STOCK REPURCHASE AGREEMENT
THIS STOCK REPURCHASE AGREEMENT ("AGREEMENT") is executed as of this 18th
day of December, 1998 by and among UNICOMP, INC. ("BUYER" or the "COMPANY"), a
Colorado corporation, and The Governor and Company of the Bank of Ireland, DCC
Business Expansion Fund Limited, DCC PLC, Smurfit Venture Investments Limited,
and Enterprise Ireland (Collectively, "SELLERS").
WHEREAS, the parties intend by this Agreement to provide for the
acquisition by Buyer of the shares of Common Stock of UniComp, Inc. held by the
Sellers as set forth on Schedule 1 attached hereto (the "SHARES"), which were
acquired pursuant to that certain Agreement For The Sale And Purchase Of The
Whole Of The Issued Share Capital Of Industrial Computing Machines Limited by
and between Xxx Xxxxxx, Xxxx Xxxx, Xxxxx Xxxxxxx, The Governor and Company of
the Bank of Ireland, DCC Business Expansion Fund Limited, DCC PLC, Smurfit
Venture Investments Limited, Forbairt, and UniComp, Inc., dated January 8, 1998
(the "SALES AGREEMENT").
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth herein, it is agreed as follows:
1. PURCHASE OF SHARES. Subject to the terms and conditions contained
herein, Buyer agrees to purchase and the undersigned Sellers agree to sell,
transfer, convey and assign to Buyer, for the consideration described in Section
2 below, all of the Shares.
2. CONSIDERATION. At the Closing, as defined in Section 5 below, Buyer
shall deliver and pay to the Sellers as set forth on Schedule 1,
IR(pounds)456,875 (the "PURCHASE PRICE"), in the form of a wire transfer to the
account of A&L Goodbody. Upon receipt of the Purchase Price by A&L Goodbody, the
Sellers will instruct A&L Goodbody to forward the certificates issued by the
Company evidencing the Shares to the Company or its nominee and the Purchase
Price shall forthwith be distributed to the Sellers in the proportions set forth
on Schedule 1.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS. To induce Buyer to
enter into this Agreement, the Sellers represent and warrant to Buyer that the
following statements are true, correct and complete as of the date hereof, and
will be true, correct and complete as of the date of Closing:
(a) Ownership of Shares. Except for the Governor and Company of the
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Bank of Ireland, each of the Sellers owns, beneficially and of record, the
number of Shares to be sold by such Seller pursuant to Section 1 above and
as indicated on Schedule 1, free and clear of any lien, security interest,
pledge, claim, demand, or encumbrance or restriction of any kind or
character whatsoever. The Governor and Company of the Bank of Ireland
holds in trust the number of Shares to be sold by the Governor and Company
of the Bank of Ireland pursuant to Section 1 above and as indicated on
Schedule 1, free and clear of any lien, security interest, pledge, claim,
demand, or encumbrance or restriction of any kind or character whatsoever.
(b) Authority. Each Seller now has and will have, at the Closing,
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full power, authority and legal right to sell the Shares to Buyer pursuant
to this Agreement. This Agreement has been duly and validly authorized,
executed and delivered by, and is the valid and binding obligation of, each
Seller.
(c) Compliance with Irish Law. The consummation by the Sellers of
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the transactions contemplated hereby will be in compliance with all
applicable Irish laws, rules, regulations and requirements of all
applicable Irish, state and local governmental authorities without the
necessity for any license or permit or other action or permission in the
nature thereof, or any registration with, or consent of, any such
governmental authority.
(d) No Litigation. There are no suits or proceedings at law or in
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equity, or before or by any governmental agency or arbitrator, pending, or
to the knowledge of the Sellers, threatened, anticipated or contemplated,
which in any way affect the consummation of the transactions contemplated
hereby or, if valid, would constitute or result in a breach of any
representation, warranty or agreement set forth herein.
(e) Solvency. None of the Sellers is bankrupt or insolvent or has
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assigned its estate for the benefit of creditors, entered into any
arrangement with creditors, or has any present intention to file a petition
in bankruptcy, assign its estate for the benefit of creditors, or enter
into any arrangement with creditors. None of the Sellers has knowledge of
any basis for the filing by any other person of an involuntary petition in
bankruptcy with respect to any Seller.
(f) No Material Misstatements. The Sellers have not made any
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material misstatement of fact or omitted to state any material fact
reasonably necessary to make complete, accurate and not misleading every
representation, warranty and agreement set forth herein.
(g) Securities Laws Compliance.
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(i) Sellers have been represented by such legal and tax
counsel and others, each of whom has been personally selected by
Sellers, as Sellers have found necessary to consult concerning this
transaction, and where appropriate such representation has included an
examination of applicable documents. Sellers, either alone or with its
"PURCHASER REPRESENTATIVES" as that term is defined in Rule 501(h) of
Regulation D under the U.S. Securities Act of 1933, as amended
("SECURITIES ACT"), if any, have sufficient knowledge and experience
in business and financial matters that it is capable of evaluating the
above information, and the merits and risks of the share disposition
contemplated by this Agreement, and to make an informed investment
decision with respect thereto.
(ii) The Company has made available to Sellers, and their
Purchaser Representatives, counsel and other advisors, prior to the
date hereof, the opportunity to ask questions of, and to receive
answers from, the Company and its representatives, concerning the
terms and conditions of the Agreement and access to
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obtain any information, documents, financial statements, records and
books (A) relative to the Company, the business, and investment in the
Company, (B) necessary to verify the accuracy of any information
furnished to the Company, and (C) information regarding the Potential
Asset Disposition. All materials and information requested by Sellers,
their counsel and advisors, or others representing Sellers, have been
made available and examined and the Company's report on Form 10-K for
the fiscal year ended February 28, 1998, proxy statement pursuant to
Section 14(a) of the Securities Exchange Act of 1934 for the Company's
Annual Meeting of Stockholders held on August 25, 1998, and reports on
Form 10-Q for the quarterly periods ended May 31, 1998 and August 31,
1998 have each been made available to the Sellers.
(iii) Sellers understand the Company is currently considering
disposing of one of its subsidiaries in Ireland, which may or may not
substantially improve the value of the Company and the capital stock
of the Company (the "POTENTIAL ASSET DISPOSITION").
(iv) Enterprise Ireland represents and warrants to Buyer that
all property and rights relating to the Shares issued to Forbairt
pursuant to the Sales Agreement have been transferred to Enterprise
Ireland pursuant to the Industrial Development (Enterprise Ireland )
Xxx, 0000.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF BUYER. Buyer represents
and warrants to and agrees with the Sellers that:
(a) Authority. Buyer now has and will have, at the Closing, full
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power, authority and legal right to acquire the Shares of Sellers pursuant
to this Agreement. This Agreement has been duly and validly authorized,
executed and delivered by, and is the valid and binding obligation of,
Buyer.
(b) Compliance with Clause 3.3.1 of the Sale Agreement. Buyer
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acknowledges and represents that Sellers have complied in all material
respects with the provisions contained in clause 3.3.1 of the Sale
Agreement.
(c) Compliance with Law. The consummation of the transactions
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contemplated hereby will be in compliance with all applicable laws, rules,
regulations and requirements of all Federal (including the Securities Act
and the Securities Exchange Act of 1934, as amended), state and local
governmental authorities without the necessity for any license or permit or
other action or permission in the nature thereof, or any registration with,
or consent of, any such governmental authority.
(d) No Litigation. There are no suits or proceedings at law or in
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equity, or before or by any governmental agency or arbitrator, pending, or
to the knowledge of Buyer, threatened, anticipated or contemplated, which
in any way affect the consummation of the transactions contemplated hereby
or, if valid, would constitute or result in a breach of any representation,
warranty or agreement set forth herein.
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(e) Solvency. Buyer is not bankrupt or insolvent and has not
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assigned its estate for the benefit of creditors, entered into any
arrangement with creditors, or has any present intention to file a petition
in bankruptcy, assign its estate for the benefit of creditors, or enter
into any arrangement with creditors. Buyer has no knowledge of any basis
for the filing by any other person of an involuntary petition in bankruptcy
with respect to Buyer.
(f) No Material Misstatements. Buyer has not made any material
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misstatement of fact or omitted to state any material fact reasonably
necessary to make complete, accurate and not misleading every
representation, warranty and agreement set forth herein.
5. THE CLOSING. The closing of the purchase and sale of the Shares shall
take place at the offices of Xxxxxxxx Xxxxxx Xxxxxxxx, 0 Xxxxxxxxxx Xxxx, Xxxxxx
0, Xxxxxxx on or before December 18, 1998 at 2:00 p.m. Dublin time, or at such
other time or place as shall be fixed by the mutual consent of the parties.
Said date of conveyance is herein called the "Closing."
6. ACTIONS PRIOR TO CLOSING. Prior to the Closing, the Sellers and Buyer
shall cause the following to occur:
(a) Share Certificates. A&L Goodbody shall be in possession of the
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Share Certificates and shall have faxed a copy of each of the Share
Certificates to the Company's legal counsel.
7. ACTIONS SUBSEQUENT TO CLOSING
(a) Reimbursement of Expenses. The Company shall reimburse the
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Sellers for their reasonable costs incurred in relation to expenses
(including legal fees and expenses) incurred by them during discussions
with Xxxxxxx Xxxxx for the sale of the Shares pursuant to the Sales
Agreement and the legal fees and expenses of the Sellers incurred in
connection with the preparation, execution, and performance of this
Agreement. The fees and costs under this Section 7(a) shall not exceed
IR(pounds)13,000 and shall be wired to the account of A&L Goodbody on or
before Closing, which shall be released to Sellers as Sellers may mutually
determine (the "SELLERS' REIMBURSED EXPENSES").
(b) Share Certificates. At Closing, Sellers shall have instructed
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A&L Goodbody to dispatch the Share Certificates, endorsed in favor of the
Company, to the Company or its nominee.
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8. CONDITIONS OF BUYER'S AND SELLERS' PERFORMANCE.
(a) Buyer's Conditions. The obligation of Buyer to consummate this
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Agreement is subject to the satisfaction at the Closing, or waiver by Buyer
in writing, of each of the following conditions:
(i) The Sellers shall have executed this Agreement.
(ii) At the Closing date, no governmental agency or body, or
other person or entity, shall have instituted or threatened any action
to restrain or prohibit any of the transactions contemplated by this
Agreement.
(iii) The representations and warranties of the Sellers
contained in this Agreement shall be deemed to have been made again at
the Closing and shall then be true in all material respects; Sellers
and the Company shall have performed and complied with all agreements
and conditions required by this Agreement to be performed or complied
with by them prior to or at the Closing; and Sellers shall not be in
default under any of the material provisions of this Agreement.
(iv) Sellers shall have executed and delivered such other
documents, instruments, certificates or agreements as shall have been
reasonably requested to consummate this transaction.
(v) All proceedings taken in connection with the transactions
contemplated herein and all instruments and documents reasonably
required in connection therewith or incident thereto shall be
satisfactory in form to Xxxxx & Xxxxxx L.L.P., legal counsel for
Buyer.
(vi) Sellers shall have delivered to the Company the Share
Certificates, endorsed in favor of the Company and guaranteed by a
firm which is a member of a registered national stock exchange, or by
a commercial bank or a trust company.
(b) Sellers' Conditions. The obligation of Sellers to consummate
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this Agreement is subject to the satisfaction at the Closing, or waiver by
Sellers in writing, of each of the following conditions:
(i) The representations and warranties of Buyer contained in
this Agreement shall be deemed to have been made again at the Closing
and shall then be true in all material respects; and Buyer shall have
performed and complied with all agreements and conditions required by
this Agreement to be performed or complied with by it prior to or at
the Closing.
(ii) The Buyer shall have executed this Agreement.
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(iii) At the Closing date, no governmental agency or body, or
other person or entity, shall have instituted or threatened any action
to restrain or prohibit any of the transactions contemplated by this
Agreement.
(iv) Buyer shall have executed and delivered such other
documents, instruments, certificates or agreements as shall be
reasonably necessary to consummate this transaction.
(v) All proceedings taken in connection with the transactions
contemplated herein and all instruments and documents reasonably
required in connection therewith or incident thereto shall be
satisfactory in form to A & L Goodbody, legal counsel for Sellers.
(vi) Buyer shall have delivered the Purchase Price and
Sellers' Reimbursed Expenses to A & L Goodbody.
9. MISCELLANEOUS.
(a) Attorney's Fees. In any action or proceeding arising out of or
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related to this Agreement, the prevailing party shall be entitled to its
reasonable attorney fees and related costs, including fees and costs
incurred prior to formal initiation of an action or proceeding, and
including fees and costs incurred for collecting or attempting to collect
any judgment or award.
(b) Brokers and Finders. Except as otherwise provided herein, each
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of the parties hereto represents and warrants that it has dealt with no
broker or finder in connection with any of the transactions contemplated by
this Agreement (except for Xxxxxxx Xxxxx). In the event that any finder's
fee or broker's commission shall become payable by any party hereto as a
result of such party's misrepresentation or breach of warranty, such fee
and commission shall be the sole and exclusive responsibility and liability
of such party with no right of contribution by any other party. In the
event that any finder's fee or broker's commission shall become payable by
any party, other than as set forth herein, as a result of such party's
misrepresentation or breach of warranty, the breaching party shall
indemnify, defend and hold all other parties harmless in respect of all
claims, losses, expenses and obligations (including reasonable attorney's
fees) to the extent that the same arise or result from such finder's fee or
broker's commission.
(c) Survival. All parties agree that the representations,
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warranties and agreements contained in this Agreement shall survive the
Closing and shall thereafter remain in full force and effect.
(d) Severability. If any term or provision of this Agreement,
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including the exhibits hereto, or the application thereof to any person,
property or circumstances, shall to any extent be invalid or unenforceable,
the remainder of this Agreement, including the exhibits or the application
of such term or provision to persons, property or circumstances other than
those as to which it is invalid and unenforceable, shall not be affected
thereby, and
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each term and provision of this Agreement and the exhibits shall be valid
and enforced to the fullest extent permitted by law.
(e) Notices. Any notices, requests or consents hereunder shall be
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deemed given, and any instrument delivered, five days after they have been
mailed by first class mail, postage prepaid, or twelve hours after such
notice has been sent by facsimile, straight telegram, telegraphic charges
prepaid, or upon receipt if delivered personally, as follows:
To Sellers: At the addresses set forth in SCHEDULE 1 hereto
with a copy to:
A&L Goodbody
0, Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx 0, Xxxxxxx
Attn: Xxxxxx Xxxxxxx
Fax: 000-0-0000000
To Buyer: UniComp, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Fax: (000) 000-0000
with simultaneous copy to:
Xxxxx & Xxxxxx L.L.P.
000 X. Xxxxxxxx, Xxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxx
Fax: (000) 000-0000
except that any of the foregoing may from time to time by written notice to
the others designate another address which shall thereupon become its
effective address for the purposes of this Section.
(f) Entire Agreement. This Agreement, including the exhibits and
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documents referred to herein which are a part hereof, contains the entire
understanding of the parties hereto with respect to the subject matter
contained herein and may be amended only by a written instrument executed
by the Buyer and the Sellers. There are no restrictions, promises,
warranties, covenants, or undertakings other than those expressly set forth
or referred to herein. Any Section headings or table of contents contained
in this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
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(g) Counterparts. This Agreement may be executed simultaneously in
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two or more counterparts (including by facsimile), each of which shall be
deemed an original but all of which together shall constitute one and the
same instrument.
(h) Binding Affect. This Agreement shall inure to the benefit of
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and be binding upon the Sellers and Buyer and their respective successors,
but shall not inure to the benefit of anyone other than the parties signing
this Agreement and their respective successors.
(i) Governing Law. This Agreement shall be governed by the laws of
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the State of Colorado.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
BUYER:
UNICOMP, INC.
A Colorado Corporation
By:
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Its:
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SELLERS:
THE GOVERNOR AND COMPANY OF DCC BUSINESS EXPANSION FUND LIMITED
THE BANK OF IRELAND
By: By:
----------------------------- -----------------------------
Its: Its:
----------------------------- -----------------------------
DCC PLC SMURFIT VENTURE INVESTMENTS LIMITED
By: By:
----------------------------- -----------------------------
Its: Its:
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ENTERPRISE IRELAND
By:
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Its:
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SCHEDULE 1
SHARES OF
UNICOMP, INC.
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SHAREHOLDER NAME & ADDRESS COMMON STOCK PURCHASE PRICE
-------------------------- -------------- --------------
The Governor & Company of the Bank of Ireland 27,695 IR(pounds)139,375
Xxxxxx Xxxxxx
Xxxxxx 0
Fax: 000-0-000-0000 (F.A.O. Xxx Xxxxx)
DCC Business Expansion Fund Limited 9,936 IR(pounds)50,000
XXX Xxxxx
Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxx Xxxxxx
Fax: 000-0-000-0000 (F.A.O. Xxxxxx Xxxxx)
DCC plc 15,897 IR(pounds)80,000
XXX Xxxxx
Xxxxxxx Xxxx
Xxxxxxxxxx
Xxxxxx Xxxxxx
Fax: 000-0-000-0000 (F.A.O. Xxxxxx Xxxxx)
Smurfit Venture Investments Limited 24,839 IR(pounds)125,000
Xxxxxxxxxxx Xxxxx
0 Xxxxxxxxxxx Xxxxx
Xxxxxx 0
Fax: 000-0-000-0000 (F.A.O. Xxxxx Xxxx)
Enterprise Ireland 12,419 IR(pounds)62,500
Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx 0
Fax: 000-0-000-0000 (F.A.O. Xxx Xxxxxxxx)
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