Exhibit 2.2
DATED JULY 7, 2000
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MR P XXXX & OTHERS
- and -
ONYX SOFTWARE CORPORATION
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AMENDMENTS TO SALE AND PURCHASE AGREEMENT
relating to
the issued share capital of
ONYX SOFTWARE UK LIMITED (formerly MARKET SOLUTIONS LIMITED)
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XXXXXX XXXXXXX XXXXXXX
Xxxxxxxxx
00 Xxxxxxxx Xxxxxxxxxx
Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Tel No: 000 0000 0000
Fax No: 000 0000 0000
Ref: SXW
THIS AGREEMENT is made the 7th day of July 2000
BETWEEN
(1) THE PERSONS whose names and addresses are set out in schedule 1 of this
agreement (the "Vendors"); and
(2) ONYX SOFTWARE CORPORATION whose address is 0000 000xx Xxxxxx XX, Xxxxx
000, Xxxxxxxx, Xxxxxxxxxx, 00000-0000, XXX (the "Purchaser").
INTRODUCTION
1. On 1 October 2000 the Vendors and the Purchaser entered into a Sale and
Purchase Agreement (the "Sale and Purchase Agreement") pursuant to which
the Vendors sold to the Purchaser the whole of the issued share capital of
Onyx Software UK Limited (formerly Market Solutions Limited) (the
"Company").
2. The Vendors and the Purchaser have agreed that the Sale and Purchase
Agreement should be amended as set out in this agreement.
AGREED TERMS
1. Amendments to the Sale and Purchase Agreement
1.1 Clauses 7.3 and 7.4 of the Sale and Purchase Agreement shall be deleted.
1.2 Clauses 7.5 to 7.8 of the Sale and Purchase Agreement shall be re-numbered
as clauses 7.3 to 7.6.
1.3 The second sentence of Clause 7.6 shall be replaced as follows:
"Thereafter each Warrantor shall not Transfer more than 50 per cent (in
aggregate) of the total number of Exchange Shares which have been at any
time been issued to him or her (whether or not such Exchange Shares have
been previously transferred by him or her) in any period of 3 months."
1.4 Schedule 7 of the Share Purchase Agreement shall be deleted and replaced
by schedule 2 of this agreement.
2. No other amendments to the Sale and Purchase Agreement
2.1 Save as set out clause 1 of this agreement no term or provision of the
Sale and Purchase Agreement shall be varied or modified by this agreement.
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2.2 Unless stated herein or to the contrary words and expressions contained in
this agreement shall have the meanings contained in the Sale and Purchase
Agreement.
2.3 Clause 13 (Law and Jurisdiction) of the Sale and Purchase Agreement shall
apply to this agreement.
The parties to this agreement have signed and entered into this agreement as a
deed on the date and year first written above.
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SCHEDULE 1
The Vendors
Name Address
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Xxxxxx Xxxx Gosbrook Cottage
Commomon Lane
Binfield Xxxxx
Xxxxxx on Thames, Oxon
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Xxxxx Xxxxxx 00 Xxxxxx Xxxx Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxxxxxxxxx XX0 0XX
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Xxxxx Xxxxxx Xxxx 0
Xxxxxx Xxxx Xxxx
Xxx Xxxx Xxxx, Xxxxxxx
XX00 0XX
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Xxxxxx Xxxxxxxx 00 Xxxxxxxxxx Xxxx
Xxxxxxx
XX00 0XX
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Xxxxxx Xxxxxxx 00 Xxx Xxxxxx
Xxxxxxxx Xxxxx
Xxxxxxxx
Xxxxxxxxx XX00 0XX
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SCHEDULE 2
New Schedule 7 of Sale and Purchase Agreement
Part A
Year One Earnout Consideration
1. On 1 October 2000 (the "First Payment Date") the sum of US$3,600,000 (the
"Year One Earnout Consideration") shall become due from the Purchaser to
the Vendors.
2. The Year One Earnout Consideration shall be satisfied by the allotment
among and issue to the Vendors in the Agreed Proportions (as near as
practicable) of such number of Exchange Shares as have a value (at the
First Anniversary Price) equal to the Year One Earnout Consideration.
3. For the purposes of paragraph 2 the First Anniversary Price shall be the
average of the closing prices of the Purchaser's common stock on the
Nasdaq National Market on the three trading days immediately prior to the
First Payment Date.
SCHEDULE 2
Part B
Year Two Earnout Consideration
1. On 1 October 2001 (the "Second Payment Date") the sum of US$4,320,000 (the
"Year Two Earnout Consideration") shall become due from the Purchaser to
the Vendors.
2. The Year Two Earnout Consideration shall be satisfied by the allotment
among and issue to the Vendors in the Agreed Proportions (as near as
practicable) of such number of Exchange Shares as have a value (at the
Second Anniversary Price) equal to the Year Two Earnout Consideration.
3. For the purposes of paragraph 2 the Second Anniversary Price shall be the
average of the closing prices of the Purchaser's common stock on the
Nasdaq National Market on the three trading days immediately prior to the
Second Payment Date.
SCHEDULE 2
Part C
Set-Off
1. If there is any claim for any breach of any of the Warranties and/or a
claim under the Tax Deed, (a "Relevant Claim") the Purchaser shall,
subject to compliance with the provisions of this part C, have the right
to set-off any sum claimed by it in respect of any such loss suffered by
the Purchaser or the Company in respect of any breach of the Warranties
and/or the Tax Deed against any part of the Earnout Consideration for the
Sale Shares remaining unsatisfied.
2. The rights of set-off set out in this part C are without prejudice to any
other right or remedy which the Purchaser may have against the Vendors or
any of them, whether under the terms of this agreement or otherwise, but
other than as set out in this part C, the Purchaser shall have no right to
withhold the allotment of Exchange Shares, due under this agreement or
claim any other form of set-off, deduction or withholding from such
amounts.
3. Any exercise by the Purchaser of its right of set-off under paragraph 1.1
shall not operate to prevent or delay settlement of any part of the
Earnout Consideration then due, and the Set Off Shares shall be dealt with
in accordance with terms of the Escrow Agreement for which purposes all
references to "Escrow Shares" shall be deemed to be references to "Set Off
Shares", all references to "Shareholders" shall be deemed to be references
to "Warrantors".
EXECUTED as a deed by ) /s/ Xxxxx Xxxxxx 00 Xxxxxxxx Xxxx
XXXXXX XXXX ) acting as attorney for Xxxxxx Xxxx Xxxxxxx XX0 0XX
In the presence of: ) /s/ X. X. Xxxxxxx
EXECUTED as a deed by ) /s/ Xxxxx Xxxxxx 26 Temple Mill Island
XXXXX XXXXXX ) Xxxxxx XX0 15Q
In the presence of: ) /s/ X. X. Xxxxxxx
EXECUTED as a deed by ) /s/ Xxxxx Xxxxxx Xxxx 0 Xxxxxxx Xxxx Xxxx
XXXXX XXXXXX ) New Bath Rd.
In the presence of: ) /s/ X. X. Xxxxxxx Berks RG10 9R4
EXECUTED as a deed by ) /s/ Xxxxxx Xxxxx 48 Libenroad Road
XXXXXX XXXXX ) Reading
In the presence of: ) /s/ X. X. Xxxxxxx Berkshire RG30 2EB
EXECUTED as a deed by ) /s/ Xxxxxx Xxxxxxx 86 Top Common
XXXXXX XXXXXXX ) Warfield Green
In the presence of: ) /s/ X. X. Xxxxxxx Bracknell
Berks RG4 235J
EXECUTED as a deed ) /s/ Xxxxx Xxxx 0000 000xx Xxx. X. E.
for and on behalf of ) Suite 500
ONYX SOFTWARE ) /s/ Xxxx Xxxxxx Xxxxxxxx, XX 00000
CORPORATION )
In the presence of: )
