schedules shall be cross-referenced
to the specific sections and subsections of this Agreement and delivered
herewith, are referred to herein as the "FICS Disclosure Schedule."
3.1. CORPORATE ORGANIZATION.
(a) FICS is a corporation duly organized and validly existing under
the laws of Belgium. FICS has the corporate power and authority to own or lease
all of its properties and assets and to carry on its business as it is now being
conducted, and is duly licensed or qualified to do business in each jurisdiction
in which the nature of any material business conducted by it or the character or
location of any material properties or assets owned or leased by it makes such
licensing or qualification necessary. The Restated Articles of Association
(Statuten) of FICS (the "FICS Statuten"), copies of which have previously been
delivered to S1, are true, correct and complete copies of such documents as in
effect as of the date of this Agreement.
-7-
12
(b) Each "Subsidiary" (defined below) of FICS (each, a "FICS
Subsidiary") and the jurisdiction of its organization is set forth at Section
3.1(b) of the FICS Disclosure Schedule. Each FICS Subsidiary is a corporation
duly organized and validly existing under the laws of the jurisdiction of its
organization. Each FICS Subsidiary has the corporate power and authority to own
or lease all of its properties and assets and to carry on its business as it is
now being conducted, and is duly licensed or qualified to do business in each
jurisdiction in which the nature of any material business conducted by it or the
character or location of any material properties or assets owned or leased by it
makes such licensing or qualification necessary. The charter or other
constitutive or corporate governance documents of each FICS Subsidiary, copies
of which have previously been delivered to S1, are true, correct and complete
copies of such documents as in effect as of the date of this Agreement. For
purposes of this Agreement, the term "Subsidiary," with respect to any party,
means any corporation, partnership or other organization, whether incorporated
or unincorporated, (i) which is consolidated with such party for financial
reporting purposes, or (ii) in which such party holds a 25% or greater equity,
partnership or other capital interest.
3.2. CAPITALIZATION.
(a) The capital stock of FICS, all of which is issued and
outstanding, is as follows: (i) 96,350 FICS Ordinary Shares, (ii) 40,000 shares
of Series B1 preferred stock, no par value per share, (iii) 950 shares of Series
B2 preferred stock, no par value per share and (iv) 9,302 shares of Series C
preferred stock, no par value per share (the Series B1, B2 and C preferred stock
is collectively referred to herein as "FICS Preferred Stock"). The FICS Ordinary
Shares and FICS Preferred Stock have been duly authorized and validly issued and
are fully paid and nonassessable. Except for rights arising pursuant to Article
11 of the FICS Statuten, statutory preferential subscription rights as provided
by Belgian law and except as set forth in Section 1.4 of the FICS Disclosure
Schedule, there are no preemptive or statutory rights to acquire any FICS
Securities, including without limitation, any FICS Ordinary Shares or FICS
Preferred Stock. Except for $3,750,000 of FICS Convertible Bond 1 bonds and
$383,737 of Convertible Bond 2 bonds, FICS does not have and is not bound by any
outstanding subscriptions, options, warrants, calls, commitments or agreements
of any character calling for the purchase or issuance of any FICS Ordinary
Shares or shares of FICS Preferred Stock or any other equity security of FICS or
any securities representing the right to purchase or otherwise receive any FICS
Ordinary Shares or any other equity security of FICS.
(b) Except as set forth at Section 3.2(b) of the FICS Disclosure
Schedule, FICS owns, directly or indirectly, all of the issued and outstanding
shares of capital stock of each FICS Subsidiary, free and clear of all liens,
charges, encumbrances and security interests whatsoever, and all of such shares
are duly authorized and validly issued and are fully paid, nonassessable and
free of preemptive rights, with no personal liability attaching to the ownership
thereof.
-8-
13
Except for 16,500 shares of FICS Option Subsidiary Stock reserved for issuance
upon exercise of outstanding stock options or otherwise, pursuant to the FICS
Stock Plan (of which options for 15,682.5 shares are currently outstanding), no
FICS Subsidiary has or is bound by any outstanding subscriptions, options,
warrants, calls, commitments or agreements of any character calling for the
purchase or issuance of any shares of capital stock or any other equity security
of such Subsidiary or any securities representing the right to purchase or
otherwise receive any shares of capital stock or any other equity security of
such Subsidiary. The names of the optionees, the date of each option to purchase
FICS Option Subsidiary Stock granted, the number of shares subject to each such
option, the expiration date of each such option, and the price at which each
such option may be exercised under the FICS Stock Plan are set forth in Section
3.2(b) of the FICS Disclosure Schedule.
3.3. AUTHORITY; NO VIOLATION.
(a) FICS has full corporate power and authority to execute and
deliver this Agreement. The execution and delivery of this Agreement has been
duly and validly approved by the Board of Directors of FICS. Assuming the due
execution hereof by each Seller, no further corporate approvals or consents on
the part of FICS, its directors or shareholders are necessary to approve this
Agreement, or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by FICS and (assuming due
authorization, execution and delivery by S1 and each of the Sellers of this
Agreement) will constitute valid and binding obligation of FICS, enforceable
against FICS in accordance with its terms, except as enforcement may be limited
by general principles of equity whether applied in a court of law or a court of
equity and by bankruptcy, insolvency and similar laws affecting creditors'
rights and remedies generally.
(b) Neither the execution and delivery of this Agreement by FICS nor
compliance by FICS with any of the terms or provisions hereof, will (i) violate
any provision of the Restated Articles of Association of FICS, or (ii) assuming
that the consents and approvals referred to in Section 3.4 hereof are duly
obtained, (x) violate any Laws (as defined in Section 9.11) applicable to FICS
or any FICS Subsidiary, or any of their respective properties or assets, or (y)
violate, conflict with, result in a breach of any provision of or the loss of
any benefit under, constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, result in the termination
of or a right of termination or cancellation under, accelerate the performance
required by, or result in the creation of any lien, pledge, security interest,
charge or other encumbrance upon any of the respective properties or assets of
FICS or any FICS Subsidiary, under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, deed of trust, license, lease, agreement
or other instrument or obligation to which FICS or any FICS Subsidiary is a
party, or by which they or any of their respective properties or assets may be
bound or affected.
-9-
14
3.4. CONSENTS AND APPROVALS.
(a) Except for such filings, notices, authorizations or approvals,
as applicable, as may be set forth in Section 3.4 of the FICS Disclosure
Schedule, no consents or approvals of or filings or registrations with any
court, administrative agency or commission or other governmental authority or
instrumentality (each a "Governmental Entity"), or with any third party are
necessary in connection with (1) the execution and delivery by FICS of this
Agreement, and (2) the consummation of the Transaction and the other
transactions contemplated hereby, except, in each case, for such consents,
approvals or filings, the failure of which to obtain will not have a Material
Adverse Effect on the ability of S1 Holdings to consummate the transactions
contemplated hereby.
(b) Akkermans hereby represents to S1 Holdings that he has no
knowledge of any reason why approval or effectiveness of any of the
applications, notices or filings referred to in Section 3.4(a) cannot be
obtained or granted on a timely basis.
3.5. FINANCIAL STATEMENTS; BOOKS AND RECORDS.
FICS has previously delivered to S1 Holdings true, correct and complete
copies of the consolidated balance sheets of FICS and its Subsidiaries as of
December 31 for the fiscal years 1998 and 1997 and the related consolidated
statements of operations, stockholders' equity and cash flows for the fiscal
years 1998, 1997 and 1996, inclusive, as reported in FICS' Registration
Statement on Form F-1 filed with the Securities and Exchange Commission (the
"SEC") on April 13, 1999, as amended by Amendment No. 1 filed with the SEC on
April 30, 1999 (the "Registration Statement") under the U.S. Securities Act of
1933, as amended (the "Securities Act"), in each case accompanied by the audit
report of PricewaterhouseCoopers & Co. Bedrijfsrevisoren, independent public
accountants with respect to FICS, and the interim financial statements of FICS
as of and for the three months ended March 31, 1999 and 1998. The financial
statements referred to in this Section 3.5 (including the related notes, where
applicable) fairly present, and the financial statements referred to in Section
6.6 hereof will fairly present (subject, in the case of the unaudited
statements, to normal and recurring audit adjustments), the results of the
consolidated operations and consolidated financial condition of FICS and its
Subsidiaries for the respective fiscal periods or as of the respective dates
therein set forth; each of such statements (including the related notes, where
applicable) comply, and the financial statements referred to in Section 6.6
hereof will comply, with applicable accounting requirements and with the
published rules and regulations of the SEC with respect thereto and each of such
statements (including the related notes, where applicable) has been, and the
financial statements referred to in Section 6.6 hereof will be prepared in
accordance with generally accepted accounting principles, as applied in the
United States, and consistently applied during the periods involved ("US GAAP"),
except in each case as indicated in such statements or in the notes thereto or,
in the case of
-10-
15
unaudited statements. The books and records of FICS have been, and are being,
maintained in all material respects in accordance with US GAAP and any other
applicable legal and accounting requirements. The statutory financial statements
of FICS and those of its books and records prepared to conform with the
requirements of Belgian law are prepared in accordance with Belgian GAAP. Other
than in the previous sentence, references elsewhere in this Agreement to
"financial statements and "books and records" do not refer to financial
statements and books and records prepared by FICS to conform with the
requirements of Belgian law.
3.6. BROKER'S FEES.
Neither FICS nor any FICS Subsidiary nor any of their respective officers
or directors has employed any broker or finder or incurred any liability for any
broker's fees, commissions or finder's fees in connection with any of the
transactions contemplated by this Agreement, except that FICS has engaged, and
will pay a fee or commission to Credit Suisse First Boston ("CSFB") in
accordance with the terms of a letter agreement between CSFB and FICS, dated May
16, 1999, a true, complete and correct copy of which has been provided to S1
Holdings.
3.7. ABSENCE OF CERTAIN CHANGES OR EVENTS.
(a) Except as set forth at Section 3.7 of the FICS Disclosure
Schedule, since December 31, 1998 (i) neither FICS nor any FICS Subsidiary has
incurred any material liability, except as contemplated by this Agreement or in
the ordinary course of their businesses consistent with their past practices,
and (ii) no event has occurred which has had, or is likely to have, individually
or in the aggregate, a Material Adverse Effect on FICS.
(b) Since December 31, 1998, FICS and each FICS Subsidiary has
carried on its respective businesses in the ordinary and usual course consistent
with past practices.
3.8. LEGAL PROCEEDINGS.
(a) Except as set forth at Section 3.8 of the FICS Disclosure
Schedule, neither FICS nor any FICS Subsidiary is a party to any, and there are
no pending, or to the knowledge of FICS, threatened, legal, administrative,
arbitration or other proceedings, claims, actions or governmental or regulatory
investigations of any nature against FICS or any FICS Subsidiary or which
challenge the validity of the transactions contemplated by this Agreement as to
which there is a reasonable probability of success.
(b) There is no injunction, order, judgment, or decree imposed upon
FICS, any FICS Subsidiary or the assets of FICS or any FICS Subsidiary.
-11-
16
3.9. TAXES AND TAX RETURNS.
(a) For purposes of this Section 3.9, FICS shall include FICS and
each FICS Subsidiary and any other affiliated or related corporation or entity
if FICS or any FICS Subsidiary has or could have any material liability for the
taxes of such corporation or entity. FICS has duly filed all Tax Returns
required to be filed by it on or prior to the date hereof (all such returns
being accurate and complete in all material respects) and has duly paid or made
provision on the financial statements referred to in Sections 3.5 and 6.6 hereof
in accordance with US GAAP for the payment of all material Taxes which have been
incurred or are due or claimed to be due from it by Taxing Authorities on or
prior to the date hereof other than Taxes (a) which (x) are not yet delinquent
or (y) are being contested in good faith and set forth in Section 3.9 of the
FICS Disclosure Schedule and (b) which have not been finally determined. The
charges, accruals, and reserves with respect to Taxes on the books of FICS are
adequate (as determined in accordance with US GAAP) and are at least equal to
its liability for Taxes. There exists no proposed tax assessment against FICS
except as disclosed in the FICS financial statements. No consent to the
application of Section 341(f)(2) of the Code has been filed with respect to any
property or assets held, acquired, or to be acquired by FICS. All Taxes that
FICS is or was required to withhold or collect have been duly withheld or
collected and, to the extent required, have been paid to the proper Governmental
Entity. All liability with respect to the Tax Returns of FICS and its
Subsidiaries has been satisfied for all years to and including 1998. No Taxing
Authority has notified FICS of, or otherwise asserted, that there are any
material deficiencies with respect to the Tax Returns of FICS subsequent to
1998. There are no material disputes pending, or claims asserted for, Taxes or
assessments upon FICS, nor has FICS been requested to give any currently
effective waivers extending the statutory period of limitation applicable to any
Tax Return for any period. In addition, Tax Returns that are accurate and
complete in all material respects have been filed by FICS for all periods for
which returns were due with respect to income tax withholding with respect to
wages and other income and the amounts shown on such Tax Returns to be due and
payable have been paid in full or adequate provision therefor in accordance with
US GAAP has been included by FICS in the financial statements referred to in
Sections 3.5 and 6.6 hereto. No audit by any relevant Taxing Authority in
connection with any FICS Tax Return is pending or has been announced. All
deficiencies proposed as a result of any examinations have been paid or settled,
for all periods before and including the taxable year ended December 31, 1998.
FICS has not consented to any waiver or extension of any statute of limitations
with respect to any Tax. FICS has provided or made available to S1 Holdings
complete and correct copies of its Tax Returns and all material correspondence
and documents, if any, relating directly or indirectly to taxes for each taxable
year or other relevant period as to which the applicable statute of limitations
has not run on the date hereof. For this purpose, "correspondence and documents"
include, without limitation, amended Tax Returns, pending claims for refunds,
notices from Taxing Authorities of proposed changes or adjustments to Taxes or
Tax Returns that have not been finally resolved, consents
-12-
17
to assessment or collection of Taxes, acceptances of proposed adjustments,
closing agreements, rulings and determination letters and requests therefor, and
all other written communications to or from Taxing Authorities relating to any
material Tax liability of FICS.
(b) For purposes of this Agreement:
"Tax" means any tax (including any income tax, capital gains tax,
value-added tax, sales tax, property tax, gift tax, or estate tax), levy,
assessment, tariff, duty (including any customs duty), deficiency, or other fee,
and any related charge or amount (including any fine, penalty, interest, or
addition to tax), imposed, assessed, or collected by or under the authority of
any Taxing Authority or payable pursuant to any tax-sharing agreement or any
other contract relating to the sharing or payment of any such tax, levy,
assessment, tariff, duty, deficiency, or fee.
"Tax Return" means any return (including any information return),
report, statement, schedule, notice, form, or other document or information
filed with or submitted to, or required to be filed with or submitted to, any
Taxing Authority in connection with the determination, assessment, collection,
or payment of any Tax or in connection with the administration, implementation,
or enforcement of or compliance with any law, regulation or other legal
requirement relating to any Tax.
"Taxing Authority" means any:
(a) nation, state, county, city, town, village, district, or
other jurisdiction of any nature;
(b) federal, state, local, municipal, foreign, or other
government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or entity and
any court or other tribunal);
(d) multi-national organization or body; or
(e) body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature.
3.10. EMPLOYEE PLANS.
(a) For purposes of this Section 3.10: (1) "Employee Benefit Plan"
means any plan, agreement or other arrangement (other than plans mandated or
provided for by U.S. and foreign statute such as Social Security, workmen's
compensation, unemployment compensation and the like) for the providing of
-13-
18
retirement or welfare benefits as described in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") or any other
benefit other than cash compensation to employees, including plans which would
not be subject to ERISA because all of the participants are non-resident in the
United States; (2) the FICS Group means FICS, its Subsidiaries, and any other
entity which would be deemed part of a controlled or affiliated group within the
meaning of Section 414 of the Code without regard to whether such entities are
organized outside the United States.
(b) Within ten business days after the date of this Agreement, FICS
will deliver to S1 (1) a true and complete list of each Employee Benefit Plan
that FICS maintains or contributes to as of the date of this Agreement, or under
which FICS has any liability (collectively, the "FICS Plans") and (2) a true,
correct and complete copy of each FICS Plan and all related documents and a
written description of any FICS Plan that is not otherwise in writing.
(c) FICS has performed all of its obligations under all FICS Plans.
FICS has made appropriate entries in its financial records and statements for
all obligations and liabilities under the FICS Plans that have accrued but are
not due. No statement, either written or oral, has been made by FICS with regard
to any FICS Plan that was not in accordance with the FICS Plan and that could
have a Material Adverse Effect on S1 Holdings. FICS has no material liability to
the IRS, the U.S. Pension Benefit Guaranty Corporation or any other governmental
or quasi-governmental agency or authority with respect to any FICS Plan.
(d) Except as set forth at Section 3.10(d) of the FICS Disclosure
Schedule, (i) each of the FICS Plans has been operated and administered in all
material respects in compliance with applicable Laws, (ii) FICS does not provide
health, life insurance or other welfare benefits for any retired or former
employee and is not obligated to provide such benefits to any active employee
following such employee's retirement or other termination of service, other than
coverage mandated by applicable Law, (iii) FICS has incurred no liability under
ERISA or any other Law relating to employee benefits or employees or their
beneficiaries that has not been satisfied in full or accrued in accordance with
U.S. GAAP in the financial statements referred to in Section 3.5 and 6.6 hereof,
and no condition exists that presents a material risk of FICS incurring a
material liability thereunder, (iv) all contributions or other amounts payable
by FICS with respect to each FICS Plan and all other liabilities of FICS with
respect to each FICS Plan, in respect of current or prior plan years have been
paid or accrued in accordance with U.S. GAAP in the financial statements
referred to in Sections 3.5 and 6.6 hereof, (v) to the knowledge of FICS, there
are no pending, threatened or anticipated claims (other than routine claims for
benefits) by, or behalf of or against any of the plans or any trust related
thereto, (vi) all FICS Plans could be terminated as of the Closing without
material liability in excess of the amount accrued therefor in the financial
statements referred to in Sections 3.5 and 6.6 hereof.
-14-
19
3.11. EMPLOYEES.
FICS and each FICS Subsidiary complies with all labor and social security
laws, decrees, ordinances and regulations applicable to it.
3.12. CERTAIN CONTRACTS.
(a) Except as set forth at Section 3.12 of the FICS Disclosure
Schedule, neither FICS nor any FICS Subsidiary is a party to or bound by any
contract, arrangement or commitment (i) with respect to the employment of any
directors, officers, employees or consultants, (ii) which, upon the consummation
of the transactions contemplated by this Agreement will (either alone or upon
the occurrence of any additional acts or events) result in any payment (whether
of severance pay or otherwise), except as contemplated by Article I, becoming
due from S1, FICS or any of their respective Subsidiaries to any director,
officer or employee thereof, (iii) which materially restricts the conduct of any
line of business by FICS or any FICS Subsidiary, (iv) with or to a labor union
or guild (including any collective bargaining agreement) or (v) except as
contemplated by Article I and as set forth on Section 3.12(a)(v) of the FICS
Disclosure Schedule, any of the benefits of which will be increased, or the
vesting of the benefits of which will be accelerated by the occurrence of any of
the transactions contemplated by this Agreement, or the value of any of the
benefits of which will be calculated on the basis of any of the transactions
contemplated by this Agreement (including as to this clause (v), any stock
option plan, stock appreciation rights plan, restricted stock plan or stock
purchase plan). Except as set forth at Section 3.12 of the FICS Disclosure
Schedule, there are no employment, consulting and deferred compensation
agreements to which FICS or any FICS Subsidiary is a party. Section 3.12(a) of
the FICS Disclosure Schedule sets forth a list of all (i) material contracts (as
defined in Item 601(b)(10) of Regulation S-K promulgated under the Securities
Act) of FICS and the FICS Subsidiaries and (ii) any other contract to which FICS
or any FICS Subsidiary is obligated to pay $15,000 or more in any annual period.
Each contract, arrangement or commitment of the type described in this Section
3.12(a), whether or not set forth in Section 3.12(a) of the FICS Disclosure
Schedule, is referred to herein as a "FICS Contract," and neither FICS nor any
of its Subsidiaries has received notice of, nor do any executive officers of
such entities know of, any violation of any FICS Contract.
(b) (i) Each FICS Contract is valid and binding and in full force
and effect, (ii) FICS and each FICS Subsidiary has in all material respects
performed all obligations required to be performed by it to date under each FICS
Contract, and (iii) no event or condition exists which constitutes or, after
notice or lapse of time or both, would constitute, a material default on the
part of FICS or any FICS Subsidiary under any such FICS Contract.
-15-
20
3.13. ENVIRONMENTAL MATTERS.
(a) Each of FICS and the FICS Subsidiaries is in compliance in all
material respects with all applicable Laws and regulations relating to pollution
or protection of the environment (including without limitation, Laws and
regulations relating to emissions, discharges, releases and threatened releases
of Hazardous Materials (as hereinafter defined)), or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
(b) There is no suit, claim, action, proceeding, investigation or
notice pending or, to the knowledge of FICS and the FICS Subsidiaries,
threatened (or past or present actions or events that could form the basis of
any such suit, claim, action, proceeding, investigation or notice), in which
FICS or any FICS Subsidiary has been or, with respect to threatened suits,
claims, actions, proceedings, investigations or notices may be, named as a
defendant (x) for alleged material noncompliance (including by any predecessor),
with any environmental law, rule or regulation or (y) relating to any material
release or threatened release into the environment of any Hazardous Material,
occurring at or on a site owned, leased or operated by FICS or any FICS
Subsidiary, or to the knowledge of FICS, relating to any material release or
threatened release into the environment of any Hazardous Material, occurring at
or on a site not owned, leased or operated by FICS or any FICS Subsidiary.
(c) To the knowledge of FICS and the FICS Subsidiaries, during the
period of FICS' or any FICS Subsidiary's ownership or operation of any of its
properties, there has not been any material release of Hazardous Materials in,
on, under or affecting any such property.
(d) For purposes of this Agreement, the term "Hazardous Material"
means any hazardous waste, petroleum product, polychlorinated biphenyl,
chemical, pollutant, contaminant, pesticide, radioactive substance, or other
toxic material, or other material or substance (in each such case, other than
small quantities of such substances in retail containers) regulated under any
applicable environmental or public health statute, law, ordinance, rule or
regulation.
3.14. PROPERTIES AND ASSETS.
Section 3.14 of the FICS Disclosure Schedule lists (i) all real property,
including a description and identification of location, owned by FICS and each
FICS Subsidiary; (ii) each real property lease, sublease or installment purchase
arrangement to which FICS or any FICS Subsidiary is a party; (iii) a description
of each contract for the purchase, sale, or development of real estate to which
FICS or any FICS Subsidiary is a party; and (iv) all items of FICS' or any FICS
Subsidiary's tangible personal property and equipment with a book value of
$50,000 or more or having any annual lease payment of $50,000 or more. Except
for (a) items reflected
-16-
21
in FICS' consolidated financial statements as of December 31, 1998 referred to
in Section 3.5 hereof, (b) exceptions to title that do not interfere materially
with FICS' or any FICS Subsidiary's use and enjoyment of owned or leased real
property, (c) liens for current real estate taxes not yet delinquent, or being
contested in good faith, properly reserved against (and reflected on the
financial statements referred to in Section 3.5 above), (d) properties and
assets sold or transferred in the ordinary course of business consistent with
past practices since December 31, 1998, and (e) items listed in Section 3.14 of
the FICS Disclosure Schedule, FICS and each FICS Subsidiary have good and, as to
owned real property, marketable and insurable title to all their properties and
assets, free and clear of all liens, claims, charges and other encumbrances.
FICS and each FICS Subsidiary, as lessees, have the right under valid and
subsisting leases to occupy, use and possess all property leased by them, and
neither FICS nor any FICS Subsidiary has experienced any material uninsured
damage or destruction with respect to such properties since December 31, 1998.
All properties and assets used by FICS and each FICS Subsidiary are in good
operating condition and repair suitable for the purposes for which they are
currently utilized and comply in all material respects with all Laws relating
thereto now in effect or scheduled to come into effect. FICS and each FICS
Subsidiary enjoy peaceful and undisturbed possession under all leases for the
use of all property under which they are the lessees, and all leases to which
FICS or any FICS Subsidiary is a party are valid and binding obligations in
accordance with the terms thereof. Neither FICS nor any FICS Subsidiary is in
material default with respect to any such lease, and there has occurred no
default by FICS or any FICS Subsidiary or event which with the lapse of time or
the giving of notice, or both, would constitute a material default under any
such lease. To the knowledge of FICS, there are no Laws, conditions of record,
or other impediments which interfere with the intended use by FICS or any FICS
Subsidiary of any of the property owned, leased, or occupied by them.
3.15. INSURANCE.
Section 3.15 of the FICS Disclosure Schedule contains a true, correct and
complete list of all insurance policies and bonds maintained by FICS and any
FICS Subsidiary, including the name of the insurer, the policy number, the type
of policy and any applicable deductibles, and all such insurance policies and
bonds (or other insurance policies and bonds that have, from time to time, in
respect of the nature of the risks insured against and amount of coverage
provided, been substantially similar in kind and amount to that customarily
carried by parties similarly situated who own properties and engage in
businesses substantially similar to that of FICS and any FICS Subsidiary) are in
full force and effect and have been in full force and effect since the
respective dates each such policies and bonds were first obtained. As of the
date hereof, neither FICS nor any FICS Subsidiary has received any notice of
cancellation or amendment of any such policy or bond or is in default under any
such policy or bond, no coverage thereunder is being disputed and all material
claims thereunder have been filed in a timely fashion. The existing insurance
carried by
-17-
22
FICS and FICS Subsidiaries is and will continue to be, in respect of the
nature of the risks insured against and the amount of coverage provided,
substantially similar in kind and amount to that customarily carried by parties
similarly situated who own properties and engage in businesses substantially
similar to that of FICS and the FICS Subsidiaries, and is sufficient for
compliance by FICS and the FICS Subsidiaries with all requirements of Law and
agreements to which FICS or any of the FICS Subsidiaries is subject or is party.
True, correct and complete copies of all such policies and bonds reflected at
Section 3.15 of the FICS Disclosure Schedule, as in effect on the date hereof,
have been delivered or made available to S1.
3.16. COMPLIANCE WITH APPLICABLE LAWS.
Each of FICS and any FICS Subsidiary has complied in all material respects
with all Laws applicable to it or to the operation of its business. Neither FICS
nor any FICS Subsidiary has received any notice of any material alleged or
threatened claim, violation, or liability under any such Laws that has not
heretofore been cured and for which there is any remaining liability.
3.17. FICS INFORMATION.
The information relating to FICS and each FICS Subsidiary to be provided
by FICS to be contained in a proxy statement to be filed with the SEC in
connection with obtaining stockholder approval of the transactions contemplated
by this Agreement will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances in which they are made, not misleading.
3.18. INTELLECTUAL PROPERTY.
Except, in each case, as set forth in Section 3.18 of the FICS
Disclosure Schedule:
(a) (i) FICS and each FICS Subsidiary owns, free and clear of liens,
orders and arbitration awards, or are licensed or otherwise possess valid and
enforceable rights to use all patents, trademarks, trade names, service marks,
copyrights and any applications therefor, schematics, technology, know-how,
trade secrets, ideas, algorithms, processes, Software (as defined below), and
tangible or intangible proprietary information or material ("Intellectual
Property") that are used in the business of FICS and the FICS Subsidiaries.
"Software" means any and all (i) computer programs and applications, including
any and all software implementations of algorithms, models and methodologies,
whether in source code or object code, (ii) databases and compilations,
including any and all data and collections of data, whether machine readable or
otherwise, (iii) descriptions, flow-charts and other work product used to
design, plan, organize and develop any of the
-18-
23
foregoing, (iv) the technology supporting any Internet site(s) operated by or on
behalf of FICS or any FICS Subsidiary, and (v) all documentation, including user
manuals and training materials, relating to any of the foregoing.
(ii) Except as would not be materially adverse to the business
of FICS or any FICS Subsidiary, FICS and the FICS Subsidiaries have taken
reasonable steps to protect their Intellectual Property. There is no litigation
pending or, to the knowledge of FICS and the FICS Subsidiaries, threatened or
any written claim from any person challenging the ownership, use, validity or
enforceability of any Intellectual Property, nor is there any basis for the
assertion of any such claim or challenge.
(iii) No material patent, trademark, service xxxx, copyright,
trade secret, computer software or other intellectual property right other than
the Intellectual Property set forth on Schedule 3.18 is necessary to conduct the
businesses of FICS and its Subsidiaries as presently conducted.
(b) Schedule 3.18(b) lists all (i) patents, patent applications,
registered and unregistered trademarks, trade names and service marks and
registered copyrights owned by FICS included in the Intellectual Property,
including the jurisdictions in which each such item of Intellectual Property
right has been issued or registered or in which any application for such
issuance and registration has been filed, (ii) material licenses, sublicenses
and other agreements as to which FICS and any FICS Subsidiary are a party and
pursuant to which any person is authorized to use any Intellectual Property, and
(iii) licenses, sublicenses and other agreements as to which FICS and any FICS
Subsidiary are a party and pursuant to which FICS and its Subsidiaries are
authorized to use any third party patents, trademarks or copyrights, including
Software ("Third Party Intellectual Property Rights") which are incorporated in,
are or form a part of any FICS or FICS Subsidiary product.
(c) (i) To the knowledge of FICS and the FICS Subsidiaries, there is
no unauthorized use, disclosure, infringement or misappropriation of any
Intellectual Property rights of FICS or any FICS Subsidiary, any trade secret
material to FICS or its Subsidiaries, or any Intellectual Property right of any
third party to the extent licensed by or through FICS or its Subsidiaries, by
any employee of FICS or any FICS Subsidiary or third party for whom FICS is
responsible. Except as set forth in Schedule 3.18(c), there are no royalties,
fees or other payments payable by FICS or its Subsidiaries to any person by
reason of the ownership, use, sale or disposition of Intellectual Property.
(ii) To the knowledge of FICS and its Subsidiaries, there has
been no prior use of FICS's registered trademarks by any third party which would
confer upon said third party superior rights in such trademarks. FICS and its
Subsidiaries have taken reasonable steps to adequately police the trademarks
against third party infringement, and the material trademarks registered in the
-19-
24
United States and in other jurisdictions where FICS or its Subsidiaries are
doing business have been continuously used in the form appearing in, and in
connection with the goods and services listed in, their respective registration
certificates or any amendment, supplement or office action related thereto.
(d) FICS and its Subsidiaries are not, nor will they be as a result
of the execution and delivery of this Agreement or the performance of their
obligations under this Agreement, in breach of any material license, sublicense
or other agreement relating to the Intellectual Property or Third Party
Intellectual Property Rights, and the execution and delivery of this Agreement
or the performance of the obligations under this Agreement by FICS and its
Subsidiaries will not result in the loss or impairment of, or give rise to any
right of any third party to terminate, any of FICS' or any of its Subsidiaries'
rights to own any of its Intellectual Property or their respective rights under
any material license agreements, nor require the consent of any Governmental
Entity or third party in respect of any such Intellectual Property.
(e) FICS and its Subsidiaries (i) have no knowledge (including
knowledge of any litigation pending or threatened or any written claim from any
person) or reason to believe that the conduct of their businesses infringe any
patent, trademark, service xxxx, copyright, trade secret or other proprietary
right of any third party; and (ii) have not advised any third party that such
third party may be infringing any Intellectual Property or breaching any license
or agreement involving Intellectual Property and have not brought or threatened
any claim against such third party for such conduct.
(f) The Software owned or purported to be owned by FICS or any of
its Subsidiaries, was either (i) developed by employees of FICS or any of its
Subsidiaries within the scope of their employment; (ii) developed by independent
contractors or consultants who have assigned their rights to FICS or any of its
Subsidiaries pursuant to written agreements; or (iii) otherwise acquired by FICS
or its Subsidiary from a third party.
(g) All employees and independent contractors and consultants of
FICS and its Subsidiaries have executed and delivered to FICS or its
Subsidiaries, as the case may be, agreements regarding the protection of
proprietary information and the assignment to FICS or its Subsidiaries of any
Intellectual Property arising from services performed for FICS or its
Subsidiaries by such persons.
(h) FICS and its Subsidiaries have obtained or entered into written
agreements with their employees and with third parties, in transactions deemed
appropriate, in connection with the disclosure to, or use or appropriation by,
employees and third parties, of trade secret or proprietary information owned by
FICS and its Subsidiaries and not otherwise protected by a patent, a patent
application, copyright, trademark, or other registration or legal scheme ("FICS
-20-
25
Confidential Information"), and do not know of any situation involving such
employee or third party use, disclosure or appropriation of FICS Confidential
Information where the lack of such a written agreement is likely to result in
any Material Adverse Effect. Except as set forth in Schedule 3.18(h) of the FICS
Disclosure Schedule, neither FICS nor any of its Subsidiaries have furnished the
source code of any of their Software products to any third party, deposited any
such source code in escrow, or otherwise provided access to such source code to
any third party.
(i) Except as would not be materially adverse to the business of
FICS or its Subsidiaries, FICS and its Subsidiaries have taken reasonable steps
with the intent of ensuring that their products (including existing products and
technology and products and technology currently under development) will, when
used in accordance with associated documentation on a specified platform or
platforms, be capable upon installation of accurately processing, providing, and
receiving date data from, into, and between the twentieth and twenty-first
centuries, including the years 1999 and 2000, and making leap-year calculations,
provided that all other non-FICS or FICS Subsidiary products (e.g., hardware,
software and firmware) used in or in combination with FICS' or its Subsidiaries'
products, properly exchange data with FICS' and its Subsidiaries products.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF S1 HOLDINGS AND S1
S1 Holdings and S1 hereby make the following representations and
warranties to each Seller as set forth in this Article IV, each of which is
being relied upon by each Seller as a material inducement to enter into and
perform this Agreement. All of the disclosure schedules of S1 referenced below
and thereby required of S1 pursuant to this Agreement, which disclosure
schedules shall be cross-referenced to the specific sections and subsections of
this Agreement and delivered herewith, are referred to herein as the "S1
Disclosure Schedule."
4.1. CORPORATE ORGANIZATION.
(a) Upon its organization, S1 Holdings shall be a corporation (N.V.)
duly organized and validly existing under the laws of Belgium. Upon its
organization, S1 Holdings shall have the corporate power and authority to own or
lease all of its properties and assets and to carry on its business as
contemplated by this Agreement, and shall be duly licensed or qualified to do
business in each jurisdiction in which the nature of any material business
conducted by it or the character or location of any material properties or
assets owned or leased by it makes such licensing or qualification necessary.
Upon its organization, the charter and other corporate governance documents of
S1 Holdings shall be made available to
-21-
26
FICS and shall be true, correct and complete copies of such documents as in
effect as of the date thereof.
(b) S1 is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. S1 has the corporate power and
authority to own or lease all of its properties and assets and to carry on its
business as it is now being conducted, and is duly licensed or qualified to do
business in each jurisdiction in which the nature of the business conducted by
it or the character or location of the properties and assets owned or leased by
it makes such licensing or qualification necessary. The Amended and Restated
Certificate of Incorporation and Amended and Restated Bylaws of S1, copies of
which have previously been made available to FICS, are true, correct and
complete copies of such documents as in effect as of the date of this Agreement.
(c) Upon organization of S1 Holdings, S1 shall own, directly or
indirectly, the issued and outstanding shares of capital stock of S1 Holdings,
free and clear of all liens, charges, encumbrances and security interests
whatsoever, and all of such shares shall be duly authorized and validly issued
and shall be fully paid, nonassessable and free of preemptive rights, with no
personal liability attaching to the ownership thereof. Upon its organization, S1
Holdings shall not be bound by any outstanding subscriptions, options, warrants,
calls, commitments or agreements of any character calling for the purchase or
issuance of any shares of capital stock or any other equity security of S1
Holdings or any securities representing the right to purchase or otherwise
receive any shares of capital stock or any other equity security of S1 Holdings.
4.2. AUTHORITY; NO VIOLATION.
(a) Upon its organization, S1 Holdings shall have full corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. As majority stockholder, S1 shall cause S1
Holdings (upon its organization) to assume and confirm this Agreement. Except
for required approvals of S1 stockholders, by the requisite vote of S1's
shareholder, no other corporate proceedings on the part of S1 Holdings (except
for matters related to setting the date, time, place and record date for a
shareholders' meeting, if applicable) shall be necessary to approve this
Agreement or to consummate the transactions contemplated hereby. Such execution
and delivery by S1 Holdings (assuming due authorization, execution and delivery
by S1 and FICS) shall constitute valid and binding obligations of S1 Holdings,
enforceable against S1 Holdings in accordance with the terms of this Agreement,
except as enforcement may be limited by general principles of equity whether
applied in a court of law or a court of equity and by bankruptcy, insolvency and
similar law affecting creditors' rights and remedies generally.
-22-
27
(b) S1 has full corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly approved by the
Board of Directors of S1. Except for required approvals of S1 stockholders by
the requisite vote of S1's stockholders, no other corporate proceedings on the
part of S1 (except for matters related to setting the date, time, place and
record date for the special meeting) are necessary to approve this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by S1 and (assuming due authorization,
execution and delivery by FICS and each of the Sellers) will constitute a valid
and binding obligation of S1, enforceable against S1 in accordance with its
terms, except as enforcement may be limited by general principles of equity
whether applied in a court of law or a court of equity and by bankruptcy,
insolvency and similar law affecting creditors' rights and remedies generally.
(c) Neither the execution and delivery of this Agreement by S1 or S1
Holdings (upon its organization) nor the consummation by S1 or S1 Holdings (upon
its organization) of the transactions contemplated hereby or thereby, nor
compliance by S1 or S1 Holdings (upon its organization) with any of the terms or
provisions hereof or thereof, will (i) violate any provision of (x) the Amended
and Restated Certificate of Incorporation or Amended and Restated Bylaws of S1
or (y) the Articles of Association of S1 Holdings (upon its organization), or
(ii) assuming that the consents and approvals referred to in Section 4.4 are
duly obtained, (x) violate any Laws applicable to S1 or S1 Holdings (upon its
organization) or any of their properties or assets, or (y) violate, conflict
with, result in a breach of any provision of or the loss of any benefit under,
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, result in the termination of or a right of
termination or cancellation under, accelerate the performance required by, or
result in the creation of any lien, pledge, security interest, charge or other
encumbrance upon any of the respective properties or assets of S1 or S1 Holdings
(upon its organization) under any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument or obligation to which S1 or S1 Holdings (upon its
organization) is or will be, as the case may be, a party, or by which S1 or S1
Holdings (upon its organization) or any of their properties or assets may be
bound or affected.
4.3. CONSENTS AND APPROVALS.
(a) Except as set forth at Schedule 4.3(a), no consents or approvals
of or filings or registrations with any Governmental Entity or with any third
party are necessary in connection with (1) the execution and delivery by S1 or
S1 Holdings (upon its organization) of this Agreement, and (2) the consummation
by S1 and S1 Holdings (upon its organization) of the Transaction and the other
transactions contemplated hereby, except for such consents, approvals or filings
the failure of
-23-
28
which to obtain will not have a Material Adverse Effect on the ability of S1 or
S1 Holdings (upon its organization) to consummate the transactions contemplated
thereby.
(b) S1 hereby represents to the Sellers that it has no knowledge of any
reason why approval or effectiveness of any of the applications, notices or
filings referred to in Section 4.4(a) cannot be obtained or granted on a timely
basis.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1. COVENANTS RELATING TO FICS.
During the period from the date of this Agreement and continuing until the
Closing, except as expressly contemplated or permitted by this Agreement or with
the prior written consent of S1 Holdings, the Sellers shall cause FICS and each
FICS Subsidiary to carry on their respective businesses in the ordinary course
consistent with past practices. The Sellers shall cause FICS to use its
reasonable efforts to (x) preserve its business organization and that of each
FICS Subsidiary intact, (y) keep available to itself and S1 Holdings the present
services of the employees of FICS and each FICS Subsidiary and (z) preserve for
itself and S1 Holdings the goodwill of the customers of FICS and each FICS
Subsidiary and others with whom business relationships exist. Without limiting
the generality of the foregoing, and except as set forth in the FICS Disclosure
Schedule or as otherwise contemplated by this Agreement or consented to by S1
Holdings in writing, the Sellers shall not permit FICS or any FICS Subsidiary
to:
(a) declare or pay any dividends on, or make other
distributions in respect of, any of its capital stock;
(b) (i) split, combine or reclassify any shares of its capital stock
or issue, authorize or propose the issuance of any other securities in respect
of, in lieu of or in substitution for shares of its capital stock, or (ii)
repurchase, redeem or otherwise acquire, any shares of the capital stock of FICS
or any FICS Subsidiary, or any securities convertible into or exercisable for
any shares of the capital stock of FICS or any FICS Subsidiary;
(c) except for the issuance of options to purchase shares of FICS
Group Holdings, Inc. capital stock, issue, deliver or sell, or authorize or
propose the issuance, delivery or sale of, any shares of its capital stock or
any securities convertible into or exercisable for, or any rights, warrants or
options to acquire, any such shares, or enter into any agreement with respect to
any of the foregoing;
(d) except in connection with resolutions proposed to be adopted at
the extraordinary meeting of FICS stockholders scheduled for May 25, 1999, if
-24-
29
consented to by S1 Holdings, such consent not to be unreasonably withheld, amend
its Restated Articles of Association (Statuten) or other similar governing
documents;
(e) after the date hereof, directly or indirectly, through any
officer, director, employee, agent or otherwise, solicit, initiate or encourage
submission of proposals or offers from any person relating to any acquisition or
purchase of all or a substantial portion of the assets of, or any equity
interest in, FICS or any business combination with FICS (collectively, all such
events referred to herein as a "Competing Offer"), or otherwise enter into any
agreement or understanding with respect to a Competing Offer (Under any
circumstances, the Sellers shall cause FICS to promptly advise S1 Holdings if
any such proposal or offer, or any inquiry or contact with any person with
respect thereto, is made, shall promptly inform S1 Holdings of all the terms and
conditions thereof, and shall furnish to S1 Holdings copies of any such written
proposal or offer and the contents of any communications by FICS in response
thereto.);
(f) make any capital expenditure in excess of $100,000;
(g) enter into any new line of business, or, except in the ordinary
course of business, (i) enter into any material contract (as defined in Item
601(b)(10) of Regulation S-K), or other contract requiring aggregate payments
exceeding $100,000, or (ii) modify, amend or transfer in any material respect or
terminate any material contract to which FICS or any of its Subsidiaries is a
party or waive, release or assign any material rights or claims thereunder;
(h) acquire or agree to acquire, by merging or consolidating with,
or by purchasing an equity interest in or the assets of, or by any other manner,
any business or any corporation, partnership, association or other business
organization or division thereof or otherwise acquire any assets, other than in
the ordinary course of business;
(i) except as necessary for the issuance of options permitted
hereby, take any action that is intended or may reasonably be expected to result
in any of its representations and warranties set forth in this Agreement being
or becoming untrue or in any of the conditions to the Transaction set forth in
Article VII not being satisfied, or in a violation of any provision of this
Agreement, except, in every case, as may be required by applicable law;
(j) change its methods of accounting in effect at December 31, 1998
except as required by changes in applicable law or accounting standards, as
concurred to by S1 Holdings's independent auditors;
(k) (i) except as required by applicable law, adopt, amend, renew or
terminate any FICS Plan or any agreement, arrangement, plan or policy between
FICS or any FICS Subsidiary and one or more of its current or former directors
or officers, (ii) increase in any manner the compensation of any employee or
director or
-25-
30
pay any benefit not required by any plan or agreement as in effect as of the
date hereof (including, without limitation, the granting of stock options, stock
appreciation rights, restricted stock, restricted stock units or performance
units or shares), (iii) enter into, modify or renew any contract, agreement,
commitment or arrangement providing for the payment to any director, officer or
employee of compensation or benefits, other than normal annual increases in pay,
consistent with past practice, (iv) hire any new employee at an annual
compensation in excess of $100,000, (v) promote to a rank of vice president or
more senior any employee, or (vi) pay any retention or other bonuses to any
employees;
(l) except for short-term borrowings with a maturity of one year or
less in the ordinary course of business consistent with past practices, incur
any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as
an accommodation become responsible for the obligations of any other individual,
corporation or other entity;
(m) sell, purchase, enter into a lease, relocate, open or close any
office, other than in the ordinary course of business consistent with past
practices;
(n) make any equity investment or commitment to make such an
investment in real estate;
(o) make any investments, other than in the ordinary course of
business consistent with past practices;
(p) sell, purchase or lease any real property; or
(q) agree or commit to do any of the actions set forth in (a) -
(p) above.
The consent of S1 Holdings to any action by FICS or any FICS Subsidiary that is
not permitted by any of the preceding paragraphs shall be evidenced by a writing
signed by an authorized representative of S1 Holdings.
5.2. COVENANTS OF SELLERS.
(a) After the date hereof, no Seller shall, directly or indirectly,
solicit, initiate or encourage submission of proposals or offers from any person
relating to any Competing Offer with respect to FICS. Each Seller shall promptly
advise S1 Holdings if any such Competing Offer, or any inquiry or contact with
any person with respect thereto, is made, shall promptly inform S1 Holdings of
all the terms and conditions thereof, and shall furnish to S1 Holdings copies of
any such written proposal or offer and the contents of any communications in
response thereto.
(b) After the date hereof, each Seller hereby waives and refuses any
right to purchase, acquire or otherwise obtain any equity securities of FICS
pursuant
-26-
31
to the Restated Articles of Association of FICS, any preemptive right to acquire
such securities, the FICS Stock Plan or otherwise.
5.3. COVENANTS OF S1.
S1 unconditionally guarantees (as a principal and not merely as a surety)
each and all of the obligations of S1 Holdings under this Agreement. As soon as
reasonably practicable after the date hereof, S1 hereby agrees and covenants to
(i) cause S1 Holdings to be organized and incorporated as a Belgian subsidiary
N.V. of S1 under applicable Belgian laws, no later than June 30, 1999, (ii) upon
such incorporation, to take all necessary actions to cause S1 Holdings to ratify
this Agreement, and (iii) upon such incorporation, to take all necessary actions
to cause S1 Holdings to perform its obligations in accordance with this
Agreement. S1 will make available to Sellers the organizational documents for S1
Holdings, and shall cause S1 Holdings to provide Sellers with evidence that S1
Holdings has, upon its incorporation, assumed and confirmed all of its
obligations under this Agreement. S1 further agrees for at least three years
from the Closing Date that it will maintain S1 Holdings as a subsidiary and that
S1 Holdings will be operated as the holding company for S1's European
operations, providing treasury and other services to FICS, the FICS Subsidiaries
and any other European entity which becomes a subsidiary of S1 Holdings. S1
further agrees with each of the Sellers that, for at least three years from the
Closing Date, it will cause S1 Holdings not to sell or directly or indirectly
transfer or assign (including transfers in case of a merger or split-up) the
FICS Securities.
5.4. COMPLIANCE WITH ANTITRUST LAWS.
Each of the parties hereto shall make all filings of any applications,
notices or other documents required under applicable antitrust Laws and use its
reasonable best efforts to resolve objections, if any, which may be asserted
with respect to the Transaction under antitrust laws, including, without
limitation, the Xxxx-Xxxxx-Xxxxxx Act and any foreign competition laws. In the
event a suit is threatened or instituted challenging the Transaction as
violative of antitrust laws, each of the parties hereto shall use its reasonable
best efforts to avoid the filing of, or resist or resolve such suit. The parties
hereto shall use their reasonable best efforts to take such action as may be
required: (a) by the Antitrust Division of the Department of Justice or the
Federal Trade Commission in order to resolve such objections as either of them
may have to the Transaction under antitrust laws, or (b) by any federal or state
court of the United States, in any suit brought by a private party or
governmental entity challenging the Transaction as violative of antitrust laws,
in order to avoid the entry of, or to effect the dissolution of, any injunction,
temporary restraining order, or other order which has the effect of preventing
the consummation of the Transaction or by any foreign entity that may require
prior approval of the Transaction. Reasonable best efforts shall not include,
among other
-27-
32
things and to the extent S1 so desires, the willingness of S1 to accept an order
agreeing to the divestiture, or the holding separate, of any assets of FICS or
S1.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1. REGULATORY MATTERS.
(a) The parties hereto shall cooperate with each other and use their
reasonable best efforts to promptly prepare and file all necessary
documentation, to effect all applications, notices, petitions and filings, and
to obtain as promptly as practicable all permits, consents, approvals and
authorizations of all third parties and Governmental Entities which are
necessary or advisable to consummate the transactions contemplated by this
Agreement. S1 Holdings and the Sellers shall have the right to review in
advance, and to the extent practicable each will consult the other on, in each
case subject to applicable laws relating to the exchange of information, all the
information relating to S1 Holdings or FICS, as the case may be, which appears
in any filing made with, or written materials submitted to, any third party or
any Governmental Entity in connection with the transactions contemplated by this
Agreement; provided, however, that nothing contained herein shall be deemed to
provide either party with a right to review any information provided to any
Governmental Entity on a confidential basis in connection with the transactions
contemplated hereby. In exercising the foregoing right, each of the parties
hereto shall act reasonably and as promptly as practicable. The parties hereto
agree that they will consult with each other with respect to the obtaining of
all permits, consents, approvals and authorizations of all third parties and
Governmental Entities necessary or advisable to consummate the transactions
contemplated by this Agreement and each party will keep the other apprised of
the status of matters relating to contemplation of the transactions contemplated
herein.
(b) The Sellers shall cause FICS to, upon request, furnish S1
Holdings with all information concerning FICS and its directors, officers and
shareholders and such other matters as may be reasonably necessary or advisable
in connection with any statement, filing, notice or application made by or on
behalf of S1 Holdings to any Governmental Entity in connection with the
Transaction or the other transactions contemplated by this Agreement.
(c) S1 Holdings and the Sellers shall promptly advise each other
upon receiving any communication from any Governmental Entity whose consent or
approval is required for consummation of the transactions contemplated by this
Agreement which causes such party to believe that there is a reasonable
likelihood that any Requisite Regulatory Approval (defined in Section 7.1(b)
hereof) will not be obtained or that the receipt of any such approval will be
materially delayed.
-28-
33
6.2. ACCESS TO INFORMATION.
(a) Upon reasonable notice and subject to applicable Laws relating
to the exchange of information, the Sellers shall cause FICS to accord to the
officers, employees, accountants, counsel and other representatives of S1
Holdings, access, during normal business hours during the period prior to the
Closing, to all FICS's and its Subsidiaries' properties, books, contracts,
commitments and records and, during such period, FICS shall make available to S1
Holdings (i) a copy of each report, schedule, Proxy Statement and other document
filed or received by it (including its Subsidiaries) during such period pursuant
to the requirements of federal securities laws or other federal or state Laws
and (ii) all other information concerning its (including its Subsidiaries)
business, properties and personnel as S1 Holdings may reasonably request (except
as to information deemed confidential or competitively sensitive ("Confidential
Matters")) and such meetings of committees of the Board of Directors and
management of FICS which S1 Holdings desires. S1 Holdings shall receive notice
of all meetings of the FICS Board of Directors and any committees thereof, and
of any management committees (in all cases, at least as timely as all FICS
representatives to such meetings are required to be provided notice). S1
Holdings will hold all such information in confidence to the extent required by,
and in accordance with, the provisions of the Confidential Information and
Non-disclosure Agreement between FICS, Edify Corporation and S1 (by which S1
Holdings unconditionally agrees to be bound by signing this Agreement) dated
April 27, 1999 and the Confidential Information and Non-disclosure Agreement
between FICS and S1 dated March 31, 1999 (together, the "Confidentiality
Agreements"). The parties agree and acknowledge that the Confidentiality
Agreements will continue in full force and effect in accordance with their
terms.
(b) Upon reasonable notice and subject to applicable Laws relating
to the exchange of information, S1 Holdings shall afford to the officers,
employees, accountants, counsel and other representatives of FICS, access,
during normal business hours during the period prior to the Closing, to such
information regarding S1 Holdings, except as to Confidential Matters, as shall
be reasonably necessary for FICS to fulfill its obligations pursuant to this
Agreement or which may be reasonably necessary for FICS to confirm that the
representations and warranties of S1 Holdings contained herein are true and
correct and that the covenants of S1 Holdings contained herein have been
performed in all material respects. The Sellers shall cause FICS to hold all
such information in confidence to the extent required by, and in accordance
with, the provisions of the Confidentiality Agreement.
(c) No investigation by either of the parties or their respective
representatives shall affect the representations and warranties of the other set
forth herein.
-29-
34
(d) The Sellers shall cause FICS to provide S1 Holdings with true,
correct and complete copies of all financial and other information provided to
directors of FICS in connection with meetings of its Boards of Directors or
committees thereof.
6.3. SHAREHOLDER MEETING.
S1 shall take all steps necessary to duly call, give notice of, convene
and hold a meeting of its shareholders within 45 days after the Proxy Statement
(as defined in the Stock Purchase Agreement dated even date herewith by and
among S1, the purchasers identified therein and FICS (the "S1 Stock Purchase
Agreement") is approved by the SEC for use for the purpose of voting upon the
approval of this Agreement, this Transaction and other transactions related to
this Agreement. Management and the Board of Directors of S1 shall recommend
approval of each of this Agreement and the Transaction.
6.4. RESERVED.
6.5. FICS YEAR 2000 OFFICER.
No later than 20 business days following the date of this Agreement, the
Sellers shall cause FICS to appoint an officer (the "Y2K Officer"), reasonably
acceptable to S1 Holdings, which officer shall be responsible for coordinating
matters related to any year 2000 issues of FICS and any FICS Subsidiary. Such
Y2K Officer shall, among other things, coordinate the efforts of FICS and each
FICS Subsidiary and take those steps necessary to ensure that their products
(including existing products and technology and products and technology
currently under development) will, when used in accordance with associated
documentation on a specified platform or platforms, be capable upon installation
of accurately processing, providing, and receiving date data from, into, and
between the twentieth and twenty-first centuries, including the years 1999 and
2000, and making leap-year calculations, provided that all other non-FICS or
FICS Subsidiary products (e.g., hardware, software and firmware) used in or in
combination with FICS' or its Subsidiaries' products, properly exchange data
with FICS' and its Subsidiaries products. Such year 2000 compliance shall, at a
minimum, meet the standards and guidelines established by the United States
Federal Financial Institutions Examination Council. The Y2K Officer shall also
provide monthly written reports regarding year 2000 issues of FICS and any FICS
Subsidiary, and resolution thereof, to the management of FICS and S1.
6.6. SUBSEQUENT INTERIM FINANCIAL STATEMENTS.
(a) As soon as reasonably available, but in no event more than 45
days after the end of each fiscal quarter, S1 Holdings will cause S1 to deliver
to FICS its Quarterly Reports on Form 10-Q, as filed with the SEC under the
Exchange Act.
-30-
35
S1 Holdings shall cause S1 to deliver to FICS any Current Reports on Form 8-K
promptly after filing such reports with the SEC.
(b) The Sellers shall cause FICS, as soon as reasonably practicable,
but in no event more than 45 days after the end of each fiscal quarter, to
deliver to S1 Holdings its unaudited consolidated financial statements.
6.7. ADVICE OF CHANGES.
S1 Holdings, S1 and the Sellers, with respect to FICS, shall promptly
advise the other party of any change or event that, individually or in the
aggregate, has or would be reasonably likely to have a Material Adverse Effect
on it or to cause or constitute a material breach of any of its representations,
warranties or covenants contained herein. From time to time prior to the Closing
Date, each party will promptly supplement or amend its disclosure schedule
delivered in connection with the execution of this Agreement to reflect any
matter which, if existing, occurring or known at the date of this Agreement,
would have been required to be set forth or described in such disclosure
schedule or which is necessary to correct any information in such disclosure
schedule which has been rendered inaccurate thereby. No supplement or amendment
to such disclosure schedule shall have any effect for the purpose of determining
satisfaction of the conditions set forth in Sections 7.2(a) or 7.3(a) hereof, as
the case may be, or the compliance by FICS with the covenants set forth in
Section 5.1 hereof.
6.8. CURRENT INFORMATION.
(a) During the period from the date of this Agreement to the Closing
Date, the Sellers shall cause FICS to cause one or more of its designated
representatives to confer on a regular and frequent basis (not less than
monthly) with representatives of S1 Holdings and to report the general status of
the ongoing operations of FICS. The Sellers will promptly notify S1 Holdings of
any material change in the normal course of business or in the operation of the
properties of FICS and of any governmental complaints, investigations or
hearings (or communications indicating that the same may be contemplated), or
the institution or the threat of litigation involving FICS, and will keep S1
Holdings fully informed of such events.
(b) During the period from the date of this Agreement to the Closing
Date, S1 Holdings will cause one or more of its designated representatives to
confer on a regular and frequent basis (not less than monthly) with
representatives of FICS and to report the general status of the ongoing
operations of S1. S1 Holdings will promptly notify the Sellers of any material
change in the normal course of business or in the operation of the properties of
S1 and of any governmental complaints, investigations or hearings (or
communications indicating that the same may be contemplated), or the institution
or the threat of litigation involving S1 Holdings or S1, and will keep the
Sellers fully informed of such events.
-31-
36
6.9. TRANSACTION EXPENSES OF FICS.
(a) For planning purposes, the Sellers shall cause FICS, within 15
days from the date hereof, to provide S1 Holdings with its estimated budget of
transaction-related expenses reasonably anticipated to be payable by FICS in
connection with this transaction, including the fees and expenses of counsel,
accountants, investment bankers and other professionals. The Sellers shall cause
FICS to promptly notify S1 Holdings if or when it determines that it will expect
to exceed its budget.
(b) Promptly after the execution of this Agreement, the Sellers
shall cause FICS to ask all of its attorneys and other professionals to render
current and correct invoices for all unbilled time and disbursements. FICS shall
accrue and/or pay all of such amounts which are actually due and owing as soon
as possible.
(c) The Sellers shall cause FICS to advise S1 Holdings monthly of
all out-of-pocket expenses which FICS has incurred in connection with this
transaction.
ARTICLE VII
CONDITIONS PRECEDENT
7.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE TRANSACTION.
The respective obligation of each party to effect the Transaction shall be
subject to the satisfaction at or prior to the Closing of the following
conditions:
(a) SHAREHOLDER APPROVALS.
This Agreement shall have been approved by any requisite shareholder
vote.
(b) OTHER APPROVALS.
All governmental and regulatory approvals required to consummate the
transactions contemplated hereby shall have been obtained and shall remain in
full force and effect and all statutory waiting periods in respect thereof shall
have expired or been terminated (all such approvals and the expiration or
termination of all such waiting periods being referred to herein as the
"Requisite Regulatory Approvals"). No Requisite Regulatory Approval shall
contain a non-customary condition that S1 Holdings or the Sellers reasonably
determines to be burdensome or otherwise alter the benefits for which it
bargained in this Agreement.
-32-
37
(c) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY.
No order, injunction or decree issued by any court or agency of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Transaction or any of the other transactions (an
"Injunction") contemplated by this Agreement shall be in effect. No statute,
rule, regulation, order, injunction or decree shall have been enacted, entered,
promulgated or enforced by any Governmental Entity which prohibits, restricts or
makes illegal consummation of the Transaction.
(d) FINANCING.
S1 Holdings shall have obtained the necessary financing contemplated
by Section 1.3(b) above no later than August 15, 1999.
7.2. CONDITIONS TO OBLIGATIONS OF S1 HOLDINGS.
The obligation of S1 Holdings to effect the Transaction is also subject to
the satisfaction or waiver by S1 Holdings at or prior to the Closing of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES.
The representations and warranties of S1, the Sellers and
Akkermans set forth in this Agreement shall be true and correct as of the date
of this Agreement and (except to the extent such representations and warranties
speak as of an earlier date) as of the Closing Date as though made on and as of
the Closing Date; provided, however, that for purposes of this paragraph, such
representations and warranties shall be deemed to be true and correct, unless
the failure or failures of such representations and warranties to be so true and
correct, individually or in the aggregate, would have a Material Adverse Effect
on S1 or FICS, as the case may be. Such determination of aggregate Material
Adverse Effect shall be made as if there were no materiality qualifications in
such representations and warranties. S1 Holdings shall have received a
certificate signed on behalf of FICS by each of the President and Chief
Financial Officer of FICS to the foregoing effect.
(b) PERFORMANCE OF COVENANTS AND AGREEMENTS OF THE SELLERS
The Sellers shall have performed in all material respects all
covenants and agreements required to be performed by them under this Agreement
at or prior to the Closing Date. S1 Holdings shall have received a certificate
signed on behalf of each Seller to such effect.
-33-
38
(c) CONSENTS UNDER AGREEMENTS.
The consent, approval or waiver of each person (other than the
Governmental Entities referred to in Section 7.1(b) hereof) whose consent or
approval shall be required in order to permit the succession by S1 Holdings, to
the extent applicable, to any obligation, right or interest of FICS under any
loan or credit agreement, note, mortgage, indenture, lease, license or other
agreement or instrument shall have been obtained except for those, the failure
of which to obtain, will not result in a Material Adverse Effect on S1 Holdings
or FICS.
(d) NO PENDING GOVERNMENTAL ACTIONS.
No proceeding initiated by any Governmental Entity seeking an
Injunction shall be pending.
(e) NO MATERIAL ADVERSE CHANGE.
There shall have been no changes, other than changes
contemplated by this Agreement, in the business, operations, condition
(financial or otherwise), assets or liabilities of FICS or any FICS Subsidiary
(regardless of whether or not such events or changes are inconsistent with the
representations and warranties given herein) that individually or in the
aggregate has had or would have a Material Adverse Effect on FICS.
(f) ACCOUNTANT'S COMFORT LETTER.
The Sellers shall have caused to be delivered on the
respective dates thereof to S1 Holdings "comfort letters" from
PricewaterhouseCoopers & Co. Bedrijfsrevisoren, FICS' independent public
accountants, dated the date the Proxy Statement (or last amendment thereto) and
dated the date of the Closing, and addressed to S1 Holdings, the Sellers and
FICS, with respect to FICS' financial data presented in the Proxy Statement,
which letters shall be based upon Statements on Auditing Standards Nos. 72 and
76.
7.3. CONDITIONS TO OBLIGATIONS OF THE SELLERS
The obligation of the Sellers to effect the Transaction is also subject to
the satisfaction or waiver by the Majority Sellers at or prior to the Closing
Date of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES.
The representations and warranties of S1 Holdings and S1 set forth
in this Agreement shall be true and correct as of the date of this Agreement and
(except to the extent such representations and warranties speak as of an earlier
date) as of the Closing Date as though made on and as of the Closing Date;
provided, however,
-34-
39
that for purposes of this paragraph, such representations and warranties shall
be deemed to be true and correct, unless the failure or failures of such
representations and warranties to be so true and correct, individually or in the
aggregate, would have a Material Adverse Effect on S1 Holdings or S1, as the
case may be. Such determination of aggregate Material Adverse Effect shall be
made as if there were no materiality qualifications in such representations and
warranties. FICS and the Sellers shall have received a certificate signed on
behalf of S1 Holdings by each of the Managing Director of S1 Holdings and the
President and the Chief Financial Officer of S1 Holdings to the foregoing
effect.
(b) PERFORMANCE OF COVENANTS AND AGREEMENTS OF S1 HOLDINGS AND S1.
S1 Holdings and S1 shall have performed in all material respects all
covenants and agreements required to be performed by them under this Agreement
at or prior to the Closing Date. FICS and the Sellers shall have received a
certificate signed on behalf of S1 Holdings by each of the President and Chief
Financial Officer of S1 Holdings to such effect.
(c) TAX OPINION.
The Majority Sellers shall have received an opinion as to the
tax-free nature of the transactions contemplated hereby, in form and substance
reasonably satisfactory to them.
(d) CONSENTS UNDER AGREEMENTS.
The consent or approval or waiver of each person (other than the
Governmental Entities referred to in Section 7.1(b)) whose consent or approval
shall be required in connection with the transactions contemplated hereby under
any loan or credit agreement, note, mortgage, indenture, lease, license or other
agreement or instrument to which S1 Holdings is a party or is otherwise bound
shall have been obtained.
(e) NO PENDING GOVERNMENTAL ACTIONS.
No proceeding initiated by any Governmental Entity seeking an
Injunction shall be pending.
(f) NO MATERIAL ADVERSE CHANGE.
There shall have been no changes, other than changes contemplated by
this Agreement, in the business, operations, condition (financial or otherwise),
assets or liabilities of S1 or any S1 Subsidiary (regardless of whether or not
such events or changes are inconsistent with the representations and warranties
given
-35-
40
herein) that individually or in the aggregate has had or would have a Material
Adverse Effect on S1.
ARTICLE VIII
TERMINATION AND AMENDMENT
8.1. TERMINATION.
This Agreement may be terminated at any time prior to the Closing Date,
whether before or after approval of the matters presented in connection with the
Transaction by any of the Majority Sellers, if applicable:
(a) by mutual consent of S1 Holdings and each of the Sellers in a
written instrument, if the Board of Directors of S1 Holdings so determines by a
vote of a majority of the members of its entire Board and each of the Sellers so
determines in its individual judgment;
(b) by either S1 Holdings or any of the Majority Sellers upon
written notice to the other party (i) 30 days after the date on which any
request or application for a Regulatory Approval shall have been denied or
withdrawn at the request or recommendation of the Governmental Entity which must
grant such Regulatory Approval, unless within the 30-day period following such
denial or withdrawal the parties agree to file, and have filed with the
applicable Governmental Entity, a petition for rehearing or an amended
application, provided, however, that no party shall have the right to terminate
this Agreement pursuant to this Section 8.1(b), if such denial or request or
recommendation for withdrawal shall be due to the failure of the party seeking
to terminate this Agreement to perform or observe the covenants and agreements
of such party set forth herein;
(c) by either S1 Holdings or any of the Majority Sellers if the
Transaction shall not have been consummated on or before March 31, 2000, unless
the failure of the Closing to occur by such date shall be due to the failure of
the party seeking to terminate this Agreement to perform or observe the
covenants and agreements of such party set forth herein;
(d) by either S1 Holdings (provided that S1 Holdings is not in
breach of its obligations under Section 6.3 hereof) or any of the Majority
Sellers if the approval of the S1 Holdings shareholders required for the
consummation of the Transaction shall not have been obtained by reason of the
failure to obtain the required vote at a duly held meeting of shareholders or at
any adjournment or postponement thereof;
(e) by either S1 Holdings or any of the Majority Sellers (provided
that the terminating party is not then in breach of any representation,
warranty, covenant or other agreement contained herein that, individually or in
the aggregate,
-36-
41
would give the other party the right to terminate this Agreement) if there shall
have been a breach of any of the representations or warranties set forth in this
Agreement on the part of the other party or the Sellers (as to S1 Holdings), if
such breach, individually or in the aggregate, has had or is likely to have a
Material Adverse Effect on the breaching party, and such breach shall not have
been cured within 30 days following receipt by the breaching party of written
notice of such breach from the other party hereto or such breach, by its nature,
cannot be cured prior to the Closing;
(f) by either S1 Holdings or any of the Majority Sellers (provided
that the terminating party is not then in breach of any representation,
warranty, covenant or other agreement contained herein that, individually or in
the aggregate, would give the other party the right to terminate this Agreement)
if there shall have been a material breach of any of the covenants or agreements
set forth in this Agreement on the part of the other party, and such breach
shall not have been cured within 30 days following receipt by the breaching
party of written notice of such breach from the other party hereto or such
breach, by its nature, cannot be cured prior to the Closing;
(g) by either S1 Holdings or any of the Majority Sellers at any time
after the termination of the S1 Stock Purchase Agreement in accordance with its
terms; and
(h) by any of the Majority Sellers in the event any requested
advance that is permitted by the terms of the Loan Agreement, dated the date
hereof, between FICS and S1, is not made by S1 within five business days after
FICS makes a written demand therefor.
8.2. EFFECT OF TERMINATION.
In the event of termination of this Agreement by either S1 Holdings or the
Sellers as provided in Section 8.1 hereof, this Agreement shall forthwith become
void and have no effect except (i) the last sentences of Sections 6.2(a) and
6.2(b) and Sections 8.2, 9.2 and 9.3 hereof shall survive any termination of
this Agreement, and (ii) notwithstanding anything to the contrary contained in
this Agreement, no party shall be relieved or released from any liabilities or
damages arising out of its willful or intentional breach of any provision of
this Agreement.
8.3. AMENDMENT.
Subject to compliance with applicable law, this Agreement may be amended
by the parties hereto, at any time before or after approval of the matters
presented in connection with the Transaction by the stockholders of S1. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
-37-
42
8.4. EXTENSION; WAIVER.
At any time prior to the Closing, the parties hereto may, to the extent
legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto, and (c) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party, but such extension or waiver
or failure to insist on strict compliance with an obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
ARTICLE IX
GENERAL PROVISIONS
9.1. EXPENSES.
All costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expense.
9.2. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally, mailed by registered or certified
mail (return receipt requested) or delivered by an express courier (with
confirmation) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
-38-
43
(a) if to S1 Holdings, to:
S1 Europe Holdings N.V.
c/o Security First Technologies Corporation
0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxxxxx, Chief
Financial Officer
(a Belgian address shall be added upon
incorporation of S1 Holdings)
with copies (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
Columbia Square
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attn.: Xxxxxx X. Xxxxx, Esq.
and
Xxxxx & Xxxxxxx L.L.P.
Xxxxxx xxx Xxxx 00
0000 Xxxxxxxx, Xxxxxxx
Attn.: Xxxxx v.S. Xxxx, Esq.
(b) if to FICS, to:
FICS Group X.X.
Xxxxxxxxxxxxx 00
0000 Xxxxxxxx, Xxxxxxx
Attn.: Xxxxxx Xxxxxxxx, Chief Financial Officer
with a copy (which shall not constitute notice) to:
Brown, Rudnick, Freed & Gesmer
Stanmore House
00-00 Xx. Xxxxx'x Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Attn.: Xxxxxxxx X. Xxxx, Esq.
Colin Xxxx Xxxxxxx, Esq.
-39-
44
(c) if to any Seller, to:
The address set forth next to such Seller's name in Section
9.2 of the FICS Disclosure schedule.
9.3. INTERPRETATION.
When a reference is made in this Agreement to Sections, Exhibits or
Schedules, such reference shall be to a Section of or an Exhibit or Schedule to
this Agreement unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation".
9.4. COUNTERPARTS.
This Agreement may be executed in counterparts, all of which shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same
counterpart.
9.5. ENTIRE AGREEMENT.
This Agreement (including the disclosure schedules, documents and the
instruments referred to herein) constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof, other than the
Confidentiality Agreement.
9.6. GOVERNING LAW.
This Agreement shall be governed and construed in accordance with the laws
of Delaware, without regard to any applicable conflicts of law rules.
9.7. ENFORCEMENT OF AGREEMENT.
The parties hereto agree that irreparable damage would occur in the event
that the provisions of this Agreement were not performed in accordance with its
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions thereof in
any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
-40-
45
9.8. SEVERABILITY.
Any term or provision of this Agreement which is invalid or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement or affecting
the validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
9.9. PUBLICITY.
Except as otherwise required by applicable law or the rules of the NASDAQ
Stock Market National Market System (or such other exchange on which any capital
stock of S1 Holdings or any parent or subsidiary of S1 Holdings may become
listed), EASDAQ or the Belgian Banking and Finance Commission, so long as this
Agreement is in effect, neither S1 Holdings nor FICS shall, or shall permit any
of S1 Holdings, FICS or any of their Subsidiaries to, issue or cause the
publication of any press release or other public announcement with respect to,
or otherwise make any public statement concerning, the transactions contemplated
by this Agreement without the consent of the other party, which consent shall
not be unreasonably withheld.
9.10. ASSIGNMENT; LIMITATION OF BENEFITS.
Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation
of law or otherwise) without the prior written consent of the other parties.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors
and assigns. Except as otherwise specifically provided in Section 6.7 hereof,
this Agreement (including the documents and instruments referred to herein) is
not intended to confer upon any person other than the parties hereto any rights
or remedies hereunder, and the covenants, undertakings and agreements set out
herein shall be solely for the benefit of, and shall be enforceable only by, the
parties hereto and their permitted assigns.
9.11. ADDITIONAL DEFINITIONS.
References to "$" in this Agreement are to United States dollars. In
addition to any other definitions contained in this Agreement, the following
words, terms and phrases shall have the following meanings when used in this
Agreement.
"knowledge": with respect to any entity, refers to the knowledge of
such entity's directors and officers in the ordinary course of their duties
in such positions.
-41-
46
"Laws": any and all statutes, laws, ordinances, rules, regulations,
orders, permits, judgments, injunctions, decrees, case law and other rules of
law enacted, promulgated or issued by any Governmental Entity.
"Material Adverse Effect": with respect to S1 Holdings, S1 or FICS, as the
case may be, means a condition, event, change or occurrence that is reasonably
likely to have a material adverse effect upon (A) the financial condition,
results of operations, business or properties of the relevant entity (other than
as a result of changes in laws or regulations or accounting rules of general
applicability or interpretations thereof), or , or (B) the ability of the
relevant entity to perform its obligations under, and to consummate the
transactions contemplated by, this Agreement.
ARTICLE X
INDEMNIFICATION
10.1. SURVIVAL.
(a) None of the representations, warranties, covenants and
agreements of the Sellers (other than Akkermans in Article III), FICS or S1 in
this Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Transaction, except for those covenants and agreements contained
herein and therein which by their terms apply in whole or in part after the
Transaction.
(b) The representations and warranties of FICS and Akkermans which
are made in Article III of this Agreement or in any certificate furnished
pursuant hereto and related thereto shall survive the Transaction and shall
remain in full force and effect as follows: (i) representations and warranties
shall survive for a period of 12 months after the Transaction, and (ii) any
representation or warranty that is the subject of a claim which is asserted in a
reasonably detailed writing prior to the expiration of the applicable period set
forth in (i) above shall survive with respect to such claim or dispute until the
final resolution thereof (the latest to occur of (i) and (ii) the
"Indemnification Termination Date"). All such representations and warranties of
Akkermans shall also survive and be unaffected by (and shall not be deemed
waived by) any investigation, audit, appraisal, or inspection at any time made
by or on behalf of S1 Holdings.
10.2. INDEMNIFICATION OF THE SELLERS.
S1 Holdings agrees to indemnify, defend and hold harmless the Sellers at
all times after the Transaction from and against any and all claims, damages,
losses, liabilities, payments, costs, obligations and expenses (including,
without limitation, all legal, accounting and other professional fees and
disbursements) (collectively, "Damages") to the extent such Damages arise out
of, result from or relate to:
-42-
47
(a) a breach in any respect of any representation or warranty made
by S1 Holdings contained in this Agreement; or
(b) a breach in any respect of any covenant, agreement or
undertaking made by S1 Holdings in this Agreement or in any certificate or other
instrument or agreement delivered by or on behalf of S1 Holdings pursuant to
this Agreement.
10.3. AKKERMANS INDEMNIFICATION.
Akkermans agrees to indemnify, defend and hold harmless FICS, S1 Holdings
and the officers, and directors of FICS and S1 Holdings at all times after the
Transaction from and against any and all Damages to the extent such Damages
arise out of, result from or relate to:
(a) a breach of any representation or warranty made by either FICS
or any Seller contained in this Agreement;
(b) a breach of any covenant, agreement or undertaking made by
Akkermans in this Agreement or in any certificate or other instrument or
agreement delivered by or on behalf of Akkermans pursuant to this Agreement;
(c) any liability relating to payment of any employer or employee
(ordinary or extraordinary) social security taxes, withholding taxes, or other
levies, taxes or charges, of whatever nature, on payments, of whatever nature,
made or which should have been made by FICS or any FICS Subsidiary to its
employees or independent contractors with respect to the period prior to
Closing;
(d) any liability relating to payment of any remuneration, vacation
pay or any fringe benefits of whatever nature on the basis of any laws, decrees,
ordinances, regulations, collective labor agreements or any other rules, to any
employee or independent contractor employed or hired by FICS or any FICS
Subsidiary on or prior to the Closing;
(e) any liability relating to payment of any group insurance
contributions, any related taxes, or any related social security contributions
on the basis of any laws, decrees, ordinances or regulations applicable to FICS
or any FICS Subsidiary prior to the Closing; or
(f) any liability relating to the sale by FICS or any FICS
Subsidiary of the ABACUS engine outside of Belgium, it being understood that the
indemnification provided for in paragraphs 10.3(c), (d), (e) and (f) hereof do
not relate to any particular representation or warranty, and shall survive for
the same periods specified in clauses (i) and (ii) of Section 10.1(b) above as
if such indemnification related to a representation and warranty.
-43-
48
10.4. PLEDGE AGREEMENT.
As security for the indemnification provided for by this Article X,
Akkermans hereby agrees to enter into a Pledge Agreement substantially in the
form of Exhibit A hereto, pursuant to which he agrees to pledge 925,925 shares
of S1 Common Stock (the "Indemnification Xxxxxx"). X0 Holdings agrees that the
indemnification provided for under this Article X and the security offered by
the Pledge Agreement shall be S1 Holdings's sole source of indemnification for
any claims arising hereunder. Any claim for indemnification shall be paid, at
the sole discretion of Akkermans, in cash or in shares from the Indemnification
Amount based upon a per share valuation of $54.00 per share.
10.5. CLAIM FOR INDEMNIFICATION.
Any claim for indemnification must be made by a written notice to the
party against whom indemnification is sought. Such notice shall specify in
reasonable detail the particulars of the claim for indemnity and the basis upon
which indemnity is claimed. Notwithstanding anything in this Agreement to the
contrary, (i) the aggregate value of the indemnification payments made by
Akkermans (measured, in the case of indemnification paid in the form of shares
of S1 Common Stock, as of the time actually paid from time to time) shall in no
event exceed $50.0 million and (ii) the parties shall be entitled to
indemnification under Section 10.3 only for the aggregate amount of Damages
therefor in excess of $3.0 million, if any.
10.6. THIRD PARTY CLAIMS.
Each party shall cooperate with the other in determining the validity of
any third party claim or assertion and in defending the validity of any third
party claim or assertion and in defending against third parties with respect to
the same. The party seeking indemnification ("Claimant") shall promptly furnish
to the party against whom indemnification is sought ("Respondent") copies of all
notices, pleadings and other documents with respect to any third party claim for
which indemnification is sought, provided, however, that failure to so notify
the Respondent will relieve the Respondent from any liability which the Claimant
may have hereunder, if but only if, and only to the extent that, such failure to
notify the Respondent results in loss or damage to the Respondent or the
forfeiture by the Respondent of substantial rights or defenses otherwise
available to the Respondent with respect to such claim. The defense of such
litigation and choice of counsel with respect thereto shall be within the
control of the Claimant (and the fees and reimbursements of counsel for Claimant
in connection with such defense shall be at the Claimant's sole expense), unless
the Respondent, no later than 10 days before an answer or other pleading must be
served, elects to undertake the defense of such claim. The Respondent shall
always have the right to elect to participate in the defense of any such third
party claim at its sole expense. Each of the parties agrees not to settle or
compromise any third party suit, claim or proceeding with respect to
-44-
49
which any of the other parties has an obligation to indemnify without the prior
written consent of such other parties, which consent shall not be unreasonably
withheld, provided such other party has acknowledged the obligation to
indemnify.
10.7. CUMULATIVE REMEDIES.
Subject to the limitations in Section 10.5 above, the remedies provided
herein shall be cumulative and shall not preclude the assertion of any other
rights or the seeking of any other remedies, whether at law or in equity, by any
party hereto.
10.8. RELEASE OF CLAIMS.
Each Seller, for himself or itself, and for his or its heirs and assigns
or his or its successors and assigns, hereby agrees that as of the Transaction
he, she or it shall remise, release, acquit and forever discharge FICS and each
FICS Subsidiary and all present or former officers, directors and employees of
FICS and each FICS Subsidiary in their capacities as such, and each of them,
from any and all actions and causes of action (whether at law or in equity),
losses, damages, costs, expenses, liabilities, obligations and claims or demands
of any kind, including, without limitation, attorneys' fees and other legal
costs and expenses, known or unknown, foreseen and unforeseen, whether now
existing or arising at any time in the future; provided, however, that this
release shall not apply to rights and claims of a Seller for indemnification
from FICS where the Seller is made a party to a proceeding because he or it was
an officer or director of FICS and to rights and claims of a Seller against FICS
as necessary to allow the Seller to make claims under any insurance policies
maintained by FICS. Notwithstanding, and without limiting the generality of the
foregoing, each Seller further agrees that he, she or it waives any right of
contribution or indemnification against FICS with respect to any claim to
Damages asserted against the such Seller pursuant to this Agreement.
[SIGNATURES PAGE FOLLOWS]
-45-
50
IN WITNESS WHEREOF, the Sellers have executed and delivered this
Agreement, and S1 and FICS have caused this Agreement to be executed and
delivered by their respective representatives duly authorized, all as of the
date first above written, and S1 shall cause S1 Holdings, upon its
incorporation, to assume and confirm all rights and obligations under this
Agreement.
S1 EUROPE HOLDINGS N.V.
(in the process of incorporation, represented by
SECURITY FIRST TECHNOLOGIES CORPORATION)
By: /s/ XXXXX X. XXXXX III
---------------------------------------------
Name: Xxxxx X. Xxxxx III
Title: Chairman and Chief Executive Officer of S1
THE SELLERS
/s/ MICHEL AKKERMANS
-------------------------------------------------
Name: Michel Akkermans
/s/ PAMICA N.V.
-------------------------------------------------
Name: Pamica N.V.
Represented by:
/s/ GENERAL ATLANTIC PARTNERS 20, L.P.
-------------------------------------------------
Name: General Atlantic Partners 20, L.P.
Represented by:
/s/ GENERAL ATLANTIC PARTNERS 52, L.P.
-------------------------------------------------
Name: General Atlantic Partners 52, L.P.
Represented by:
/s/ GAP CO INVESTMENT PARTNERS, L.P.
-------------------------------------------------
Name: GAP CO Investment Partners, L.P.
Represented by:
/s/ GIMV N.V.
-------------------------------------------------
Name: GIMV N.V.
Represented by:
-46-
51
/s/ GUY MOONS
-------------------------------------------------
Name: Guy Moons
/s/ XXXXXXX XXXXXXXX
-------------------------------------------------
Name: Xxxxxxx Xxxxxxxx
/s/ XXXXXX XXX XXXXXX
-------------------------------------------------
Name: Xxxxxx Xxx Xxxxxx
/s/ XXXXXX QUAEYHAEGENS
-------------------------------------------------
Name: Xxxxxx Quaeyhaegens
/s/ GOORT GELTEN
-------------------------------------------------
Name: Goort Gelten
/s/ LOEK VAN Den XXXX
-------------------------------------------------
Name: Loek Van den Xxxx
/s/ UNICO PORTFOLIO, LTD.
-------------------------------------------------
Name: Unico Portfolio, Ltd.
Represented by:
/s/ XXXXXXXX XXXXX
-------------------------------------------------
Name: Xxxxxxxx Xxxxx
-47-
52
SECURITY FIRST TECHNOLOGIES CORPORATION
(for the limited purposes set forth herein)
By: /s/ XXXXX X. XXXXX III
----------------------------------------------
Name: Xxxxx X. Xxxxx III
Title: Chairman and Chief Executive Officer
FICS GROUP N.V.
(for the limited purposes set forth herein)
By: /s/ XXXXXX SIPWICZ
---------------------------------------------
Name: Xxxxxx Sipwicz
Title: Chief Financial Officer
-48-
53
EXHIBIT A
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is made and entered into as of
______________, 1999, by and among S1 Europe Holdings N.V., a Belgian
corporation and a wholly owned subsidiary of Security First Technologies
Corporation, a Delaware corporation ("S1") ("S1 Holdings"), FICS Group N.V.
("FICS"), and Michel Akkermans ("Pledgor").
W I T N E S S E T H:
WHEREAS, pursuant to the Share Purchase Agreement dated as of May 16,
1999 (the "Purchase Agreement"), by and among S1 Holdings, the stockholders and
bondholders of FICS and, for the limited purposes stated therein, S1 and FICS,
S1 Holdings will acquire all of the outstanding securities of FICS;
WHEREAS, pursuant to the Purchase Agreement, Pledgor has agreed to
pledge 925,925 shares of S1 common stock ("S1 Common Stock"), par value $.01 per
share (the "Pledged Shares") to S1, S1 Holdings and FICS as security for
Pledgor's indemnification obligations to S1, S1 Holdings and FICS under the
Purchase Agreement; and
WHEREAS, the execution and delivery of this Agreement is an inducement
for S1's consummation of the transactions contemplated by the Purchase
Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Pledge. Pledgor hereby assigns and pledges to S1 Holdings,
and hereby grants to S1 Holdings a lien on and security interest in all of
Pledgor's right, title and interest in and to the Pledged Shares and certain
dividends thereon and other distributions described in Section 6(c) hereof (the
"Collateral").
Section 2. Security for Obligations. This Agreement secures the payment
and performance of all obligations of Pledgor now or hereafter existing under
the Purchase Agreement (collectively, the "Obligations").
Section 3. Delivery of Pledged Shares. All certificates or instruments
representing or evidencing the Pledged Shares shall be delivered to and held by
or on behalf of S1 Holdings pursuant hereto and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to S1
Holdings.
Section 4. Representations and Warranties. Pledgor hereby represents and
warrants as follows:
54
(a) This Agreement is a legal, valid and binding obligation of
Pledgor, enforceable in accordance with its terms.
(b) Pledgor is the legal and beneficial owner of his Pledged
Shares, free and clear of any lien or encumbrance on such Pledged Shares (except
as created pursuant to the terms of this Agreement or the Purchase Agreement);
and
(c) Upon the delivery of the stock certificate or certificates
representing the Pledged Shares, the pledge of the Pledged Shares pursuant to
this Agreement shall create a valid and perfected first priority security
interest in the Pledged Shares for the benefit of S1 Holdings.
Section 5. Further Assistance. Pledgor agrees that at any time and from
time to time, he will promptly execute and deliver all stock powers, proxies,
assignments, instruments and documents and take all further action, that is
reasonably necessary, at S1 Holdings's request, in order to perfect any security
interest granted hereby or to enable S1 Holdings to exercise and enforce its
rights and remedies hereunder with respect to the Pledged Shares and to carry
out the provisions and purposes hereof.
Section 6. Voting Rights; Dividends; Etc.
(a) Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Shares for any purpose not
inconsistent with the terms of this Agreement and the Purchase Agreement.
(b) Pledgor shall be entitled to receive all cash dividends paid
from time to time in respect of the Pledged Shares.
(c) Cash paid, payable or otherwise distributed in redemption of,
or in exchange for, any Pledged Shares, shall in each case be delivered
forthwith to S1 Holdings to hold as Collateral and shall, if received by
Pledgor, be received in trust for the benefit of S1 Holdings, be segregated from
the other property or funds of Pledgor, and be forthwith delivered to S1
Holdings as Collateral in the same form as so received (with any necessary
endorsement); provided that the cash so held upon any such redemption or
exchange shall not exceed $54.00 per Pledged Share and any cash received in
excess of such $54.00 per Pledged Share shall be delivered to Pledgor and
further provided that following any such redemption or exchange, for purposes of
this Agreement, a "Pledged Share" shall be deemed to be a sum of $54.00 then
held as collateral.
(d) S1 Holdings shall execute and deliver to Pledgor all such
proxies and other instruments as Pledgor may reasonably request for the purpose
of enabling Pledgor to exercise the voting and other rights which he is entitled
to exercise pursuant to Section 6(a) above.
Section 7. Transfers and Other Liens; Additional Shares. Pledgor agrees
that he will not (i) sell or otherwise dispose of, or grant any option with
respect to, any of the Pledged Shares without the prior written consent of S1
Holdings, or (ii) create or permit to exist any lien upon or with respect to any
of such Pledged Shares, except for the security interest granted under this
Agreement.
-2-
55
Section 8. X0 Xxxxxxxx Xxxxxxxxx Xxxxxxxx-xx-Xxxx. Pledgor hereby
appoints S1 Holdings Pledgor's attorney-in-fact, with full authority in the
place and stead of Pledgor and in the name of Pledgor or otherwise, from time to
time to take any action and to execute any instrument which S1 Holdings may deem
necessary or advisable to further perfect and protect the security interest
granted hereby, including, without limitation, to receive, endorse and collect
all instruments made payable to Pledgor representing any dividend, interest or
principal payment or other distribution in respect of any Pledged Shares and to
give full discharge for the same; provided, however, that so long as no Default
shall have occurred and be continuing, S1 Holdings shall not take any action
contemplated in this sentence without providing to Pledgor notice of the
performance required of Pledgor and a reasonable opportunity for Pledgor to
provide such performance.
Section 9. No Assumption of Duties; Reasonable Care. The rights and
powers granted to S1 Holdings hereunder are being granted in order to preserve
and protect S1 Holdings's security interest in and to the Pledged Shares granted
hereby and shall not be interpreted to, and shall not, impose any duties on S1
Holdings in connection therewith except to exercise reasonable care in the
custody and preservation of the Pledged Shares. S1 Holdings shall be deemed to
have exercised reasonable care in the custody and preservation of the Pledged
Shares in its possession if the Pledged Shares are accorded treatment
substantially equal to that which S1 Holdings accords its own property, it being
understood that S1 Holdings shall not have any responsibility for (i)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Shares, whether or
not S1 Holdings has or is deemed to have knowledge of such matters, or (ii)
taking any necessary steps to preserve rights against any parties with respect
to any Pledged Shares.
Section 10. Subsequent Changes Affecting Pledged Shares. Pledgor
represents to S1 Holdings that Pledgor has made his own arrangements for keeping
informed of changes or potential changes affecting the Pledged Shares
(including, but not limited to, rights to convert, rights to subscribe, payment
of dividends, payments of interest and/or principal, reorganization or other
exchanges, tender offers and voting rights), and Pledgor agrees that S1 Holdings
shall have no responsibility or liability for informing Pledgor of any such
changes or potential changes or for taking any action or omitting to take any
action with respect thereto.
Section 11. Application of Pledged Shares. In the event that Pledgor
elects to pay a claim for indemnification in Pledged Shares rather than cash, a
number of Pledged Shares equal to (x) the amount of such claim divided by (y)
$54.00 shall be transferred to S1 Holdings or any designee of S1 Holdings. Such
transferred shares shall no longer be "Pledged Shares" within the meaning of
this Agreement. Neither S1 Holdings nor FICS shall have any rights and remedies
with respect to the Pledged Shares other than as expressly set forth in this
Agreement.
Section 12. Partial Release. In the event that Pledgor satisfies any of
the Obligations by payment of cash, a number of Pledged Shares equal to (x) the
amount of such payment divided by (y) $54.00 shall be released and returned by
S1 Holdings to Pledgor.
-3-
56
Section 13. Miscellaneous Provisions.
Section 13.1 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given when (a) delivered in person, (b)
transmitted by telecopy (with written confirmation of receipt), or (c) delivered
by an express courier (with written confirmation of receipt) to the parties at
the following addresses (or at such other address for a party as shall be
specified by like notice):
(a) If to Pledgor:
Michel Akkermans
Bestuurder
Xxxxxxxxxxx 00
0000 Xxxxxxxxxx
Xxxxxxx
with a copy (which shall not constitute notice) to:
Brown, Rudnick, Freed & Gesmer
Stanmore House
00-00 Xx. Xxxxx'x Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Attn.: Xxxxxxxx X. Xxxx, Esq.
Colin Xxxx Xxxxxxx, Esq.
(b) If to S1 Holdings:
S1 Europe Holdings N.V.
c/o Security First Technologies Corporation
0000 Xxxxxxxxx Xxxx, XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxxxxx, Chief Financial Officer
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
Columbia Square
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attn.: Xxxxxx X. Xxxxx, Esq.
Section 13.2 Headings. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
Section 13.3 Severability. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and
-4-
57
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 13.4 Amendments, Waivers and Consents. Any amendment or waiver
of any provision of this Agreement, and any consent to any departure by any
Pledgor from any provision of this Agreement, shall be effective only if made or
given in writing signed by each of the parties hereto.
Section 13.5 Continuing Security Interest; Assignment. This Agreement
shall create a continuing security interest in the Pledged Shares and shall (i)
remain in full force and effect until payment in full (including after the final
maturity date) of the Obligations, (ii) be binding upon Pledgor and his
permitted assigns, and (iii) inure to the benefit of S1 Holdings and its heirs,
transferees and assigns. This Agreement shall not be assigned by operation of
law or otherwise; provided that S1 Holdings may assign this Agreement with the
prior written consent of Pledgor. It is understood that, to the extent that no
claims for damages exist as of the end of the period specified in clause (i) of
Section 10.1(b) of the Purchase Agreement, S1 Holdings shall release any and all
remaining Pledged Shares which are pledged to S1 Holdings pursuant hereto;
provided that if any claim shall have been asserted as set forth in Section
10.1(b)(ii) at such time, S1 Holdings shall have the right to retain such number
of shares of S1 Common Stock as may be required to satisfy such claim, at a per
Pledged Share value of $54.00 per share.
Section 13.6 Survival of Provisions. All representations, warranties and
covenants of Pledgor contained herein shall survive the execution and delivery
of this Agreement, and shall terminate only upon the full and final performance
by Pledgor of the Obligations.
Section 13.7 Authority of S1 Holdings. S1 Holdings shall have and be
entitled to exercise all powers hereunder which are specifically granted to S1
Holdings by the terms hereof, together with such powers as are reasonably
incident thereto. S1 Holdings may perform any of its duties hereunder or in
connection with the Pledged Shares by or through agents or employees and shall
be entitled to retain counsel and to act in reliance upon the advice of counsel
concerning all such matters. S1 Holdings shall not be liable to Pledgor for any
action taken or omitted to be taken by him, her or it hereunder, except for its
own gross negligence or willful misconduct, nor shall S1 Holdings be responsible
for the validity, effectiveness or sufficiency hereof or of any document or
security furnished pursuant hereto. S1 Holdings shall be entitled to rely on any
communication, instrument or document reasonably believed by him, her, it or
them to be genuine and correct and to have been signed or sent by the proper
person or persons.
Section 13.8 Release; Termination of Agreement. Subject to the
provisions of Section 13.5 hereof, this Agreement shall terminate on the first
anniversary of the date of this Agreement; provided that if a claim for
indemnification under the Purchase Agreement has been asserted but not resolved
on such date, this Agreement shall terminate upon the resolution of such claim
for indemnification. At such time, S1 Holdings shall, at the request and expense
of Pledgor, reassign and redeliver to the Pledgor all of the remaining Pledged
Shares hereunder and any money, instruments or property received in respect
thereof, which has not been retained or applied by S1 Holdings in accordance
with the terms hereof.
-5-
58
Section 13.9. Counterparts. This Agreement may be executed in one or
more counterparts and by the different parties hereto on separate counterparts,
each of which shall be deemed an original and all of which taken together
constitute one and the same document.
Section 13.10.Governing Law; Waiver of Jury Trial.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia without regard to its conflicts
of laws principles or rules.
(b) Pledgor and S1 Holdings hereby waive any right to jury trial
of any claim, cross-claim or counterclaim relating to or arising out of or in
connection with this Agreement or the Purchase Agreement.
-6-
59
IN WITNESS WHEREOF, each of the parties has executed this Pledge
Agreement as of the date first above written.
S1 EUROPE HOLDINGS N.V.
By:
------------------------------------------
Name:
Title:
FICS GROUP N.V.
By:
------------------------------------------
Name:
Title:
---------------------------------------------
Michel Akkermans
60
EXHIBIT B
S1
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of May 16, 1999, is entered into
by and among each of the stockholders of FICS Group N.V., a Belgian corporation
("FICS"), listed on the signature page of this Agreement (collectively, the
"FICS Stockholders"), and the stockholders of Security First Technologies
Corporation, a Delaware corporation ("S1"), named on Schedule I hereto
(collectively, the "Stockholders") who are directors, executive officers or
other affiliates of S1 (for purposes of Rule 145 under the Securities Act of
1933, as amended).
WHEREAS, S1, the FICS Stockholders, S1 Europe Holdings N.V., a
Belgian corporation in the process of incorporation ("S1 Holdings"), represented
by S1, and FICS have entered into that certain Share Purchase Agreement, dated
as of May 16, 1999 (the "Agreement"), which is conditioned upon, and requires,
the execution of this Stockholder Agreement and which provides for, among other
things, the acquisition of all of the capital stock of FICS by S1 Holdings (the
"Transaction"); and
WHEREAS, in order to induce the FICS Stockholders to enter into or
proceed with the Agreement, the Stockholders represent and warrant that the
facts provided herein are accurate as to each of the Stockholders set forth
herein, and each of the Stockholders agrees to, among other things, vote in
favor of the Agreement, the Transaction and the other transactions contemplated
by the Agreement in his/her capacity as a stockholder of S1.
NOW, THEREFORE in consideration of the premises, the mutual covenants
and agreements set forth herein and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. OWNERSHIP OF S1 COMMON STOCK. Each Stockholder represents and
warrants that the number of shares of S1 common stock, par value $.01 per share
("S1 Common Stock"), set forth opposite such Stockholder's name on Schedule I
hereto is the total number of shares of S1 Common Stock over which such person
has "beneficial ownership" within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended, except that the provisions of Rule
13d-3(d)(1)(i) shall be considered without any limit as to time.
2. AGREEMENTS OF THE STOCKHOLDERS. Each Stockholder covenants and agrees
that:
(a) Such Stockholder shall, at any meeting of the holders of S1
Common Stock called for the purpose, vote or cause to be voted all shares of S1
Common Stock with respect to which such Stockholder has the right to vote
(whether owned as of the date hereof or hereafter acquired) in favor of the
Agreement, the Transaction and the other transactions contemplated by the
Agreement.
(b) Prior to the Closing Date, except as otherwise expressly
permitted hereby, such Stockholder shall not, sell, pledge, transfer or
otherwise dispose of his/her shares of S1 Common Stock; provided, however, that
this Section 2(b) shall not apply to a pledge existing as of the date hereof.
3. SUCCESSORS AND ASSIGNS. A Stockholder may sell, pledge, transfer or
otherwise dispose of his/her shares of S1 Common Stock, provided that such
Stockholder obtains the prior written consent of a number of FICS Stockholders
that together own a majority of the capital stock of FICS Group N.V. and that
any acquirer of such S1 Common Stock agrees in writing to be bound by this
Stockholder Agreement.
61
4. SPECIFIC PERFORMANCE; TERMINATION. The parties agree and intend that
this Stockholder Agreement be a valid and binding agreement enforceable against
the parties hereto and that damages and other remedies at law for the breach of
this Stockholder Agreement are inadequate. Each of the Stockholders agrees that
irreparable damage to the FICS Stockholders would occur in the event that the
provisions of this Stockholder Agreement were not performed in accordance with
its specific terms or were otherwise breached by any of the Stockholders. It is
accordingly agreed that the FICS Stockholders shall be entitled to an injunction
or injunctions to prevent breaches of this Stockholder Agreement by any of the
Stockholders and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which S1 is entitled at law or in equity. This
Stockholder Agreement may be terminated at any time prior to the consummation of
the Transaction by the mutual written consent of the parties hereto and shall be
automatically terminated in the event that the Agreement is terminated in
accordance with its terms.
5. NOTICES. Notices may be provided to the FICS Stockholders and the
Stockholders in the manner specified in the Agreement, with all notices to the
Stockholders being provided to them at the addresses set forth at Schedule I.
6. GOVERNING LAW. This Stockholder Agreement shall be governed by the
laws of the State of Delaware, without giving effect to the principles of
conflicts of laws thereof.
7. COUNTERPARTS. This Stockholder Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same and each of
which shall be deemed an original.
8. HEADINGS. The Section headings contained herein are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Stockholder Agreement.
9. DEFINITIONS. Capitalized Terms used but not defined herein have the
meanings ascribed to them in the Agreement.
-2-
62
IN WITNESS WHEREOF, each of the FICS Stockholders and the
Stockholders have caused this Stockholder Agreement to be executed and delivered
as of the day and year first above written.
The Stockholders of FICS GROUP N.V.
By: By:
------------------------------------------ -------------------------------
Name: Michel Akkermans Name: Loek Van den Xxxx
Title:
By: By:
------------------------------------------ -------------------------------
Name: Pamica N.V. Name: Unico Portfolio, Ltd
Represented by: Represented by:
By: By:
------------------------------------------ -------------------------------
Name: General Atlantic Partners 20, L.P. Name: Xxxxxxxxx Xxxxx
Represented by:
By:
------------------------------------------
Name: General Atlantic Partners 52, L.P.
Represented by:
By:
------------------------------------------
Name: GAP CO Investment Partners, L.P..
Represented by:
By:
------------------------------------------
Name: GIMV N.V.
Represented by:
By:
------------------------------------------
Name: Guy Moons
By:
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
By:
------------------------------------------
Name: Xxxxxx Xxx Xxxxxx
By:
------------------------------------------
Name: Xxxxxx Quaeyhaegens
By:
------------------------------------------
Name: Goort Gelten
63
STOCKHOLDERS:
--------------------------------------- ------------------------------------
--------------------------------------- ------------------------------------
--------------------------------------- ------------------------------------
--------------------------------------- ------------------------------------
--------------------------------------- ------------------------------------
--------------------------------------- ------------------------------------
-2-
64
SCHEDULE I
65
SCHEDULE A
----------
STOCKHOLDERS PERCENTAGE
------------ ----------
Michel Akkermans
PAMICA N.V.
General Atlantic Partners 20, L.P.
GAP Coinvestment Partners, L.P.
General Atlantic Partners 52, L.P.
GIMV N.V.
Guy Moons
Xxxxxx Xxx Xxxxxx
Xxxxxx Quaeyhaegens
Xxxxxxx Xxxxxxxx
Goort Gelten
Xxxxxxxxx Xxxxx
Leok van den Xxxx
UNICO PORTFOLIO Ltd.
TOTAL 100.00%
