Exhibit 2.1
DATED December 1999
AGREEMENT
for the sale and purchase
of certain business and assets of
OMTOOL EUROPE LIMITED
and OMTOOL, LTD.
INTERNATIONAL PRESENCE PLC (1)
OMTOOL EUROPE LIMITED (2)
OMTOOL, LTD. (3)
PARTIES
(1) INTERNATIONAL PRESENCE PLC (No. 3709669) whose registered office is at
000 Xxxx'x Xxx Xxxx, Xxxxxx XX0X 0XX ("the Purchaser"); and
(2) OMTOOL EUROPE LIMITED ("Europe") (No. 1998843) whose registered office
is at 00 Xxxxxx Xxxx, Xxxxxxxx-xxxx-Xxxxxx, Xxxxxx, Xxxxxxx and (3)
OMTOOL, LTD. ("Omtool"), a corporation organized under the State of
Delaware whose principal office is at 0 Xxxxxxxxxx Xxx, Xxxxx, XX
00000, Xxxxxx Xxxxxx of America (together "the Vendors").
INTRODUCTION
The Vendors wish to sell and the Purchaser wishes to buy the IBM AS/400
business as defined within this Agreement and the attached Schedules
and it is hereby agreed that the Purchaser shall take over the Business
as a going concern on an "as is/where is basis" upon the terms and
subject to the conditions of this Agreement.
INTERPRETATION
In this Agreement, except where a different interpretation is clear
from or necessary in the context, the following words and expressions
shall have the following respective meanings:
the Assets all the following property, records, assets and rights of
the Vendors used in the conduct of the Business comprising
the benefit of the Customer Contracts, the customer list,
the Employees, the Goodwill, the Intellectual Property owned
by the Vendors for use in the Business, and the Plant,
excluding (i) current receivable balance from previous sales
or licenses of IBM AS/400 products, (ii) cash collected
under current customer support contracts, (iii) contracts
with vendors, such as providers of third-party hardware
products, (iv) governmental licenses and permits,
(v) trademarks not specifically listed under "Goodwill" below
and (vi) Vendors' office facilities and, except as listed
under "Plant", equipment.
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the Business the business of the design, development, marketing,
licensing, distribution and support of computer software
products for facsimile and other communication applications
for the IBM AS/400 marketplace together with the respective
resale of related IBM AS/400 third-party hardware products
and the provision of related consulting, customization,
configuration, installation and support services carried on
by the Vendors under the name "Omtool" or "CMA-Ettworth"
Business Day a day other than a Saturday or a Sunday on which the
clearing banks are open for business in the City of London
Completion completion of the sale and purchase of the Assets and
take-over of the Business
Completion 4th January 2000
Customer Contracts the contracts including those listed in schedule 3 between the
Vendors and clients of the Business for the supply of services to such
clients
the Employees those employees of the Vendors engaged in the Business as
exclusively listed in Schedule 1, whose contracts of employment are to be
taken over by the Purchaser.
the Goodwill the goodwill of the Vendors in relation to the Business together
with the exclusive right (so far as the Vendors can grant it) for the
Purchaser to use the names CMA-Ettworth, Telex/Fax/400, Voice Access, IMPS
and IMPS II in succession to, and to the exclusion of, the Vendors
Intellectual Property trade names, rights in logos and get-up, trade secrets,
registered designs, design rights, patents,
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letters patent, utility models, semi-conductor topographies, all rights of
whatsoever nature in computer software and data in each case only insofar
as relates exclusively to the software products known as Telex/Fax/400,
Voice Access, IMPS and IMPS II, all intangible rights and privileges of a
nature similar to any of the foregoing, in every case in any part of the
world and whether or not registered; and including all granted
registrations and all applications for registration in respect of any of
the same; but excluding any rights to the OMTOOL name;
the Liabilities any liabilities or obligations of any nature of the Vendors
in relation to the Business or attaching to the Business or
Assets incurred or arising in respect of any action,
omission, matter of transactions occurring on or prior to
Completion excluding existing obligations of the Vendors
under the Customer Contracts
the Plant the plant and equipment listed in Schedule 4
the Transfer Regulations the Transfer of Undertakings (Protection of Employment)
Regulations 1981, as amended
SALE AND PURCHASE OF THE ASSETS AND TRANSFER OF THE BUSINESS
For the consideration price of US $600,000 the Vendors shall sell as
legal and beneficial owner and with full title guarantee and the
Purchaser shall purchase the Business and the Assets on an "as is/where
is basis", to the best of the knowledge of the Vendors free from all
options, liens, charges, encumbrances and all other adverse rights and
interests, with effect from Completion. In the case of any of the
Assets which are capable of transfer by delivery, title to that Asset
shall pass to the Purchaser by delivery. The Vendors make no
representation or warranty, express or implied, as to the Business or
the Assets and all implied covenants (other than as to title) under UK
Sale of Goods or Services legislation are hereby expressly excluded.
The Purchaser shall take over the Business as a going concern upon
Completion.
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There shall be excluded from the sale and purchase under this
Agreement:
(a) the Liabilities, other than Liabilities under the Customer
Contracts which are hereby assumed by the Purchaser, and
(b) cash in hand or at bank and current accounts receivable.
OBLIGATIONS OF THE VENDORS PRIOR TO COMPLETION
The Vendors undertake that once this Agreement is signed but prior to
actual completion that they shall:
(a) assist the Purchaser to affect a smooth transfer of the
Business such as the drafting of a letter to all customers
informing them of the transfer, the enclosure of a novation
agreement and invoice for the renewal of any contracts, plus
reasonable access to all databases and information concerning
the Business;
(b) permit a representative of the Purchase to attend at the
offices of the Vendors at Xxxxxx Xxxx, Xxxxxxxx xxxx Xxxxxx
("the Premises") and the offices of Omtool in the US for the
purpose of novation of the Customer Contracts;
(c) not knowingly enter into any agreements that could be
detrimental to the Business;
(d) work with the Purchaser to effect the transfer and delivery of
all the Plant; and
(e) appoint the Purchaser as an Authorized Reseller for the
product known as Fax Sr subject to the terms and conditions of
a standard reseller agreement and permit the Purchaser to sell
such product under the brand name IMPS II.
OBLIGATIONS OF THE VENDORS AFTER COMPLETION
The Vendors undertake that after Completion that they will use
reasonable efforts to:
(a) continue to give to the Purchaser such information and
reasonable assistance as the Purchaser may reasonably require
in connection with the Business;
(b) execute such further assurances and afford such assistance as
the Purchaser may reasonably require to vest in the Purchaser
(or its nominee) the full and unfettered benefit of the
Business and the Assets; and
(c) inform all persons inquiring about the Business of the
Transfer of the Business to The Purchaser and pass on to the
Purchaser within two Business Days of receipt any
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enquiry relating to the Business or for the supply of goods or
in connection with the Business.
OBLIGATION OF THE PURCHASER AFTER COMPLETION
The Purchaser undertakes after Completion that it will:
(a) honor and perform the Customer Contracts, and support the
customers through expiration or termination of the Customer
Contracts; and
(b) hold in trust for the Vendors and promptly transfer and report
to the Vendors any amount received on account of the current
receivable balance being retained by the Vendors.
CONSIDERATION PAYABLE BY THE PURCHASER
The total consideration payable by the Purchaser to the Vendors for the
Assets shall be US$ 600,000 which shall be appointed among the Assets
as follows:
------------------------------------------------------------ ---------------------------------------------------------
ASSET PRICE $
------------------------------------------------------------ ---------------------------------------------------------
the Goodwill and Customer List $1.00
------------------------------------------------------------ ---------------------------------------------------------
the Intellectual Property $599,998
------------------------------------------------------------ ---------------------------------------------------------
Customer Contracts $1.00
------------------------------------------------------------ ---------------------------------------------------------
The consideration payable shall be paid in the following amounts on the
following dates by telegraphic transfer, and time shall be of the
essence.
------------------------------------------------------------ ---------------------------------------------------------
AMOUNT (US$) DATE
------------------------------------------------------------ ---------------------------------------------------------
150,000 Completion Date
------------------------------------------------------------ ---------------------------------------------------------
150,000 15th April 2000
------------------------------------------------------------ ---------------------------------------------------------
150,000 15th July 2000
------------------------------------------------------------ ---------------------------------------------------------
150,000 15th October 2000
------------------------------------------------------------ ---------------------------------------------------------
The Purchase guarantees to pay the full consideration regardless of the
performance of the Business after the Completion.
COMPLETION
Completion of the sale and purchase of the Assets and take over of the
Business shall take place of the Completion Date on the Premises.
Upon Completion the Vendors shall deliver of cause to be delivered or
make fully available to the Purchaser:
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(a) an assignment of all registered Intellectual Property (if
any);
(b) all Assets capable of transfer by delivery or by physical
transfer; and
(c) all books and records and all contracts, licenses, customer
data and files, and all other documents exclusively concerning
the Business.
EMPLOYEES
The Vendors and the Purchase acknowledge that the transfer of the
Business (so far as it relates to the Employees employed in the United
Kingdom) constitutes a relevant transfer of the whole of the
undertaking of the Business for the purposes of Transfer Regulations.
The Vendors will use all reasonable efforts to assist in the transfer
of the Employees to the employment of the Purchaser and will indemnify
the Purchaser from all actions arising from any person (not being an
Employee) concerning their employment by The Vendor or The Purchaser.
The Purchaser will indemnify the Vendors from all actions against the
Vendors relating to any charges to the terms of employment of the
Employees instituted by the Purchaser after Completion.
COVENANTS
To ensure that the Purchaser receives the full value of the Business
and the full benefit of the goodwill of the Business each of the
Vendors hereby undertakes and covenants with the Purchaser that none of
them, none of their respective holding companies or subsidiaries shall
for a period of one year after the date of this Agreement directly
within the United Kingdom and in the United States:
(a) carry on or be engaged directly in any trade or business
providing facsimile or other communication applications for
the AS/400 or related services in competition with the trade
or business of the Business as currently carried on; or
(b) either on its own behalf or on behalf of any person, firm or
company directly or indirectly have any dealings with or
endeavor to entice away from the Business or solicit or
interfere with any person, firm or company who at that date
does (or, as regards a person, firm or company that he has
been engaged or involved with, at any time during the period
of two years prior to that date shall have been doing)
business with the Business and who the Purchaser reasonably
considers to have been a regular customer, client, supplier or
distributor of the Business for the purpose of assisting any
trade or business which provides facsimile or other
communication applications for the AS/400 or related services
in competition with the Business or
(c) either on its own behalf or on behalf of any person, firm or
company directly or indirectly employ or engage or induce or
seek to induce to leave the service of the Purchaser any
person who at that date shall have been employed by the
Business.
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The parties agree that the benefit of the covenants and undertakings
given in this clause shall be assignable in whole or in part by the
Purchaser to, and become enforceable by, any company which is a
subsidiary or holding company of the Purchaser which from time to time
is the owner of the Business or any material part hereof.
After Completion, the Vendors shall not without the Purchaser's express
agreement and save as expressly contemplated by this Agreement hold
itself out as being interested in or in any way connected with the
Business or authorize any person to hold out the Vendors as being so
interested.
GENERAL PROVISIONS
Each party shall pay its own legal, accountancy and other costs,
charges and expenses incurred in connection with this Agreement,
This Agreement and the documents referred to in this Agreement
constitute the whole agreement between the parties in relation to the
subject matter covered. No oral explanation or oral information given
by any party shall alter the interpretation of this Agreement. It is
agreed that:
(a) no party has entered into this Agreement in reliance upon any
representation, warranty or undertaking which is not set out
or referred to in this Agreement;
(b) in the absence of fraud, no party will have any remedy in
respect of any untrue statement, made to it or its
representatives or agents, upon which it or they relied and
such party's only remedy will be for breach of contract; and
(c) this clause shall not exclude any liability for fraudulent
misrepresentation.
This Agreement and all documents supplemental thereto is governed by
and is to be construed in accordance with English law.
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SCHEDULE 1
EMPLOYEES
Basil Prestcott - UK
Xxxx Xxxxxx - USA
Xxx XxxXxxxxx -- USA
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SCHEDULE 2
INTELLECTUAL PROPERTY
Telex Fax 400
Voice Access
Imps I
Imps II
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SCHEDULE 3
CONTRACTS
As per attached Deferred Income Schedules provided to The Purchaser during Due
Diligence.
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SCHEDULE 4
PLANT
1. 2 IBM AS/400's with connected IMPS units (one in Florida USA,
one in Kingston-upon-Thames, UK)
2. Replacement fax and telex boxes.
3. Connected AS/400 Printers.
4. IBM AS 400 for tape production (Boston, USA)
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ATTESTATIONS
SIGNED by )
For and on behalf of ) /s/ Xxxx Xxxxxx
INTERNATIONAL PRESENCE PLC )
in the presence of: )
SIGNED by )
For and on behalf of ) /s/ Darioush Mardan
OMTOOL EUROPE LIMITED )
in the presence of: )
SIGNED by )
For and on behalf of ) /s/ Darioush Mardan
OMTOOL, LTD. )
in the presence of: )
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