Exhibit 10.10
October 1, 2003
Sagent Technology, Inc.
000 Xxxx Xx Xxxxxx Xxxx Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Ladies and Gentlemen:
Reference is made to the Asset Purchase Agreement, dated as of April 15,
2003, by and between Sagent Technology, Inc. ("Sagent") and Group 1 Software,
Inc. ("Group 1") (the "Agreement"). All capitalized terms used and not otherwise
defined herein shall have the same meaning as in the Agreement.
This letter agreement will confirm that the parties signing this letter
hereby agree to and acknowledge the following:
1. As soon as practicable following the Closing Date, but in no event later
than October 15, 2003, Sagent shall deliver to Group 1 all of the issued
and outstanding capital stock of Sagent France, S.A. (the "France
Subsidiary"). Sagent shall take all action necessary and appropriate at
its own cost and expense, to ensure that the transfer of the capital stock
of the France Subsidiary to Group 1 is effective and such transfer and
operations of the France Subsidiary comply with all applicable laws,
regulations and procedures, including, if applicable, (a) obtaining
appropriate approvals of the board of directors and shareholders of the
France Subsidiary for the transfer, closing of the yearly accounts of the
France Subsidiary, and to carry on the activity of the France Subsidiary
despite the loss of one half of its share capital, (b) filing of accounts
of the France Subsidiary and other documents or instruments with the
Commercial Court of Versailles, and (c) reinstating the France
Subsidiary's net assets to at least one half of its share capital and/or
taking such other actions as may be permitted to ensure that the France
Subsidiary complies with applicable net asset requirements, as agreed to
between Group 1 and Sagent.
2. As soon as practicable following the Closing Date, but in no event later
than October 10, 2003, Sagent shall deliver to Group 1 all of the issued
and outstanding capital stock of Sagent Technology GmbH (the "Germany
Subsidiary"). Sagent shall take all action necessary and appropriate at
its own cost and expense, to ensure that the transfer of the capital stock
of the German Subsidiary is effective and complies with all applicable
laws, regulations and procedures, including obtaining the appropriate
apostilles for the power of attorney and secretary's certificate of
Sagent.
3. Sagent agrees and covenants that, until such time as Sagent shall have
transferred the capital stock of the German Subsidiary and the France
Subsidiary to Group 1 (or, in the case of the France Subsidiary, until
such time as Group 1 exercises its right to elect not to purchase the
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France Subsidiary (as described in paragraph 8 below)), except as
otherwise consented to by Group 1 in writing, it shall cause each of the
German Subsidiary and the France Subsidiary not to (i) declare or pay any
dividend or other distribution in respect of its capital stock, (ii) enter
into any contract or commitment, or (iii) sell, transfer or dispose of any
of its assets or properties.
4. As soon as practicable following the Closing Date, but in no event later
than October 10, 2003, Sagent shall deliver to Group 1 the information
with respect to each of the Acquired Subsidiaries as specified in Section
6.1(n) of the Agreement, as of December 31, 2002.
5. As soon as practicable following the Closing Date, but in no event later
than October 10, 2003, Sagent shall deliver to Group 1 duly executed
Transfer Tax Returns to be filed in each jurisdiction in which any parcel
of Real Property is located; provided, however, that Sagent shall not be
obligated to deliver Transfer Tax Returns to the extent such returns are
not required by the applicable jurisdiction, as determined by Group 1.
6. As soon as practicable following the Closing Date, but in no event later
than October 15, 2003, Sagent shall execute and deliver such other
instruments of transfer, conveyance, assignment and confirmation and take
such other action as Group 1 may request as necessary or desirable in
order to more effectively transfer, convey and assign to Group 1, the
capital stock of each of the Acquired Subsidiaries and Sagent (Asia
Pacific) Pte Ltd. (together with the Acquired Subsidiaries, the "Purchased
Subsidiaries"), including, without limitation, delivery of original
executed documents in and original share certificates of the Purchased
Subsidiaries, and appropriate resolutions of the board of directors of the
Purchased Subsidiaries approving such transfer. For the purposes of this
paragraph 6, "Purchased Subsidiaries" shall not include the France
Subsidiary to the extent Group 1 elects not to accept the transfer thereof
pursuant to paragraph 8 below.
7. Notwithstanding anything to the contrary contained in the Agreement, it is
agreed and understood that Group 1 shall be entitled to retain for itself
from the Holdback Amount any Losses incurred by Group 1, its
Representatives and Affiliates arising out of or related to (i) the
failure of Sagent to comply with paragraphs 1 or 2 above, (ii) the failure
of Sagent to deliver to Group 1 the capital stock of the France Subsidiary
as of the Closing Date, (iii) the failure of Sagent to deliver to Group 1
the capital stock of the German Subsidiary as of the Closing Date, (iv)
the failure of Sagent to comply with paragraph 6 above in a timely manner,
which causes Group 1 to fail to register or otherwise effectuate the
transfers of the Purchased Subsidiaries with the respective governmental
authorities of the jurisdictions of the Purchased Subsidiaries within the
respective time period of such jurisdictions, and (v) the failure of
Sagent to deliver to Group 1 the Transfer Tax Returns contemplated by
Section 3.2(g) of the Agreement as of the Closing Date.
8. Notwithstanding anything to the contrary contained in the Agreement, Group
1 shall have the right to elect not to accept the transfer of the capital
stock of the France Subsidiary to Group 1 if Sagent fails to (a) satisfy
any of its obligations as set forth in Section 1 herein or (b) deliver to
Group 1 the information with respect to the France Subsidiary as specified
in Section 6.1(n) of the Agreement, as of December 31, 2002 in accordance
with paragraph 3 above. In the event that Group 1 elects not to accept the
transfer of the capital stock of the France Subsidiary (and the parties do
not otherwise agree for Group 1 to purchase
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substantially all of the assets of the France Subsidiary), the calculation
of Net Assets, for purposes of preparing the Statement of Net Assets
pursuant to Section 2.6 of the Agreement, shall not include the net book
value of the France Subsidiary.
This letter agreement may be executed in any number of counterparts, each
of which when executed and delivered shall be deemed an original and all of
which counterparts, when taken together, shall construct one and the same
agreement.
This letter agreement shall be governed by and construed and enforced in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of New York.
[SIGNATURE PAGE FOLLOWS]
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If the foregoing correctly sets forth our understanding as to the matters
covered hereby, please execute and return to the undersigned the enclosed copy
of this letter.
Very truly yours,
GROUP 1 SOFTWARE, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Secretary
ACCEPTED AND AGREED TO:
SAGENT TECHNOLOGY, INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Executive Officer
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