Exhibit 2
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of May __,
1996, by and among MARCEL VAN HEESEWIJK, MATTHEUS WEGBRANS (collectively, the
"Founders"), QCS CORPORATION, a Delaware corporation (the "Company"), XXXXXXXXX
XXXXXX and LEONARDUS KLIJN, and THE PERSONS LISTED AS "PURCHASERS" ON THE
SIGNATURE PAGES HERETO (the "Purchasers").
WHEREAS, Section 4(f) of that certain Shareholders' Agreement
dated as of November 22, 1994 (the "Shareholders' Agreement"), and Section
2.4(d) of that certain Series A Convertible Preferred Stock Purchase Agreement
dated November 22, 1994 (the "Purchase Agreement"), require the Company to
transfer additional shares of Common Stock or, at the option of the Company, pay
their equivalent value in cash (at certain agreed upon values), to the
Purchasers, if certain financial results described therein (the "Financial
Results") are not achieved;
WHEREAS, if the Company shall become obligated to transfer
shares of Common Stock or, at its option, pay their equivalent value in cash to
the Purchasers, then pursuant to Section 4(f) of the Shareholders' Agreement,
the Founders shall become obligated to pay to the Company shares of Common
Stock, or, at the option of the Founders, cash, as more fully described in said
Section 4(f); and
WHEREAS, it appears that the Financial Results will not be
achieved;
WHEREAS, in consideration for, among other things, the
Founders acknowledging that the Financial Results will not be achieved and for
the Founders agreeing to the following, the parties hereto desire to delete
Sections 4(e) and 4(f) of the Shareholders' Agreement and Section 2.4(d) of the
Purchase Agreement, and to make certain other deletions and amendments to the
Shareholders' Agreement and Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties agree
as follows:
1. The Founders acknowledge that the Financial Results will
not be achieved.
2. Subject to the provisions contained in the last sentence of
this Section 2, the Founders agree to transfer or pay to the Purchasers an
aggregate of four million three hundred sixty eight thousand nine hundred thirty
seven (4,368,937) shares of the Company's Common Stock (the "Shares") or, at the
option of the Founders, their equivalent in cash based on a value of one Dollar
and three Cents ($1.03) per share, or a combination of both shares of Common
Stock and cash in the equivalent aggregate amount, such transfer or payment to
be made to the Purchasers pro-rata to their respective holdings of Series A
Preferred on the Closing (as defined in the Purchase Agreement). The Founders
shall make such transfer or payment to the Purchasers on, or at the option of
the
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Founders before, August 1, 1997. Unless otherwise agreed to by all of the
Purchasers, the form of payment to each Purchaser shall be the same as the form
of payment to all other Purchasers (e.g., if one Purchaser is paid 80% in cash
and 20% in shares of Common Stock, all Purchasers shall be paid 80% in cash and
20% in shares of Common Stock). No Founder shall be obligated to make any
transfer or payment pursuant to this Agreement in excess of the amount
determined by multiplying the amount of such transfer or payment by a fraction,
the numerator of which is the number of shares of the Company's Common Stock
owned by such Founder on the date of this Agreement (assuming that any
outstanding options and warrants to purchase shares of the Company's Common Sock
held by such Founder have been exercised), and the denominator of which is the
number of shares of the Company's Common Stock owned by both Founders on the
date of this Agreement (assuming that any outstanding options and warrants to
purchase shares of the Company's Common Stock held by such Founders have been
exercised).
3. Concurrently with the execution of this Agreement by all parties
hereto, the Founders shall deposit the Shares into escrow to be held pursuant to
the terms and conditions contained in that certain Escrow Agreement of even date
attached hereto as Exhibit A.
4. The Purchasers agree to accept the transfer or payment described in
Section 2 hereof in full satisfaction of any obligations owed to the Purchasers
by the Company or the Founders pursuant to Sections 4(e) or 4(f) of the
Shareholders' Agreement or Section 2.4(d) of the Purchase Agreement.
5. This Agreement shall become effective on the date on which it has
been executed and delivered by all parties hereto and all of the following
agreements have been executed and delivered by all parties thereto, and shall
not become effective unless and until all such parties have so executed and
delivered such agreements: (a) the Amendment No. 1 to Series A Convertible
Preferred Stock Purchase Agreement attached hereto as Exhibit B; (b) the Amended
and Restated Shareholders' Agreement of even date attached hereto as Exhibit C;
and (c) the Amended and Restated Class U Warrant attached hereto as Exhibit D.
6. This Agreement and the legal relationship between the parties hereto
shall be governed by and construed in accordance with the internal laws of the
State of New York exclusively, without regard to conflicts of law principles.
7. This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
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QCS CORPORATION
By:
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Name:
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Title:
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Marcel van Heesewijk
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Mattheus Wegbrans
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Xxxxxxxxx Xxxxxx
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Leonardus Klijn
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PURCHASERS
CARLYLE QCS PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Name:
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Title:
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STF MANAGEMENT LIMITED, as General
Partner of Sharp Technology Fund I Limited
Partnership
By:
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Name:
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Title:
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STF MANAGEMENT LIMITED, as General
Partner of Sharp Technology Fund II Limited
Partnership
By:
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Name:
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Title:
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LAGUNITAS PARTNERS, L.P.
By:
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Name:
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Title:
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PROACTIVE PARTNERS, L.P.
By:
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Name:
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Title:
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OAKWOOD HOLDINGS, BVI
By:
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Name:
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Title:
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DE NOYANGE S.A.
By:
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Name:
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Title:
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CANNEL CAPITAL MANAGEMENT
By:
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Name:
-----------------------------
Title:
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Xx. Xxxx Xxxxxx
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Xxxxxx Xxxxxxxxx
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Xx Xxxx Xxxxxx
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Mr. Xxxxx Xxxxx
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Xx. Xxxxx Xxxxx
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Xx. Xxxxxx Xxxxx
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