EXHIBIT 2.1
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Memorandum of Understanding
Between
Xxxxxx, Inc. and
Xxxxxxxxx Xxxx Associates
Xxxxxx, Inc. ("Xxxxxx") and Xxxxxxxxx Xxxx Associates, ("CLA") hereby agree to
the following terms regarding the transfer as of the first day of July, 2002 to
CLA of all rights to the royalty income (the "Income") paid to Xxxxxx under a
certain License Agreement dated February 1, 2001 and amended June 18, 2002, by
and between ACI Worldwide Inc. ("ACI") and Xxxxxx (the "Agreement").
1. Subject to and immediately upon the execution (the "Closing") of
definitive documents reasonable satisfactory to both parties and the
consent (the "Consent") of ACI to the transactions contemplated
therein, CLA agrees to pay $3,100,000 in cash to Xxxxxx in
consideration of the transferal to CLA by Xxxxxx of the rights to the
Income in perpetuity. No obligations or other rights of Xxxxxx under
the Agreement are to be transferred to CLA. It is the intention of the
parties that such income be reported and paid directly to CLA by ACI.
Xxxxxx and CLA will use their best efforts to secure ACI's approval of
this.
2. Upon the date of execution of this MOU, CLA shall advance on or before
5:00 pm (EST) on such date a non-refundable deposit in the amount of
$300,000, which shall be offset against the total amount due upon
Closing.
3. If the Closing has not occurred by 9:00am (EST) on July 19, 2002, CLA
may advance on or before 5:00 pm (EST) on that date an additional
non-refundable deposit of $300,000, which shall be offset against the
total amount due upon Closing, to preserve their acquisition rights
through August 1, 2002.
4. Xxxxxx agrees to provide any information and documentation reasonably
requested by CLA and necessary to complete their review and
documentation of the proposed transaction in a timely manner. In
addition, Xxxxxx agrees to provide CLA with occasional consulting help
to assist CLA in understanding, monitoring and evaluating ACI's
performance under the licensing agreement.
5. This MOU is intended to be a binding commitment by CLA and Xxxxxx to
consummate the transactions described herein, provided, however, this
MOU shall immediately terminate without any further obligations of one
party to the other if: (a) ACI has by August 1, 2002, failed to give
the Consent; or (b) the Closing has not occurred by July 19, 2002 and
CLA has failed to make the payment set forth in section 3; or (c) on
or before the Closing every non participating member of the Board of
Directors of Xxxxxx has not approved this MOU.
6. This MOU shall be governed by and enforced under the laws of the State
of Delaware (without regard to those pertaining to choice of law).
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7. This MOU contains the complete agreement of the parties, and
supercedes all prior agreements (whether written or oral), relating to
its subject matter. It may only be amended by a written agreement
signed by both parties. It may not be assigned by Xxxxxx, Inc. The
agreement may be assigned by CLA with the approval of Xxxxxx, Inc.,
which shall not be unreasonably withheld.
For: Xxxxxx, Inc.
By: /s/ Xxxxx X. Xxxxxxx
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By: Xxxxx X. Xxxxxxx, President & CEO
Dated: July 15, 2002
For: Xxxxxxxxx Xxxx Associates
By: /s/ Xxxx X. Xxxxxx
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By: Xxxx X. Xxxxxx
Dated: July 15, 2002
By: /s/ Xxxxx X. Xxxxxxx
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By: Xxxxx X. Xxxxxxx
Dated: July 15, 2002
By: /s/ Xxxxxx X. Xxxxxxx
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By: Xxxxxx X. Xxxxxxx
Dated: July 15, 2002
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