EXHIBIT 2.4
THIS AGREEMENT is made as of the Effective Date.
BETWEEN:
(1) XXXXX.XXX, INC. (a Delaware corporation) whose address is 000 Xxxxxxxxxx
Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Xxxxx.xxx");
(2) XXXXX.XXX (NEWBURY) LIMITED (formerly Paragon Software Limited) whose
registered office is at Xxxx 0, Xx-xxx Xxxxxx, Xxxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxx (the "Company");
(3) XXXXX XXXXXX of Xxxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx
XX00 0XX ("Xx. Xxxxxx"); and
(4) THE XXXXXXX TRUSTEE COMPANY LIMITED whose address is at 00/00 Xxxxxxxx
Xxxx, Xxxxxxx, Xxxx of Man ("The Xxxxxxx Trustee").
WHEREAS
(A) Xx. Xxxxxx and The Xxxxxxx Trustee entered into the Sale and Purchase
Agreement pursuant to which Xxxxx.xxx, as consideration for the purchase
of their shares in Paragon Software (Holdings) Limited, (i) issued the
Consideration Stock and Escrow Stock and (ii) agreed to pay Xx. Xxxxxx two
deferred cash payments amounting to US$17 million;
(B) The Consideration Stock and Escrow Stock is subject to restrictions on
registration pursuant to the Registration Rights Agreement;
(C) Xx. Xxxxxx has entered into the Employment Agreement;
(D) Xx. Xxxxxx and the Company have agreed to terminate the Employment
Agreement and that Xx. Xxxxxx will provide consultancy services to the
Company; and
(E) the Parties wish to set forth certain of their respective rights, duties
and obligations and desire complete accord and satisfaction in respect of
such rights, duties and obligations and for all claims arising that they
have raised or could have raised to date against each other in respect of
such rights, duties and obligations.
WHEREBY IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions have the meanings set
opposite them:
"Consideration Stock" means the 74,123 Xxxxx.xxx Shares issued to Xx.
Xxxxxx and the 1,325,669 Xxxxx.xxx Shares issued to The Xxxxxxx Trustee;
"Effective Date" means 1 August 2000;
"Employment Agreement" means the employment agreement entered into between
Xx. Xxxxxx and the Company, dated 4 March 2000;
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"Escrow Agent" means Bank of New York;
"Escrow Agreement" means the escrow agreement entered into between Xx.
Xxxxxx, The Xxxxxxx Trustee, The Bank of New York and Xxxxx.xxx dated 4
March 2000;
"Escrow Period" means the period of one year commencing on 4 March 2000;
"Escrow Stock" means the 18,262 Xxxxx.xxx Shares and the 326,606 Xxxxx.xxx
Shares issued to the Escrow Agent for transfer to Xx. Xxxxxx and The
Xxxxxxx Trustee respectively at the end of the Escrow Period pursuant, and
subject, to Schedule 12 of the Sale and Purchase Agreement;
"First Lock-Up Period" has the meaning ascribed thereto in Clause 2.1(a) of
the Registration Rights Agreement;
"Parties" means the parties to this Agreement;
"Patent Indemnity Agreement" means the indemnity agreement entered into
between Xx. Xxxxxx, The Xxxxxxx Trustee and Xxxxx.xxx dated 4 March 2000;
"Xxxxx.xxx Employee Option Scheme" means the Xxxxx.xxx 1996 Stock Option
Plan, as amended from time to time;
"Xxxxx.xxx Options" means options to acquire Xxxxx.xxx Shares;
"Xxxxx.xxx Shares" means shares of common stock of Xxxxx.xxx;
"Registration Rights Agreement" means the registration rights agreement
entered into between Xxxxx.xxx and the Shareholders (as defined therein),
dated 4 March, 2000;
"Tax Indemnity Agreement" means the indemnity agreement between, Xx.
Xxxxxx, The Xxxxxxx Trustee and Xxxxx.xxx dated 4 March 2000;
"Termination Date" means 31 August 2000;
"Sale and Purchase Agreement" means the sale and purchase agreement entered
into among Xxxxx.xxx, Paragon Software (Holdings) Limited and the Vendors
(as defined therein), dated 8 February 2000; and
"Second Lock-Up Period" has the meaning ascribed thereto in Clause 2.1(b)
of the Registration Rights Agreement.
2. CASH PAYMENT
2.1 Within two business days following the signing of this Agreement, Xxxxx.xxx
shall pay to Xx. Xxxxxx a cash sum of US$ 17 million by bank transfer to
Citibank, Bank Code: 18-50-02, Account Number: 00000000, which payment
shall constitute full discharge of Xxxxx.xxx's obligation to pay additional
consideration under Clause 4.5 of the Sale and Purchase Agreement.
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2.2 In the event that payment is not made in accordance with Clause 2.1,
interest will accrue from the due date of payment at the LIBOR rate quoted
by Lloyds Bank, London branch..
3. XXXXX.XXX STOCK
3.1 As of the Effective Date, Xxxxx.xxx agrees, in variation of Clause 2.1(b)
of the Registration Rights Agreement, that the Second Lock-up Period in
relation to the Consideration Stock and the Escrow Stock shall expire on 4
March 2001 in place of 4 September 2001.
4. ESCROW STOCK
4.1 Notwithstanding Clause 3 of this Agreement, the Escrow Stock shall be held
by the Escrow Agent until 4 March 2001 or such longer period as is required
in accordance with the terms of Schedule 12 to the Sale and Purchase
Agreement. Nothing in this Agreement shall constitute a waiver of any
rights of Xxxxx.xxx against Xx. Xxxxxx or The Xxxxxxx Trustee under the
Sale and Purchase Agreement or acceptance of any breach of the terms
thereof and the Sale and Purchase Agreement shall remain in full force and
effect save as expressly varied (as between the Parties) by this Agreement.
4.2 Xxxxx.xxx confirms (but without prejudice to, or in any way waiving, its
rights under the Sale and Purchase Agreement) that it has no current
intention of making any claim against Xx. Xxxxxx or The Xxxxxxx Trustee for
breach of the Sale and Purchase Agreement.
4.3 Subject to prior receipt of a legal opinion in a form reasonably
satisfactory to Xxxxx.xxx and Cititrust (Mauritius) Limited, Xxxxx.xxx
agrees to the release of The Xxxxxxx Trustee from the obligations of the
Sale and Purchase Agreement, the Escrow Agreement, the Registration Rights
Agreement and the Tax Indemnity Agreement and the assignment of the
obligations thereunder to Cititrust (Mauritius) Limited in accordance with
the terms of the three agreements annexed in substantially final form as
Appendices A,B and C hereto and shall cooperate in a timely manner with all
steps required to effect such novation and assignment.
5. OPTIONS
Xx. Xxxxxx acknowledges and accepts that he has no outstanding Xxxxx.xxx
Options and has, and shall have, no existing or future right to be granted
Xxxxx.xxx Options.
6. PATENT INDEMNITY RELEASE
Xxxxx.xxx hereby releases Xx. Xxxxxx and The Xxxxxxx Trustee from their
obligations under the Patent Indemnity Agreement and the Patent Indemnity
Agreement is hereby terminated and shall be of no further force or effect.
7. TERMINATION OF EMPLOYMENT AGREEMENT
7.1 Xx. Xxxxxx and the Company agree to terminate the Employment Agreement as
from the Termination Date and no notice of termination shall be required.
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7.2 The Company shall pay to Xx. Xxxxxx any outstanding salary and holiday pay
and reimburse his reasonable and proper business expenses in respect of his
employment with the Company up to the Termination Date less income tax and
National Insurance contributions and issue Xx. Xxxxxx with his P45, payable
within 2 working days of the Termination Date.
7.3 For the avoidance of doubt, clauses 10 to 13 of, and Schedule B to, the
Employment Agreement shall remain in full force and effect notwithstanding
any other provision of this Agreement.
7.4 In consideration of the payments made under, and other provisions of, this
Agreement, Xx. Xxxxxx agrees that the terms of this Agreement are in full
and final settlement of any claim for unfair dismissal, sex, race or
disability discrimination, any claim under the Working Time Regulations
1998, any redundancy payment and of any other claim arising from his
employment or its termination and the Company and Xxxxx.xxx agree that they
have no claim against Xx. Xxxxxx of any nature arising from the termination
of his employment.
7.5 Xx. Xxxxxx has taken independent legal advice as to the full nature, terms
and effect of this Agreement and in particular its effect on his ability to
pursue his rights before an employment tribunal.
7.6 The adviser was and is Xxxx Xxxxxxxx Xxxxx of Xxxxxxxx Xxxxxx, a Solicitor
of the Supreme Court whose firm holds a contract of insurance in force
covering the risk of a claim by Xx. Xxxxxx in respect of loss arising in
consequence of the advice.
7.7 The conditions regulating compromise agreements under the provisions of
Section 203 of the Employment Rights Xxx 0000, Section 77 of the Sex
Discrimination Xxx 0000, Section 72 of the Race Relations Xxx 0000, Section
9 of the Disability Discrimination Xxx 0000 and Regulation 35 of the
Working Time Regulations 1998 are satisfied.
7.8 This Agreement is made without admission of liability on the part of the
Company or Xxxxx.xxx.
8. CONSULTANCY PERIOD
The Parties agree that as from the Termination Date, Xx. Xxxxxx will act as
a consultant to the Company upon the following terms:
8.1 the Company shall be entitled to call upon Xx. Xxxxxx'x services
(including, without limitation, his sales knowledge and expertise) at any
time subject to giving reasonable notice (such notice not to be less than 5
working days);
8.2 Xx. Xxxxxx'x fee for his services shall be (Pounds)750 (less income tax and
national insurance, if applicable) for each day that he is required to work
for the Company;
8.3 the Company shall pay Xx. Xxxxxx a minimum of (Pounds)10,000 for his
services in September, a minimum of (Pounds)7,500 (representing payment for
10 days' work) for his services in each of October and November 2000 and a
minimum of (Pounds)3,750 (representing payment for 5 days' work) for his
services in each of December 2000
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and January 2001 after which the Company shall not be obliged to pay Xx.
Xxxxxx unless it calls upon his services;
8.4 this consultancy shall terminate nine months after the date of this
Agreement or by either of the Company or Xx. Xxxxxx giving not less than
one months notice to the other party save that the Company shall not serve
such notice prior to 31 December 2000.
8.5 Xx. Xxxxxx shall be entitled to be absent and unavailable to provide
services for periods up to two weeks in duration on giving not less than 5
working days' notice;
8.6 The Company shall pay the sums in accordance with this Clause 7 and any
expenses reasonably incurred by Xx. Xxxxxx in connection with the provision
of the services monthly.
9. ANNOUNCEMENTS
Xxxxx Xxxxxx agrees that he will not make any announcement or other
communication regarding the terms of this Agreement or otherwise relating to his
departure from the Company, without the prior written consent of Xxxxx.xxx.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
year and the day first above written.
XXXXX.XXX, INC.
/s/ Xxxx Xxxx
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By: Xxxx Xxxx
Its: COO
XXXXX.XXX (NEWBURY) LIMITED
/s/ Xxxx Xxxxx
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By: Xxxx Xxxxx
Its: Director
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
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THE XXXXXXX TRUSTEE COMPANY LIMITED
/s/ illegible
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By: illegible
Its: Director
/s/ illegible
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By: illegible
Its: Director
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