UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) July 13, 1998
DATASTREAM SYSTEMS, INC.
(Exact name of Registrant as specified in Its Charter)
DELAWARE 0-25590 57-0813674
(State of (Commission (IRS Employer
Incorporation) File Number) Identification No.)
50 DATASTREAM PLAZA, GREENVILLE, SC 29605
(Address of principle executive offices) (Zip Code)
(Telephone number of registrant) (864) 422-5001
NOT APPLICABLE
(Former Name, Former Address and Former Fiscal Year, if
changed since last report)
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ITEM 5. OTHER EVENTS
On July 13, 1998, Datastream Systems, Inc., a Delaware corporation
(the "Registrant") entered into an Asset Sale Agreement to acquire certain
assets of Datastream (Pacific) Pty Ltd. an Australian corporation headquartered
in Brisbane, Australia ("DSTM-PAC"). DSTM-PAC, founded in 1997, is an exclusive
distributor of the Registrant's products in Australia and New Zealand. The
assets purchased include customer contracts, equipment leases, goodwill,
intellectual property, plant and equipment, corporate records and inventory. In
consideration of the acquisition and pursuant to the Asset Sale Agreement, the
Registrant agreed to pay for such assets approximately $600,000, comprised of
13,274 shares of the Registrant's common stock, $.01 par value per share (the
"Common Stock"), and approximately $300,000 in cash. The Company used proceeds
from its initial public offering in April 1995 and its secondary offering in
October 1995 to fund the acquisition.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements.
Not applicable.
(b) Pro Forma Financial Information.
Not applicable.
(c) Exhibits.
The following exhibits are filed herewith inaccordance with the
provisions of Item 601 of Regulation S-K:
Exhibit No. Description of Exhibit
2.1 Asset Sale Agreement, dated as of July 13, 1998,
by and among Datastream Systems, Inc., Datastream
Asia Pacific Pty Ltd., Datastream (Pacific) Pty
Ltd. and the stockholders of Datastream (Pacific)
Pty Ltd. listed on the signature pages thereto.
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ITEM 9. SALE OF SECURITIES PURSUANT TO REGULATION S.
As a portion of the consideration for the acquisition of certain
assets of DSTM-PAC, the Registrant has agreed to issue 13,274 shares of its
Common Stock to the DSTM-PAC stockholders. The shares of Common Stock will be
issued, subject to receipt by the Registrant of consents and documentation
required by the Registrant to assign certain of the assets of DSTM-PAC, without
registration pursuant to the exemption provided by Rule 903 of Regulation S
promulgated under the Securities Act of 1933, as amended ("Regulation S"). The
Registrant claims this exemption from registration on the basis that the
issuance will be made (i) in an "offshore transaction" to persons each of whom
are not a "U.S. person" as defined in Rule 902 of Regulation S, (ii) the
Registrant and its affiliates and any agent acting on behalf of the Registrant
or its affiliates will not engage in any "directed selling efforts" as defined
in Rule 902 of Regulation S, (iii) "Offering Restrictions" as defined by Rule
902 of Regulation S will be, to the extent applicable, implemented by the
Registrant, and (iv) all of the shares of Common Stock issued to the DSTM-PAC
stockholders will be subject to the restriction that they may not be traded
after the date of issuance until the expiration of the Regulation S holding
period and bear a legend to such effect. The Registrant also claims an exemption
from registration under Section 4(2) of the Securities Act of 1933, as amended,
because the shares of Common Stock will be issued to a small number of persons
in a transaction that will not involve any public offering. The Registrant
intends to file an amendment to this Form 8-K after the Regulation S placement
of the 13,274 shares of Common Stock is completed.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DATASTREAM SYSTEMS, INC.
Date: July 22, 1998 By: /s/ Daniel H. Christie
Daniel H. Christie
Chief Financial Officer
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EXHIBIT INDEX
Exhibit No. Description of Exhibit
2.1 Asset Sale Agreement, dated as of July 13, 1998,
by and among Datastream Systems, Inc., Datastream
Asia Pacific Pty Ltd., Datastream (Pacific) Pty
Ltd. and the stockholders of Datastream (Pacific)
Pty Ltd. listed on the signature pages thereto.
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EXHIBIT 2.1
DATASTREAM (PACIFIC) PTY LTD
PAUL ANTHONY HIGGINS
BERNADETTE MARY HIGGINS
DATASTREAM ASIA PACIFIC PTY LTD
DATASTREAM SYSTEMS, INC
- - ------------------------------------------------------
ASSET SALE AGREEMENT
- - ------------------------------------------------------
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CONTENTS
1. INTERPRETATIONS 1
2. SALE AND PURCHASE 5
3. PURCHASE PRICE 5
4. COMPLETION 6
5. EMPLOYEES 6
6. WARRANTIES 7
7. LIABILITIES AND BOOK DEBT 11
8. RISK AND PROPERTY 12
9. DINGO SOFTWARE 12
10. CONTRACTS 12
11. PREMISES LEASE 13
12. EQUIPMENT LEASES 13
13. RESTRICTION ON COMPETITION 14
14. CHANGE OF VENDOR'S NAME 15
15. DATASTREAM SHARES 16
16. CONFIDENTIAL INFORMATION AND ASSISTANCE 16
17. NOTICES 16
18. MISCELLANEOUS 17
19. EFFECT OF EXECUTION 19
20. ENTIRE UNDERSTANDING 19
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THIS AGREEMENT is made on 13 July 1998
BETWEEN DATASTREAM (PACIFC) PTY LTD ACN 079 659 653 a company duly
incorporate and having its registered office at Level 1, 56 Little
Edward Street, Spring Hill, Queensland ("Vendor")
AND PAUL ANTHONY HIGGINS of 34 Highwood Road, The Gap,
Queensland ("Higgins")
AND PAUL ANTHONY HIGGINS and BERNADETTE MARY HIGGINS of 34 Highwood
Road, The Gap, Queensland, as trustees of the Higgins Family Trust
("Shareholders")
AND DATASTREAM ASIA PACIFIC PTY LTD ACN 083 330 385 a company duly
incorporated and having its registered office at Level 1, 56 Little
Edward Street, Spring
Hill, Queensland ("Purchaser")
AND DATASTREAM SYSTEMS, INC. a company incorporated in
Delaware and having its corporate offices at 50
Datastream Plaza, Greenville, South Carolina, United
States of America ("Datastream")
RECITALS
A The Vendor is the owner of and carries on the Business.
B The Vendor has agreed to sell to the Purchaser and the Purchaser has
agreed to purchase from the Vendor the Assets for the Purchase Price upon
the terms and conditions of this agreement.
IT IS AGREED
1 INTERPRETATION
Definitions
In this agreement:
"ASIC" means Australian Securities and Investments Commission.
"Assets" means certain of the assets of the Business on the
Completion Date being:
(a) the Contracts;
(b) the Equipment Leases;
(c) the Goodwill;
(d) the Intellectual Property;
(e) the Plant and Equipment;
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(f) the Records; and
(g) the Stock.
"Authorised Officer" means a director, secretary, manager or other duly
authorised representative.
"Book Debts" means those book debts owing to the Vendor in respect of the
Business which are unpaid at Completion.
"Business" means the business of distributing computer software and
providing associated support services conducted by the Vendor from the
Premises.
"Business Day" means any day on which the major trading banks are open for
business in Brisbane.
"Car Parking Licence" means a car parking licence dated 23 September 1997
between Yamco and Dingo Software pursuant to which Dingo Software is
entitled to use 4 car parking bays in association with the Leased
Premises.
"Completion" means the completion of the sale of the Assets
in accordance with clause 4.
"Completion Date" means the date of this agreement.
"Contracts" means the contracts of the Business, including
those described in schedule 1.
"Datastream Shares" means that number of shares of Datastream common stock
with a value of $509,398.50 calculated at the closing price of Datastream
common stock on NASDAQ on 15 June 1998 using the $A/US interbank exchange
rate at the close of business on 15 June 1998 as specified in the Wall
Street Journal on 16 June 1998, issued bearing a Regulation S Legend,
which constitute part of the Purchase Price.
"Dingo Software" means Dingo Software Pty Ltd ACN 053 730 331.
"Distribution Agreement" means the distribution agreement dated 3 February
1997 between the Vendor and Datastream.
"Encumbrances" includes mortgages, charges, liens, pledges
and other encumbrances.
"Employees" means the employees of the Vendor who are
employed in the Business as at Completion.
"Equipment Leases" means the plant and equipment lease agreements over the
Plant and Equipment details of which are set out in schedule 2.
"Financial Statements" means the financial statements for the
Business which are set out in schedule 5.
"Goodwill" means the goodwill of the Business.
"Insolvency Event" means:
a) the bankruptcy of the person concerned;
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b) the appointment of an official manager in respect of all
or any part of the property of the person concerned;
c) the entry by the person concerned into a scheme of
arrangement or a composition with, or assignment of its
creditors, or a moratorium involving any of them;
d) the person concerned being or stating that it is unable to
pay its debts when they fall due;
e) the appointment of a receiver, receiver and manager,
provisional liquidator or administrator in respect of the
person concerned or any part of its property;
f) the making of a winding up order, or the passing of or attempted
passing of a resolution for winding up, in respect of the person
concerned except for the purposes of reconstruction including, without
limitation, the issue of a notice of meeting at which it is proposed to
consider such resolutions;
g) an application being made (which is not dismissed within 5 Business
Days) for an order, resolution being passed or proposed, a meeting
being convened or any other action being taken to cause anything
described above;
h) anything analogous to or of a similar effect to anything
described above under the law in any relevant
jurisdiction; and
i) any valid attempt to enforce any Encumbrance over any of
the Assets.
"Intellectual Property" means all the inventions, innovations,
improvements, patents, patent applications, trade marks, trade names,
design rights, circuit layout rights, semiconductor chip rights, trade
secrets, know-how, results and copyright in any drawings, plans,
specifications, computer programs and any literary or artistic works
(whether visible or not) owned by the Vendor including, without limiting
the generality of the foregoing, those set out in schedule 4.
"Obligations" means the obligations on the part of the Vendor
contained in the Contracts.
"Plant and Equipment" means the plant, equipment, motor vehicles and
furniture used in connection with the Business and set out in schedule 3.
"Premises" means the premises from which the Business is conducted,
situated at Level 1, Yamco House, 56 Little Edward Street, Spring Hill,
Queensland described as Lots 4 and 5 on RP 40456, Lot 3 on RP 45306 and
Lot 2 on RP 10370 and
contained in Title Reference 17059102.
"Premises Lease" means the lease of the Premises dated 23 September 1997
from Yamco to Dingo Software and includes the Car Parking Licence.
"Purchase Price" means the consideration to be paid to the
Vendors pursuant to clause 3.
"Records" means all books of account, customer and supplier lists,
advertising, sales and marketing materials, financial and business data,
employee data, technical data and all the
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Vendor's other records, data, information and documents relating to the
Business and the Assets whether recorded or stored in written form,
electronically or otherwise and all copyright therein.
"Regulation S" means Regulation S and the rules thereunder promulgated
under the Securities Act of 1933, as amended.
"Regulation S Legend" means the legend to be placed on the Datastream
Shares that reads as follows:
"The shares of Datastream Common Stock represented by this
Certificate have not been registered under the Securities Act of
1933, as amended ("the Securities Act"), and have been issued outside
the United States in reliance upon Regulation S promulgated under the
Securities Act. Such shares may not be offered or sold in the United
States or to U.S. persons (as defined in Regulation S promulgated
under the Securities Act), other than distributors, unless the shares
are registered under the Securities Act or such offer or sale is made
in compliance with Regulation S or another exemption from the
registration requirements of the Securities Act is available."
"Related Body Corporate" has the meaning given to it in the
Corporations Law.
"Service Agreement" means an agreement in the form set out in
annexure A.
"Stock" means all stock, including raw materials, work in progress and
finished goods, owned by the Vendor for use in the Business on the
Completion Date.
"Transferring Employees" means those Employees who accept the Purchaser's
offer of employment made in accordance with clause 5.
"U.S. Person" means any natural person resident in the United States, any
partnership or corporation organised or incorporated under the laws of the
United States, any trust of which any trustee is such a person or as
otherwise defined in Rule 902(k) of Regulation S.
"Warranties" means the warranties contained in clause 6.
"Yamco" means Yamco Japan Co Ltd 90B00871F.
Construction
Unless expressed to the contrary:
a) words importing:
(i) the singular include the plural and vice versa;and
(ii) any gender includes the other genders;
b) if a word or phrase is defined cognate words and phrases
have corresponding definitions;
c) a reference to:
(i) a person includes a firm, unincorporated association,
corporation and a government or statutory body or
authority;
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(ii) a person includes the legal personal representatives,
successors and assigns of that person;
(iii) a statute, ordinance, code or other law includes regulations
and other statutory instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(iv) a right includes a benefit, remedy, discretion, authority or
power;
(v) time is to local time in Queensland;
(vi) "$" or "dollars" is a reference to the lawful currency of
Australia;
(vii) this or any other document includes the document as varied
or replaced and notwithstanding any change in the identity
of the parties;
(viii) writing includes any mode of representing or reproducing
words in tangible and permanently visible form, and includes
facsimile transmission;
(ix) any thing (including, without limitation, any amount) is
a reference to the whole or any part of it and a reference
to a group of things or persons is a reference to any one
or more of them; and
(x) a right or obligation of any two or more persons confers
that right or imposes that obligation, as the case may be,
jointly and severally.
Headings
Headings do not affect the interpretation of this agreement.
Performance on Business Days
Any act required by this agreement to be performed on a day which is not a
Business Day shall be performed on the following Business Day.
2 SALE AND PURCHASE
The Vendor agrees to sell the Assets to the Purchaser free from all
Encumbrances and the Purchaser agrees to purchase the Assets from the
Vendor in accordance with the terms and conditions of this agreement.
3 PURCHASE PRICE
Purchase Price
The Purchase Price for the Assets is $509,398.50 and the Datastream
Shares.
Time and Manner of Payment
Payment of the Purchase Price shall be satisfied by:
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a) the Purchaser providing the Vendor with $509,398.50 (as
adjusted in accordance with this agreement) in clear funds
on the Completion Date; and
b) Datastream issuing the Datastream Shares to the Vendor in
accordance with clause 4.3.
4 COMPLETION
Place of Completion
Completion shall take place on the Completion Date at the offices of the
Australian solicitors for the Purchaser or at such other place in
Queensland as the parties may agree.
Vendor's Obligations on Completion
On the Completion Date, in exchange for the Purchase Price, the Vendor
shall deliver to the Purchaser:
a) the full benefit and operating control of and title to the
Assets;
b) all such instruments of conveyance or transfer as may be
necessary or desirable to effectively vest in the Purchaser
the legal title and beneficial interest in and to the whole
of the Assets;
c) those Assets capable of transfer by delivery and possession
of the Assets;
d) the Service Agreement executed by Higgins;
e)a copy of the special resolution of the members of the Vendor in
accordance with clause 14, together with the ASIC Form 205 giving notice
of the special resolution to change the Vendor's name and evidence that
the Vendor's new name has been reserved by the ASIC; and
f) evidence that Higgins has resigned as a director of Dingo
Software in accordance with clause 9 and that the ASIC has
been notified of his resignation.
Purchaser's Obligations on Completion
On the Completion Date the Purchaser shall deliver to the Vendor a bank
cheque in the sum of $491,861.50. Datastream shall provide the Vendor
with a share certificate for the Datastream Shares within 10 Business
Days after the Completion Date, or upon receipt of all consents and
documentation reasonably required by the Purchaser to assign to it the
Contracts, the Equipment Leases and the Premises Lease, whichever occurs
later.
5 EMPLOYEES
Offer of Employment
The Purchaser agrees to offer to each of the Employees continued
employment with the Purchaser with effect from the Completion Date (but
subject to Completion) on terms and conditions which in the aggregate are
no less favourable than the terms of employment of the relevant Employee
with the Vendor immediately prior to the Completion Date.
Termination of Employment
<PAGE>
The Vendor shall terminate the employment of the Transferring Employees
with effect from the Completion Date and shall pay the Transferring
Employees' wages and salaries (including overtime payments) to the
Completion Date.
Vendor's Responsibilities for Non-Transferring Employees
In respect of those Employees who are not Transferring Employees, the
Vendor will be responsible for the entitlement to untaken or pro-rata
long service leave and allowances, wages, holiday pay, sick leave and
other entitlements including but not limited to fringe benefits and
payroll tax and workers compensation payments.
Purchaser's Obligations after Completion
On Completion the Purchaser shall take over the responsibility for
accrued holiday pay, long service leave and other entitlements including
but not limited to fringe benefits and payroll tax and workers
compensation payments as at the Completion Date for each Transferring
Employee together with any redundancy payments payable to the
Transferring Employees. At Completion the Purchase Price shall be reduced
by $13,760 representing 64% of the amount payable by the Purchaser as at
the Completion Date for accrued holiday pay.
Vendor's Indemnity
The Vendor and the Shareholders hereby agree to indemnify and keep
indemnified the Purchaser from and against all claims, demands and
proceedings which relate to the employment by the Vendor of the Employees
prior to the Completion Date.
Superannuation prior to Completion
Up to and including the Completion Date the Vendor shall be responsible
for payment of any superannuation contributions for the Employees
required pursuant to the terms of any industrial award regulating the
terms of their employment and pursuant to any statutory requirement
imposing an obligation on the Vendor to make superannuation contributions
for them, and the Purchaser shall not be concerned with or responsible
for whether such superannuation contributions have been made.
Superannuation after Completion
The Purchaser shall make such arrangements for payment of superannuation
contributions for the Transferring Employees after the Completion Date as
it agrees with the Transferring Employees or as required by law.
Workcover
The Purchaser shall be responsible for all payments required to be made
for Workcover after Completion.
6 WARRANTIES
Vendor's and Shareholders' Warranties
<PAGE>
The Vendor and the Shareholders jointly and severally represent and
warrant to Datastream and the Purchaser (who as a result have been
induced to enter into this agreement) that:
a) the Vendor has the legal right and power to enter into this
agreement and to sell the Assets to the Purchaser on and
subject to the terms of this agreement;
b) the execution, delivery and performance of this agreement
by the Vendor and the Shareholders has been duly and validly
authorised by all necessary action on their parts;
c) this agreement is a valid and binding agreement on the
Vendor and the Shareholders, enforceable in accordance with
its terms;
d)the execution and performance of this agreement by the Vendor and the
Shareholders and the other transactions contemplated by this agreement
does not violate or conflict with or result in a breach or termination
of or constitute a default under the provisions of the memorandum and
articles of association of the Vendor or any agreement or undertaking
(oral or written) to which the Vendor or the Shareholders are a party or
by which the Vendor or the Shareholders may be affected or bound or
breach any order, writ, rule, regulation, injunction or decree of any
court, administrative agency or governmental body or any statute
applicable to it or by which it may be bound nor constitute a void or
voidable disposition of property by the Vendor or the Shareholders;
e) the Vendor is the sole legal and beneficial owner of the
Assets;
f) the Stock is in good and merchantable condition;
g) the Plant and Equipment is all the plant and equipment used
in the Business, is accurately recorded in the books of the
Vendor and in schedule 3 and is in good repair and sound
working order and condition;
h) all of the Records have been fully, properly and accurately
kept and completed in accordance with proper accountancy and
business practices and are accurate;
i)the Vendor has provided to the Purchaser a complete list, as at 8 July
1998, of the details of each of the Employees including date of
commencement of employment, accumulated annual leave, long service
leave, sick leave and total remuneration (including bonuses and profit
sharing). All contracts of service and the statements of policy relating
to the terms and conditions of employment and personnel policies and
procedures and letters of appointment in respect of the Employees have
been provided to the Purchaser;
j) there are no industrial awards applicable to the Employees;
k)the Vendor has all permits, licences and consents from all relevant
government authorities and any other person necessary or required for
the use of the Assets and operation of the Business and neither the
Vendor nor the Shareholders have knowledge of any matter or thing likely
to cause the revocation of any of the permits, licences or consents;
l) the Vendor is able to pay all of the Vendor's debts and
discharge all of the Vendor's liabilities as they fall due
and the Vendor has not proposed or agreed to make any
composition or arrangement binding on creditors generally;
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m)there are no litigation proceedings or suits pending or to the
knowledge of the Vendor or the Shareholders threatened against the
Vendor or any other person or authority in respect of the Assets, the
adverse determination of which might have a material adverse effect on
the Assets or substantially affect the Vendor's ability to complete this
agreement;
n)there are no litigation proceedings or disputes pending or to the
knowledge of the Vendor or the Shareholders threatened against the
Vendor or any other person or authority arising out of any job or work
done or performed or stock sold or distributed by the Vendor in respect
of the Business;
o) the Vendor has disclosed to the Purchaser all the trade or
business names whether registered or not of which it is the
owner and which are used in the Business;
p) there are no judgments, orders, writs or decrees in
existence against the Vendor or the Shareholders in
connection with the Assets;
q) all notices received by the Vendor from any statutory
authority have been complied with and there are no notices
from any statutory authority not yet served on the Vendor
but of which the Vendor or the Shareholders have knowledge;
r) all agreements made by the Vendor with any party in respect
of the Assets have been made in the usual course of business;
s) there are no actual or threatened material industrial
disputes relating to the Business;
t) to the best of the knowledge of the Vendor and the
Shareholders, no breach of copyright or other intellectual
property right has been committed by the Vendor in the
conduct of the Business;
u)the Financial Statements have been prepared with utmost diligence, care
and skill and on the basis of full and accurate disclosure of all
matters material for inclusion or to be taken into account in order to
prepare proper financial statements for the Business for the period to
which they relate and in order to disclose a true and fair view of the
state of affairs of the Business and of the profit and loss thereof.
Proper and adequate provision has been made in the Financial Statements
in respect of the Vendor's liabilities to or in respect of the Employees
and in respect of all liabilities of the Vendor in respect of the
Business, actual or contingent;
v)save as disclosed to the Purchaser in writing prior to the date hereof,
since 30 June 1998 the Business has been carried on in the ordinary and
normal course, there have been no material changes to the figures shown
in the Financial Statements other than those arising in the ordinary
course of business and no unusual or abnormal contracts have been
entered into;
w) since 30 June 1998 there has not been any material adverse
change in any condition or prospects of the Business nor any
development involving any prospective material adverse
change of such a kind;
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x) the Assets include all property and assets necessary to
conduct the Business in the manner heretofore conducted by
the Vendor without the need for any major replacement of
fixed assets and without the need for replacement of stock
ordinarily required;
y) all of the Assets of an insurable nature are adequately
insured against fire and other usual risks and all policies
of insurance are current and shall be maintained until
Completion;
z)to the best of the knowledge of the Vendor and the Shareholders, the
Vendor is not in breach or contravention in any respect concerning the
conduct of the Business, of any award or statute, rule or regulation of
any governmental authority or municipal organisation having jurisdiction
over the Vendor, the Assets or the Business;
aa) all Intellectual Property owned or licensed by the
Vendor and used in relation to the Business will be
transferred to the Purchaser;
bb) the Vendor and the Shareholders are not aware of any
contemplated or current legal proceedings affecting or
involving any of the Intellectual Property;
cc) there has been no objection or litigation regarding the
registration or extension of the period of registration of
any of the Intellectual Property;
dd) except for software licensed to customers of the Business, there is no
licence or registered user agreement subsisting in favour of any third
party regarding any of the Intellectual Property;
ee) the Vendor has legal and beneficial title to the
Intellectual Property;
ff) as at 31 July 1998, there will be no inter-company debts
existing between the Vendor and any of its Related Bodies
Corporate;
gg) the Vendor:
(i) is not a U.S. Person; and
(ii) is not acquiring the Datastream Shares for the account
or benefit of any U.S. Person;
hh) Dingo Software has assigned the Distribution Agreement
to the Vendor; and
ii) there are no unremedied breaches of the Contracts, the Equipment
Leases or the Premises Lease which could result in a termination of any
of them.
Datastream's and Purchaser's Warranties
Datastream and the Purchaser jointly and severally represent and warrant
to the Vendor and the Shareholders (who as a result have been induced to
enter into this agreement) that:
a) the Purchaser has the legal right and power to enter into
this agreement and to purchase the Assets from the Vendor on
and subject to the terms of this agreement;
b) the execution, delivery and performance of this agreement
by Datastream and the Purchaser has been duly and validly
authorised by all necessary corporate action on their parts;
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c) this agreement is a valid and binding agreement on
Datastream and the Purchaser, enforceable in accordance with
its terms; and
d)the execution and performance of this agreement by Datastream and the
Purchaser and the other transactions contemplated by this agreement does
not violate or conflict with or result in a breach of or constitute a
default under the provisions of the constitution of Datastream or the
memorandum and articles of association of the Purchaser.
Warranties Separate
Each of the Warranties:
a) is separate and independent from and is not limited by any
other Warranty or any other provision of this agreement;
b) will not merge on Completion; and
c) is given as at the date of this agreement and as at the
time immediately before Completion.
Vendor's and Shareholders' Indemnity
The Vendor and the Shareholders jointly and severally indemnify
Datastream and the Purchaser against all losses, damages and liabilities
and the cost of all demands, actions and other proceedings against
Datastream or the Purchaser arising, directly or indirectly, as a result
of or in connection with any breach of the Warranties referred to in
clause 6.1.
Datastream's and Purchaser's Indemnity
Datastream and the Purchaser jointly and severally indemnify the Vendor
and the Shareholders against all losses, damages and liabilities and the
cost of all demands, actions and other proceedings against the Vendor or
the Shareholders arising, directly or indirectly, as a result of or in
connection with any breach of the Warranties referred to in clause 6.2.
7 LIABILITIES AND BOOK DEBTS
Liabilities prior to Completion
All trading debts, income tax and other liabilities in any way arising
out of trading by the Vendor up to the Completion Date shall be and
continue to be the entire responsibility of the Vendor and the
Shareholders who shall indemnify and keep indemnified the Purchaser in
respect thereof and in respect of any costs, claims, suits or demands
arising before the Completion Date or out of anything done before the
Completion Date and also in respect of any costs, damages or losses
incurred by the Purchaser by reason of any such claim, suit or demand.
Liability to Account for Book Debts
All of the Book Debts will remain the property of the Vendor and the
Purchaser shall account to the Vendor in respect of any payment for Book
Debts received by the Purchaser.
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Liabilities after Completion
All trading debts, income tax and other liabilities in any way arising
out of trading by the Purchaser after the Completion Date shall be the
entire responsibility of the Purchaser who shall indemnify and keep
indemnified the Vendor and the Shareholders in respect thereof and in
respect of any costs, claims, suits or demands arising after the
Completion Date or out of anything done after the Completion Date and
also in respect of any costs, damages or losses incurred by the Vendor by
reason of any such claim, suit or demand.
8 RISK AND PROPERTY
The Assets shall be at the risk of the Vendor from the date of this
agreement until Completion and shall be at the risk of the Purchaser
thereafter.
9 DINGO SOFTWARE
Cessation of Involvement with Dingo Software
On the Completion Date, Higgins shall resign as a director of Dingo
Software and shall cease all active involvement with Dingo Software from
Completion.
Disposal of Interests in Dingo Software
The Shareholders shall use their reasonable best efforts to dispose of
all of their interests in Dingo Software within 12 months after the
Completion Date PROVIDED THAT if they receive an offer to purchase any
such interest, the Purchaser shall have the right of first refusal to
purchase the interest at the price offered. Datastream and the Purchaser
acknowledge that Dingo Software does not at the date of this agreement
compete with the Business.
10 CONTRACTS
Assignment of Contracts
The Vendor assigns to the Purchaser, with effect on and from the
Completion Date, all of its right, title and interest in and under the
Contracts. At Completion, the Purchase Price shall be reduced by $3,777
representing an advance payment received in relation to technical support
pursuant to the Contract with Effem Foods Pty Ltd.
The Vendor shall obtain the consent of each party (other than the
Vendor) to each Contract to the assignment of the relevant Contract
as soon as possible after Completion.
Purchaser's Obligations after Completion
As from the Completion Date, the Purchaser shall observe and perform the
Obligations on the part of the Vendor contained in the Contracts and
shall indemnify the Vendor against all actions, claims and demands
arising as a result of its failure to do so provided that the Purchaser
shall not be obliged to assume any obligations other than those set out
in the Contracts.
<PAGE>
Vendor's and Shareholders' Indemnity
The Vendor and Shareholders jointly and severally shall indemnify and
keep indemnified the Purchaser in respect of any costs, claims, suits or
demands which the Purchaser may incur or suffer arising from or in
connection with any failure to obtain any consent in accordance with
clause 10.2 or breach or non-performance of any term of any Contract
occurring on or before the Completion Date and also in respect of any
costs, damages or losses incurred by the Purchaser by reason of any such
claim, suit or demand.
Termination of Distribution Agreement
Datastream and the Vendor agree that the Distribution Agreement is hereby
terminated and that Datastream and the Vendor are each released from its
obligations to further perform the Distribution Agreement.
11 PREMISES LEASE
Assignment of the Premises Lease
The Vendor shall procure the assignment of the Premises Lease from Dingo
Software to the Purchaser (with the written consent of each of the
lessors and mortgagees (if any) of the Premises) at or as soon as
possible after Completion to the Purchaser with effect from the
Completion Date.
Termination of the Premises Lease
The Vendor and the Shareholders covenant with the Purchaser that if
before the Premises Lease is effectively assigned to the Purchaser:
a) by reason of a default arising from the act, neglect or
failure of the Vendor or Dingo Software, the Premises Lease
is terminated; or
b) the lessor under the Premises Lease is otherwise entitled
to terminate the Premises Lease and does so (other than by
reason of a default by the Purchaser under the terms of the
Premises Lease after Completion),
and (in either case) the Purchaser is required to vacate or is lawfully
evicted from the Premises then the Vendor and the Shareholders indemnify
and shall keep indemnified the Purchaser from and against all costs,
damages or losses suffered by the Purchaser in connection with such
vacation or eviction and the relocation of the Business in equivalent
premises in the same geographical area.
Occupation by the Purchaser prior to Completion
The Vendor shall obtain the consent of each lessor or mortgagee of the
Premises to the occupation by the Purchaser of the Premises until the
assignment of the Premises Lease is finalised.
12 EQUIPMENT LEASES
The Vendor shall procure the assignment or novation of the Equipment
Leases in favour of the Purchaser with effect from the Completion
Date.
<PAGE>
The Vendor shall obtain the consent of the lessor under the Equipment
Leases to the assignment of the Equipment Leases as soon as possible
after Completion.
The Purchaser shall accept an assignment or novation of the Equipment
Leases and assume full and ongoing liability for all monies remaining
due and unpaid under the Equipment Leases whether by leasing
instalments, residual payments or otherwise as from the Completion
Date.
On or prior to the Completion Date the Vendor shall pay the charges
provided for in, and comply with the other obligations binding on it
under, the Equipment Leases.
The Vendor and the Shareholders shall indemnify the Purchaser against
all liabilities which may be incurred by the Purchaser for any
failure to obtain the consents in accordance with clause 12.2 and for
any default under any of the Equipment Leases occurring prior to
Completion as a result of an act or omission of the Vendor, or of any
of the Vendor's guarantors, prior to Completion.
The Vendor and the Shareholders jointly and severally warrant to the
Purchaser that:
a) the particulars of the items of Plant and Equipment
set out in schedule 3 and of the Equipment Leases set
out in schedule 2 are true and correct in every
material respect;
b)on Completion there will be no subsisting default under any of the
Equipment Leases and none of them will be liable to forfeiture or
termination as a result of any breach occurring prior to that date.
13 RESTRICTION ON COMPETITION
The Vendor and Higgins jointly and severally undertake and agree to be
bound by the provisions of this clause 13.
In this clause, unless otherwise specifically stated, the following
words and expressions shall have the following meanings:
"Capacity" means any capacity and whether alone or together with any
other person and whether directly or indirectly and including without
derogating from the generality of the foregoing any one or more or
all of promoter, shareholder, partner, joint venturer, agent,
consultant, advisor, trustee, supplier, financier, licensor, owner or
part-owner;
"Restraint Area" means:
a) Australia;
b) Queensland and New South Wales;
c) Queensland;
d) South East Queensland;
<PAGE>
"Restraint Period" means the period commencing on the date of this
agreement and ending at the expiration of the following periods after
termination of the Service Agreement:
a) years;
b) 1 year; and
c) 6 months.
By entering into this agreement, the Vendor and Higgins agree that they
will not in any Capacity during the Restraint Period and in respect
of the Restraint Area (except with the prior written consent of the
Purchaser in respect of any particular activity:
a) engage in or take part in any business which is
competitive with that of the business acquired by the
Purchaser pursuant to this agreement;
b)solicit for or perform or cause to be performed any services
competitive with the business acquired by the Purchaser pursuant to
this agreement for any of the clients of the business acquired by
the Purchaser pursuant to this agreement who had been or became
such clients during the Vendor's ownership of the Business.
Clause13.2 shall be construed and have effect as if it were a number of
separate sub-clauses resulting from the combination of each
prohibition contained in clause 13.2 with each Restraint Period and
combining each such combination with each Restraint Area ("the
Restraints"). The Restraints will be regarded as separate distinct
and severable from each other so that the unenforceability of any
Restraint shall in no way prejudice or affect the enforceability of
any of the other Restraints.
By entering into this agreement the Vendor and Higgins acknowledge that:
a) each of the Restraints is both fair and reasonable;
and
b) they have received full consideration for the
Restraints undertaken in terms of this clause 13.
In the event of a breach by the Vendor or Higgins of these obligations
then in addition and without prejudice to any other remedies which
the Purchaser may have it shall be entitled to seek and obtain
injunctive relief in any court of competent jurisdiction.
14 CHANGE OF VENDOR'S NAME
Higgins agrees that he shall on or before Completion, convene a meeting of
the members of the Vendor to resolve by special resolution to change
the name of the Vendor from "Datastream (Pacific) Pty Ltd" to a name
which does not include the word "Datastream" or the words "Data
Stream".
The Purchaser undertakes to lodge the ASIC Form 205 provided to it in
accordance with clause 4.2(e) with the ASIC immediately after
Completion.
<PAGE>
15 DATASTREAM SHARES
Restriction on Resale
The Vendor agrees not to resell or cause the resale of the Datastream
Shares in the United States or to a U.S. Person for a period of 1 year
after the Completion Date. Thereafter, the Vendor shall sell the
Datastream Shares only in accordance with Regulation S or pursuant to
registration under United States securities laws and regulations or an
available exemption therefrom.
Removal of Regulation S Legend
After the expiration of 1 year after the Completion Date and upon the
request of the Purchaser, Datastream shall either cause the Regulation S
Legend to be removed from the certificates for the Datastream Shares or
issue replacement certificates for the Datastream Shares.
16 CONFIDENTIAL INFORMATION AND ASSISTANCE
The parties shall during the currency of this agreement and thereafter
strictly maintain the confidentiality of any financial or other
information in connection with the parties or the Business which
becomes, or has during negotiations become, known in connection with
this agreement or is otherwise contained in the Records and further
shall not disclose any such information to any third party but not
including any affiliate, subsidiary or related entity provided that
such affiliate, subsidiary or related entity agrees to be bound by
this clause. The parties shall take all necessary measures to ensure
that its officers and employees observe the obligation set out in
this clause provided that nothing in this clause shall prevent any
disclosure required by law or by the rules of any stock exchange or,
after Completion, prevent any disclosure by the Purchaser of any of
the information contained in the Records.
After Completion, the Vendor will not use or disclose the information
contained in the Records for any reason or purpose and shall strictly
maintain the confidentiality of the information contained in the
Records except as required by law or to professional advisers.
17 NOTICES
Requirements for Notices
A notice, demand, waiver, approval, consent, communication or other
document in connection with this agreement ("Notice"):
a) may be given by the party or, if applicable, an Authorised
Officer of the relevant party; and
b) must be in writing; and
c)must be left at the address of the addressee, or sent by prepaid
ordinary post (airmail if outside Australia) to the address of the
addressee or by facsimile to the facsimile number of the addressee which
is specified below or if the addressee notifies in writing another
address or facsimile number then to that address or facsimile number.
<PAGE>
Date of Effect of Notice
Unless a later time is specified in it a Notice takes effect from the
time it is actually received or taken to be received.
Time of Receipt of Notice
A Notice sent by post or facsimile is taken to be received:
a) in the case of a letter, on the 3rd (10th, if outside
Australia) day after posting; and
b)in the case of a facsimile, on production of a transmission report by
the machine from which the facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient notified for the purpose of this clause if produced before 5
pm on a Business Day otherwise on the next Business Day.
Address for Service
The address for service of a Notice shall be as follows:
Datastream and Purchaser
(a) Address: 50 Datastream Plaza, Greenville, South
Carolina, 29605, United States of
America
(b) Facsimile number: 864-422-5000
(c) Attention: Daniel Christie, Chief Financial Officer
Vendor, Higgins and the Shareholders
(a) Address: Level 1, 56 Little Edward Street,
Spring Hill, Queensland
(b) Facsimile number: (07) 3831 8623
18 MISCELLANEOUS
Stamp duty
Except as otherwise agreed, the Purchaser is, as between the parties,
liable for and shall duly pay all stamp duty (including any fine or
penalty) on or relating to this agreement and any document executed under
it.
Legal costs
Subject to any express provision in this agreement to the contrary, each
party shall bear its own legal and other costs and expenses relating
directly or indirectly to the preparation of, and performance of its
obligations under, this agreement or any document executed pursuant to it.
<PAGE>
Amendment
This agreement may only be varied or replaced by a document in writing
duly executed by the parties.
Waiver and exercise of rights
a)A single or partial exercise or waiver of a right relating to this
agreement does not prevent any other exercise of that right or the
exercise of any other right.
b)A party is not liable for any loss, cost or expense of any other
party caused or contributed to by the waiver, exercise, attempted
exercise, failure to exercise or delay in the exercise of a right.
Rights cumulative
Subject to any express provision in this agreement to the contrary, the
rights of a party under this agreement are cumulative and are in addition
to any other rights of that party.
Approvals and consent
Subject to any express provision in this agreement to the contrary, a
party may conditionally or unconditionally give or withhold any consent to
be given under this agreement and is not obliged to give its reasons for
doing so.
Further assurance
Each party shall promptly execute all documents and do all things that any
other party from time to time reasonably requires of it to effect, perfect
or complete the provisions of this agreement and any transaction
contemplated by it.
Counterparts
This agreement may consist of a number of counterparts and if so the
counterparts taken together constitute one and the same instrument.
Governing law and jurisdiction
a) This agreement is governed by and is to be construed
in accordance with the laws in force in Queensland.
b)Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of Queensland and any
courts which have jurisdiction to hear appeals from any of those
courts and waives any right to object to any proceedings being
brought in those courts for any reason.
Assignment
A party shall not dispose of or encumber any right under this agreement
without the prior written consent of the other parties, PROVIDED THAT the
Vendor may dispose of the Datastream Shares in accordance with this
agreement.
<PAGE>
Computation of time
Where time is to be reckoned by reference to a day or event, that day or
the day of that event is excluded.
19 EFFECT OF EXECUTION
This agreement is not binding on any party unless it or a counterpart has
been duly executed by, or on behalf of, each person named as a party to
the agreement.
20 ENTIRE UNDERSTANDING
a)This agreement and all documents executed pursuant to this agreement
embody the entire understanding and agreement between the parties as to
the subject matter of this agreement.
b)All previous negotiations, understandings, representations, warranties,
memoranda or commitments in relation to, or in any way affecting, the
subject matter of this agreement are merged in and superseded by this
agreement and are of no force or effect whatever and no party is liable
to any other party in respect of those matters.
c) No oral explanation or information provided by any party to
another shall:
(i) affect the meaning or interpretation of this
agreement, or
(ii) constitute any collateral agreement, warranty or
understanding between any of the parties.
<PAGE>
EXECUTED as an agreement.
THE COMMON SEAL of DATASTREAM (PACIFIC) PTY LTD is affixed in accordance with
its articles of association in the
presense of:
/s/ John Swinson........... /s/ Paul Anthony Higgins........
Witness Director
John Swinson............... Paul Anthony Higgins............
Name of Witness Name of Director(print)
SIGNED by
PAUL ANTHONY HIGGINS
in the presence of: /s/ Paul Anthony Higgins........
/s/ John Swinson..........
Witness
John Swinson..............
Name of Witness(print)
SIGNED by )
BERNADETTE MARY HIGGINS )
in the presence of: ) /s/ Bernadette Mary Higgins.....
/s/ John Swinson.............
Witness
John Swinson.................
Name of Witness (print)
<PAGE>
SIGNED by )
DATASTREAM ASIA PACIFIC PTY LTD )
by its duly appointed officer )
in the presence of: )
/s/ I. Roeland............... /s/ Nathan Clement..............
Witness Officer
I. Roeland................... Nathan Clement..................
Name of Witness (print) Name of Officer (print)
SIGNED by )
DATASTREAM SYSTEMS, INC. )
by its duly appointed officer )
in the presence of: )
/s/ I. Roeland............... /s/ Nathan Clement..............
Witness Officer
I. Roeland................... Nathan Clement..................
Name of Witness (print) Name of Officer (print)
