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) June 16, 1998
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DATASTREAM SYSTEMS, INC.
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(Exact name of Registrant as specified in Its Charter)
DELAWARE 0-25590 57-0813674
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(State of (Commission (IRS Employer
Incorporation) File Number) Identification No.)
50 DATASTREAM PLAZA, GREENVILLE, SC 29605
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(Address of principle executive offices) (Zip Code)
(Telephone number of registrant) (864) 422-5001
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NOT APPLICABLE
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(Former Name, Former Address and Former Fiscal Year, if changed since last
report)
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ITEM 5. OTHER EVENTS
On June 16, 1998, Datastream Systems, Inc., a Delaware
corporation (the "Registrant") entered into a Share Purchase Agreement to
acquire all the capital stock of Strategic Information Systems PTE. Ltd., a
Singapore corporation headquartered in Singapore ("SIS"). SIS, founded in
1990, is a provider of computerized maintenance management software
specialized for vertical markets that are asset-intensive, such as
utilities and petrochemicals industries. SIS's primary product, Pacer,
written in Powerbuilder using Oracle 7 provides a state-of-the-art
enterprise system with cross platform capabilities. In consideration of
the acquisition and pursuant to the Share Purchase Agreement, the
Registrant delivered to the stockholders of SIS approximately $6,500,000,
comprised of 88,652 shares of the Registrant's Common Stock, $.01 par value
per share (the "Common Stock"), and approximately $4,575,000 in cash. The
acquisition consideration to acquire the business of SIS was determined as
a result of arm's length negotiations between unrelated parties. 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 in accordance with
the provisions of Item 601 of Regulation S-K:
Exhibit No. Description of Exhibit
2.1 Share Purchase Agreement, dated as of June 16, 1998, by
and among Datastream Systems, Inc., Sikasso PTE. Ltd.,
and the stockholders of Strategic Information Systems PTE. Ltd.
listed on the signature pages thereto.
4.1 Escrow Agreement, dated as of June 16, 1998, by and among
Datastream Systems, Inc., Sikasso PTE. Ltd., the stockholders of
Strategic Information Systems PTE. Ltd. listed on the signature
pages thereto and Hunton & Williams, as Escrow Agent.
<PAGE>
ITEM 9. SALE OF SECURITIES PURSUANT TO REGULATION S.
As a portion of the consideration for the acquisition of all of
the capital stock and equity interests of SIS, on June 16, 1998, the
Company issued 88,652 shares of its Common Stock to the SIS stockholders.
The shares of Common Stock were issued 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 Company claims
this exemption from registration on the basis that the issuance was 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 Company and its
affiliates and any agent acting on behalf of the Company or its affiliates
did 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 were, to the extent applicable, implemented by the Company,
and (iv) all of the shares of Common Stock issued to the SIS stockholders
are 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 Company also claims an exemption from
registration under Section 4(2) of the Securities Act of 1933, as amended,
because the shares of Common Stock were issued to a small number of persons
in a transaction that did not involve any public offering.
<PAGE>
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: June 25, 1998 By: /s/ Daniel H. Christie
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Daniel H. Christie
Chief Financial Officer
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EXHIBIT INDEX
Exhibit No. Description of Exhibit
2.1 Share Purchase Agreement, dated as of June 16, 1998, by
and among Datastream Systems, Inc., Sikasso PTE. Ltd.,
and the stockholders of Strategic Information Systems PTE. Ltd.
listed on the signature pages thereto.
4.1 Escrow Agreement, dated as of June 16, 1998, by and among
Datastream Systems, Inc., Sikasso PTE. Ltd., the stockholders of
Strategic Information Systems PTE. Ltd. listed on the signature
pages thereto and Hunton & Williams, as Escrow Agent.
<PAGE>
EXHIBIT 2.1
SHARE PURCHASE AGREEMENT
by and among
DATASTREAM SYSTEMS, INC.
("Datastream"),
SIKASSO PTE LTD
and
THE STOCKHOLDERS OF STRATEGIC INFORMATION SYSTEMS PTE. LTD.
LISTED ON THE SIGNATURE PAGES HERETO
(the "SIS Stockholders")
DATED AS OF 16 JUNE 1998
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................1
ARTICLE II SHARE PURCHASE..............................................7
2.1 Performance of Agreement........................................7
2.2 Sale and Purchase of SIS Capital Stock..........................7
2.3 Board Resignations..............................................8
ARTICLE III THE CLOSING................................................8
3.1 Location, Time, Etc.............................................8
3.2 Transactions at the Closing.....................................8
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SIS STOCKHOLDERS.....11
4.1 Authorization, Etc.............................................11
4.2 No Consent Required............................................11
4.3 Litigation Relating to the Agreement...........................12
4.4 U.S. Status....................................................12
4.5 Other Claims...................................................12
4.6 Capitalization.................................................12
4.7 Corporate Organization.........................................13
4.8 Intentionally Omitted............................................
4.9 Noncontravention...............................................12
4.10 Litigation....................................................13
4.11 Bankruptcy or Liquidation Proceedings.........................13
4.12 Certain Contracts.............................................13
4.13 Financial Statements..........................................14
4.14 No Other Charges..............................................14
4.15 Property......................................................15
4.16 Permits.......................................................15
4.17 No Illegal Acts...............................................15
4.18 Prior Issuances...............................................15
4.19 Taxes.........................................................17
15
4.20 Intellectual Property.........................................16
4.21 Product Warranty and Liability................................17
4.22 Pension Matters...............................................18
4.23 Accounting Practices..........................................19
4.24 Labor and Employment Matters..................................19
4.25 Intentionally Omitted.........................................20
4.26 Fees and Expenses.............................................20
4.27 Certain Payments..............................................20
4.28 Accounts Payable..............................................20
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF DATASTREAM................22
5.1 Organization; Good Standing; Qualification and Power...........22
5.2 Authority......................................................21
5.3 Noncontravention...............................................21
5.4 SEC Documents..................................................22
5.5 Capitalization.................................................22
5.6 No Calamities..................................................22
5.7 No Changes.....................................................22
5.8 Stock Issuance.................................................24
5.9 Financial Statements...........................................23
5.10 Internal Controls.............................................23
5.11 Indemnity to Guarantors.......................................23
ARTICLE VI ADDITIONAL COVENANTS AND AGREEMENTS........................24
6.1 Expenses.......................................................24
6.2 Agreement to Cooperate.........................................24
6.3 Public Statements..............................................24
6.4 Release........................................................24
6.5 Amounts Payable By SIS Stockholders............................24
6.6 Intentionally Omitted..........................................24
6.7 Resale Restrictions............................................24
6.8 Removal of Regulation S Legend.................................24
6.9 Intentionally Omitted..........................................25
6.10 KPMG Audit....................................................25
ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND
INDEMNIFICATION.........................................25
7.1 Survival of Representations and Warranties.....................25
7.2 Obligation of SIS Stockholders to Indemnify....................26
7.3 Obligations of Datastream and AqSub to Indemnify...............26
7.4 Conditions of Indemnification with Respect to Third Party
Claims.......................................................26
7.5 US$250,000 Floor...............................................27
7.6 Reduction for Certain Benefits.................................27
7.7 No Release for Fraud, Ownership Representations................27
7.8 Subrogation Rights.............................................27
7.9 Establishment of Escrow; Indemnification Not Limited...........27
7.10 Interest......................................................28
ARTICLE VIII STOCKHOLDERS' REPRESENTATIVE.............................28
8.1 Appointment; Acceptance........................................28
8.2 Authority......................................................28
8.3 Actions........................................................29
8.4 Successors.....................................................29
8.5 Effectiveness..................................................29
ii
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8.6 Indemnification................................................29
ARTICLE IX NON COMPETITION ...........................................29
9.1 Restrictions...................................................29
9.2 Severable......................................................30
9.3 Provisions Reasonable..........................................30
ARTICLE X GENERAL PROVISIONS..........................................30
10.1 Amendment.....................................................30
10.2 Extension; Waiver.............................................31
10.3 Entire Agreement..............................................31
10.4 Severability..................................................31
10.5 Notices.......................................................31
10.6 Headings......................................................33
10.7 Counterparts..................................................33
10.8 Benefits; Assignment..........................................33
10.9 Governing Law; Arbitration....................................33
10.10 Language of Agreement........................................34
10.11 Contractual Currency.........................................34
10.12 Agent for Service............................................34
10.13 Construction.................................................34
iii
<PAGE>
SHARE PURCHASE AGREEMENT
BY AND AMONG
DATASTREAM SYSTEMS, INC.,
SIKASSO PTE LTD
AND
THE STOCKHOLDERS OF STRATEGIC INFORMATION SYSTEMS PTE. LTD.
LISTED ON THE SIGNATURE PAGES HERETO
THIS SHARE PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of this 16 day of June, 1998, by and among Datastream
Systems, Inc., a Delaware corporation ("Datastream"), Sikasso Pte Ltd.,
a corporation organized and existing under the laws of The Republic of
Singapore and a wholly owned subsidiary of Datastream ("AqSub"), and
the stockholders of SIS listed on the signature pages hereto
(hereinafter referred to individually as an "SIS Stockholder" and
collectively as the "SIS Stockholders").
The parties hereto have agreed that AqSub will purchase all of
the issued and outstanding ordinary capital stock of SIS from the SIS
Stockholders upon the terms and conditions set forth herein (the
"Transaction"). The parties hereto desire to make this Agreement for
the purpose of setting forth certain representations, warranties,
covenants, conditions and indemnities in connection with the
Transaction.
THEREFORE, in consideration of the mutual representations,
warranties, covenants, conditions and indemnities contained herein, the
parties hereto agree as follows:
ARTICLE I DEFINITIONS
DEFINITIONS
The following capitalized terms used in this Agreement shall have
the meanings set forth below:
1.1 "Affiliate" means, with respect to a specific Person,
another Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control
with, the Person specified.
1.2 "AqSub" means SIKASSO PTE LTD a corporation organized and
existing under the laws of The Republic of Singapore..
1.3 "Business Day" means any day, other than a Saturday, Sunday
or legal holiday on which banks are permitted to close in either
Greenville, South Carolina or Singapore.
1.2 "Cash Consideration" means S$7,690,728 the aggregate amount
of cash (less the deposit of US$100,000 paid to the Stakeholder on 12
June 1998 pursuant to the letter of intent dated 4 June 1998 and
<PAGE>
accepted on 9 June 1998) to be delivered by AqSub to the SIS
Stockholders at the Closing to be converted into US$ and applying the
exchange rate of US$1.00 to S$1.681.
1.3 "Claim" or "Claims" shall mean any suit, demand, claim,
action or cause of action, assessment, loss, damage, liability,
proceeding, arbitration, investigation, cost or expense described in
Article VII hereof.
1.4 "Closing" means the closing of the transactions
contemplated by this Agreement.
1.5 "Closing Date" means 16 June 1998 (or such other date as
the parties shall mutually agree to), the date on which the Closing
shall occur.
1.6 "Convertible Securities" means any option, warrant,
convertible note or debenture, right to purchase or other instrument or
agreement representing a right to acquire any capital stock or other
equity interest in SIS.
1.7 "Datastream" means Datastream Systems, Inc., a Delaware
corporation.
1.8 "Datastream Common Stock" means the shares of common stock,
$.01 par value per share, of Datastream.
1.9 "DGCL" means the Delaware General Corporation Law.
1.10 "Escrow Agent" means Hunton & Williams.
1.11 "Escrow Agreement" means the Escrow Agreement referred to
in Section 7.9 hereof, in the form attached hereto as Exhibit A.
1.12 "Escrow Shares" means 29,566 shares of Datastream Common
Stock (otherwise comprising a portion of the Stock Consideration) to be
deposited in escrow pursuant to the Escrow Agreement in the respective
amounts for each SIS Stockholder set forth on Schedule 2.2.
1.13 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
1.14 "Financial Statements" means (a) the audited accounts of
SIS for the period ending February 28, 1997 comprising of the
directors' report, accounts and the notes to the account; (b) the
unaudited management accounts of SIS for the period from 1 March 1997
to 28 February 1998; (c) the unaudited management accounts of SIS for
the period from 1 March 1998 to 30 April 1998; and (d) an estimate (to
be presented in the same format as the unaudited management accounts
for the period from 1 March 1998 to 30 April 1998) of the financial
status of SIS for the for the period from 1 May 1998 to 31 May 1998.
<PAGE>
1.15 "Governmental Authority" means any court, administrative
agency, commission or other governmental authority or instrumentality,
local, state or federal, of any domestic or foreign government.
1.16 "Indemnified Party" shall have the meaning ascribed to such
term in Section 7.4 hereof.
1.17 "Indemnifying Party" shall have the meaning ascribed to
such term in Section 7.4 hereof.
1.18 "Intellectual Property" means all intellectual property and
the rights thereto, whether owned or used by SIS or one of its
Affiliates or licensed from another party to SIS or one of its
Affiliates, whether existing under the laws of The Republic of
Singapore, the United States of America or any other jurisdiction,
including, without limitation:
(a) patents, patent applications, patent rights, patent
disclosures and improvements thereto;
(b) trademarks, trade names, trade designs, trade dress
logos, service marks, corporate names and registrations and
applications for registrations thereof;
(c) copyrights;
(d) computer software (including without limitation the
source code for any such software), data and documentation (related to
the computer software) ;
(e) trade secrets and confidential business information,
including without limitation, customer lists, ideas, formulae,
inventions (whether patentable or not and whether or not reduced to
practice), know-how, manufacturing and production processes and
techniques, research and development information, drawings,
specifications, designs, plans, development and other tools, proposals,
technical data, copyrightable works of authorship, financial, marketing
and business data, pricing and cost information, business and marketing
plans, proprietary processes, techniques and formulae;
(f) other proprietary rights; and
(g) all documentation and tangible embodiments thereof
(in whatever form or medium) constituting, describing or relating to
the above, including, without limitation, manuals, memoranda and
records.
1.19 "Law" or "Laws" means any federal, state, local, municipal,
foreign, international, multi-national or other judicial or
administrative order, judgment, injunction, decree, constitution, law,
ordinance, common law, rule, regulation, statute or treaty.
<PAGE>
1.20 "Liability" means any and all direct or indirect demands,
claims, payments, obligations, recoveries, deficiencies, fines,
penalties, interest, assessments, actions, causes of action, suits,
losses, liabilities, costs, expenses (including without limitation,
interest, penalties and reasonable attorneys' fees and expenses,
including attorneys' fees and expenses necessary to enforce rights to
indemnification hereunder, and consultant's or arbitrator's fees and
other costs of defense or investigation), and interest on any amount
payable to a third party as a result of the foregoing, whether accrued,
absolute, actual, contingent, known, unknown.
1.21 "Lien" means any mortgage, charge, pledge, lien, claim,
option, right to acquire, right of conversion or other form of security
or encumbrance of any kind or nature whatsoever, on, over or affecting
the subject assets, property or securities.
1.22 "Memorandum and Articles of Association" of a corporation
incorporated in The Republic of Singapore or Brunei means the
Memorandum and Articles of Incorporation of such corporation, as
amended through the date hereof.
1.23 "Material" or "material" means any event, change or effect
related to the condition (financial or otherwise), properties, assets,
liabilities, businesses, operations, results of operations or prospects
of an entity that a reasonable investor would deem to be important in
deciding whether or not to make or change an investment in such entity.
No particular amount of US Dollars or Singapore Dollars (or any other
currency) shall be dispositive of materiality.
1.24 "Material Adverse Effect" means a Material adverse effect
on the condition (financial or otherwise), business, properties, net
worth, results of operations or prospects of a company and its
Subsidiaries taken as a whole.
1.XX "NCB" means NCB Holdings Pte Ltd., a corporation duly
organized under the laws of the Republic of Singapore.
1.25 "Nasdaq/NMS" means the automated quotation system of the
Nasdaq Stock Market, Inc. known as the National Market System, on which
the Datastream Common Stock is listed.
1.26 "Person" means a natural person, company, corporation,
partnership, government, or political subdivision, agency or
instrumentality of any domestic or foreign government.
1.XX "Preference Shares" means the 53,000 issued and fully
paid-up redeemable preference shares of SIS owned by NCB and being free
from any liens, charges or encumbrances whatsoever.
1.27 "Products" shall have the meaning set forth in Section
4.20(a) hereof.
<PAGE>
1.28 "Regulation S" means Regulation S and the rules thereunder
promulgated under the Securities Act of 1933, as amended.
1.29 "Regulation S Legend" means the legend to be placed on the
shares of Datastream Common Stock constituting the Stock Consideration
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.
1.XX "SBM" means STRATEGIC BUSINESS MANAGEMENT SDN BHD,
a company duly organized under the laws of Brunei.
1.30 "SEC" means the Securities and Exchange Commission.
1.31 "SEC Documents" means Datastream's Annual Report on Form
10-K and Annual Report to Stockholders for the fiscal year ended
December 31, 1997, Datastream's Proxy Statement for the 1998 Annual
Meeting of Stockholders, and all other reports filed or required to be
filed by Datastream with the SEC subsequent to January 1, 1998 but
prior to the Closing.
1.32 "Securities Act" means the Securities Act of 1933, as
amended.
1.33 "SIS" means Strategic Information Systems PTE. LTD., a
corporation organized and existing under the laws of the Republic of
Singapore. Unless the context otherwise indicates, the term "SIS" as
used herein includes SIS and its consolidated subsidiaries, if any, as
well as any predecessors of SIS and its consolidated subsidiaries, if
any, including without limitation, former subsidiaries of SIS and the
predecessors of such former subsidiaries. Brief details of SIS are
provided for in Schedule 4.6.
1.34 "SIS Capital Stock" means all the issued and paid-up
ordinary shares of par value S$1.00 each in SIS comprising of 1,000,000
ordinary shares free from any liens, charges or encumbrances whatsoever.
1.35 "SIS Expenses" means all fees and expenses paid or incurred
by SIS and the SIS Stockholders in connection with the preparation for
and consummation of the transactions contemplated by this Agreement and
<PAGE>
the other Transaction Documents, including, without limitation, all
attorneys', investment banking and other professional fees and expenses
and brokers' or finders' fees and expenses (including those of SIS' law
firm) for persons engaged by SIS or the SIS Stockholders (or claiming
to be so engaged), filing fees, copying expenses, travel expenses (if
any) and other out-of-pocket costs related to the Transaction.
1.36 "SIS Stockholders' Representative" shall have the meaning
ascribed to such term in Section 8.1 hereof.
1.XX "Singapore Dollars" or "S$" means the lawful currency of
Singapore.
1.37 "Stock Consideration" means 88,652 shares (based on a price
of US$21.75 per share) of Datastream Common Stock (an amount which
includes 29,566 Escrow Shares), the aggregate number of shares of
Datastream Common Stock to be delivered by AqSub at the Closing.
Subject to Section 6.8 hereof, the certificates evidencing the shares
of Datastream Common Stock constituting the Stock Consideration shall
bear the Regulation S Legend and the certificates evidencing the Escrow
Shares may also bear a legend referencing this Agreement and the Escrow
Agreement.
1.38 "Subsidiary," with respect to any entity, means another
entity the majority of the outstanding equity interests of which are
owned, directly or indirectly, by the first entity, together with any
predecessor corporation of such majority-owned entity, if any.
1.39 "Tax or Taxes" means with respect to any entity:
(a) all taxes (including any tax on or based upon net
income, gross income, income as specially defined, earnings, profits,
or selected items of income, earnings, or profits) and all sales, use,
transfer, franchise, license, withholding, social security and payroll,
employment, severance, occupation, pension premium, property or
alternative or add-on minimum taxes, customs duties, levies, stamp duty
or other taxes, fees, assessments or charges of any kind whatsoever,
together with any interest and any penalties, additions to tax, or
additional amounts imposed by any taxing authority (domestic or
foreign) on such entity, whenever created or imposed and whether of the
Republic of Singapore or any other part of the world, whether disputed
or not; and generally any tax, duty, impost, levy or rate or any amount
payable to the revenue, customs or fiscal authorities whether of the
Republic of Singapore or of any other jurisdiction and all penalties
related thereto or arising in respect thereof; and
(b) any liability for the payment of any amount of the
type described in the immediately preceding paragraph (a) as a result
of being a "transferee" of another entity or a member of an affiliated
or combined group.
1.40 "Transaction Consideration" means the Cash Consideration
and the Stock Consideration payable by AqSub pursuant to Section 2.2
hereof to the SIS Stockholders in the respective amounts set forth on
Schedule 2.2.
<PAGE>
1.41 "Transaction Documents" means this Agreement and the Escrow
Agreement.
1.42 "US Dollars" or "US$" means the lawful currency of the
United States of America.
1.43 "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
a U.S. Person or as otherwise defined in Rule 902(k) of Regulation S
promulgated under U.S Securities Act of 1993, as amended ("Regulation
S").
ARTICLE II SHARE PURCHASE
SHARE PURCHASE
2.1 Performance of Agreement. Prior to the date hereof, the
parties hereto (and the SIS Stockholders shall procure SIS to do
likewise) shall take all actions necessary in accordance with
applicable law and their respective Memorandum and Articles of
Association to approve this Agreement and the transactions contemplated
hereby and to cause the Transaction to be consummated, including,
without limitation, convening meetings of the stockholders of the
respective parties (or obtaining the written consent of the
stockholders in lieu of a meeting if permitted under applicable law) to
consider and vote upon the approval of the Transaction if such
stockholder approval is required.
2.2 Sale and Purchase of SIS Capital Stock. Each of the
SIS Stockholders hereby sells all of the right, title and interest in
and to the SIS Capital Stock owned by each of them, as set forth on
Schedule 2.2 hereof, to AqSub, and AqSub hereby purchases all of such
right, title and interest in such shares of SIS Capital Stock, as set
forth on Schedule 2.2 hereof, subject to the terms and conditions
hereof. Each outstanding share of SIS Capital Stock sold and purchased
shall be transferred to AqSub free and clear of any Liens, and the
Transaction shall, subject to Section 3.3, be deemed effective at the
Closing by execution of the relevant instruments of transfer, in
consideration for AqSub's payment and delivery of the Transaction
Consideration in respect of all such SIS Capital Stock. At Closing
(and subject to Section 3.3), in exchange for the SIS Common Stock
transferred to AqSub by each SIS Stockholder, AqSub shall, with respect
to each of the SIS Stockholders in the respective proportions set forth
on Schedule 2.2, (i) deliver to the Stakeholder certificates (in the
respective names of the SIS Stockholders) representing the number of
shares of Datastream Common Stock equal to the aggregate Stock
Consideration (less the Escrow Shares) due to the SIS Stockholders,
(ii) deliver bank drafts to the Stakeholder in an amount equal to the
aggregate Cash Consideration due to them, and (iii) deliver the Escrow
Shares to the Escrow Agent. The transfer of the shares of Datastream
Common Stock representing the Stock Consideration shall occur upon
delivery of certificates representing such shares at Closing. At
Closing, Datastream may deduct from the aggregate Cash Consideration
<PAGE>
due to each SIS Stockholders, such stockholder's pro rata portion of
the reimbursement obligation of the SIS Stockholders set forth in
Section 6.5 hereof.
2.3 Board Resignations. Save for Ms Choy Feng Alice, Mr Ng Kee
Chan, Mr Philip J Waugh, all the SIS Stockholders shall resign as
directors of SIS, effective immediately prior to or on the Closing Date
and the said directors shall, in their respective resignation letters,
confirm that they have no claims whatsoever against SIS, its directors
or any of its employees.
ARTICLE III THE CLOSING
THE CLOSING
3.1 Location, Time, Etc. The Closing shall be held at the
offices of SIS, on the Closing Date commencing at 3 pm local time, or
at such other time and place as the parties hereto may agree in
writing. All of the actions and transactions necessary to effect the
Closing shall be deemed to have occurred, and all agreements, documents
and other instruments shall be deemed to have been executed and
delivered, simultaneously at the Closing. No action, transaction or
execution and delivery of any agreement, document or other instrument
or payment or issuance of shares shall be considered to have been made
or effected until all the actions shall have been taken at the Closing,
and the Closing shall have been completed.
3.2 Transactions at the Closing - SIS Stockholders
At the Closing :-
3.2.1 the SIS Stockholders shall deliver to Datastream and
AqSub the following:
(a) duly executed instruments of transfers of all the SIS
Capital Stock in favour of AqSub or its nominees together with the
relevant original share certificates;
(b) duly executed statutory declaration(s) relating to
the disposal of the SIS Capital Stock and the Preference Shares in the
form approved by the Inland Revenue Authorities of Singapore in the
case where SIS owns real property, or, if SIS does not own any real
property, such other letter/statement to the Commissioner of Stamp
Duties (or such other relevant authority) stating such fact;
(c) apart from Section 3.2.1(l), duly executed
instruments of transfer (together with the relevant original share
certificates) in favour of SIS (or its nominees) of such shares in the
Subsidiaries as are registered in the names of nominee holders or
trustees, together with the relevant original share certificates;
<PAGE>
(d) such waivers or consents as Datastream or AqSub may
require to enable AqSub or its nominees to be registered as holders of
any of the SIS Capital Stock and the Preference Shares;
(e) Intentionally Omitted;
(f) the original title deeds (if any) of any real
properties owned by SIS, its Subsidiaries or Affiliates and the
original share certificates of any shares in any company (whether
within or outside Singapore) registered in the name of SIS;
(g) Intentionally Omitted;
(i) an unconditional letter of release from SIS's bankers
evidencing the release and discharge of all guarantees and charges (if
any) granted by SIS;
(j) certified copies of any powers of attorney under
which any of the documents referred to in this Section 3.2 is executed
or evidence satisfactory to Datastream of the authority of any person
signing on its behalf;
(k) letters of resignation of directors in the approved
terms from each of the SIS Stockholders (save for Ms Choy Feng Alice,
Mr Philip J Waugh and Mr Ng Kee Chan), such resignations to take effect
from close of the meeting of the board referred to in Section 3.2.2
below;
(l) duly signed declarations of trust (in a form approved
by SIS) by Mr Philip John Waugh and Mr Lim Bian San in favour of SIS
(or its nominees) in respect of their shareholdings in SBM, duly signed
blank share transfer forms in respect of these shares in SBM and the
original share certificates representing these shares;
(m) board resolution of SBM approving the transfer of the
shares of SBM described in Section 3.2.2(l) above (in the event this
item cannot be furnished at Closing, the SIS Stockholders undertake to
furnish this item within two weeks from Closing);
(n) certified true copy of the sale and purchase
agreement between NCB and Lim Bian San relating to the Preference
Shares; a copy of the duly signed instrument of transfer relating to
the Preference Shares between Lim Bian San and NCB and a copy of the
share certificates representing the Preference Shares owned by NCB;
(o) duly signed sale and purchase agreement between AqSub
and Lim Bian San relating to the Preference Shares (which were
previously purchased by Lim Bian San from the NCB and as described in
Section 3.2.1(n) above); the original duly signed instrument of
transfer relating to the Preference Shares between AqSub and Lim Bian
San; the original share certificates representing the Preference Shares
held by Lim Bian San, and the written consent of the SIS Stockholders'
(save for Lim Bian San) consent for the transfer of the Preference
Shares from Lim Bian San to AqSub;
<PAGE>
(p) Intentionally Omitted.
3.2.2 the SIS Stockholders shall cause the directors of SIS
to hold a meeting of the board of SIS to pass resolutions (in the
approved form) to :-
(a) approve the registration of AqSub as a member of SIS
subject only to the production of duly stamped and completed transfers
in respect of the SIS Common Stock and the Preference Shares (purchased
from Lim Bian San);
(b) appoint such persons as AqSub may nominate as
directors of SIS;
(c) revoke all authorities to the bankers of SIS relating
to bank accounts and to give authority to such persons as AqSub may
nominate to operate the same;
3.3 Transactions at the Closing - AqSub
At the Closing, AqSub shall deliver to the SIS Stockholders
the following:
(a) (i) a cashier's order for the sum of
S$150,000 payable in favour of Lim Bian San as repayment of the
director's loan of S$150,000 owing by SIS to Lim Bian San. The
cashier's order of S$150,000 shall be treated as a loan (and the SIS
Stockholders shall procure SIS to acknowledge the said loan) by AqSub
to SIS for the repayment of the said director's loan of S$150,000;
(ii) a cashier's order for the sum of
S$150,000 payable in favour of Choy Feng Alice as repayment of the
director's loan of S$150,000 owing by SIS to Choy Feng Alice. The
cashier's order of S$150,000 shall be treated as a loan (and the SIS
Stockholders shall procure SIS to acknowledge the said loan) by AqSub
to SIS for the repayment of the said director's loan of S$150,000;
(b) deliver certificates representing the number of shares
of Datastream Common Stock equal to the aggregate Stock Consideration
(less the Escrow Shares) due to the SIS Stockholders;
(c) deliver cashier's orders to the SIS Stockholders'
Representative for the benefit of the SIS Stockholders in an amount
equal to the aggregate Cash Consideration due to them;
(d) deliver the Escrow Shares to the Escrow Agent;
PROVIDED ALWAYS that at Closing, the items listed in Section 3.3 (b)
and (c) ("Stakeholder Items") shall be delivered to M/s Timothy Ong,
Lim & Partners as a stakeholder ("Stakeholder"). The Stakeholder shall
hold on to the Stakeholder Items in its capacity as a stakeholder and
shall only release the same to the respective SIS Stockholders on
Completion (as defined in the Sale and Purchase Agreement entered into
between Lim Bian San and AqSub).
<PAGE>
It is agreed that Mr Lim Bian San shall bear half of all stamp duties
payable on the back-to-back transfers of the Preference Shares.
At Closing, Datastream may deduct from the aggregate Cash Consideration
due to each SIS Stockholders, such stockholder's pro rata portion of
the reimbursement obligation of the SIS Stockholders set forth in
Section 6.5 hereof.
3.4 At Closing, Ms Choy Feng Alice, Mr Philip J. Waugh and Mr
Ng Kee Chan shall enter into employment contracts with SIS on approved
terms.
3.5 Without prejudice to any of the other remedies available to
the parties, if in any respect any of the completion items listed above
are not satisfied/delivered by 16 June 1998, the parties may by mutual
agreement :-
(a) defer Closing to a date not more than 7 working days
after the 16 June 1998;
(b) proceed to Closing so far as is practicable (without
prejudice to the their respective rights); or
(c) rescind this Agreement.
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SIS STOCKHOLDERS
REPRESENTATIONS AND WARRANTIES OF
THE SIS STOCKHOLDERS
Each of the SIS Stockholders, jointly and severally, hereby
represents and warrants to Datastream and AqSub as follows (such
representations and warranties to be true and correct as of the Closing
Date or as of any other specific date set forth below as of which a
particular statement is made):
4.1 Authorization, Etc. Such SIS Stockholder has the power,
authority and capacity to enter into this Agreement and each other
Transaction Document to which it is a party and to carry out the
transactions contemplated hereby and thereby, and, assuming due
execution and delivery of this Agreement and each other Transaction
Document by the other parties hereto and thereto, this Agreement and
each other Transaction Document constitutes a valid and binding
agreement of such SIS Stockholder, enforceable against such SIS
Stockholder in accordance with its terms. Such SIS Stockholder has
irrevocably waived any preemptive rights or other rights of first
refusal applicable to the Transaction under Singapore law or SIS's
Memorandum and Articles of Association in respect of the SIS Capital
Stock and the Preference Shares.
4.2 No Consent Required. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Authority on the part of such SIS Stockholder is required
in connection with its execution or delivery of or performance under
<PAGE>
this Agreement or any other Transaction Document or the consummation of
the Transaction.
4.3 Litigation Relating to the Agreement. Neither SIS nor any
such SIS Stockholder is a party to, or subject to, any judgment, decree
or order entered in any lawsuit or proceeding brought by any
Governmental Agency or other party seeking to prevent the execution of
this Agreement or any other Transaction Document or the consummation of
the Transaction.
4.4 U.S. Status. Such SIS Stockholder (i) is not a U.S. Person;
(ii) is not acquiring the Datastream Common Stock for the account or
benefit of any U.S. Person; (iii) agrees to resell his/her Datastream
Common Stock only in accordance with Regulation S or pursuant to
registration under U.S. securities laws and regulations or an available
exemption therefrom.
4.5 Other Claims. Such SIS Stockholder does not have and shall
not have any claim or cause of action whatsoever (including, without
limitation, any claim under any employment, management, consulting or
service agreement) against SIS arising out of or in any way connected
with any event, occurrence or state of facts in existence prior to the
Closing.
4.6 Capitalization.
(a) All of the authorized, issued and outstanding shares
of SIS Capital Stock are set forth on Schedules 4.6. There are no
other such shares of SIS Capital Stock nor are there any Convertible
Securities issued or outstanding. Each SIS Stockholder owns
beneficially and of record all of the paid-up, issued and outstanding
shares of SIS Capital Stock (including all rights attached thereto or
associated therewith) as set forth opposite such SIS Stockholder's name
on Schedule 4.6 hereto and has legal, beneficial and valid title to
such shares of SIS Capital Stock, free and clear of all Liens. At the
Closing, (i) no dividends or rights to receive dividends shall have
accrued to the holders of SIS Capital Stock that have not been
terminated, and (ii) the shares of SIS Capital Stock transferred by the
relevant instruments of transfer pursuant to Article II hereof will
represent all of the paid-up and issued ordinary shares of SIS at such
time. The register of stockholders of SIS contains complete, true and
accurate records of SIS and sets forth such information regarding the
stockholders of SIS as is necessary under applicable law. Since 30
April 1998, SIS has not paid nor made provisions or arrangements to
pay, nor have the SIS Stockholders approved or agreed to distribute,
any dividends or other distributions of the profits or share capital of
SIS or otherwise made any change or adjustment to the stockholders'
equity (save for the transfer of the 177,500 ordinary shares from the
estate of Ko Sun Siew to Lim Bian San and the anticipated transfer of
the Preference Shares from NCB to Lim Bian San) of SIS. The details in
respect of SBM as contained in Schedule 4.6(a) are accurate and correct.
(b) The issued and outstanding shares of capital stock
set forth on Schedules 4.6 and 4.6(a) hereto have been duly authorized
and validly issued, are fully paid and nonassessable (i.e., there are
<PAGE>
no liabilities associated with such shares) and, except for such rights
of first refusal, preemptive, preferential or similar rights existing
under SIS's (or SBM's Memorandum and Articles of Association as the
case may be) Memorandum and Articles of Association or existing under
Singapore Law (all of which have been waived), are not entitled or
subject to any preemptive, preferential or similar rights. Save for
SBM, SIS has no Subsidiaries and Affiliates and owns no other capital
stock or equity interests, or securities exercisable or exchangeable
for or convertible into capital stock or any other equity interest in
any other corporation, partnership, joint venture, association, trust
or other business organization or entity.
4.7 Corporate Organization.
(a) SIS has been duly incorporated and is validly
existing and duly registered under the laws of The Republic of
Singapore, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as presently
conducted, and is operating in accordance with its Memorandum and
Articles of association. SIS is duly registered and qualified to do
business as a corporation under the foreign corporation law of each
jurisdiction where such registration or qualification is required,
except where the failure to so register or qualify would not have a
Material Adverse Effect on SIS; and no proceeding has been instituted
in any such jurisdiction revoking, limiting or curtailing, or seeking
to revoke, limit or curtail, such registration or qualification.
4.8 Intentionally Omitted
4.9 Noncontravention. The execution, delivery and performance
by each SIS Stockholder of this Agreement and each other Transaction
Document to which any SIS Stockholder is a party, the consummation of
the transactions contemplated hereby and thereby, and the compliance by
each such SIS Stockholder with the provisions hereof and thereof will
not:
(a) conflict with, result in a violation of, result in a
breach of, or cause a default under (with or without notice or lapse of
time, or both), or give rise to a right of termination, amendment,
cancellation or acceleration of any obligation contained in, or the
loss of any material benefit under, or require the consent or approval
of any party to, or result in the creation of any Lien upon any of the
properties or assets of SIS under any term, condition or provision of
any loan or credit agreement, note, bond, indenture, lease or other
agreement, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to SIS or any SIS Stockholder or any of their respective
properties or assets;
(b) violate any (save for the transfer procedure provided
for in the Memorandum and Articles of Association of SIS, which is
hereby waived by the SIS Stockholders) provision of the Memorandum and
Articles of Association of SIS; or
<PAGE>
(c) require the consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority to be obtained by SIS in connection with the execution and
delivery of this Agreement or any other Transaction Document or the
consummation of the transactions contemplated hereby and thereby.
4.10 Litigation. Save as provided for in Schedule 4.10, there
are no legal, governmental or arbitration proceedings pending or, to
the knowledge of the SIS Stockholders, threatened against SIS, or to
which SIS or any property owned or leased by SIS is subject, that would
reasonably be expected to have a Material Adverse Effect on SIS.
4.11 Bankruptcy or Liquidation Proceedings. There are no
bankruptcy or liquidation proceedings pending against SIS or, to the
knowledge of the SIS Stockholders, threatened against SIS.
4.12 Certain Contracts
(a) Except as set forth on Schedule 4.12(a) hereto, SIS
is not a party to any written or oral, formal or informal, agreement or
understanding concerning any:
(i) Joint venture contract, royalty arrangement or
other agreement which has involved or is reasonably
expected to involve a sharing of profits with any third
party;
(ii) Indenture, mortgage, promissory note, loan
agreement, guarantee or other agreement, arrangement or
commitment for the borrowing of money, a line of credit or
a leasing transaction of a type required to be capitalized
in accordance with generally accepted Singapore accounting
principles;
(iii) Indenture, mortgage, promissory note, loan
agreement, guarantee or other agreement, arrangement or
commitment for the borrowing or lending of money or line of
credit from or to SIS to which any SIS Stockholder (or any
Affiliate of any SIS Stockholder) is a party;
(iv) Lease or other agreement under which SIS is
lessor of, lessee of, or holds or operates any items of
tangible personal property or real property owned by any
third party and under which payments are made to or are
received from such third party, which either calls for
performance over a period of more than one (1) year from
the date hereof or payment to or from SIS in an amount in
excess of S$5,000 per annum;
(v) effective agreement, license, franchise,
permit, indenture or authorization, which either calls for
performance over a period of more than one (1) year or
payment to or from SIS in an amount in excess of S$5,000
per annum;
<PAGE>
(vi) Agreement that restricts SIS from engaging in
any aspect of its business or competing in any line of
business in any geographic area;
(vii) Agreement or commitment made by SIS to guaranty
or provide suretyship or to otherwise be contingently
liable or responsible for the obligations of Persons other
than SIS; or
(viii) Arrangement under which the consequence
of a default or termination would reasonably be expected to
have a Material Adverse Effect on SIS.
(b) Except as set forth in Schedule 4.12(b) hereto, there
are no distribution contracts (including, without limitation, all OEM
and end-user contracts) to which SIS is a party which grant any
exclusive right of any kind to any party.
(c) Attached hereto as Schedule 4.12(c) hereto is a true,
correct and complete list of all software development agreements to
which SIS is a party or beneficiary. All such agreements provide for
the assignment to SIS of all right, title and interest to any
technology, development work or other products developed by any other
party for SIS. None of the agreements listed on Schedule 4.12(c) (save
as disclosed in the said Schedule) permit any other party to retain or
own, or grant to any other party, any right to any technology,
development work or other product developed by such party thereunder or
owned by SIS or of which SIS is a beneficiary.
(d) Except as set forth on Schedule 4.12(d) hereto, SIS
has not granted any source code licenses or established any source code
escrow arrangements. None of such source code licenses or source code
escrow agreements authorize any party thereto other than SIS to resell
or otherwise exploit such source code commercially or to further
develop such source code in order to resell or otherwise exploit it
commercially.
(e) SIS is not, and, to the knowledge of the SIS
Stockholders, no other party is, in default under any agreement set
forth on any schedule delivered pursuant to this Section 4.12, nor
under any other agreement to which SIS is a party.
4.13 Financial Statements. The Financial Statements present
fairly the consolidated financial condition, results of operations and
cash flows of SIS at the respective dates or for the respective periods
covered thereby, and the Financial Statements have been prepared in
accordance with generally accepted Singapore accounting principles
consistently applied throughout the periods involved. Except as set
forth in the Financial Statements, including the notes thereto, or in
any schedule hereto, SIS does not have any other Material Liability.
All reserves established by SIS in the Financial Statements are
adequate for all known Liabilities and reasonably anticipated
Liabilities. The account balances included in the Financial Statements
in respect of receivables, liabilities, and stockholders' equity were,
as of the respective dates of such Financial Statements, accurate and
complete in all Material respects.
<PAGE>
4.14 No Other Charges. Since 30 April 1998, SIS has conducted
its business only in the ordinary course and there has not occurred any
transaction, condition (financial or otherwise) of any character, event
or change (including the incurrence of any liabilities, whether
accrued, contingent or otherwise) that would reasonably be expected to
have a Material Adverse Effect on SIS. SIS is not delinquent in any
material payment of principal or interest on any outstanding debt or
other obligation. In particular, since 30 April 1998, SIS has not
(a) incurred any indebtedness (other than trade debt incurred in the
ordinary course of business) or guaranteed any obligations of others or
made any loans or advances to, or investments in, any other person or
entity, (b) made any capital investments in excess of S$80,000,
(c) changed any accounting policy or procedure or failed to maintain
its books, accounts and records other than in the ordinary manner
consistent with prior years and in accordance with sound commercial
practice, (d) made any significant change to the employment
compensation of any of its employees, or (e) made any agreement to do
any of the foregoing.
4.15 Property. Except as set forth on Schedule 4.15 hereto, SIS
does not own any real property. SIS has full legal title to all
properties and assets reflected as owned by it in the Financial
Statements, free and clear of any Lien except those which are described
in the Financial Statements or that are not Material to SIS and which
do not interfere in any Material respect with the use or proposed use
of the property or the conduct of the business of SIS; all of the
property (real and personal) held or used by SIS under leases,
franchises, licenses or other agreements is held by it under valid,
subsisting, binding and enforceable leases, franchises, licenses or
other agreements, except those that are not Material to SIS and which
do not interfere in any Material respect with the use of the property
or the conduct of the business of SIS.
4.16 Permits. SIS has obtained and holds, and is in compliance
with, all permits, licenses, franchises, approvals, consents and
authorizations of all Governmental Authorities required under all laws,
rules and regulations in connection with its business (hereinafter
"permit" or "permits") as are necessary to own its properties and
assets, and to conduct its business in the manner currently being
conducted. SIS has fulfilled and performed all of its obligations with
respect to each such permit and no event has occurred which could
reasonably be expected to result in, or after notice or lapse of time
could reasonably be expected to result in, violation, revocation or
termination of any such permit or result in any other impairment of the
rights of the holder of any permit.
4.17 No Illegal Acts. SIS is presently in compliance with all
laws, orders, rules and regulations applicable to, required of or
binding upon it or its business, and SIS has not received any notice
from any Governmental Authority with respect to any failure or alleged
failure of SIS to comply with any such law, order, rule or regulation,
nor, to the knowledge of the SIS Stockholders, are any such notices
proposed or threatened.
4.18 Prior Issuances. All offers and sales of the capital stock
or Convertible Securities of SIS prior to the date hereof and all cash
payments or distributions of the capital stock of SIS as dividends were
made in compliance with the corporate and securities laws of The
<PAGE>
Republic of Singapore and all other applicable Laws, and were not made
in contravention of any preemptive or other rights of first refusal
under Singapore or other applicable law or SIS' Memorandum and Articles
of Association
4.19 Taxes.
(a) All applicable Tax returns and reports which have
been required to be filed by or on behalf of SIS with respect to all
periods ended on or before the Closing have been filed (or are the
subject of valid extensions) with the appropriate Governmental
Authorities and all such Tax returns and reports, as filed, are
accurate and complete in all Material respects; all Taxes required to
be shown on all such tax returns and reports or claimed to be due from
or with respect to the business of SIS have been paid or reflected as a
liability on the Financial Statements for appropriate periods; all
deficiencies asserted as a result of any tax audits have been paid or
finally settled and no issue has been raised in any such audit which
reasonably could be expected to result in a proposed deficiency for any
other period not so audited; no set of facts exists or has existed
which would constitute grounds for the assessment of any Tax liability
with respect to any tax periods including the periods which have not
been audited by appropriate Governmental Authorities; and there are no
outstanding agreements or waivers extending the statutory period of
limitation applicable to any Tax return or report for any period.
(b) All amounts due and payable by SIS through the
Closing in respect of Taxes will have been paid or adequately reserved
for in the financial accounts of SIS. No Taxes (in particular, no
corporate income taxes) are or will be due resulting from (a breach of)
a fiscal unity or similar tax structure of which SIS is a part, as a
result of this Agreement or the Transaction. No disputes exist or are
to be expected with any Governmental Authority concerning the Tax
position of SIS nor is there any reasonable basis for any such dispute.
SIS has not made any distributions that are taxable or disposed or
acquired any asset in such a manner that Taxes would be due. If SIS has
disposed of its assets for consideration equal to the book value of
that asset as shown in or adopted for the purposes of its accounts, no
liability for Taxes would reasonably be expected to arise by reference
to any profit, nor would any relief or allowance previously claimed be
liable to be withdrawn or subject to drawback.
4.20 Intellectual Property.
(a) The products listed on Schedule 4.20(a) hereto and
the support and maintenance services provided for those products
pursuant to license or distribution agreements are the only products
(hardware, software, services and others) under development or
marketed, licensed, sold or otherwise distributed or intended for
distribution by SIS during the last five years (all such products shall
be referred to hereinafter collectively as the "Products").
(b) Set forth on Schedule 4.20(b) hereto is a true,
correct and complete list of all Material Intellectual Property of SIS.
There is no other Intellectual Property that is necessary to SIS in the
development, manufacture, license, sale, distribution, purchase and use
<PAGE>
of the Products. Such list identifies (A) SIS as either the owner or
licensee of each item of Intellectual Property; (B) in the cases where
SIS is a licensee, the licensor(s) and license agreement(s) for such
item of Intellectual Property; (C) as applicable, the Product to which
such item of Intellectual Property relates; and (D) as applicable, the
fee, royalty or other amount payable to any other party with respect to
such item of Intellectual Property or Product. Except as set forth on
Schedule 4.20(b), each license granted to SIS is perpetual and
irrevocable. To the extent SIS claims to own such Products or
Intellectual Property, SIS owns all right, title and interest in and to
the Products and the Intellectual Property related thereto, free and
clear of any Lien of any kind or nature whatsoever, including without
limitation any exclusive right, however described, granted to parties
other than SIS with respect to the Products and other Intellectual
Property. To the extent SIS claims to be licensed to use such Products
or Intellectual Property, SIS has a valid and enforceable license for
the purposes for which it uses such Products or Intellectual Property.
(c) SIS has not (nor has any Product developed,
manufactured, licensed, sold or distributed by SIS) infringed or made
any unlawful use or received notice of any claimed infringement or
unlawful use of, any trademark, trade name, patent, copyright,
maskwork, trade secret or other proprietary or intellectual property
right of any third party.
(d) SIS has taken all necessary measures to protect its
rights in the Products and the Intellectual Property, and maintains all
copyrights and other intellectual property rights necessary for
marketing, licensing, selling or otherwise distributing the Products in
the jurisdictions in which they have been distributed. SIS has not
sent or otherwise communicated to any other person any notice, charge,
claim or assertion of, or has any knowledge of, any present, impending
or threatened infringement by such other person of any right relating
to the Intellectual Property of SIS.
(e) SIS has not received notice, orally or in writing,
that any other Person claims any interest in any Products or
Intellectual Property of SIS, nor to the best knowledge of the SIS
Stockholders, does any such claim (or any valid basis for any such
claim) exist, except the ownership and other rights claimed by
licensors under valid and enforceable licenses.
4.21 Product Warranty and Liability.
(a) Each Product has been developed, manufactured, sold,
licensed and/or delivered in conformity with all applicable contractual
commitments and with all express or implied warranties extended by SIS
in connection with such Product. SIS does not have any warranty
reserves maintained in the Financial Statements.
(b) SIS has incurred no liability arising out of any
injury to any Person or property (and, to the best knowledge of the SIS
Stockholders, there is no basis for any present or future claim,
complaint, action, suit, proceeding, hearing, investigation, claim or
demand against SIS arising out of any such injury) as a result of the
use of the Products.
<PAGE>
(c) Except as set forth on Schedule 4.21 hereto, all
Products (i) are designed (or have been modified) to be used prior to
and after January 1, 2000; (ii) will operate without material error
arising from the creation, recognition, acceptance, calculation,
display, storage, retrieval, accessing, comparison, sorting,
manipulation, processing or other use of dates or date-based,
date-dependent or date-related data, including but not limited to
century recognition, day-of-the-week recognition, leap year, date
values and interfaces or date functionalities; and (iii) will not be
materially adversely affected by the advent of the year 2000, the
advent of the year 2001, the advent of the twenty-first century or the
transition from the twentieth century through the year 2000 and into
the twenty-first century. Except as set forth on Schedule 4.21, all
design architectures and functionalities of all Products are, in all
material respects, compatible with and, when operated in, on or in
conjunction with, any other system, will not cause such Products to
fail to satisfy the criteria set forth above.
4.22 Pension Matters/Central Provident Fund Issue
(a) Apart from the contributions made by SIS to the
Central Provident Fund ("CPF") in respect of its employees or as
disclosed in the Schedules, SIS is not a party to, does not make and is
not required to make contributions to any pension, profit sharing,
retirement, deferred compensation, bonus, severance, medical or life
insurance or other employee (or ex-employee) welfare or benefit plans,
agreements or arrangements maintained for the benefit of any of its
employees or will be so required upon the termination of the
employment, retirement, death or disability of its employees.
(b) SIS has complied with all its obligations imposed on
it by all applicable statutes and regulations regarding (i) the
deduction from its employees' salaries or wages in respect of CPF
deductions; and (ii) the payment by SIS to the CPF of all sums due from
SIS in respect of CPF contributions.
4.23 Accounting Practices. SIS' corporate operations are
conducted in such a manner to provide reasonable assurances that funds
are spent in accordance with management's authorization, transactions
and are recorded properly with regard to accounting principles
generally accepted in Singapore, assets of SIS are adequately
protected, and there is a periodic review of SIS' monthly financial
statements to ensure they fairly present the financial condition,
results of operations and cash flows of SIS and as such, reflect the
actual position of SIS on a consolidated basis, at the dates and for
the periods presented.
4.24 Labor and Employment Matters.
(a) Schedule 4.24(a) sets forth the names, date of
commencement of employment or appointment to office and terms and
conditions of employment of all directors, executives, employees and
consultants of SIS whom SIS compensates in excess of S$30,000 per year.
<PAGE>
Except as set forth on Schedule 4.24(a), no benefits in kind or other
perquisites are payable to or are provided to any such director,
executive, employee or consultant.
(b) Schedule 4.24(b) sets forth the principal terms and
conditions of, including the termination dates and monthly rental
amounts for, all leases pertaining to automobiles provided by SIS as a
benefit in kind to any of its directors, executives, consultants or
employees.
(c) All management or other agreements pursuant to which
managerial services are provided to SIS to which SIS is a party may be
terminated by SIS upon not more than two months' notice and without
payment of compensation or damages (other than payments arising under
statutes relating to employment law or other than any payment for
unfair and/or wrongful dismissal). No such agreement is subject to
requalification or recharacterization as an employment agreement as to
which SIS acted, or should have acted, as a withholding agent for tax
purposes under Singapore law.
(d) Except with respect to the month in which this
Agreement is entered into, there are no outstanding arrears of
salaries, wages, holiday pay, CPF contributions/deductions or other
remuneration owed, as of the date hereof, to or in respect of any
director, executive, consultant or employee of SIS.
(e) Except as set forth on Schedule 4.24(e), SIS is not
obligated contractually or otherwise to make any bonus, incentive or
other similar payments to any of its directors, executives, consultants
or employees or to increase the rate of remuneration of, or improve any
benefits in kind to, any such Person.
(f) Except as set forth on Schedule 4.24 (f), there are
no schemes, agreements or plans in operation by or in relation to SIS
under which any of its directors, executives, consultants or employees
is entitled to any shares of SIS Capital Stock (or any other
Convertible Security or other equity interest in SIS), nor is SIS
obligated contractually or otherwise to pay any such Person a
commission or remuneration of any kind calculated by reference in whole
or in part to the turnover, profits or revenues of SIS.
(g) Except as set forth on Schedule 4.24(g), within one
year preceding the date hereof, SIS has not terminated any Person.
(h) SIS does not have a collective labor agreement or
other agreement or arrangement (binding or otherwise) with any trade
union, works council or other body representing its employees, nor is
there any dispute pending or threatened with any such body. SIS has
not experienced any material slowdown, work interruption, work stoppage
or strike by any of their employees, nor (to the knowledge of SIS and
the SIS Stockholders) is any such action presently threatened or
contemplated.
<PAGE>
(i) No past or present director, executive, employee or
consultant has any claim against SIS for loss of office, arising out of
the termination of his office or employment (including any severance or
redundancy payment) and there is no event that would reasonably be
expected to give rise to any such claim. SIS has not incurred any
liability for breach of any contract of service or for services, for
redundancy payments, protective awards or for wrongful dismissal or
unfair dismissal or for failure to comply with any order for the
reinstatement or re-engagement of any employee or for any other
liability accruing from the termination of any contract of employment
or for services.
(j) Save as provided for in Schedule 4.24(j), no
gratuitous payment has been made or promised by SIS in connection with
the actual or proposed termination, suspension or variation of
employment or engagement of any present or former director, executive,
consultant or employee.
(k) SIS is not involved in any industrial or other
dispute with any of its directors, executives, consultants or
employees.
(l) Except as set forth on Schedule 4.24(l), SIS has not
made any loans to or entered into any Material credit transaction with
any of its directors, executives, employees or consultants or any
Affiliate of any such director, executive, employee or consultant.
4.25 Intentionally Omitted.
4.26 Fees and Expenses. SIS has not paid nor is it obligated to
pay any fee or commission to any broker, finder or financial
intermediary in connection with the transactions contemplated by this
Agreement. Following the Closing Date, none of SIS, Datastream nor
AqSub will be obligated to pay any fee, commission or expense in
connection with the transactions contemplated by this Agreement.
4.27 Certain Payments. Neither SIS nor any director, executive,
employee, consultant or Affiliate of SIS, including, without
limitation, any SIS Stockholder, has, directly or indirectly, given or
agreed to give or solicited or received any gift, rebate or similar
benefit to any customer, supplier, governmental employee or other
Person which (i) might subject SIS to any damage or penalty in any
civil, criminal or governmental litigation or proceeding, (ii) if not
given in the past might have had an adverse effect on the assets,
business or operation of SIS, or (iii) if not continued in the future
might adversely affect SIS' assets, business, operations or prospects.
4.28 Accounts Payable - SIS's list of the accounts payable up to
31 may 1998 provided or to be provided by the SIS Stockholders (before
16 June 1998) to Datastream and AqSub are fair and correct, and
provides a true and accurate status of SIS's accounts payable. In this
respect, the SIS Stockholder shall indemnify AqSub and/or Datastream
for any liabilities which should have been disclosed in the said list
of accounts payable but were not so disclosed.
<PAGE>
ARTICLE V REPRESENTATIONS AND WARRANTIES OF DATASTREAM
REPRESENTATIONS AND WARRANTIES
OF DATASTREAM
Each of Datastream and AqSub, jointly and severally, hereby
represents and warrants to the SIS Stockholders as follows (such
representations and warranties to be true and correct as of the Closing
Date or as of any other specific date set forth below as of which a
particular statement is made):
5.1 Organization; Good Standing; Qualification and Power.
Datastream is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. AqSub
is a corporation duly organized, validly existing and in good standing
under the laws of The Republic of Singapore and has all requisite
corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted. Datastream and
AqSub are duly registered and qualified to do business as a foreign
corporation under the corporation law of each jurisdiction where such
registration and qualification is required, except where the failure to
so register or qualify would not have a Material Adverse Effect on
Datastream, and no proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification.
5.2 Authority. Each of Datastream and AqSub has all requisite
corporate power and authority to enter into this Agreement and each
other Transaction Document to which it is a party, to perform its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby, and the execution and delivery of this
Agreement and each other Transaction Document to which it is a party by
Datastream and AqSub and the consummation by Datastream and AqSub of
the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of Datastream
and AqSub, respectively. This Agreement and each other Transaction
Document to which Datastream and AqSub is a party has been duly
executed and delivered by Datastream and AqSub and, assuming due
execution and delivery of this Agreement and each other Transaction
Document by the other parties hereto and thereto, this Agreement and
each other Transaction Document to which Datastream and AqSub is a
party constitutes the valid and binding agreement of Datastream and
AqSub, respectively enforceable in accordance with its terms except as
enforceability may be limited by equitable principles or by bankruptcy,
insolvency, reorganization, moratorium, or similar laws from time to
time in effect affecting the enforcement of creditors' rights
generally.
5.3 Noncontravention. The execution, delivery and performance
by Datastream and AqSub of this Agreement and each other Transaction
Document to which Datastream and AqSub is a party, the consummation of
the transactions contemplated hereby and thereby, and compliance by
Datastream and AqSub with the provisions hereof and thereof, will not:
<PAGE>
(a) conflict with, result in a violation of, result in a
breach of, or cause a default under (with or without notice, or lapse
of time, or both), or give rise to a right of termination, amendment,
cancellation or acceleration of any obligation contained in, or the
loss of any Material benefit under, or require the consent or approval
of any party to, or result in the creation of any Lien upon, any of the
Material properties or assets of Datastream or AqSub under any term,
condition or provision of any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Datastream or AqSub or
their respective properties or assets, other than any such conflicts,
violations, defaults, losses, liens, security interests, charges or
encumbrances which individually or in the aggregate would not have a
Material Adverse Effect on Datastream;
(b) violate any provision of the Certificate of
Incorporation or Bylaws of Datastream or the Memorandum and Articles of
Association; or
(c) require the consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority to be obtained by Datastream or AqSub in connection with the
execution and delivery of this Agreement or any other Transaction
Document or the consummation of the transactions contemplated hereby
and thereby, except for the filing with the SEC of such reports and
information under the Exchange Act and the rules and regulations
promulgated by the SEC thereunder as may be required in connection with
this Agreement and the transactions contemplated hereby.
5.4 SEC Documents. Each of the SEC Documents filed to date,
when it was filed with the SEC, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder, and, as of their filing date, none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
5.5 Capitalization. Datastream's authorized, issued and
outstanding capital stock is, as of the respective dates thereof, as
set forth in the SEC Documents. All of the issued shares of capital
stock of Datastream have been duly authorized and validly issued, are
fully paid and nonassessable and are not entitled or subject to any
pre-emptive, preferential or similar rights.
5.6 No Calamities. Since the date of the most recent balance
sheet included in the financial statements included in the SEC
Documents, neither Datastream nor any of its Subsidiaries has sustained
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court governmental action,
order or decree.
<PAGE>
5.7 No Changes. Since the respective date of the most recent
balance sheet included in the financial statements included in the SEC
Documents, (i) neither Datastream nor any of its Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or
entered into any transactions, not in the ordinary course of business,
that are material to Datastream and its Subsidiaries taken as a whole,
(ii) Datastream has not purchased any of its outstanding capital stock
or declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock, (iii) there has not been any Material change
in the capital stock, long-term debt or short-term debt (other than
changes effected in the ordinary course of business consistent with
past practice) of Datastream or any of its Subsidiaries, and (iv)
Datastream has not suffered any Material Adverse Effect.
5.8 Stock Issuance. The shares of Datastream Common Stock to be
issued as Stock Consideration have been duly authorized, and when
issued and delivered for the transfer and delivery of the certificates
representing shares of SIS Capital Stock as provided herein, will be
validly issued and fully paid and nonassessable; the certificates
evidencing the shares of Datastream Common Stock to be issued as Stock
Consideration will comply with all applicable requirements of the DGCL
and the delivery of such certificates will pass valid title to such
shares, free and clear of any Lien. Assuming the accuracy and
completeness of the representations of the SIS Stockholders set forth
in Section 4.4 hereof, the offer and sale of the shares of Datastream
Common Stock to be issued as Stock Consideration will be issued in
compliance with Regulation S.
Registration Rights. Datastream shall provide to the SIS
Stockholders incidental (or "piggyback") registration rights to have
all of the shares comprising the Stock Consideration (exclusive of the
Escrow Shares) included in any public registration of shares of
Datastream Common Stock with the SEC effected on or before the first
anniversary of the Closing Date, subject to compliance with the
applicable SEC requirements, the ability of Datastream to include such
shares on the form proposed for such registration and the agreement of
the SIS Stockholders to be bound by the terms of any customary
underwriting agreement relating to such registration. The customary
expenses of such registration (other than underwriting discounts and
selling commissions, which shall be paid by the SIS Stockholders) shall
be paid by Datastream.
5.9 Financial Statements. The consolidated financial statements
(including the related notes) of Datastream and its consolidated
Subsidiaries included in the SEC Documents were prepared in accordance
with generally accepted accounting United States accounting principles
consistently applied throughout the periods involved and fairly present
the financial condition, results of operations and cash flows of
Datastream and its Subsidiaries, on a consolidated basis, at the dates
and for the periods presented.
5.10 Internal Controls. Datastream and each of its Subsidiaries
maintains internal accounting controls which provide reasonable
assurance that (i) transactions are executed in accordance with
management's authorization, (ii) transactions are recorded as necessary
to permit preparation of Datastream's consolidated financial statements
in accordance with generally accepted United States accounting
<PAGE>
principles and to maintain accountability for the assets of Datastream,
(iii) access to the assets of Datastream and each of its Subsidiaries
is permitted only in accordance with management's authorization, and
(iv) the recorded accountability for assets of Datastream and each of
its Subsidiaries is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
5.11 Indemnity to Guarantors. Datastream and AqSub, jointly and
severally, agree to indemnify and keep indemnified each of the SIS
Stockholders in respect of any losses, interests, Liabilities, costs
(including legal costs on a full indemnity basis) which they may suffer
or incur arising out of the guarantees entered into by them in their
capacity as shareholders or directors of SIS and relating to hire
purchase arrangements, factoring and banking facilities which have been
entered into by SIS and provided that such guarantees, hire purchase
arrangements, factoring and banking facilities have been disclosed in
the Schedules to this Agreement.
In respect of the guarantees (as disclosed in the Schedules)
entered into by Lim Bian San, Choy Feng Alice and Ng Kee Chan for hire
purchase agreements, leases and banking facilities for the benefit of
SIS, Datastream and AqSub shall procure for such guarantors to be
released and discharged within 3 months from Closing.
In respect of the time deposit of S$660,000 (Account No.
143-017119-501) belonging to Lim Bian San and placed with The Hongkong
and Shanghai Banking Corporation Limited, Singapore as a collateral for
banking facilities (as disclosed in the relevant Schedule) extended to
SIS, Datastream and AqSub shall procure for the said time deposit to be
released and discharged within 1 week from Closing.
ARTICLE VI ADDITIONAL COVENANTS AND AGREEMENTS
ADDITIONAL COVENANTS AND AGREEMENTS
6.1 Expenses. Whether or not the Transaction is consummated,
all costs and expenses incurred in connection with this Agreement and
the other Transaction Documents and the transactions contemplated
hereby and thereby shall be paid by the party incurring such expenses.
In particular, the SIS' Stockholders shall be responsible for the SIS
Expenses and the SIS Stockholders hereby jointly and severally agree to
hold SIS, Datastream and AqSub harmless therefrom.
6.2 Agreement to Cooperate. Subject to the terms and conditions
herein provided, each of the parties hereto shall use all best efforts
to take, or cause to be taken, all action to do, or cause to be done,
all things necessary, proper or advisable under applicable Law to
consummate and make effective the transactions contemplated by this
Agreement and the other Transaction Documents including using best
efforts to obtain all necessary or appropriate governmental and
third-party waivers, consents and approvals.
<PAGE>
6.3 Public Statements. The parties shall consult with each
other prior to issuing any public announcement or statement with
respect to this Agreement or the transactions contemplated hereby and
shall not issue any such public announcement or statement prior to such
consultation, except as may be required by applicable Law or
Datastream's listing agreement with the Nasdaq/NMS.
6.4 Release. Each of the SIS Stockholders does hereby release
and forever discharge SIS, its officers and directors and each of the
other SIS Stockholders from any and all claims, demands, actions,
causes of actions, losses and expenses (including attorneys' fees and
expenses) of any kind whatsoever, whether arising out of a contract or
otherwise, in law or in equity, that such SIS Stockholder has had, now
has or may hereafter have against SIS, and any successor to SIS or to
their respective businesses, any of the officers and directors of SIS
(in his capacity as such) or any other SIS Stockholder (in his capacity
as such).
6.5 Amounts Payable By SIS Stockholders. Promptly upon request
from Datastream, and in any event within 20 business days following the
Closing Date, each SIS Stockholder who shall owe any indebtedness (as
stated in Schedule 6.5) to SIS (or any Affiliate of SIS) or whose
Affiliate shall owe any indebtedness to SIS (or any Affiliate of SIS)
shall repay any such amounts to SIS in full.
6.6 Closing Matters. ted]
6.7 Resale Restrictions. Each SIS Stockholder agrees not to
resell or cause the resale of the Datastream Common Stock received by
such SIS Stockholder as Stock Consideration in the United States or to
a U.S. Person (as such term is defined in Regulation S) for a period of
one (1) year after the Closing.
6.8 Removal of Regulation S Legend. Upon the expiration of
the one (1) year "restricted period" (as such term is defined in
Regulation S) and upon the request of any SIS Stockholder, Datastream
shall cause the Regulation S Legend to be removed from the certificates
representing the shares of Datastream Common Stock to be issued as
Stock Consideration, or issue replacement certificates.
6.9 Intentionally Omitted.
6.10 KPMG Audit. The SIS Stockholders agree, understand and
acknowledge that AqSub and/or Datastream will be arranging for KPMG,
Singapore to conduct a post-completion financial and tax audit of SIS
after the Closing for the period beginning 1 March 1997 to 31 May 1998.
Datastream, AqSub and the SIS Stockholders agree to be bound by the
results and findings of the KPMG audit.
<PAGE>
ARTICLE VII SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND
INDEMNIFICATION
SURVIVAL OF REPRESENTATIONS AND
WARRANTIES AND INDEMNIFICATION
7.1 Survival of Representations and Warranties.
(a) All representations, warranties, agreements,
covenants and obligations made or undertaken by any of the SIS
Stockholders in this Agreement are Material, have been relied upon by
Datastream and AqSub and shall survive the Closing hereunder, and shall
not merge in the performance of any obligation by any party hereto. The
SIS Stockholders acknowledge and agree that prior to the Closing,
Datastream and AqSub intend to perform such investigation of SIS as
they each deem necessary or appropriate; however, no investigation by
Datastream or AqSub, either before or after the Closing, will diminish
or obviate any of the representations, warranties, covenants or
agreements made or to be performed by the SIS Stockholders pursuant to
this Agreement, and all other agreements referred to herein, or the
right of Datastream or AqSub to rely upon such representations,
warranties, covenants and agreements.
In addition to the rights of Datastream and AqSub
under the general law in respect of any breach of representations or
warranties by the SIS Stockholders and not withstanding whether all or
any of the transactions contemplated under this Agreement shall have
been completed, each of the SIS Stockholders hereby jointly and
severally covenant to fully and unconditionally indemnify Datastream
and/or AqSub against any loss or liability suffered by Datastream or
AqSub as a result of or in connection with any breach of such
representations or warranties by the SIS Stockholders under this
Agreement and in respect of any depletion in the assets, loss of
allowance, set-off or deduction, diminution of value of SIS occasioned
or suffered in connection with or in the rectifying of any breach of
the said representations and warranties together with all costs,
charges, interest, penalties and expenses incidental or relating
thereto.
(b) All representations, warranties, agreements,
covenants and obligations made or undertaken by Datastream and AqSub in
this Agreement are Material, have been relied upon by the SIS
Stockholders, and shall survive the Closing hereunder, and shall not
merge in the performance of any obligation by any party hereto.
Datastream and AqSub acknowledge and agree that prior to the Closing,
the SIS Stockholders intend to perform such investigation of Datastream
and AqSub as they each deem necessary or appropriate; however, no
investigation by the SIS Stockholders, either before or after the
Closing, will diminish or obviate any of the representations,
warranties, covenants or agreements made or to be performed by
Datastream or AqSub pursuant to this Agreement, and all other
agreements referred to herein, or the SIS Stockholders' right to rely
upon such representations, warranties, covenants and agreements.
<PAGE>
7.2 Obligation of SIS Stockholders to Indemnify. Each of the
SIS Stockholders, jointly and severally, agree to indemnify and hold
Datastream and AqSub harmless from and against any and all Liabilities
asserted against, imposed upon or incurred by SIS, Datastream or AqSub
by reason of or resulting from a breach of any representation or
warranty or any covenant or agreement of any SIS Stockholder contained
in or made pursuant to this Agreement or the Exhibits or Schedules
hereto, or from any misrepresentation in or omission from any
certificate or other instrument furnished or to be furnished by SIS
Stockholders hereunder or thereunder.
7.3 Obligations of Datastream and AqSub to Indemnify. Each of
Datastream and AqSub jointly and severally agrees to indemnify and hold
the SIS Stockholders harmless from and against any and all Liabilities
asserted against, imposed upon or incurred by the SIS Stockholders by
reason of or resulting from a breach of any representation or warranty
or any covenant or agreement of Datastream or AqSub contained in or
made pursuant to this Agreement or the Exhibits or Schedules hereto, or
from any misrepresentation in or omission from any certificate or other
instrument furnished or to be furnished by Datastream or AqSub
hereunder or thereunder.
7.4 Conditions of Indemnification with Respect to Third Party
Claims7.4 Conditions of Indemnification with Respect to Third Party
Claims. Each party entitled to indemnification hereunder (the
"Indemnified Party"), shall give notice promptly after it becomes aware
of any Claim to each other party ("Indemnifying Party") from whom
indemnity shall be sought hereunder. Each Indemnifying Party shall be
entitled at its own expense to participate in the defense of such
Claim, or, if it shall so elect, to assume (in conjunction with any
other Indemnifying Party) the defense of such Claim, in which case the
defense shall be conducted by counsel reasonably acceptable to the
Indemnified Party, and such Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it; but if the
Indemnifying Party shall elect not to assume the defense of such Claim,
the Indemnifying Party shall reimburse each Indemnified Party for the
reasonable fees and expenses of any counsel retained by it.
Notwithstanding the foregoing, should any Indemnified Party reasonably
conclude that there may be defenses available to it that are different
from or additional to those available to the Indemnifying Party, the
Indemnifying Party shall have the right to direct the defense of such
action on behalf of the Indemnified Party but only after consultation
with the Indemnified Party. The Indemnifying Party shall also have the
right to settle or compromise any such Claim but only if it shall first
obtain the written consent of the Indemnified Party, which consent
shall not be unreasonably withheld. The terms "Indemnified Party" and
"Indemnifying Party," as used herein shall, in appropriate
circumstances, be deemed to mean Datastream and AqSub, on the one hand,
and the SIS Stockholders (collectively and as represented by the SIS
Stockholders' Representative), on the other hand.
<PAGE>
7.5 Datastream and AqSub agree that they shall not make any
claims against the SIS Stockholders in respect of any breaches of any
representations or warranties or any consents or agreements of any SIS
Stockholder contained in or made pursuant to this Agreement or the
Exhibits or Schedules hereto, or from any misrepresentation in or
omission from any certificate or other instrument furnished or to be
furnished by the SIS Stockholders hereunder or thereunder unless the
aggregate of such claims is in excess of US$250,000 (for the avoidance
of doubt, the parties understand that any claim in excess of US$250,000
shall include the first US$250,000 portion) provided that this floor
of US$250,000 shall not apply in cases of gross negligence, wilful
defaul7.5r fLimitations on Liabilityof the SIS Stockholders.
7.6 Reduction for Certain Benefits. Any insurance or other
recovery, payment or credit received by the Indemnified Party from any
third party which was not taken into account in computing the amount of
any Liability shall promptly be paid over to the Indemnifying Party up
to the amount of the indemnification payment to the Indemnified Party
with respect thereto, such that the total amount received by the
Indemnified Party from the Indemnifying Party and the third parties in
connection with such Liability shall not exceed the amount of such
Liability.
7.7 No Release for Fraud, Ownership Representations.
Notwithstanding anything contained herein to the contrary, nothing
contained in this Agreement shall relieve any SIS Stockholder of any
liability or limit any liability that he, she or it may have on account
of any breach of any representation or warranty contained in Section
4.5 above, nor shall anything contained in this Agreement relieve any
SIS Stockholder or any other party to this Agreement of any liability
or limit any liability that he, she or it may have in the case of fraud
or willful concealment or intentional breach in connection with the
transactions contemplated by this Agreement or in connection with the
delivery of any certificate required to be delivered under the terms
hereof or of any other Transaction Document.
7.8 Subrogation Rights. In the event that an Indemnifying Party
shall be obligated to indemnify an Indemnified Party pursuant to this
Article VII, the Indemnifying Party shall, upon payment of such
indemnity in full, be subrogated to all rights of the Indemnified Party
with respect to the Liability to which such indemnification relates;
provided, however, that the Indemnifying Party shall only be subrogated
to the extent of any amount paid by it pursuant to this Article VII in
connection with such Liability.
7.9 Establishment of Escrow; Indemnification Not Limited.
(a) At the Closing, AqSub shall deliver the Escrow Shares
to the Escrow Agent, which Escrow Shares shall be held in escrow
pursuant to the terms of this Agreement and the Escrow Agreement.
(b) The parties to this Agreement understand and agree
that the establishment of the escrow referred to in paragraph (a) above
is not the exclusive source for indemnification pursuant to this
<PAGE>
Agreement and that such escrow in no way limits the amount of Claims
that may be made pursuant to this Agreement.
7.10 Interest. If any payment required to be made by an
Indemnifying Party hereunder is not made by the due date for payment
thereof, then that payment shall carry interest (calculated on a daily
basis) from the due date of payment until actual payment (as well after
judgment as before) at a rate of 8% per annum.
ARTICLE VIII STOCKHOLDERS' REPRESENTATIVE
STOCKHOLDERS' REPRESENTATIVE
8.1 Appointment; Acceptance. By executing this Agreement, each
of the SIS Stockholders hereby irrevocably constitutes and appoints Ms
Choy Feng Alice and her successors, acting as hereinafter provided, as
his non-exclusive attorney-in-fact and agent in his name, place and
stead in connection with the transactions and agreements contemplated
by this Agreement (the "SIS Stockholders' Representative"), and
acknowledges that such appointment is coupled with an interest. By
executing and delivering this Agreement in such capacity, Ms Choy Feng
Alice hereby (i) accepts her non-exclusive appointment and
authorization to act as the SIS Stockholders' Representative, as a
non-exclusive attorney-in-fact and agent on behalf of the SIS
Stockholders in accordance with the terms of this Agreement, and
(ii) agrees to perform her obligations under, and otherwise comply
with, this Article VIII.
8.2 Authority.
(a) Each of the SIS Stockholders authorizes the SIS
Stockholders' Representative, on a non-exclusive basis,:
(i) to dispute or to refrain from disputing any
claim made by Datastream or AqSub under this Agreement and the other
agreements, instruments and documents to be delivered by or on behalf
of the SIS Stockholders pursuant to this Agreement;
(ii) to negotiate and compromise any dispute which
may arise under, and to exercise or refrain from exercising remedies
available under this Agreement and the other agreements, instruments
and documents to be delivered by or on behalf of the SIS Stockholders
pursuant to this Agreement and to sign any releases or other documents
with respect to such dispute or remedy;
(iii) to give such instructions and to do such other
things and refrain from doing such other things as the SIS
Stockholders' Representative shall deem necessary or appropriate to
carry out the provisions of this Agreement and the other agreements,
instruments and documents to be delivered by or on behalf of the SIS
Stockholders pursuant to this Agreement; and
<PAGE>
(iv) to enter into amendments of this Agreement and
execute instruments in writing to reflect such amendments pursuant to
Section 8.1 hereof.
(b) Each of the SIS Stockholders agrees to be irrevocably
bound by all agreements and determinations made by and documents
executed and delivered by the SIS Stockholders' Representative under
this Agreement and the other agreements, instruments and documents to
be delivered by or on behalf of the SIS Stockholders pursuant to this
Agreement.
8.3 Actions. Each of the SIS Stockholders hereby expressly
acknowledges and agrees that the SIS Stockholders' Representative is
authorized to act on his behalf. Notwithstanding any dispute or
disagreement among the SIS Stockholders, Datastream, AqSub and any
other Person or entity shall be entitled to rely on any and all action
taken by the SIS Stockholders' Representative under this Agreement and
the other agreements, instruments and documents to be delivered by or
on behalf of the SIS Stockholders pursuant to this Agreement without
any liability to, or obligation to inquire of, any of the SIS
Stockholders. Datastream, AqSub and any other Person or entity are
hereby expressly authorized to rely on the genuineness of the signature
of the SIS Stockholders' Representative and, upon receipt of any
writing which reasonably appears to have been signed by the SIS
Stockholders' Representative, Datastream, AqSub and any other Person or
entity may act upon the same without any further duty of inquiry as to
the genuineness of the writing.
8.4 Successors. If Ms Choy Feng Alice ceases to function in her
capacity as the SIS Stockholders' Representative for any reason
whatsoever, then a majority of the SIS Stockholders may appoint a
successor; provided, however, that if for any reason no successor has
been appointed pursuant to the foregoing within thirty (30) days, then
Datastream shall have the right but not the obligation to petition a
court of competent jurisdiction for appointment of a successor.
8.5 Effectiveness. The authorizations of the SIS Stockholders'
Representative shall be effective until her rights and obligations
under this Agreement terminate by virtue of the termination of any and
all obligations of the SIS Stockholders to Datastream or AqSub under
this Agreement. The SIS Stockholders may not, after the date hereof,
terminate the authority of the SIS Stockholders' Representative to act
on their behalf hereunder. Any such action shall be void and of no
force or effect.
8.6 Indemnification. The SIS Stockholders' hereby jointly and
severally agree to indemnify and hold the SIS Stockholders' Representative
harmless for any and all Liability incurred or suffered as a result of the
performance of her duties under this Agreement or failure to perform any
such duty, except any Liability suffered or incurred as a result of the
SIS Stockholders' Representative's gross negligence or willful misconduct.
<PAGE>
ARTICLE IX
NON-COMPETITION
9.1 Since the SIS Stockholders have obtained and are in
possession of confidential information in respect of SIS and its
business activities, particularly relating to the Products, the SIS
Stockholders hereby agree with Datastream and AqSub that the SIS
Stockholders shall be bound by the following restrictions (each of
which shall apply whether the relevant activities are carried on with
(or whether any of the SIS Stockholder is interested or concerned
either solely or jointly with or as manager, adviser, consultant or
agent for) any other person, firm or corporation or directly or
indirectly including as a shareholder, employee or director of a
company:-
(a) if SIS or any of its Subsidiary shall have obtained
any confidential information from any third party under an
agreement including restrictions on disclosure known to any
of the SIS Stockholders the SIS Stockholders shall not,
without SIS's prior consent, at any time infringe such
restrictions;
(b) during a two year period form the date hereof (the
"Restriction Period"), none of the SIS Stockholders will be
engaged in any business which is similar, related or in any
in competition with the business and/or Products of SIS
within any country in the Far East and/or the Middle East
(the "Prohibited Area").
(d) during the Restriction Period within the Prohibited
Area, the Vendor will not solicit (in competition with SIS or
any of its Subsidiary) the custom of any person, firm or
company who at any time during the last 5 years before
Closing was a customer of SIS or its Subsidiary or who at
Closing was negotiating with SIS or its Subsidiary;
(e) the SIS Stockholders shall not solicit or entice or
endeavour to solicit or entice any director, manager or
servant of SIS or its Subsidiary whether or not such person
would commit any breach of his contract of employment by
reason of leaving the service of such company;
(f) the SIS Stockholders will not employ any person who
has (during the last 2 years before Closing been a
director, manager or servant of or consultant to SIS or its
Subsidiary and who by reason thereof is or may be likely to
be in possession of any confidential information relating to
SIS or its Subsidiary;
9.2 While the restrictions aforesaid are considered by the
parties to be reasonable in all the circumstances, it is agreed that if
such restrictions taken together shall be adjudged to go beyond what is
reasonable in all the circumstances for the protection of the
confidential information but would be adjudged reasonable if part or
parts of the wording thereof were deleted the said restriction shall
apply with such words deleted.
<PAGE>
9.3 Each of the SIS Stockholder agrees that, having regard to the
facts and matters aforesaid, the restrictive covenants herein contained
are reasonable and necessary for the protection of any confidential
information relating to SIS or its Subsidiary and the each of the SIS
Stockholder hereby agrees that, having regard to those circumstances,
those covenants do not work harshly on them respectively.
ARTICLE IX GENERAL PROVISIONS
GENERAL PROVISIONS
10.1 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
10.2 Extension; Waiver. At any time prior to the Closing Date,
the parties (through a duly authorized officer in the case of a
corporate party) may:
(a) extend the time for the performance of any of the
obligations or other acts of the other parties;
(b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any document delivered
pursuant to this Agreement; and
(c) waive compliance with any of the agreements or
conditions contained in this Agreement.
Any agreement on the part of a party to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on
behalf of each of the parties.
10.3 Entire Agreement. This Agreement (including the Schedules
and Exhibits hereto) and the other documents referenced herein contain
the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior arrangements and understandings,
both written and oral, with respect thereto.
10.4 Severability. It is the desire and intent of the parties
that the provisions of this Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, in the event
that any provision of this Agreement would be held in any jurisdiction
to be invalid, prohibited, or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting
the validity or enforceability of such provision in any other
jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such jurisdiction,
be so narrowly drawn, without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
<PAGE>
10.5 Notices. All notices and other communications pursuant to
this Agreement shall be in writing and shall be deemed to be sufficient
if contained in a written instrument and shall be deemed given if
delivered personally, telecopied, sent by internationally-recognized
overnight courier or mailed by registered or certified mail (return
receipt requested), postage prepaid, to the parties at the following
addresses (or at such other address for a party as shall be specified
by like notice):
(a) If to Datastream or AqSub, to:
Datastream Systems, Inc.
50 Datastream Plaza
Greenville, South Carolina 29605
Attention: Larry G. Blackwell, Ph.D., P.E.
Telephone: (864) 422-5001
Telecopier: (864) 422-5000
with a copy to:
Hunton & Williams
600 Peachtree Street, N.E.
Suite 4100
Atlanta, Georgia 30308-2216
Attention: B. Lynn Walsh, Esq.
Telephone: (404) 888-4031
Telecopier: (404) 888-4190
(b) If to the SIS Stockholders, to the SIS
Stockholders' Representative:
Ms Choy Feng Alice
c/o 315 Alexandra Road, #05-03
Performance Centre
Singapore 159944
Tel - 65-474 0988
Fax -65-474 9788
<PAGE>
with a copy to:
Timothy Ong, Lim & Partners
239-B Victoria Street, Bugis Village
Singapore 188029
Attn : Mr Lim Cheong Peng
Tel - 65-334 1838
Fax - 65-334 3800
(b) all such notices and other communications shall be
deemed to have been received
(i) in the case of personal delivery, on the date
of such delivery,
(ii) in the case of a telecopy, when the party
sending such telecopy shall have confirmed receipt of the
communication,
(iii) in the case of delivery by
internationally-recognized overnight courier, on the Business Day
following dispatch, and
(iv) in the case of mailing, on the third Business
Day following such mailing.
10.6 Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
10.7 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties,
it being understood that all parties need not sign the same counterpart.
10.8 Benefits; Assignment. This Agreement is not intended to
confer upon any Person other than the parties hereto any rights or
remedies hereunder and shall not be assigned by operation of law or
otherwise; provided, however, that Datastream or AqSub may assign all
or any portion of the rights hereunder to any Subsidiary of Datastream
or AqSub, and the SIS Stockholders shall, upon request, execute any
amendment to the Transaction Documents necessary to provide the
benefits of this Agreement to any such assignee.
<PAGE>
10.9 Governing Law; Arbitration. This Agreement shall be
governed by and construed in accordance with the laws of the Republic
of Singapore as applicable to contracts made and to be performed
therein. All disputes between the parties hereto arising under or in
connection with this Agreement or any other Transaction Document or
further agreements resulting from this Agreement including all disputed
claims for breach by any party of any representation, warranty,
undertaking or covenant on its part under this Agreement or any other
Transaction Document, shall be resolved by arbitration in accordance
with the rules of the United Nations Commission on International Trade
Law, provided that the parties shall have the right to settle any such
dispute in summary proceedings and the right to obtain seizure, and
provided, further, that it is the desire of the parties to this
Agreement that such arbitrators undertake their best efforts to
complete any such arbitration within one year of the date such
arbitration is commenced. The arbitrators shall be fluent in English
and the arbitration shall only be conducted in the English language.
All pleadings and papers (other than original exhibits) submitted in
connection with such arbitration shall only be submitted in the English
language. Unless otherwise agreed to by Datastream and AqSub, on the
one hand, and the SIS Stockholders, acting through the SIS
Stockholders' Representative, on the other hand, the place of
arbitration shall be Singapore. The arbitration panel shall consist of
three members or, subject to the agreement of the parties, one member.
If the panel is to consist of one member, such member shall be chosen
by agreement of the parties within 30 days following initiation of the
arbitration proceedings or, if the parties are unable to agree within
that time, by the United Nations Commission on International Trade Law
in a manner consistent with its rules. If the panel is to consist of
three members, the first two members shall be chosen by each party and
such members shall choose the third member within 30 days following the
initiation of the arbitration proceedings. For purposes of this
Section 9.9, the term "party," as used herein shall, in appropriate
circumstances, be deemed to mean Datastream and AqSub, on the one hand,
and the SIS Stockholders (collectively and as represented by the SIS
Stockholders" Representative), on the other hand.
10.10 Language of Agreement. The original, execution copy or
copies of this Agreement, and the Schedules and Exhibits hereto shall
be in the English language and such English version shall be the only
version used to interpret the provisions thereof. All notices,
communications and other documents given or to be given under this
Agreement shall be made in the English language.
10.11 Contractual Currency. The specification of US$/S$ (as
the case may be) is of the essence, and such currency shall be the
currency of account in the case of all obligations under this Agreement
(the "Contractual Currency"). Each payment under this Agreement will
be made in the Contractual Currency at the place specified for
payment. To the extent permitted by applicable Law any obligations to
make payments under this Agreement in the Contractual Currency will not
be discharged or satisfied by any tender in any currency other than the
Contractual Currency or at any place other than as required therein.
<PAGE>
10.12 Agent for Service. Each of the SIS Stockholders
authorizes and appoints the SIS Stockholders' Representative as his
agent to receive service of process for any action or proceeding
arising out of or relating to this Agreement or any other Transaction
Document.
10.13 Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual
intent and no rule of strict construction shall be applied against any
party. Any reference to any federal, state, local or foreign statute or
law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. Nothing
in the Schedules shall be deemed adequate to disclose an exception to a
representation or warranty made herein unless the appropriate Schedule
identifies the exception with particularity and describes the relevant
facts in detail and makes specific reference to the Section of this
Agreement from which exception is taken. Without limiting the
generality of the foregoing, the mere listing (or inclusion of a copy)
of a document or other item shall not be deemed adequate to disclose an
exception to a representation or warranty made herein (unless the
representation or warranty has to do with the existence of the document
or other items itself). The parties intend that each representation,
warranty and covenant contained herein shall have independent
significance. If any party has breached any representation, warranty or
covenant contained herein in any respect, the fact that there exists
another representation, warranty or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which
the party has not breached shall not detract from or mitigate the fact
that the party is in breach of the first representation, warranty or
covenant.
[Signatures appear on following pages.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed or have caused
this Agreement to be signed by their respective duly authorized
officers, all as of the date first written above.
DATASTREAM: DATASTREAM SYSTEMS, INC.
By: /s/ Daniel H. Christie
------------------------------------
Title: Chief Financial Officer
------------------------------------
AQSUB: SIKASSO PTE LTD
By: /s/ Nathan C Clement
------------------------------------
Title: Managing Director
-----------------------------------
SIS STOCKHOLDERS: /s/Lim Bian San
- -----------------------------------------------------------------------------
Lim Bian San
/s/ Ng Kee Chan
------------------------------------
Ng Kee Chan
/s/ Lim Bian San, by power of attorney
--------------------------------------
Choy Feng Alice
/s/ Philip John Waugh
------------------------------------
Philip John Waugh
Accepted by:
SIS STOCKHOLDERS'
REPRESENTATIVE: /s/ Lim Bian San, by power of attorney
- --------------------------------------------------------------------------------
<PAGE>
Schedule 2.2
----------------------------------------------------------
No: Shareholder Type of shares Number of
shares
----------------------------------------------------------
1 Lim Bian San Ordinary 643,484
----------------------------------------------------------
2 Ng Kee Chan Ordinary 164,362
----------------------------------------------------------
3 Alice Feng Ordinary 142,154
----------------------------------------------------------
4 Philip John Waugh Ordinary 50,000
----------------------------------------------------------
5 Lim Bian San Preference 53,000
----------------------------------------------------------
----------------------------------------------------------
No: Shareholder Equity Component Cash Component
----------------------------------------------------------
1 Lim Bian San 20% 80%
----------------------------------------------------------
2 Ng Kee Chan 45% 55%
----------------------------------------------------------
3 Alice Feng 50% 50%
----------------------------------------------------------
4 Philip John Waugh 50% 50%
----------------------------------------------------------
---------------------------------------------------------------------
No: Shareholder Cash Component - Number of No. of escrow
US$ shares shares
---------------------------------------------------------------------
1 Lim Bian San 3,357,164 19,025 19,025
---------------------------------------------------------------------
2 Ng Kee Chan 540,409 19,438 4,860
---------------------------------------------------------------------
3 Alice Feng 513,108 14,710 4,203
---------------------------------------------------------------------
4 Philip John Waugh 164,410 4,913 1,478
---------------------------------------------------------------------
TOTAL 4,575,091 58,086 29,566
---------------------------------------------------------------------
<PAGE>
EXHIBIT 4.1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of June 16, 1998,
by and among Datastream Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware ("Datastream"),
Sikasso Pte Ltd, a corporation organized and existing under the laws
of the Republic of Singapore ("AqSub"), the stockholders of Strategic
Information Systems Pte Ltd., a corporation organized and existing
under the laws of the Republic of Singapore] ("SIS"), listed on the
signature pages hereto (the "SIS Stockholders"), and Hunton &
Williams of Nationsbank Plaza-Suite 4100, 600 Peachtree Street, N.E.,
Atlanta, Georgia 30308-2216 as escrow agent (the "Escrow Agent").
RECITALS
WHEREAS, Datastream, AqSub and the SIS Stockholders have entered into
that certain Share Purchase Agreement dated as of June 16, 1998 (the
"Share Purchase Agreement"), providing for the acquisition of SIS by
AqSub through the purchase of all of the ordinary capital stock of
SIS outstanding on the Closing Date (the "Transaction");
WHEREAS, pursuant to the Share Purchase Agreement, the SIS
Stockholders are entitled to receive, at the Closing of the
Transaction, an aggregate of 88,652 shares of Datastream Common Stock
as a portion of the consideration for such Transaction;
WHEREAS, the Share Purchase Agreement provides that 29,566 shares of
Datastream Common Stock (the "Escrow Shares") of such 88,652 shares
shall be delivered to the Escrow Agent as security for the
representations, warranties, covenants and agreements made by the SIS
Stockholders in the Share Purchase Agreement, and shall be placed and
held in escrow (the "Escrow") pursuant to the terms and conditions
specified therein and herein;
WHEREAS, the respective number of Escrow Shares being placed in
Escrow by each of the SIS Stockholders is set forth on Schedule 2.2
to the Share Purchase Agreement;
WHEREAS, the execution and delivery by the SIS Stockholders of this
Agreement is a condition precedent to the obligations of Datastream
and AqSub to effect the Transaction under the Share Purchase
Agreement; and
WHEREAS, Hunton & Williams is willing to accept delivery of the
Escrow Shares from the SIS Stockholders and to hold and release such
Escrow Shares in accordance with the terms and conditions specified
herein.
NOW, THEREFORE, in consideration of the premises, the agreements set
forth herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
TERMS AND CONDITIONS
10. Definitions.
(a) Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Share Purchase
Agreement.
<PAGE>
(b) As used herein, the term "Escrow Shares" includes the
29,566 shares of Datastream Common Stock deposited in Escrow hereunder,
any shares of Datastream Common Stock issued by Datastream during the
term of the Escrow in payment of stock dividends or stock splits with
respect to the shares of Datastream Common Stock deposited pursuant to
this Agreement, and any shares of capital stock of Datastream or any
entity acquiring or succeeding to the business of Datastream through a
business combination or otherwise which are issued in exchange for the
Escrow Shares, but shall not include any shares released from the
Escrow pursuant to the provisions hereof.
(c) As used herein, the term "Transfer Agent" shall mean First
Union National Bank, a bank organized in the United States of America
and headquartered in Charlotte, North Carolina.
(d) "Fair Market Value" shall mean the average of the closing
sale price for one (1) share of Datastream Common Stock as quoted on
the Nasdaq National Market (or such other principal exchange or market
upon which shares of Datastream Common Stock are traded at such time)
for the ten (10) days preceding the date of receipt of a Notice of
Claim (if a Notice of Dispute is not thereafter timely received with
respect to such Notice of Claim), Notice of Settlement or Order by the
Escrow Agent.
11. Appointment of Escrow Agent.
Datastream and the SIS Stockholders hereby designate and appoint
Hunton & Williams to serve as Escrow Agent hereunder, and Hunton &
Williams hereby accepts such designation and appointment upon the
terms, conditions and provisions of this Agreement.
12. Deposit with Escrow Agent.
At the Closing on even date herewith, each SIS Stockholder will
deliver to and deposit with the Escrow Agent stock certificates
representing the Escrow Shares, together with a duly executed power
of attorney substantially in the form attached hereto as Exhibit A
(the "Power of Attorney"), appointing the Escrow Agent as such SIS
Stockholder's attorney-in-fact for the purpose of executing and
delivering the stock powers and instructions necessary to effect the
distributions contemplated by this Agreement and the Escrow Agent
shall retain the Escrow Shares in its safe custody. The SIS
Stockholders will allow the Escrow Shares to remain in Escrow with
the Escrow Agent and will not withdraw or attempt to withdraw the
same from the Escrow except as herein provided.
13. Escrow Shares; Voting Rights and Cash Dividends.
Upon receipt of the Escrow Shares, the Escrow Agent shall hold the
same in accordance with the terms hereof. The Escrow Shares shall be
held in Escrow until delivered to the SIS Stockholders, Datastream or
both pursuant to the terms hereof. For so long as the Escrow Agent
is acting in such capacity with respect to Escrow Shares held
hereunder, the Escrow Agent hereby gives each SIS Stockholder a power
of attorney giving each SIS Stockholder the sole right to vote or
direct the voting of his Escrow Shares and the right to receive all
cash dividends declared by the Company with respect thereto.
<PAGE>
14. Purpose of Escrow.
The Escrow is being established for the purpose of providing a
non-exclusive fund for recovery by Datastream and/or AqSub, subject
to the terms of the Share Purchase Agreement, for any Claim or
Liability incurred by Datastream and/or AqSub after the Closing as a
result of any breach of a representation, warranty, covenant or
agreement or other breach of the Share Purchase Agreement by the SIS
Stockholders in connection with the Share Purchase Agreement, the
Transaction or in connection with the delivery of any certificates,
agreements or other documents required to be delivered under the
terms of the Share Purchase Agreement.
15. Valuation of Escrow Shares.
(a) For the purposes of this Agreement and all notices and
distributions contemplated hereby, each of the Escrow Shares shall have
a value equal to the Fair Market Value, subject to appropriate
mathematical adjustment for stock splits or reverse stock splits, if
any, declared by Datastream during the term of the Escrow.
(b) The number of Escrow Shares to be retained by the Escrow
Agent after the settlement or compromise of a Claim against the Escrow
or released to Datastream in payment of a Claim against the Escrow
shall be determined by dividing the dollar amount of such Claim (the
dollar amount being calculated, if necessary, based on an exchange rate
between the U.S. Dollar and the Singapore Dollar within five business
(5) days of the date of payment) by the Fair Market Value, and rounding
the number so obtained down to the nearest whole number.
(c) No fractional share shall be issued or released in
connection with the payment of a Claim against the Escrow and the
amount of any such Claim as to which a fractional share would otherwise
be disbursed shall be disregarded by the Escrow Agent.
16. Retention of Escrow Shares.
Subject to the provisions of Section 8 of this Agreement, the Escrow
Agent shall hold all Escrow Shares deposited with it pending the
receipt by the Escrow Agent from time to time of:
(a) One or more written notices of a Claim against the Escrow
in the form specified in Section 16(b) of this Agreement (each a
"Notice of Claim");
(b) One or more written notices of the settlement of a disputed
Claim against the Escrow in the form specified in Section 16(c) of this
Agreement (each a "Notice of Settlement"); or
(c) A decision of an arbitration panel directing the release of
some or all of the Escrow Shares in accordance with the provisions of
Section 10.9 of the Share Purchase Agreement (an "Order").
17. Claim Procedure.
(a) In the event that the Escrow Agent receives a Notice of
Claim from Datastream, the Escrow Agent shall notify the SIS
Stockholders' Representative of the receipt of such Notice of Claim
within five (5) Business Days of such receipt by sending a copy of the
<PAGE>
Notice of Claim marked to show the date of receipt by the Escrow Agent
to the SIS Stockholders' Representative. If the SIS Stockholders wish
to dispute the Claim against the Escrow contained in the Notice of
Claim, the SIS Stockholders' Representative shall send a notice to the
Escrow Agent that the SIS Stockholders dispute the Claim against the
Escrow in the form specified in Section 16(d) of this Agreement (a
"Notice of Dispute"). Such Notice of Dispute must be received by the
Escrow Agent within twenty (20) days after the receipt by the Escrow
Agent of the Notice of Claim.
(b) If the Escrow Agent receives a Notice of Dispute from the
SIS Stockholders' Representative within twenty (20) days after the
receipt by the Escrow Agent of a Notice of Claim, the Escrow Agent
shall not release Escrow Shares subject to such Notice of Claim and
Notice of Dispute until the Escrow Agent receives a Notice of
Settlement or an Order directing the Escrow Agent to cause the delivery
of all or a specified portion of the Escrow Shares to the appropriate
party or parties. Upon receipt of such Notice of Settlement or Order,
the Escrow Agent shall distribute, as soon as practicable, the number
of Escrow Shares specified therein in accordance with the directions
contained therein and the provisions of Sections 6, 10 and 11 of this
Agreement.
(c) If the Escrow Agent does not receive a Notice of Dispute
from the SIS Stockholders' Representative within twenty (20) days after
the receipt by the Escrow Agent of a Notice of Claim, the Escrow Agent
shall release to Datastream, as soon as practicable, the number of
Escrow Shares required to pay the Claim specified in the Notice of
Claim at the Fair Market Value (as determined pursuant to Section 6 of
this Agreement) in accordance with Section 10 of this Agreement.
(d) Notwithstanding the receipt or existence of one or more
Notices of Dispute, the Escrow Agent shall release the appropriate
number of Escrow Shares required to pay a Claim specified in a Notice
of Claim for which no Notice of Dispute has been timely received.
(e) The Escrow Agent shall release Escrow Shares from the
Escrow Shares registered in each SIS Stockholder's name pro rata in
accordance with the percentages set forth in Schedule 2.2 to the Share
Purchase Agreement.
18. Termination and Release of Escrow Shares.
(a) This Agreement, except for the provisions in Sections 12,
13 and 15 relating to the performance, liability and indemnification of
the Escrow Agent and except as set forth in subsection (b) below, shall
terminate:
(1) on 28 February 1999 (the "Initial Termination Date")
unless the Escrow Agent shall have received:
(i) any Notice of Claim for which the twenty (20) day
period for filing a Notice of Dispute shall not have expired (an
"Outstanding Notice of Claim"); or
<PAGE>
(ii) any Notice of Claim for which a timely Notice of
Dispute shall have been received by the Escrow Agent for which the
Escrow Agent shall not have received a Notice of Settlement or an Order
(an "Outstanding Notice of Dispute").
(2) In the event that on the Initial Termination
Date the Escrow Agent shall be in possession of an Outstanding Notice
of Claim or an Outstanding Notice of Dispute, this Agreement shall
remain in effect and the Escrow Agent shall release, as soon as
practicable, to the SIS Stockholders the number of Escrow Shares then
held by the Escrow Agent in excess of the number of Escrow Shares then
subject to any Outstanding Notice of Claim, any Outstanding Notice of
Dispute or any Notice of Pending Arbitration, such number to be
determined in accordance with Section 6 hereof. This Agreement shall
thereafter terminate at the time that the Escrow Agent shall have
released all of the Escrow Shares in accordance with the terms of this
Agreement.
(c) If in the event that on the Initial Termination Date the
Escrow Agent shall not be in possession of an Outstanding Notice of
Claim or an Outstanding Notice of Dispute, the Escrow Agent shall
release, as soon as practicable, the number of Escrow Shares then held
to the SIS Stockholders.
19. Manner of Release of Escrow Shares to Datastream.
Whenever the Escrow Agent determines that it is required to release
some or all of the Escrow Shares to Datastream, the Escrow Agent
shall present to the Transfer Agent for transfer the following:
(a) Stock certificates representing the Escrow Shares;
(b) Copies of the Powers of Attorney delivered to the Escrow
Agent pursuant to Section 3 of this Agreement;
(c) Appropriate stock powers signed by an authorized officer of
the Escrow Agent, together with evidence of the authority of the
officer acting on behalf of the Escrow Agent; and
(d) Written instructions to the Transfer Agent to:
(i) reissue a stock certificate registered in the name of
Datastream and representing the number of Escrow Shares to be released
to Datastream and deliver the same to Datastream; and
(ii) reissue stock certificates, registered in the names
of each of the SIS Stockholders representing the balance of such SIS
Stockholder's Escrow Shares and deliver the same to the Escrow Agent.
20. Manner of Release of the Escrow Shares to the SIS Stockholders.
Whenever the Escrow Agent determines that it is required to release
some or all of the Escrow Shares to the SIS Stockholders, the Escrow
Agent shall present to the Transfer Agent for transfer the following:
<PAGE>
(a) Stock certificates representing the Escrow Shares;
(b) Copies of the Powers of Attorney delivered to the Escrow
Agent pursuant to Section 3 of this Agreement;
(c) Appropriate stock powers signed by an authorized officer of
the Escrow Agent, with evidence of the authority of the officer acting
on behalf of the Escrow Agent; and
(d) Written instructions to the Transfer Agent to:
(i) reissue stock certificates registered in the names of
each of the SIS Stockholders representing the number of Escrow Shares
to be released to each SIS Stockholder in accordance with the
percentages set forth in Schedule 2.2 to the Share Purchase Agreement;
(ii) reissue stock certificates registered in the names of
each of the SIS Stockholders representing the balance of such SIS
Stockholder's Escrow Shares; and
(iii) deliver the stock certificates representing the
Escrow Shares to be released to the SIS Stockholders to the SIS
Stockholder's Representative and deliver the stock certificates
representing the balance of each of the SIS Stockholder's Escrow Shares
to the Escrow Agent.
21. Agreement of Escrow Agent.
The Escrow Agent hereby acknowledges receipt of the Escrow Shares and
the Powers of Attorney, and agrees hold the same in Escrow in
accordance with the terms of this Agreement and not to permit any
withdrawal thereof except under the terms of this Agreement. The
Escrow Agent shall be responsible only for the safekeeping of the
Escrow Shares and the distribution or delivery thereof in accordance
with the terms of this Agreement. The Escrow Agent shall not be
responsible for the authenticity or accuracy of any documents or
stock certificates, or the sufficiency of the Escrow Shares and the
Powers of Attorney to make the distributions required herein.
22. Performance by Escrow Agent.
The parties to this Agreement agree as follows:
(a) In performing any of its duties under this Agreement, or
upon the claimed failure to perform its duties hereunder, the Escrow
Agent shall not be liable to any party for any damages, losses or
expenses which may be incurred as a result of the Escrow Agent so
acting or failing to act, except the failure by the Escrow Agent to
give notice to the SIS Stockholders' Representative of receipt by the
Escrow Agent of a Notice of Claim.
(b) The Escrow Agent shall not be responsible for or be
required to enforce any of the terms or conditions of the Share
Purchase Agreement or any other agreement by and among Datastream,
AqSub, SIS and the SIS Stockholders.
<PAGE>
(c) The Escrow Agent shall not be responsible or liable in any
manner whatsoever for the performance of or by Datastream, AqSub, SIS
and the SIS Stockholders of their respective obligations under this
Agreement, nor shall the Escrow Agent be responsible or liable in any
manner whatsoever for the failure of any third party to honor any of
the provisions of this Agreement.
(d) The parties hereto represent to the Escrow Agent that they
are authorized to enter into the Escrow Agreement by their duly
authorized representatives and that the Escrow Agent is entitled to
rely on this representation without the need to confirm the authority
of the representatives.
(e) The duties and obligations of the Escrow Agent shall be
limited to and determined solely by the express provisions of this
Agreement and no implied duties or obligations shall be read into this
Agreement against the Escrow Agent. The Escrow Agent is not bound by
and is under no duty to inquire into the terms or validity of any other
agreements or documents, including any agreements or documents which
may be related to, referred to in, or deposited with the Escrow Agent
in connection with this Agreement.
(f) The Escrow Agent shall be entitled to rely upon and shall
be protected in acting in reliance upon any notice submitted to it in
connection with its duties under this Escrow Agreement in the
appropriate form as set forth in Section 16 of this Agreement, which
the Escrow Agent in good faith believes to have been signed or
presented by the proper party or parties.
(g) The Escrow Agent shall be entitled to consult with counsel
of its own selection and the opinion of such counsel shall be full and
complete authorization and protection to the Escrow Agent in respect of
any action taken or omitted by the Escrow Agent hereunder in good faith
and in accordance with the opinion of such counsel.
(h) The Escrow Agent shall have the right to resign at any time
and for any reason, and shall be discharged of its duties as Escrow
Agent hereunder by giving written notice of its resignation to the
parties hereto at least twenty (20) Business Days prior to the date
specified for such resignation to take effect. All obligations of the
Escrow Agent hereunder shall cease and terminate on the effective date
of its resignation and its sole responsibility thereafter shall be to
deliver the Escrow Shares to a successor escrow agent to be appointed
by the parties hereto, together with the Powers of Attorney previously
delivered to the Escrow Agent pursuant to Section 3 hereof, whereupon
such successor escrow agent shall assume all of the rights and
obligations of, and be deemed to be for all purposes, the Escrow Agent
hereunder.
23. Fees of Escrow Agent.
For its services hereunder (which shall include receipt and return or
release of the Escrow Shares in the manner contemplated herein), the
Escrow Agent shall receive compensation in accordance with its normal
fee schedule. Datastream shall be responsible for such compensation
unless the SIS Stockholders request that a successor escrow agent be
appointed, in which case Datastream and the SIS Stockholders (jointly
and severally) shall be equally responsible for such successor escrow
agent's compensation.
<PAGE>
24. Indemnification.
(a) Each of Datastream, on the one hand, and the SIS
Stockholders, on the other hand, agree to indemnify and hold the Escrow
Agent harmless from and against any and all liabilities, causes of
action, claims, demands, judgments, damages, costs and expenses
(including reasonable attorneys fees and expenses) that may arise out
of or in connection with the Escrow Agent's good faith acceptance of,
or good faith performance of, its duties and obligations under this
Agreement.
(b) The Escrow Agent shall be under no duty to institute any
suit or to take any remedial procedures under this Agreement or to
enter any appearance or in any way defend any suit in which it is made
a defendant hereunder until it shall be indemnified as provided above.
(c) In the event that the Escrow Agent shall be uncertain as to
its duties or rights hereunder, or receives instructions with respect
to the Escrow Shares which, in its sole discretion, are in conflict
either with other instructions received by it or with any provision of
this Agreement, the Escrow Agent shall have the absolute right to
suspend all further performance under this Escrow Agreement (except for
the safekeeping of the Escrow Shares) until the resolution of such
uncertainty or conflicting instructions to the Escrow Agent's sole
satisfaction by final judgment of a court of competent jurisdiction,
joint written instructions from all of the other parties hereto, or
otherwise.
(d) In the event that any controversy arises between one or
more of the parties hereto or any other party with respect to this
Agreement or the Escrow Shares, the Escrow Agent shall not be required
to determine the proper disposition of such controversy or the proper
disposition of the Escrow Shares and shall have the absolute right, in
its sole discretion, to hold the Escrow Shares subject to such dispute
until it receives an Order directing the release of some or all of the
Escrow Shares.
25. Instructions and Notices.
(a) In executing and performing its duties hereunder, the
Escrow Agent shall be entitled to rely upon instructions of Datastream
and the SIS Stockholders' Representative. Any instructions or orders
given to the Escrow Agent pursuant to this Agreement shall be
irrevocable. Any notice, payment, demand, instruction or communication
required or permitted to be given by this Agreement shall be in writing
and shall be deemed to have been sufficiently given or served for all
purposes on the date on which the same was sent if transmitted via
confirmed facsimile with a copy thereof sent by reputable, guaranteed
delivery service, shipping charges prepaid, to the appropriate party at
the facsimile number and address stated below:
<PAGE>
If to Datastream: Datastream Systems, Inc.
50 Datastream Plaza
Greenville, South Carolina 29067
Attn: Larry G. Blackwell, Ph.D., P.E.
Facsimile: (864) 422-5000
with a copy to: Hunton & Williams
600 Peachtree Street, NE
Suite 4100
Atlanta, Georgia 30308
Attn: B. Lynn Walsh, Esq.
Facsimile: (404) 888-4031
and to: Alban Tay Mahtani & DeSilva
39 Robinson Road #07-01
Robinson Point
Singapore 068911
Attn: Mr Tay Beng Chai/ Mr Edmund Chin
Facsimile: (65) 225-5228
If to the SIS Stockholders: Ms Choy Feng Alice
(SIS Stockholders' Representative)
c/o 315 Alexandra Road, #05-03
Performance Centre
Singapore 159944
Facsimile : (65) 474 9788
with a copy to: Timothy Ong, Lim & Partners
39-B Victoria Street
Bugis Village
Singapore 188029
Attn : Mr Lim Cheong Peng
Facsimile :(65) 334 3800
If to the Escrow Agent: Hunton & Williams
600 Peachtree Street, NE
Suite 4100
Atlanta, Georgia 30308
Attn : B. Lynn Walsh, Esq.
Facsimile : (404) 888 4031
Any party hereto may change its address for purposes of notice by
giving notice of such change to the other parties hereto in the manner
specified herein.
<PAGE>
(b) A Notice of Claim shall specify the amount of the Claim
against the Escrow, expressed in US Dollars, the number of Escrow
Shares required to pay the Claim determined in accordance with Section
6 of this Agreement (based on the Fair Market Value as of the date of
the Notice of Claim, but subject to variance based on market
fluctuation prior to the payment of the Claim), and a statement
describing the nature and grounds of the Claim, specifying the section
of the Share Purchase Agreement to which such Claim pertains (if
applicable), and setting forth the aggregate amount of all Claims for
which Datastream is seeking or has sought indemnification from the SIS
Stockholders. Any Notice of Claim shall be prepared, executed and
delivered to the Escrow Agent by Datastream or its legal counsel.
(c) A Notice of Settlement shall specify the Notice of Claim to
which it relates by indicating the date of such Notice of Claim and the
amount, in US Dollars, of the Claim against the Escrow, and shall
specify the Notice of Dispute to which it relates by indicating the
date of such Notice of Dispute. The Notice of Settlement shall contain
a brief description of the resolution of the claim and dispute and
shall include instructions to the Escrow Agent specifying the number of
Escrow Shares to be released and to which party such Escrow Shares are
to be released. Each Notice of Settlement must be signed by both an
authorized officer of Datastream and the SIS Stockholders'
Representative acting on behalf of the SIS Stockholders.
(d) A Notice of Dispute shall specify the Notice of Claim to
which it relates by indicating the date of such Notice of Claim and the
amount, in US Dollars, of the Claim against the Escrow, and shall also
indicate in reasonable detail the basis for the dispute of the Notice
of Claim. The Notice of Dispute shall be executed on behalf of the SIS
Stockholders by the SIS Stockholders' Representative and delivered to
the Escrow Agent.
(e) Copies of all the notices described in the above
subsections of this Section 16 shall also be sent to each of the
persons listed in Section 16(a) at the respective addresses listed
therein.
(f) As noted in Section 7.9(b) of the Share Purchase Agreement,
the parties to this Agreement understand and agree that the Escrow is
not the exclusive source for indemnification pursuant to the Share
Purchase Agreement and that such Escrow in no way limits the amount of
Claims that may be made pursuant to the Share Purchase Agreement.
26. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the Republic of Singapore. Notwithstanding the
foregoing, Datastream and each of the SIS Stockholders agree, and the
Escrow Agent acknowledges, that all disputes between the parties
hereto arising under or in connection with this Agreement, to the
extent such disputes relate to a Claim or Liability arising under the
Stock Purchase Agreement, shall be resolved in accordance with the
provisions of Section 10.9 of the Share Purchase Agreement.
<PAGE>
27. Modification.
No modification or amendment to this Agreement shall be valid unless
it is in writing and signed by all of the parties hereto.
28. Headings.
The headings in this Agreement are intended to be for convenience and
identification only and are in no way intended to describe,
interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
29. Severability.
Each provision of this Agreement is intended to be severable. If any
section or provision is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the validity or
enforcement of the remainder of this Agreement.
30. Sole Agreement.
This Agreement constitutes the entire understanding of the parties
hereto with respect to the subject matter hereof, which is the escrow
arrangements pertaining to the Share Purchase Agreement.
31. Counterparts.
This Agreement and any amendment hereto may be executed by the
parties in two or more counterparts, with the same effect as if all
parties hereto had signed the same document. All counterparts shall
be construed as and shall constitute one and the same agreement.
[Signatures appear on the following pages.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and sealed as of the date first written above.
DATASTREAM: DATASTREAM SYSTEMS, INC.
By: /s/ Daniel H. Christie
--------------------------
Title: Chief Financial Officer
------------------------------
AQSUB: SIKASSO PTE LTD
By: /s/ Nathan C. Clement
-------------------------
Title: Managing Director
------------------------
ESCROW AGENT: /s/ B. Lynn Walsh, Partner
- --------------------------------------------------------------
Hunton & Williams
[Signatures continue on following page.]
<PAGE>
SIS STOCKHOLDERS: /s/ Lim Bian San, by power of attorney
- --------------------------------------------------------------------------
Choy Feng Alice
/s/ Ng Kee Chan
------------------------------
Ng Kee Chan
/s/ Lim Bian San
------------------------------
Lim Bian San
/s/ Philip John Waugh
------------------------------------
Philip John Waugh
Accepted by:
SIS STOCKHOLDERS'
REPRESENTATIVE: /s/ Lim Bian San, by power of attorney
- -------------------------------------------------------------------------
Choy Feng Alice
