THIS AGREEMENT made the day of 2000 BETWEEN UNIVERSITY COLLEGE
CORK - NATIONAL UNIVERSITY OF IRELAND, CORK (formerly known as University
College Cork) of Western Road, Cork (hereinafter called the "Vendor") of the
one part and ▇▇▇▇▇▇▇ & YALE INC. a Massachusetts corporation with a principal
place of business located at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
(hereinafter called the "Purchaser").
NOW IS IT HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS
1 In this Agreement, unless the context otherwise requires, the following
words and expressions shall have the following meanings:
"Company" means Corkopt Limited, a company registered in Ireland under
registration number 218133.
"Completion" means completion under clause 9 of this Agreement.
"Contract Date" means the date of this Agreement.
"Completion Date" means the date of completion of the Sale of the
Shares being the date on which the share certificates for the Shares
are delivered to the Purchaser.
"Latest Completion Date" means the 30th June 2000.
"Issued Share Capital" means the entire issued share capital of the
Company comprising the following:
31,312 "A" ordinary shares of L1 each,
36,534 "C" ordinary shares of L1 each,
10,000 redeemable preference shares of L1 each,
BUT EXCLUDING the 297,000 "B" ordinary shares of L1 each issued
under the Business Expansion Scheme.
"Shares" means 2,051 "A" ordinary shares of IRL1 each in the
share capital of the Company registered in the name of the Vendor.
"Warranties" means the warranties to be given by the Vendor as set out
in the Schedule hereto.
1.2 Words denoting the singular shall include the plural and vice versa.
Words denoting any gender shall include all genders and words denoting
persons shall include corporations.
1. SALE AND PURCHASE
Subject to clause 3 below, the Vendor shall sell as beneficial owner and the
Purchaser shall purchase the Shares free from all liens, charges and
encumbrances and with all rights now or hereafter attaching thereto with
effect from completion.
1. CONDITION PRECEDENT
The within sale is subject to the Purchaser on or prior to the Completion Date
acquiring all of the Issued Share Capital. If the Purchaser has not acquired the
entirety of the Issued Share Capital by the Latest Completion Date, the
Purchaser may by notice in writing rescind the within Agreement which shall then
be at an end.
1. PURCHASE PRICE
4.1 In consideration for the transfer of the Shares, the Purchaser will
issue to the Vendor 4,106 Shares of the Purchaser's common stock
(hereinafter called "the Allotment Shares"), subject to the adjustment
referred to at subclause 4.2, on the Completion Date.
4.2 At completion, the following adjustments shall be made to the number
of the Allotment Shares.
If the average closing price of the Purchaser's Common Stock as quoted
on the Nasdaq market for the five business days preceding the Contract
Date and for the avoidance of doubt not including the date of signing
of this Agreement (hereinafter called the "Completion Price") is less
than $35 per share, then the number of shares comprised in the
Allotment Shares will be increased to the number derived from dividing
$2,194,202 by 75% of the Completion Price. If the Closing Price is
greater than $48 per share, the number of shares comprising the
Allotment Shares will be decreased to the number derived from dividing
$2,194,202 by 75% of the Completion Price.
1. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
As a material inducement to the Vendor to enter this Agreement and sell
the Shares, the Purchaser hereby represents and warrants to the Vendor
as follows:
5.1 Organization; Power. The Purchaser is a Company duly incorporated and
validly existing under the laws of the State of Massachusetts, and has
all requisite corporate power and authority to enter into this
Agreement and perform its obligations hereunder.
5.2 Authorization. The execution, delivery, and performance by the
Purchaser of this Agreement and all other agreements contemplated
hereby to which the Purchaser is a party have been duly and validly
authorized by all necessary corporate action of the Purchaser, and this
Agreement and each such other agreement, when executed and delivered by
the parties thereto, will constitute the legal, valid, and binding
obligation of the Purchaser enforceable against it in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, and similar statutes affecting creditors'
rights generally and judicial limits on equitable remedies.
5.3 No Conflict with Other Instruments or Agreements. The execution,
delivery, and performance by the Purchaser of this Agreement and all
other agreements contemplated hereby to which the Purchaser is a party
will not result in a breach or violation of, or constitute a default
under, its Articles of Incorporation or Bylaws or any material
agreement to which the Purchaser is a party or by which the Purchaser
is bound.
5.4 Governmental Authorities.
(i) the Purchaser is not required to submit any notice, report, or
other filing with any governmental or regulatory authority in
connection with the execution and delivery by the Purchaser of this
Agreement and the consummation of the purchase and
(ii) no consent, approval, or authorization of any governmental or
regulatory authority is required to be obtained by the Purchaser or any
affiliate in connection with the Purchaser's execution, delivery, and
performance of this Agreement and the consummation of this purchase.
5.5 Litigation. There are no actions, suits, proceedings, or governmental
investigations or inquiries pending or, to the knowledge of the
Purchaser, threatened against the Purchaser or its properties, assets,
operations, or businesses that might delay, prevent, or hinder the
consummation of this purchase.
5.6 Tax Liability. To the extent the Purchaser deems necessary, the
Purchaser has reviewed with the Purchaser's own tax advisors the
federal, state, local and foreign tax consequences of this investment
and the transactions contemplated by this Agreement. The Purchaser
relies solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Purchaser
understands that the Purchaser (and not the Company) shall be
responsible for the Purchaser's own tax liability that may arise as a
result of this investment or the transactions contemplated by this
Agreement.
5.7 Disclosure. To the Purchasers knowledge this agreement when taken a
whole does not contain any untrue statement of a material fact
concerning the Purchaser or omit to state a material fact necessary in
order to make the statements concerning the Purchaser contained herein
not misleading.
5.8 Litigation. There are no actions, suits, proceedings or investigations
pending against the Purchaser or the Purchaser's properties before any
court or governmental agency (nor, to the Purchaser's knowledge, is
there any threat thereof) which would impair in any way the Purchaser's
ability to enter into and fully perform the Purchaser's commitments and
obligations under this Agreement or the transactions contemplated
hereby.
5.9 Compliance with Other Instruments. The execution, delivery and
performance of and compliance with this Agreement, and the issuance of
shares will not result in any material violation of, or conflict with,
or constitute a material default under, any Purchaser's articles of
incorporation or bylaws or any of the Purchaser's material agreements
nor result in the creation of any mortgage, pledge, lien, encumbrance
or charge against any of the assets or properties of the Company or the
Shares.
5.10 No Brokers or Finders Fees. The Purchaser has not, and will not, incur,
directly or indirectly, as a result of any action taken by the
Purchaser, any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with this Agreement.
6. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASER AND THE VENDOR
6.1 Each and every obligation of the Vendor under this Agreement is subject
to the satisfaction, at or before the Completion Date, of each of the
following conditions:
1. Representations and Warranties; performance. Each of the
representations and warranties made by the Purchaser herein
will be true and correct in all material respects as of the
Completion Date with the same effect as though made at that
time except for changes contemplated, permitted or required by
this Agreement; the Purchaser will have performed and complied
with all agreements, covenants and conditions required by this
Agreement to be performed and complied with by it prior to the
Completion Date; and the Vendor will have received at the
Closing a certificate of the Purchaser signed by the President
and the Chief Financial Officer of the Purchaser stating that
each of the representations and warranties made by the
Purchaser herein is true and correct in all material respects
as of the Closing except for changes contemplated, permitted
or required by this Agreement and that the Purchaser has
performed and complied with all agreements, covenants and
conditions required by this Agreement to be performed and
complied with by it prior to the Closing.
1. No Proceeding or Litigation. No action, suit, or proceeding
before any court (other than suits seeking monetary damages
only and in the aggregate sum of less than $10,000) and any
governmental or regulatory authority will have been commenced
and be continuing, and no investigation by any governmental or
regulatory authority will have been commenced and be
continuing, and no action, investigation, suit, or proceeding
will be threatened at the time of Closing, against the Vendor,
the Company, or the Purchaser or any of their affiliates,
associates, officers, or directors, seeking to restrain,
prevent, or change this purchase, questioning the validity or
legality of this purchase, or seeking damages in connection
with this purchase.
1. Corporate Action. The Purchaser will have furnished to the
Vendor a copy, certified by the Secretary or an Assistant
Secretary of the Purchaser, of the resolutions of the
Purchaser authorizing the execution, delivery, and performance
of this Agreement.
6.2 Each and every obligation of the Purchaser under this Agreement is
subject to the satisfaction at or before the Completion Date of each of
the following conditions:
a. Representations and Warrants; performance. Each of the
representations and warranties made by the Vendor herein will
be true and correct in all material respects as of the
Completion Date with the same affect as though made at that
time except for changes contemplated, permitted or required by
this Agreement; the Vendor will have performed and complied
with all agreements, covenants and conditions required by this
Agreement to be performed and complied with by it prior to the
Closing; and the Purchaser will have received at the closing
the Warranties executed under the seal of the Vendor and the
Vendor has performed and complied with all agreements,
covenants and conditions required by this Agreement to be
performed and complied with by it prior to the Closing.
a. No Proceeding or Litigation. No action, suit, or
proceeding before any court and any governmental or
regulatory authority will have been commenced and be
continuing, and no investigation by any governmental or
regulatory authority will have been commenced and be
continuing, and no action, investigation, suit, or proceeding
will be threatened at the time of Closing, against the
Vendor, the Company, or the Purchaser or any of their
affiliates,
associates, officers, or directors, seeking to restrain,
prevent, or change this purchase, questioning the validity or
legality of this purchase, or seeking damages in connection
with this purchase.
7. SECURITIES
7.1 The Vendor is acquiring the Purchasers Common Stock for investment for
the Vendors own account, not as a nominee or agent, and not with the
view to, or for resale in connection with, any distribution thereof.
The Vendor understands that the Purchaser's Common Stock has not been,
and will not be, registered under the Securities Act of 1933 (the
"Securities Act") or the securities laws of any state by reason of a
specific exemption from the registration provisions of the Securities
Act and the applicable state securities laws, the availability of which
depends upon, among other things, the bona fide nature of the
investment intent and the accuracy of the Vendors' representations as
expressed herein. The Vendor is acquiring the Shares without
expectation, desire, or need for resale and not with the view toward
distribution, resale, subdivision or fractionalization of the Shares.
The jurisdiction of residence of theVendor is the Republic of Ireland
and the offer and sale of the Purchaser's Common Stock to such Vendor
will take place in such jurisdiction. The Vendor is knowledgeable and
experienced in making of investments of the type involved in the
acquisition of the Purchaser's Common Stock pursuant to this Agreement
and is able to bear the economic risk of loss of its investment in
Purchaser. The Vendor has received and reviewed a copy of Purchaser's
most recent Annual Report on Form 10-K and a proxy statement and has
been granted the opportunity to ask such questions regarding the
Purchaser's affairs either directly or through its authorized
representative as deemed necessary in respect of the Vendor's decision
to acquire Purchaser Common Stock pursuant to this Agreement.
7.2 The Vendor understands that the Purchaser's Common Stock cannot be
resold in a transaction to which the Securities Act and state
securities laws apply unless (i) subsequently registered under the
Securities Act and applicable state securities laws of (ii) exemptions
from such registrations are available. The Purchaser is aware of the
provisions of Rule 144 promulgated under the Securities Act which
permit limited resale of shares purchased in a private transaction
subject to the satisfaction of certain conditions.
7.3 The Vendor understand that the certificates for the Purchaser's Common
Stock will bear a legend substantially similar to the following:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THE COMPANY WILL NOT TRANSFER THIS CERTIFICATE UNLESS (i) THERE
IS AN EFFECTIVE REGISTRATION COVERING THE SHARES REPRESENTED BY THIS
CERTIFICATE UNDER THE SECURITIES ACT OF 1933 AND ALL APPLICABLE STATE
SECURITIES LAWS, (ii) IT FIRST RECEIVES A LETTER FROM AN ATTORNEY,
ACCEPTABLE TO THE BOARD OF DIRECTORS OR ITS AGENTS, STATING THAT IN THE
OPINION OF THE ATTORNEY THE PROPOSED TRANSFER IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND UNDER ALL APPLICABLE
STATE SECURITIES LAWS OR (iii) THE TRANSFER IS MADE PURSUANT TO RULE
144 UNDER THE SECURITIES ACT OF 1933.
7. This Agreement replaces and supercedes all previous agreements,
understandings and arrangements
between the parties hereto including but by no means limited to the
UCC/NMRC - Corkopt Limited Interaction Agreement dated 19th November
1997. For the avoidance of doubt the Vendor hereby rescinds the said
agreement and hereby acknowledges that the Vendor shall henceforth
have no rights, entitlements or obligations under the terms of the
said agreement.
7. COMPLETION
9.1 Completion shall take place at the offices of ▇▇▇▇▇ ▇▇▇▇ Jermyn
Solicitors, ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ on the Completion Date and all matters
set out at subclauses 9.2 and 9.3 shall be effected.
9.2 The Purchaser shall furnish on completion:
i. Original share/stock certificates in relation to the Allotment
Shares registered in the name of the Vendor.
i. Certificate of Purchaser pursuant to clause 6.1(b) and,
i. Certified copy Resolution of Purchaser pursuant to
clause 6.1(c).
9.3 The Vendor shall deliver to the Purchaser:
i. Duly completed and signed share transfer accompanied by the
relative share certificate in respect of the Shares in favour
of the Purchaser.
i. The Warranties executed under the seal of the Vendor.
10. AGREEMENT
This Agreement constitutes the whole agreement between the parties hereto
relating to its subject matter and no variations hereof shall be effective
unless in writing.
10. CLAUSE HEADINGS
The clause headings in this Agreement are for the convenience of the parties
only and shall not affect its interpretation.
10. GOVERNING LAW
The construction, validity and performance of this Agreement shall be governed
by the laws of Ireland.
SCHEDULE
Warranties
1. The Vendor is the sole beneficial owner of the Shares and the Purchaser
on Completion will have good and marketable title to the Shares and the
Shares are free from all liens, charges and encumbrances.
1. There are no agreements or arrangements in force, other than this
Agreement which grant to any person the right to call for the transfer
of the Shares.
SIGNED by the Vendor
in the presence of;
SIGNED for and on behalf
of the Purchaser in the
presence of;
Dated the day of 2000
UNIVERSITY COLLEGE CORK - NATIONAL
UNIVERSITY OF IRELAND, CORK
(VENDOR)
AND
▇▇▇▇▇▇▇ & YALE INC
(PURCHASER)
AGREEMENT
▇▇▇▇▇ ▇▇▇▇ Jermyn
Solicitors
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
Ref: Corkopt 9367/000530 UCC Agreement