<PAGE>
STOCK PURCHASE AGREEMENT
This Agreement ("Agreement") is entered into this 2000, by and among
Stocker & Yale Inc., a Massachusetts corporation with a principal place of
business located at 32 Hampshire Road, Salem, New Hampshire 03079
("Purchaser"), CorkOpt Ltd. a company organized under the laws of Ireland,
having its registered offices at Birchfield House, Carrigaline, Co Cork
Ireland, ("Company") and W.M. Kelly of Birchfield House, Carrigaline, Co.
Cork (hereinafter referred to as "Mr. Kelly"), Gary Duffy of 3 Eyrecourt,
Rochestown, Co. Cork (hereinafter referred to as "Mr. Duffy") and Thomas
Meade of Barnavara House, Glanmire, Co. Cork (hereinafter referred to as "Mr.
Meade")
WHEREAS, the Company presently has outstanding four classes of shares, A
Ordinary Shares ("A Shares") the holders of which shall hereinafter be
referred to as the "A Stockholder", B Business Expansion Scheme Shares ("B
Shares") the holders of which shall hereinafter be referred to as the "B
Stockholders", C Ordinary Shares ("C Shares") the holders of which shall
hereinafter be referred to as the "C Stockholders" and 3% Cumulative
Redeemable Preference Shares ("Preference Shares") the holders of which shall
hereinafter be referred to as the "Preference Stockholders" (collectively
referred to herein as the "Shares"), of which the number of Shares and class
of Shares as issued are set forth in Exhibit 1 to this Agreement; All of the
said shareholders shall hereinafter collectively be referred to as the
"CorkOpt Stockholders" and
WHEREAS, said Shares are the only issued and outstanding capital stock of the
Company; and
WHEREAS, the Purchaser desires to purchase all of the "A" Shares in issue
from the "A" Stockholders"
WHEREAS, the Purchaser desires to purchase all of the "C" Shares in issue
from the "C" Stockholders".
WHEREAS the Purchaser desires to purchase all of the Preference Shares IN
ISSUE from the Preference Stockholders.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
Section 1. Purchase of Shares.
1.1 Purchase of Shares. Subject to the terms and conditions set forth herein,
at the Completion Date, being the date of completion of the sale of the
Shares on which date the share certificates therefor are delivered to the
Purchaser.
The Purchaser shall purchase the entire issued share capital of the Company
with the exception of the B Shares which the Purchaser is desirous of
purchasing on or after April 2002. The A Stockholders will sell all of the
issued A Shares to the Purchaser and the Purchaser will purchase all of the
issued A Shares from the A Stockholders.
The C Stockholders will sell all of the issued C Shares and the Purchaser
will purchase all of the issued C Shares from the C Stockholders. Subject to
the terms and conditions set forth herein at the Completion Date Preference
Stockholders will sell all of the issued Preference Shares and the Purchaser
shall purchase all of the issued Preference Shares from the Preference
Stockholders.
Collectively, the A Shares and the C Shares and the Preference Shares
represent one hundred percent of the voting capital stock of the Company.
1.1(a) Purchase of Shares. Subject to the terms and conditions set forth
herein, at the Completion Date Mr. Kelly, Mr Meade and Mr. Duffy will sell
all of the Shares owned
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by them as set out below (the "Sale Shares") to the Purchaser and the
Purchaser will purchase all of Sale Shares from Mr. Kelly Mr. Meade and Mr.
Duffy for the consideration set out below:
<TABLE>
<CAPTION>
No. of A Shares Consideration
No. of Shares
Of Purchaser's Common Stock
<S> <C> <C>
Mr. Kelly 24,028 48,108
Mr. Meade 2,930 5,866
Mr. Duffy 1,491 2,985
</TABLE>
1.2 Purchase Price. The Purchaser will pay to the A Stockholders for the A
Stockholder's A Shares, 62,691 shares of Purchaser's Common Stock adjusted
under Section 1.3 below ("Purchaser Common Stock") (referred herein to as the
"A Stockholder Purchase Price"). The Purchaser will pay to the C Stockholders
for the C Stockholder's C Shares and to the Preference Stockholders for the
Cumulative Redeemable Preference Shares the aggregate sum of $255,798
(referred herein to as the "C and Preference Stockholder Purchase Price").
(The A Stockholder Purchase Price and the C and Preference Stockholder
Purchase Price will be collectively referred herein to as the "Purchase
Price.")
1.3 Adjustments to Purchase Price. At Closing, the following adjustments will
be made to the A Stockholder Purchase Price:
If the average closing price of Purchaser's Common Stock as quoted on the
Nasdaq market for the five business days preceding the signing of this
Agreement (and for the avoidance of doubt not including the date of signing
of this Agreement) ("Closing Price") is less than $35 per share, then the
number of shares of Purchaser's Common Stock payable for the A Stockholder
Purchase Price will be increased to the number derived from dividing
$2,194,202 by 75% of the Closing Price. If the Closing Price is greater than
$48 per share the number of shares of Purchaser's Common Stock payable for
the A Stockholder Purchase Price will be decreased to the number derived from
dividing $2, 194,202 by 75% of the Closing Price.
1.4 Payment of Purchase Price. The A Stockholder Purchase Price will be paid
to A Stockholders for all of the issued A shares as follows: (i) the
Purchaser will deliver the number of shares of the Purchaser's Common Stock
at Closing adjusted in accordance with section 1.3 above. The C and
Preference Stockholder Purchase Price will be paid to C and Preference
Stockholders for all of the issued C shares and all of the issued Preference
shares as follows: (i) the Purchaser will pay C and Preference Stockholders
the sum of $255,798 in certified funds or by wire transfer at Closing.
1.5 Condition Precedent. This Agreement is conditional on:
1.5.1 the Purchaser acquiring:
1. all of the "A" Shares in issue from the A Stockholders,
2. all of the "C" Shares in issue from the C Stockholders and
3. all of the Preference Shares in issue from the C Stockholder.
4. An Assignment of the Patent Application numbers 990820, 991032 and
990646.
1.5.2 Enterprise Ireland. Enterprise Ireland and all other relevant
government grant aiding authorities who have advanced grant aid to the
Company at any time since incorporation having consented to the change
in ownership and control of the Company.
1.5.3 The Company having procured all other necessary consents and waivers
from all requisite third parties in respect of the sale of the Shares to
the Purchaser.
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Section 2. Representations and Warranties of Company, Mr. Kelly, Mr. Duffy
and Mr. Meade . As a material inducement to the Purchaser to enter
into this Agreement and purchase the Shares, Mr. Kelly, Mr. Duffy,
Mr. Meade and the Company, (hereinafter collectively referred to
as "the Warrantors") jointly represent and warrant to the
Purchaser in the terms set out in this clause:
2.1 Reliance upon Warranties. The Warrantors acknowledge that the
Purchaser has entered into this Agreement in reliance upon the
warranties. The Purchaser acknowledges that it has not been
induced to enter into this Agreement by any representation or
warranty other than the Warranties.
2.2 Separate and independent warranties. Each of the Warranties is
separate and independent and subject to clause 2.4.2 below, is not
limited by reference to anything in this Agreement or the Deed of
Tax Indemnity.
The Purchaser acknowledges that it has not been induced to enter
into this Agreement by any representation or warranty other than
the Warranties.
2.3 Knowledge of Breach. A warranty claim may be made by the Purchaser
for a breach of the warranties whether or not the Purchaser knew
of or could have discovered the breach (whether by any
investigation made by it on its behalf into the affairs of the
Company or otherwise) prior to signing this Agreement. PROVIDED
HOWEVER that this clause shall not apply to the information set
out in the Exhibit and Schedule List attached hereto.
2.4.1 Damages. In the event of a warranty claim the Purchaser will be
entitled to recover damages measured as follows:
(1) the cost of remedying the breach (if remediable);
(2) the amount by which the value of the assets of the Company is less
than it would have been if the breach had not occurred; or
(3) the amount by which the value of the shares is less than it would
have been if the breach had not occurred
Whichever is the greatest.
2.4.2 Limitation.
2.4.2(a) None of the Warrantors shall be under any liability
whatsoever in respect of any breach or non-fulfilment of any of
the warranties unless the Purchaser has served on them a written
notice on or before the second anniversary of Completion giving
reasonable details of the claim except that the time limit is to
be seven years for a claim relating to tax.
2.4.2(b) The Warrantors shall not be liable in respect of any
breach of the warranties relating to Tax which results from any
claim to the extent that such claim arises or is increased or
extended as a result of (I) any increase in rates of Tax or (ii)
any change in legislation or (iii) any change in any regulations
relating to Tax or (iv) any parliamentary statement or statement
by the Revenue Commissioners concerning any change in Revenue
practice in each case occurring after the date hereof and which
affects matters occurring prior thereto.
2.4.2( c) The Warrantors shall not be liable in respect of any
breach of the warranties if and to the extent that the loss
occasioned thereby has been recovered under the Deed of Tax
Indemnity.
2.4.2(d) The Warrantors shall not be liable in respect of any
claim for breach of the Warranties or pursuant to the Deed of Tax
Indemnity unless the aggregate amount of all such claims under the
warranties or pursuant to the Deed of Indemnity exceeds
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IR(pound)10,000 and in such case the Warrantors shall only be
liable for the excess over IR(pound)10,000.
2.4.2(e) The total amount of the liability of any one of the
Warrantors in respect of any breach or non fulfilment of the
Warranties and pursuant to the terms of the Deed of Tax Indemnity
shall be limited to and in no event shall exceed that part of the
Purchase Price received by each of the Warrantors so that for the
avoidance of doubt each Warrantor's liability in respect of any
claim shall not exceed following percentage of the portion of the
Purchase Price received by the Warrantors :
<TABLE>
<S> <C>
Liam Kelly 85%
Thomas Meade 10%
Gary Duffy 5%
</TABLE>
For the purposes of this clause the Purchase Price shall mean
$2,450,000.
2.4.2(f) The Warrantors shall not be liable in respect of any
breach of the Warranties or under the Deed of Tax Indemnity in
respect of all and any matters resulting solely from a change of
accounting policy or practice of the Purchaser or the Company
introduced after the date hereof.
2.4.2(g) The Purchaser shall not be entitled to claim that any
fact matter or circumstances constitutes a breach of any of the
warranties to this Agreement to the extent that such fact matter
or circumstance has been fully and fairly disclosed:-
(a) in this Agreement including matters disclosed and documents
referred to in the Exhibit & Schedule Lists annexed hereto; or (b)
in the Warranted Accounts;
2.4.2(h) The Warrantors shall not be liable in respect of any
breach of the Warranties or claim arising thereunder to the extent
that such breach or claim would not have arisen but for any change
after the date hereof in any law or in any regulation directive or
requirement of any agency of any state or in any law regulations
or published codes or conduct relating to the relations between
the Purchaser the Company and its employees.
2.4.2(i) If there is a breach of the Warranties and the loss
occasioned thereby is recoverable from any third party or under
any insurance policy in force in the name of the Companies as at
the Completion Date the Purchaser shall be entitled forthwith to
make a claim against the Warrantors hereunder but shall
nevertheless use all reasonable endeavours to pursue a claim
against such third party or the insurers as the case may be. The
Warrantors shall notwithstanding the possibility of recovery from
such third party immediately pay the amount of such claim to the
Purchaser provided however that the Purchaser shall refund to the
Warrantors the amount of any such claim which is recovered from
such third party.
2.4.2(j) But the limitations and exclusions in this clause 2.4.2
will not apply to any warranty claim relating to:
(i) the title of Mr. Kelly, Mr. Meade and Mr. Duffy to or the
status or validity of the Sale Shares owned by them respectively;
(ii) any statutory or criminal fine or penalty;
(ii Any claim which arises or is delayed as a result of
fraud, wilful misconduct or wilful concealment by the Selling
Stockholers or directors of the Company.
2.5 Business of the Company. The Purchaser enters into this
Agreement with the intention that the business of the Company will
be continued as a going concern utilising all the assets and
subject only to the liabilities, to which in accordance with the
terms of this Agreement, the Company would be
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entitled and subject on Closing if there were no breach of the
warranties, and damages for any breach are to be assessed on that
basis.
2.6 No representation etc. Information supplied by or on behalf of
the Company to Mr. Kelly, Mr. Meade and Mr. Duffy or their agents
or professional advisers prior to the Completion Date in
connection with the Warranties or the exceptions or the Deed of
Tax Indemnity or otherwise in relation to the business of the
Company will not constitute a representation, warranty or
guarantee as to its accuracy, and Mr. Kelly, Mr. Meade and Mr.
Duffy hereby assign to the Purchaser any claims which they might
otherwise have against the Company or its employees or officers in
respect of that information, and undertake not to bring any action
or proceedings in relation to it.
2.7 Organization and Corporate Power. The Company is a Company
duly incorporated and validly existing under the laws of Ireland
and the Company is qualified to do business in every jurisdiction
in which its ownership of property or conduct of business requires
it to qualify. The Company has all requisite corporate power and
authority and all material licenses, permits, and authorizations
necessary to own and operate its properties, and to carry on its
business as now conducted and to enter into this Agreement and the
Deed of Tax Indemnity and to perform the obligations therein
contained. The copies of the Company's Memorandum and Articles of
Association and of all resolutions required by section 143(2) of
the Companies Act, 1963 have been furnished to the Purchaser and
such copies reflect all amendments made thereto at any time prior
to the date of this Agreement and such copies are correct and
complete.
2.8 Returns to Registrar of Companies. All returns, particulars,
resolutions and other documents required to be delivered on behalf
of the Company to the Registrar of Companies have been properly
made and delivered.
2.9 Capital Stock and Related Matters. The authorized and issued
capital stock of the Company is as set out in Exhibit 1 together
with details of the registered and beneficial owners thereof and
no other shares, common or otherwise, of the Company are issued.
The Company does not have outstanding and has not agreed, orally
or in writing, to issue any shares or securities convertible or
exchangeable for any shares, nor does it have outstanding nor has
it agreed, orally or in writing, to issue any options or rights to
purchase or otherwise acquire its shares. The Company is not
subject to any obligation (contingent or otherwise) to repurchase
or otherwise acquire or retire any of its shares saving in respect
of the Preference Shares pursuant to Article 10 of its Articles of
Association . The Company has not violated any applicable
securities laws or regulations in connection with the offer or
sale of its securities other than violations that have been, or
will before the Closing have been, corrected by post-issuance
filings. Mr. Kelly, Mr. Duffy and Mr. Meade have and upon purchase
thereof pursuant to the terms of this Agreement the Purchaser will
have, good and marketable title to the Sale Shares free and clear
of all security interests, liens, encumbrances, or other
restrictions or claims.
2.10.1 B Shares. Schedule 2.10 contains full details of the Company's
and/or (as the case may be) Mr. Kelly's, Mr. Duffy's
and Mr. Meade's obligations and liabilities in respect of the B
shares.
2.10.3 The Articles of Association of the Company contain full details of
the rights attaching to the "B" shares. Save for the rights
conferred by the Articles of Association there are no other rights
exercisable by the "B" stockholders or conferred on the "B" shares.
2.11 Subsidiaries. The Company has no subsidiaries or affiliated
companies and does not otherwise own or control, directly or
indirectly, any equity interest in any Company or entity.
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2.12 Conduct of Business; Liabilities. Except as set forth in Schedule 2.12,
the Company is not in default under, and no condition exists that with
notice or lapse of time would constitute a default of the Company under
(i) any mortgage, loan agreement, evidence of indebtedness, or other
instrument evidencing borrowed money to which the Company is a party or
by which the Company or the properties of the Company are bound or (ii)
any judgment, order, or injunction of any court, arbitrator, or
governmental agency that would reasonably be expected to affect
materially and adversely the business, financial condition, or results
of operations of the Company taken as a whole.
2.13 Contracts. The Company is not party to or subject to any contract,
transaction, arrangement, understanding, obligation or liability:
2.13.1 of an unusual or abnormal nature or not wholly on an arms
length basis in the ordinary and usual course of business;
2.13.2 of a long term nature (that is unlikely to have been fully
performed more than 6 months after the date on which it was
entered into or undertaken);
2.13.3 of a loss making nature;
2.13.4 involving or likely to involve obligations or liabilities
which by reason of their nature or magnitude ought reasonably
to be made known to an intending purchaser of the shares.
2.14 Loans etc involving Stockholders or Directors: With the exception of
any indebtness which is repaid and security, guarantees and indemnities which
are released (all of which were entered into in compliance with all legal and
statutory requirement and conditions), there are not outstanding any:
i. loans, quasi loans or credit transactions made by the Company
to or for the shareholders in the Company directors or shadow
directors or any person connected with any of them;
ii debts owing to the Company by shareholders in the Company the
"C" Stockholder directors, or shadow directors or any person
connected with any of them;
iii. security for any such loans, quasi loans, credit transactions;
or
iv. other contracts or arrangements to which the Company is a party
and in which the shareholders in the Company, directors or
shadow directors, or any person connected with any of them is
interested whether directly or indirectly.
2.15 Competing Business: Mr. Kelly, Mr. Meade and Mr. Duffy do not have any
material right or interest, direct or indirect, in any business which is or is
likely to become competitive with any present or proposed business of the
Company.
2.16 Financial Statements. The audited balance sheet and income statement of the
Company as of 31/12/99, in the form attached to this Agreement as Exhibit
2.16(A) and the income statement for the period ending 31/12/99, in the form
attached to this Agreement as Exhibit 2.16(B) (collectively the "1999 Financial
Statements"), fairly presents the financial position of the Company as at
31/12/99, and has been prepared in accordance with the law and generally
accepted accounting principles, consistently applied, and in a manner
substantially consistent with prior financial statements of the Company and
fully and correctly states its assets, liabilities and profits or losses as at
that date. The unaudited, balance sheet and income statement of the Company as
at 31/3/00, and for the month then ended, in the form attached hereto as Exhibit
2.16(C) ("Year 2000 Financial Statements"), fairly present the financial
position of the Company as at 31/3/00 and the results of operations for the one
month then ended and
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have been prepared in accordance with the law and generally accepted
accounting principles consistently applied and in a manner substantially
consistent with the previous financial statements, except for differences
resulting from normally occurring audit adjustments, including, but not
limited to, income tax and tax accrual adjustments, or as noted in the 1999
Financial Statements or the notes thereto. Except as contemplated by or
permitted under this Agreement, there are no adjustments that would be
required on review of the 1999 year Financial Statements or the 2000
Financial Statements that would, individually or in the aggregate, have a
material negative effect upon the Company's reported financial condition.
2.17 No Undisclosed Liabilities. Except for (i) liabilities and obligations
incurred in the ordinary course of business since 31/12/99 ("Statement Date"),
and (ii) liabilities or obligations described in Schedule 2.17, neither the
Company nor any of the property of the Company is subject to any material
liability or obligation that was required to be included or adequately reserved
against in the 1999 Financial Statements or described in the notes thereto and
was not so included, reserved against, or described.
2.18 Book Debts. Excluding bad and doubtful debts for which full and adequate
provision has been made in the 1999 Financial Statements the book debts of the
Company on the Completion Date will be good for the full face value thereof and
will be paid in the ordinary course of business within 6 calendar months after
the Completion Date or 2 months after the expiration of normal credit terms,
whichever is the later.
2.19 Absence of Certain Changes. Except as contemplated or permitted by this
Agreement or as described in Schedule 2.19, since the Statement Date there has
not been:
2.19.1 Any material adverse change in the business, financial
condition, prospects, operations, turnover or assets of the
Company;
2.19.2 Any damage, destruction, or loss, whether covered by insurance
or not materially adversely affecting the properties or
business of the Company;
2.19.3 Any sale or transfer by the Company of any tangible or
intangible asset other than in the ordinary course of
business, any mortgage or pledge or the creation of any
security interest, lien, or encumbrance on any such asset, or
any lease of property, including equipment, other than tax
liens with respect to taxes not yet due and contract rights of
customers in inventory;
2.19.4 Any declaration, setting aside, or payment of a distribution
in respect of or the redemption or other repurchase by the
Company of any stock of the Company;
2.19.5 Any material transaction not in the ordinary course of
business of the Company;
2.19.6 The lapse of any material trademark, assumed name, trade name,
service mark, copyright, or license or any application with
respect to the foregoing;
2.19.7 The grant of any increase in the remuneration of officers or
employees (including any such increase pursuant to any bonus,
pension, profit-sharing, or other plan) other than customary
increases on a periodic basis or required by agreement or
understanding in the ordinary course of business and in
accordance with past practice;
2.19.8 The discharge or satisfaction of any material lien or
encumbrance or the payment of any material liability other
than current liabilities in the ordinary course of business;
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2.19.9 The making of any material loan, advance, or guaranty to or
for the benefit of any person except the creation of accounts
receivable in the ordinary course of business; or
2.19.10 An agreement to do any of the foregoing.
2.20 Since the Year 2000 Statement Date:
2.20.1 the Company's business has been carried on in the ordinary
course without any interruption or alteration in its nature,
scope or manner, and so as to maintain the business as a going
concern;
2.20.2 the Company has not entered into any unusual, long term or
onerous contracts;
2.20.3 the Company's business has not been materially and adversely
affected by the loss of any important supplier or customer or
by any abnormal factor not effecting similar businesses to a
like extent and to the best of the knowledge, information and
belief of the Warrantors having made due and careful enquiry
there are no facts which are likely to give rise to any such
effects;
2.20.4 no dividend or other distribution has been declared, made or
paid to the members of the Company.
2.21 Title and Related Matters. Except as set forth in Schedule 2.21, the
Company has good and marketable title with vacant possession to all of its
property, real and personal, and other assets included in the 1999 and Year 2000
Financial Statements (except properties and assets sold or otherwise disposed of
subsequent to the Statement Date in the ordinary course of business or as
contemplated in this Agreement), free and clear of all security interests,
mortgages, liens, pledges, charges, claims, or encumbrances of any kind or
character, except (i) statutory liens for property taxes not yet delinquent or
payable subsequent to the date of this Agreement and statutory or common law
liens securing the payment or performance of any obligation of the Company, the
payment or performance of which is not delinquent, or that is payable without
interest or penalty subsequent to the date on which this representation is
given, or the validity of which is being contested in good faith by the Company;
(ii) the rights of customers of the Company with respect to inventory under
orders or contracts entered into by the Company in the ordinary course of
business; and the Company is entitled to all rights and easements necessary for
their use and enjoyment.
2.22 Title deeds and other documents. The Company has in its possession or under
its control all of the deeds and documents of title which are necessary to prove
title to the properties and the title documents are duly stamped and registered.
2.23 Litigation. Except as set forth in Schedule 2.23, there are no material
actions, suits, proceedings, orders, investigations, or claims pending or, to
the best of the Warrantors' and the Company's knowledge, overtly threatened
against the Company or any property of either, at law or in equity, or before or
by any governmental department, commission, board, bureau, agency, or
instrumentality; the Company is not subject to any arbitration proceedings under
collective bargaining agreements or otherwise or, to the best of the Warrantor's
knowledge, any governmental investigations or inquiries; and, to the best
knowledge of the Warrantor's and the board of directors and responsible officers
of the Company, there is no basis for any of the foregoing.
2.24 Tax Matters. Except as set forth on Schedule 2.23, (i) the Company has
prepared in a substantially correct manner and has filed all state, local, and
foreign tax returns and reports heretofore required to be filed by them and have
paid all taxes, including income and value added taxes, shown as due thereon;
and (ii) no taxing authority has asserted any deficiency in the payment of any
tax or informed the Company that it intends to assert any such deficiency or to
make any audit or other
PAGE 8 - STOCK PURCHASE AGREEMENT
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investigation of the Company for the purpose of determining whether such a
deficiency should be asserted against the Company.
2.25 Compliance with Laws. To the best of Mr. Kelly's, Mr. Meade's and Mr.
Duffy's knowledge, the Company is, in the conduct of its business, in
substantial compliance with all laws, statutes, ordinances, regulations, orders,
judgments, or decrees applicable to it, the enforcement of which, if the Company
was not in compliance therewith, would have a materially adverse effect on the
business of the Company, taken as a whole. Neither Mr. Kelly, Mr. Meade, Mr.
Duffy nor the Company have received any notice of any asserted present or past
failure by the Company to comply with such laws, statutes, ordinances,
regulations, orders, judgments, or decrees.
2.26 No Brokers or Finders Fees. Except as set forth in Schedule 2.26, there are
no claims for brokerage commissions, finders' fees or similar compensation in
connection with the transactions contemplated by this Agreement based on any
arrangement or agreement made by or on behalf of Mr. Kelly, Mr. Meade, Mr. Duffy
or the Company.
2.27 Insurance. Schedule 2.27 contains a list of each insurance policy
maintained by the Company with respect to its properties, assets, and
businesses, and each such policy is in full force and effect. All assets which
are of an insurable nature have been insured against fire and other risks to
full replacement value. The Company is not in default with respect to its
obligations under any such policy maintained by it and all premiums have been
duly paid to date. The Warrantors have not been notified of the cancellation of
any of the insurance policies listed on Schedule 2.26 or of any material
increase in the premiums to be charged for such insurance policies. No claim is
outstanding and so far the Warrantors are aware no circumstances exist which are
likely to give rise to any claim.
2.28 Employees and Labour Relations Matters. Except as set forth in Schedule
2.28 or as provided in this Agreement, to the Warrantors' and to the Company's
knowledge, no employee of the Company is in violation of any material term of
any employment contract, patent disclosure agreement or any other contract or
agreement relating to the relationship of such employee with the Company or any
other party because of the nature of the business conducted or to be conducted
by the Company. Each employee of the Company with access to confidential or
proprietary information has executed, or in the ordinary course will execute, a
proprietary information agreement obligating such employee to hold confidential
the Company's proprietary information. The Warrantors are not aware that any
officer or key employee, or that any group of key employees, intends to
terminate his or its employment with the Company, nor does the Company have a
present intention to terminate the employment of any key employee. The Company
has in all material respects complied with all applicable laws codes of
conductor practice and collective agreements related to employment.
2.29 Arrears of Remuneration. There are no amounts owing to any present or
former directors or employees of, or persons supplying services to, the Company,
whether for salary, fees or otherwise, other than remuneration accrued for not
more than one month.
2.30 Non allowable Payments. Save as provided or allowed for in the 1999
Financial Statements and/or the Year 2000 Financial Statement the
Company has not made or agreed to make any payment to or provided or
agreed to provide any benefit for any present or former director or
employee or supplier of services which is not allowable as a deduction
for the purposes of Taxation.
2.31 Disclosure. Neither this Agreement nor any of the schedules,
attachments, written statements, documents, certificates, or other
items prepared or supplied to the Purchaser by or on behalf of the
Warrantors with respect to this purchase contain any untrue statement
of a material fact or omit a material fact necessary to make each
statement contained herein or therein not misleading. The Warrantors
have not intentionally concealed any fact known by such person to have
a material adverse effect upon the Company's existing or expected
financial condition,
PAGE 9 - STOCK PURCHASE AGREEMENT
<PAGE>
operating results, assets, customer relations, employee relations, or
business prospects taken as a whole.
2.32 Power of Attorney. Except as set forth in Schedule 2.32, no power of
attorney or similar authorization given by the Company is presently in
effect.
2.33 Accounts Receivable. All accounts receivable of the Company reflected
in the 1999 Financial Statements represent bona fide sales actually
made in the ordinary course of business.
2.34 Agreements and Commitments. Schedule 2.34 contains a complete and
accurate list of each agreement, contract, instrument, and commitment
(including license agreements) to which the Company is a party that
provides for payments in excess of IR(pound)7,000 per year or whose
term is in excess of one year and is not cancelable upon 30 or fewer
days' notice without any liability, penalty, or premium, other than a
nominal cancellation fee or charge ("Third Party Agreements"). Except
as otherwise set forth in Schedule 2.34, the Company is not in material
default under any Third Party Agreements, nor, to best knowledge of the
Warrantors, does there exist any event that, with notice or the passage
of time or both, would constitute a material default or event of
default by the Company under any Third Party Agreements.
2.35 Personal Property. Without material exception, Schedule 2.35 contains
lists of all tangible personal property and assets owned or held by the
Company and used or useful in the conduct of the business of the
Company. Except as set forth in Schedule 2.35, the Company owns and has
good title to such properties and none of such properties is subject to
any security interest, mortgage, pledge, conditional sales agreement,
or other lien or encumbrance (except for liens for current taxes,
assessments, charges, or other governmental levies not yet due and
payable). The Company has delivered to the Purchaser copies of all
leases and other agreements relating to property described in Schedule
2.35 (including any and all amendments and other modifications to such
leases and other agreements) all of which are valid and binding, and
the Company is not in material default under any such leases or
agreements. Except as set forth in Schedule 2.36 and to the best of the
Warrantors' knowledge, all material properties listed therein are
generally in good operating condition and repair (ordinary wear and
tear excepted), are performing satisfactorily, and are available for
immediate use in the conduct of the business and operations of the
Company. To the best of the Warrantors' knowledge, all such tangible
personal property is in compliance in all material respects with all
applicable statutes, ordinances, rules, and regulations. The properties
listed in Schedule 2.36 include substantially all such properties
necessary to conduct the business and operations of the Company as now
conducted.
2.37 Real Property. Schedule 2.37 contains a list of all real property
currently owned or leased by the Company and used or useful in the
conduct of the business operations of the Company. Company has
delivered to the Purchaser copies of all leases listed in Schedule 2.37
(including any and all amendments and other modifications of such
leases), which leases are valid and binding. To the best of the
Warrantors knowledge, the Company is not in material default under any
such leases. To the best of the Warrantors knowledge, all property
listed in Schedule 2.37 (including improvements thereon) is in
satisfactory condition and repair consistent with its present use and
is available for immediate use in the conduct of the business of the
Company. Except as set forth in Schedule 2.37 and to the best of the
Warrantors knowledge, none of the property listed in Schedule 2.37
subject to leases listed in Schedule 2.37 violates in any material
respect any applicable building or zoning code or regulation of any
governmental authority having jurisdiction. The property and leases
described in Schedule 2.37 include all such property or property
interests necessary to conduct the business and operations of the
Company as they are presently conducted.
2.38 Personnel. Schedule 2.38 sets forth a true and complete list of:
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2.38.1 The names, title, and current salaries, date of birth, job description
and length of service of all employees of the Company;
2.38.2 The names of all directors of the Company;
2.38.3 The wage rates (or ranges, if applicable) for each class of
salaried and hourly employees of the Company;
2.38.4 All scheduled or contemplated increases in compensation or
bonuses; and
2.38.5 All scheduled or contemplated employee promotions;
2.38.6 Full particulars of contracts of service with directors or
employees of, and contracts for the supply of services to the
Company, where the director, employee or provider of services
is remunerated at a rate in excess of IR(pound)15,000 per
annum.
2.39 Intellectual Property. The Company (i) owns or has the right to use, free
and clear of all liens, charges, claims and restrictions, those patents,
trademarks, service marks, trade names, copyrights, licenses, and other
intellectual property rights necessary for the operation of its businesses now
conducted or presently proposed to be conducted, and (ii) to its knowledge, and
except for the payments required in connection with those patents, trademarks,
service marks, trade names, copyrights, licenses and other intellectual property
rights listed on Schedule 2.39, is not obligated or under any liability
whatsoever to make any payments by way of royalties, fees or otherwise to any
owner or licensee of, or other claimant to, any patent, trademark, service mark,
trade name, copyright or other intangible asset, with respect to the use thereof
or in connection with the conduct of its business or otherwise. To the knowledge
of the Company, the Company has not infringed upon nor is it infringing upon any
patent, trademark, service mark, trade name, copyright or other intellectual
property of any third party. The Company is not aware of any violation by a
third party of any of the Company's patents, licenses, trademarks, service
marks, trade names, copyrights, trade secrets or other proprietary rights.
2.40 Employee Benefit and Related Matters Schedule 2.40 sets forth a description
of all Employee Benefit Plans and Employee Pension Benefit Plans or the
equivalent thereof under Irish law, existing on the date hereof that are or have
been maintained or contributed to by the Company and contains particulars of the
basis on which the Company and its employees contribute to those plans. Except
as listed on Schedule 2.40, the Company does not maintain any retirement or
deferred compensation plan, savings, incentive, stock option or stock purchase
plan, unemployment compensation plan, vacation pay, severance pay, bonus or
benefit arrangement, insurance or hospitalization program or any other fringe
benefit arrangement for any employee, consultant or agent of the Company,
whether pursuant to contract, arrangement, custom or informal understanding,
which does not constitute an Employee Benefit Plan or the equivalent thereof
under Irish law, for which the Company may have any ongoing material liability
after Closing. The Company does not maintain nor has it ever contributed to any
Multiemployer Plan. There have been no "prohibited transactions" (under Irish
law) with respect to any Employee Pension Benefit Plan or Employee Welfare
Benefit Plan (or the Irish equivalent thereof) maintained by the Company as to
which the Company has been a party. As to any employee pension benefit plan
listed on Schedule 2.40 there have been no violations of Irish law (including
Revenue and trust requirements). The pension benefit plans are exempt approved
schemes within the meaning of section 16 of the Finance Act, 1972 and after
making due and careful enquiries THE WARRANTORS are NOT aware of any reason why
such exempt approved status might be withdrawn. All contributions and expenses
due under the pension plans or the employee benefit plans in respect of the
period up to Closing have been paid. In so far as the Warrantors are aware, the
contributions and expenses payable to the pension plan have been applied in
accordance with the provisions thereof and the trust upon which they are held.
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2.41 Operating Rights. The Company has all operating authority, licenses,
franchises, permits, certificates, consents, rights and privileges
(collectively "Licenses") as are necessary or appropriate to the operation of
its business as now conducted and as proposed to be conducted and which the
failure to possess would have a material adverse effect on the assets,
operations or financial condition of the Company. Such Licenses are in full
force and effect, no violations have been or are expected to have been
recorded in respect of any such licenses, and no proceeding is pending or, to
the knowledge of the Company, threatened that could result in the revocation
or limitation of any such licenses. The Company has conducted its business so
as to comply in all material respects with all such Licenses.
2.42 Transactions with Affiliates. Except for (i) regular salary payments
and fringe benefits under an individual's remuneration package with the
Company, and (ii) certain loans that have been made by the Company to certain
key employees as described on Schedule 2.42, neither Mr. Kelly, Mr. Duffy,
Mr. Meade nor any of the officers, employees, directors, or other affiliates
of the Company, or members of their families is a party to any agreements,
understandings, or proposed transactions with the Company. The Company has
not guaranteed or assumed any obligations of any shareholder of the Company
or the Company's officers, directors, or employees.
2.43 Minute Books. The minute books of the Company contain a complete
summary of all meetings of directors and shareholders since the time of
incorporation and reflect all transactions referred to in such minutes
accurately in all material respects.
2.44 Defective Products. In so far as the Warrantors are aware, the
Company has not manufactured, imported sold or supplied products which are or
were or will become, during their normal useful life a danger to a purchaser,
a consumer, the public or any section of the public at large, or which do not
comply in any material respect with any warranties or representations
expressly or impliedly made by the Company, or with all applicable laws,
regulations, standards and requirements.
2.45 No orders. No distress, charging order, garnishee order, execution
or other process has been levied or (to the best of the knowledge and belief
of the Selling Stockholders after making due and careful enquiry) applied for
in respect of the whole or any part of any of the property, assets or
undertaking of the Company.
2.46 Notices from auditors. The Company has not had an order served upon
it by its auditors under section 185 or 194 of the Companies Act 1990.
2.47 Investigations and Directors - Companies Act 1990. No investigations
under the Companies Act 1990 have taken place into the affaires of the
Company, or into the ownership of or dealings in the shares and no directions
have been made under the same Act imposing restrictions on any of the shares.
2.48 Insolvency The Company is not unable to pay its debts within the
meaning of section 214 of the Companies Act, 1963.
2.49 Relationships with Third Parties. To the best of the knowledge and
belief of the Warrantors after making due and careful enquiries, neither the
entering into not the implementation of this Agreement, nor the prospect
thereof, will or is likely to cause, or has already caused:
2.49.1 the Company to lose the benefit of any right or privilege
which it presently enjoys;
2.49.2 any person who normally does business with or gives credit
to the Company not to continue to do so on the same basis;
2.49.3 any officer or senior employee of any of the Company to
leave its employment; or
2.49.4 the attitudes or actions of customers, suppliers, employees
or other persons with regard to the Company to be
prejudicially effected.
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<PAGE>
2.50 Contracts and Transactions with Directors. The Company has not:
2.50.1 incorporated into any employment agreements any terms
requiring approval under section 28 of the Companies Act,
1990 without obtaining such approval;
2.50.2 entered into any arrangements for the acquisition or
disposal of non-cash assets requiring approval under
section 29 of the same Act without obtaining such approval;
or
2.50.3 made any loans, quasi loans, entered into any credit
transactions as creditor, entered into any guarantees or
indemnities or provided any security in connection with
loans, quasi loans or credit transactions in breach of
section 31 of the same Act.
2.51 Investment Representation
2.51.1 The Warrantors are acquiring the Purchaser's Common Stock for
investment for the Warrantors own account, not as a nominee or agent, and not
with the view to, or for resale in connection with, any distribution thereof.
The Warrantors understands that the Purchaser's Common Stock has not been,
and will not be, registered under the Securities Act of 1933 (the "Securities
Act") or the securities laws of any state by reason of a specific exemption
from the registration provisions of the Securities Act and the applicable
state securities laws, the availability of which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of the
Warrantors representations as expressed herein. The Warrantors are acquiring
the Shares without expectation, desire, or need for resale and not with the
view toward distribution, resale, subdivision, or fractionalization of the
Shares. The jurisdiction of residence of each Selling Stockholder is the
Republic of Ireland and the offer and sale of the Purchaser's Common Stock to
such Warrantors will take place in such jurisdiction. Each of the Warrantors
is knowledgeable and experienced in the making of investments of the type
involved in the acquisition of the Purchaser's Common Stock pursuant to this
Agreement and is able to bear the economic risk of loss of its investment in
Purchaser. Each of the Warrantors has received and reviewed a copy of
Purchaser's most recent Annual Report on Form 10-K and proxy statement and
has been granted the opportunity to ask such questions regarding the
Purchaser's affairs either directly or through its authorized representative
as deemed necessary in respect of the Warrantors' decision to acquire
Purchaser Common Stock pursuant to this Agreement.
2.51.2 The Warrantors understand that the Purchaser's Common Stock
cannot be resold in a transaction to which the Securities Act and state
securities laws apply unless (i) subsequently registered under the Securities
Act and applicable state securities laws or (ii) exemptions from such
registrations are available. The Purchaser is aware of the provisions of Rule
144 promulgated under the Securities Act which permit limited resale of
shares purchased in a private transaction subject to the satisfaction of
certain conditions.
2.51.3 The Warrantors understand that the certificates for the
Purchaser's Common Stock will bear a legend substantially similar to the
following:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
THE COMPANY WILL NOT TRANSFER THIS CERTIFICATE UNLESS (i) THERE IS AN
EFFECTIVE REGISTRATION COVERING THE SHARES REPRESENTED BY THIS CERTIFICATE
UNDER THE SECURITIES ACT OF 1933 AND ALL APPLICABLE STATE SECURITIES LAWS,
(ii) IT FIRST RECEIVES A LETTER FROM AN ATTORNEY, ACCEPTABLE TO THE BOARD OF
DIRECTORS OR ITS AGENTS, STATING THAT IN THE OPINION OF THE ATTORNEY THE
PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF
1933 AND UNDER ALL APPLICABLE
PAGE 13 -- STOCK PURCHASE AGREEMENT
<PAGE>
STATE SECURITIES LAWS, OR (iii) THE TRANSFER IS MADE PURSUANT TO RULE 144
UNDER THE SECURITIES ACT OF 1933.
2.52 Grants
2.52.1 Exhibit 2.52 contains a complete list and full particulars of
all grants, subsidies, loans or financial assistance received by the
Company since incorporation.
2.52.2 No act or transaction has been or will be effected (including
the sale of the Shares) in consequence of which the Company is or
may be held liable to forfeit or refund in whole or in part any
grant, loan or financial assistance which has been received or
applied for, or for which application has been made.
2.53 Accounts: The 1999 Financial Statements of the Company have been
prepared in accordance with the law, on a basis consistent with the
previous three financial periods and in accordance with accounting
standards, and give a true and fair view of the state of affairs of
the Company at the Statement Date and fully and correctly state the
assets, liabilities and profits or losses as at that date.
For the purposes of this clause Accounting Standards shall mean the
preparation of accounts in accordance with the laws of Ireland on a proper
and consistent basis and in accordance with the Companies Act 1963 to 1999
and with generally accepted accounting principles, standards and practices in
Ireland and in accordance with all applicable statements of standard
accounting practice and all appropriate Financial Reporting Standards issued
by the Accounting Standards Board and the auditing of such accounts in
accordance with all applicable auditing standards, auditing guidelines and
other pronouncements made by the Auditing Practices Board.
Section 3. Representations and Warranties of Purchaser. As a material
inducement to Mr. Kelly, Mr. Duffy and Mr. Meade to enter into this Agreement
and sell the Shares, the Purchaser hereby represents and warrants to Mr.
Kelly, Mr. Duffy and Mr. Meade as follows:
3.1 Organization; Power. The Purchaser is a Company duly incorporated
and validly existing under the laws of the State of Massachusetts, and has
all requisite corporate power and authority to enter into this Agreement and
perform its obligations hereunder.
3.2 Authorization. The execution, delivery, and performance by the
Purchaser of this Agreement and all other agreements contemplated hereby to
which the Purchaser is a party have been duly and validly authorized by all
necessary corporate action of the Purchaser, and this Agreement and each such
other agreement, when executed and delivered by the parties thereto, will
constitute the legal, valid, and binding obligation of the Purchaser
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, and similar statutes
affecting creditors' rights generally and judicial limits on equitable
remedies.
3.3 No Conflict with Other Instruments or Agreements. The execution,
delivery, and performance by the Purchaser of this Agreement and all other
agreements contemplated hereby to which the Purchaser is a party will not
result in a breach or violation of, or constitute a default under, its
Articles of Incorporation or Bylaws or any material agreement to which the
Purchaser is a party or by which the Purchaser is bound.
3.4 Governmental Authorities. Except as set forth in Schedule 3.4, (i)
the Purchaser is not required to submit any notice, report, or other filing
with any governmental or regulatory authority in connection with the
execution and delivery by the Purchaser of this Agreement and the
consummation of the purchase and (ii) no consent, approval, or authorization
of any governmental or regulatory authority is required to be obtained by the
Purchaser or any affiliate in connection with the Purchaser's execution,
delivery, and performance of this Agreement and the consummation of this
purchase.
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<PAGE>
3.5 Tax Liability. To the extent the Purchaser deems necessary, the
Purchaser has reviewed with the Purchaser's own tax advisors the federal,
state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. The Purchaser relies solely on
such advisors and not on any statements or representations of the Company or
any of its agents. The Purchaser understands that the Purchaser (and not the
Company) shall be responsible for the Purchaser's own tax liability that may
arise as a result of this investment or the transactions contemplated by this
Agreement.
3.6 Disclosure. To the Purchaser's knowledge, this Agreement, with the
Exhibits hereto, when taken as a whole, does not contain any untrue statement
of a material fact concerning the Purchaser or omit to state a material fact
necessary in order to make the statements concerning the Purchaser contained
herein not misleading.
3.7 Litigation. There are no actions, suits, proceedings or
investigations pending against the Purchaser or the Purchaser's properties
before any court or governmental agency (nor, to the Purchaser's knowledge,
is there any threat thereof) which would impair in any way the Purchaser's
ability to enter into and fully perform the Purchaser's commitments and
obligations under this Agreement or the transactions contemplated hereby.
3.8 Compliance with Other Instruments. The execution, delivery and
performance of and compliance with this Agreement, and the issuance of shares
will not result in any material violation of, or conflict with, or constitute
a material default under, any Purchaser's articles of incorporation or bylaws
or any of the Purchaser's material agreements nor result in the creation of
any mortgage, pledge, lien, encumbrance or charge against any of the assets
or properties of the Company or the Shares.
3.9 No Brokers or Finders Fees. The Purchaser has not, and will not,
incur, directly or indirectly, as a result of any action taken by the
Purchaser, any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with this Agreement.
Section 4. Conduct of Company's Business Pending the the Completion Date .
From the Statement Date until the Completion Date and except as otherwise
consented to or approved by the Purchaser, the Warrantors and the Company
covenant and agree with the Purchaser as follows:
4.1 Regular Course of Business. The Company has operated and will
operate its business in accordance with the reasonable judgment of its
management diligently and in good faith, consistent with past management
practices, and the Company has used and will continue to use its reasonable
efforts to keep available the services of present officers and employees
(other than planned retirements) and to preserve its present relationships
with persons having business dealings with it.
4.2 Distributions. The Company has not and will not declare, pay, or set
aside for payment any dividend or other distribution in respect of its
capital stock.
4.3 Capital Changes. The Company has not and will not issue any shares
of its stock, or issue or sell any securities convertible into, or
exchangeable for, or options, warrants to purchase, or rights to subscribe
to, any shares of its stock or subdivide or in any way reclassify any shares
of its capital stock, or repurchase reacquire, cancel, or redeem any such
shares.
4.4 Assets. The assets, property, and rights now owned by the Company
have been and will be used, preserved, and maintained, as far as practicable,
in the ordinary course of business, to the same extent and in the same
condition as said assets, property, and rights are on the date of this
Agreement, and no unusual or novel methods of manufacture, purchase, sale,
management, or operation of said properties or business or accumulation or
valuation of inventory will be made or instituted. Without the prior consent
of the Purchaser, the Company will not encumber any of its assets or make any
commitments relating to such assets, property, or business, except in the
ordinary course of its business.
PAGE 15 -- STOCK PURCHASE AGREEMENT
<PAGE>
4.5 Insurance. The Company has kept and will keep or cause to be kept in
effect and undiminished the insurance now in effect on its various properties
and assets, and will purchase such additional insurance, at the Purchaser's
cost, as the Purchaser may request.
4.6 Employees. The Company has not granted and will not grant to any
employee any promotion, any increase in compensation, or any bonus or other
award other than promotions, increases, or awards that are regularly
scheduled in the ordinary course of business or contemplated on the date of
this Agreement or that are, in the reasonable judgment of management of the
Company, in the Company's best interest.
4.7 No Violations. The Company has complied and will comply in all
material respects with all statutes, laws, ordinances, rules, and regulations
applicable to it in the ordinary course of business.
4.8 Public Announcements. No press release or other announcement to the
employees, customers, or suppliers of the Company related to this Agreement
or this purchase will be issued without the joint approval of the parties,
unless required by law, in which case the Purchaser and Mr. Kelly, MR. MEADE
AND MR. DUFFY will consult with each other regarding the announcement.
Section 5. Covenants of the Warrantors. The Warrantors covenant and agree
with the Purchaser as follows:
5.1 Satisfaction of Conditions. The Company will use reasonable efforts
to obtain as promptly as practicable the satisfaction of the conditions to
closing this transaction on the Completion Date described in this Agreement
and any necessary consents or waivers under or amendments to agreements by
which the Company is bound.
5.2 Supplements to Schedules. From time to time prior to the Completion
Date , the Warrantors will promptly supplement or amend the Exhibits and
Schedules with respect to any matter hereafter arising that, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in any Exhibit or Schedule and will promptly notify the
Purchaser of any breach by either of them that either of them discovers of
any representation, warranty, or covenant contained in this Agreement. No
supplement or amendment of any Exhibit or Schedule made pursuant to this
Section will be deemed to cure any breach of any representation of or
warranty made in this Agreement unless the Purchaser specifically agrees
thereto in writing; provided, however, that if this purchase is closed, the
Purchaser will be deemed to have waived its rights with respect to any breach
of a representation, warranty, or covenant or any supplement to any Schedule
of which it shall have been notified pursuant to this Subsection.
5.3 No Solicitation. Until the Completion Date or termination pursuant
to Section 10 of this Agreement, neither the Warrantors nor any of their
respective directors, officers, employees, or agents shall, directly or
indirectly, encourage, solicit, initiate, or enter into any discussions or
negotiations concerning any disposition of any of the capital stock or all or
substantially all of the assets of the Company (other than pursuant to this
Agreement), or any proposal therefor, or furnish or cause to be furnished any
information concerning the Company to any party in connection with any
transaction involving the acquisition of the capital stock or assets of the
Company by any person other than the Purchaser. The Warrantors will promptly
inform the Purchaser of any inquiry (including the terms thereof and the
person making such inquiry) received by any responsible officer or director
of the Company or after the date hereof and believed by such person to be a
bona fide, serious inquiry relating to any such proposal.
5.4 Action after the Completion Date . Upon the reasonable request of
any party hereto after theCompletion Date , any other party will take all
action and will execute all documents and instruments necessary or desirable
to consummate and give effect to this Agreement. These include, by way of
illustration and not by way of limitation, the following:
5.4.1 Various conditions relating to filing of company secretarial
documentation;
PAGE 16 -- STOCK PURCHASE AGREEMENT
<PAGE>
5.4.2 Resignations of each of the officers and directors of the
Company other than Mr. Kelly;
5.4.3 Provisions relating to delivery of Corporate books and
records;
5.4.4 Provisions relating to treatment of confidential proprietary
information obtained in the acquisition process.
Section 6. Covenant of Purchaser. The Purchaser will use its best efforts
to cause the conditions set forth in Section 8 to be satisfied.
Section 7. Conditions Precedent to the Obligations of Purchaser. Each and
every obligation of the Purchaser under this Agreement is subject to the
satisfaction, at or before the Completion Date, of each of the following
conditions:
7.1 Representations and Warranties; Performance. Each of the
representations and warranties made by the Warrantors herein will be true and
correct in all material respects as of the Closing with the same effect as
though made at that time except for changes contemplated, permitted, or
required by this Agreement; the Warrantors will have performed and complied
with all agreements, covenants, and conditions required by this Agreement to
be performed and complied with by them prior to the Completion Date ; and the
Purchaser will have received, at the Completion Date a certificate of the
Company signed by Mr. Kelly as Managing Director of the Company stating that
each of the representations and warranties made by the Warrantors and the
Company herein are true and correct in all material respects as of the
Completion Date except for changes contemplated, permitted, or required by
this Agreement and that the Warrantors have performed and complied with all
agreements, covenants, and conditions required by this Agreement to be
performed and complied with by them prior to the Completion Date.
7.2 Litigation. No material action, suit, or proceeding before any
court, governmental or regulatory authority will have been commenced and be
continuing, and no investigation by any governmental or regulatory authority
will have been commenced and be continuing, and no action, investigation,
suit, or proceeding will be threatened at the time of Closing, against the
Warrantors, the Company, or the Purchaser or any of their affiliates,
associates, officers, or directors, seeking to restrain, prevent, or change
this purchase, questioning the validity or legality of this purchase, or
seeking damages in connection with this purchase.
7.4 Absence of Certain Changes. There has not been since 31st December
1999, the date of its most recent audited financial statements, up to and
including the Completion Date, any event or condition of any character which
has materially and adversely affected the Company's business, prospects,
conditions, affairs, operations, properties or assets, including but not
limited to:
7.4.1 any material adverse change in the financial condition,
assets, liabilities or business of the Company;
7.4.2 any damage, destruction or loss of any of the properties or
assets of the Company (whether or not covered by insurance) materially and
adversely affecting the business or plans of the Company; or
7.4.3 any labour trouble, or any other event or condition of any
character, which the Company knows or has reason to know would materially and
adversely affect the business or plans of the Company.
7.5 Corporate Action. The Company and the Warrantors will have furnished
to the Purchaser:
PAGE 17 -- STOCK PURCHASE AGREEMENT
<PAGE>
7.5.1 The Memorandum and Articles of Association of the Company and
all amendments thereto and restatements thereof of the Company certified by
the official having custody over corporate records in the jurisdiction of
incorporation of the Company ;
7.5.2 The current bylaws and minutes of all meetings and consents of
shareholders and directors of the Company;
7.5.3 Each certificate of qualification to do business as a foreign
Company of the Company;
7.5.4 All stock transaction records of the Company; and
7.5.5 A certificate of the Secretary or Assistant Secretary of the
Company as to the accuracy, currency, and completeness of each of the above
documents, the incumbency and signatures of officers of the Company, the
absence of any amendment to the charter documents of the Company, and the
absence of any proceeding for dissolution or liquidation of the Company.
Section 8. Conditions Precedent to the Obligations of the Warrantors. Each
and every obligation of the Warrantors under this Agreement is subject to the
satisfaction, at or before the Completion Date , of each of the following
conditions:
8.1 Representations and Warranties; Performance. Each of the
representations and warranties made by the Purchaser herein will be true and
correct in all material respects as of the Closing with the same effect as
though made at that time except for changes contemplated, permitted, or
required by this Agreement; the Purchaser will have performed and complied
with all agreements, covenants, and conditions required by this Agreement to
be performed and complied with by it prior to the Completion Date; and Mr.
Kelly, Mr. Duffy and Mr. Meade will have received, at the Completion Date, a
certificate of the Purchaser, signed by the President and the Chief Financial
Officer of the Purchaser, stating that each of the representations and
warranties made by the Purchaser herein is true and correct in all material
respects as of the Completion Date except for changes contemplated,
permitted, or required by this Agreement and that the Purchaser has performed
and complied with all agreements, covenants, and conditions required by this
Agreement to be performed and complied with by it prior to the Completion
Date.
8.2 No Proceeding or Litigation. No action, suit, or proceeding before
any court (other than suits seeking monetary damages only and in the
aggregate sum of less than $10,000) and any governmental or regulatory
authority will have been commenced and be continuing, and no investigation by
any governmental or regulatory authority will have been commenced and be
continuing, and no action, investigation, suit, or proceeding will be
threatened at the Completion Date , against any of the Warrantors or the
Purchaser or any of their affiliates, associates, officers, or directors,
seeking to restrain, prevent, or change this purchase, questioning the
validity or legality of this purchase, or seeking damages in connection with
this purchase.
8.3 Corporate Action. The Purchaser will have furnished to Mr. Kelly,
Mr. Duffy and Mr. Meade a copy, certified by the Secretary or an Assistant
Secretary of the Purchaser, of the resolutions of the Purchaser authorizing
the execution, delivery, and performance of this Agreement.
Section 9. Closing.
9.1 Time, Place, and Manner of Closing. Unless this Agreement has been
terminated and this purchase has been abandoned pursuant to the provisions of
Section 10, the Closing ("Closing") will be held at the offices of Ronan Daly
Jermyn, Solicitors, or such other place as the parties may agree, on the
Completion Date being a date no later than 30th June 2000) where and when:-
9.1.1 Mr. Kelly, Mr. Duffy and Mr. Meade will deliver to the Purchasers
PAGE 18 -- STOCK PURCHASE AGREEMENT
<PAGE>
(a) duly executed Transfers of the "Sale Shares" together with the
relevant Share Certificates;
(b) any other documents which may be required to vest in the Purchaser
the entire beneficial ownership of the Sale Shares, and to enable the
Purchaser to procure them to be registered in the name of the Purchaser on
completion.
(d) Letter of Resignation under Seal from each of the Directors other
than Mr. Kelly and the Secretary of the Company incorporating in each case an
acknowledgement that he has no claim whatever against the Company.
(e) Letter of Resignation from the Auditors of the Company.
(f) A duly executed Deed of Indemnity in the form of draft exhibited
hereto [The Deed of Tax Indemnity].
(g) Certificate pursuant to sub-section 7.1 hereof.
(h) Copy Certificate of Company Secretary pursuant to sub-section 7.5
hereof.
9.1.3. The Vendor will deliver to the Purchaser as Agent for the Company:-
(a) The Statutory and Minute Books of the Company duly made up to date
and the Common Seal and Certificate of Incorporation thereof together with
the Certificate of Incorporation on Change of Name thereof together with an
up to date print of the Memorandum and Articles of Association thereof
together with cancelled Share Certificates of the Company or alternatively
Declarations as to Lost Share Certificates, in respect of all holdings except
the holdings of B Shareholders.
(b) All books of accounts or reference as to customers and other records
and all Insurance policies in any way related to or concerning the business
and assets of the Company in so far as same are not in the custody of the
Company at the premises of the Company.
(c) All Deeds and documents of title to all assets of the Company.
(d) The Company cheque books and paying in books of the Company and any
credit cards save as are in the possession of the Company.
(e) All Service Agreements or Hire Leasing or other Agreement of any
kind entered into by the Company, save as are in the possession of the
Company.
(f) The Company's VAT records for the last six years together with all
its Revenue records for the last six years save as are in the possession of
the Company.
9.1.4. Mr. Kelly, Mr. Meade and Mr. Duffy shall procure that the Board of
Directors of the Company hold a meeting at which there shall be transacted
such business and only such business as the Purchaser may require including
the appointment of such Directors as the Purchaser may nominate and approve
and the registration (subject to proper stamping) of the shares transferred
into the name of the Purchaser and/or its nominee, the alteration of all
authorised signatories in respect of the Company's Bank Accounts and the
acceptance of the resignations with effect from the end of the meeting of Mr.
Meade, Mr. Duffy and Ms. Ann Kelly as Directors of the Company and as
Secretary of the Company.
9.1.5 Subject to the above, the Purchaser will deliver to the Vendor:-
PAGE 19 -- STOCK PURCHASE AGREEMENT
<PAGE>
(a) Stock Certificates in the Purchaser referable to the amount of the
Purchaser's Common Stock due to Mr. Kelly, Mr. Duffy and Mr. Meade for their
respective holdings of the Sale Shares.
(b) A Bank Draft for the C and Preference Stockholder Purchase Price.
(c) Certificate of Purchaser pursuant to sub-section 8.1.
(d) Certified copy Resolution of Purchaser pursuant to sub-section 8.3.
9.2 Consummation of Closing. All acts, deliveries, and confirmations
comprising the Closing regardless of chronological sequence shall be deemed
to occur contemporaneously and simultaneously upon the occurrence of the last
act, delivery, or confirmation of the Closing and none of such acts,
deliveries, or confirmations shall be effective unless and until the last of
the same shall have occurred. The time of the Closing has been scheduled to
correspond with the close of business at the principal office of the Company
and, regardless of when the last act, delivery, or confirmation of the
Closing shall take place, the transfer of the Shares shall be deemed to occur
as of the close of business at the principal office of the Company on the
date of the Closing.
Section 10. For the purpose of assuring to the Purchaser the full benefit
of the business and goodwill of the Company;
10.1 Mr. Kelly, Mr. Duffy and Mr. Meade undertake with the Purchaser that
for the period of 2 years after none of them will carry on or be engaged,
concerned or interested in carrying on the Restricted Business any place in
the world either on his own behalf or in conjunction with or on behalf of any
other person, form or body corporate. "Restricted Business" means the
manufacture of illumination products including but not limited to Light
emitting diodes (LED), lasers, fibre optics and fluorescent illuminators used
in industrial inspection applications.
10.1.2 For the period of two years after the Completion Date :
(a) Mr. Kelly, Mr. Duffy or Mr. Meade shall not (either on their
own account or in conjunction with or on behalf of any other
person, firm or body corporate) induce or attempt to
persuade any former, current or future employee, agent,
manager, consultant, director or other participant in the
Company's business to terminate such employment or other
relationship in order to enter into any relationship with
any of them any business organisation which any of them
participate in any capacity whatsoever or any other business
organisation in competition with the Company's business; or
(b) Use contracts for proprietary information, trade secrets,
confidential information, customer lists, mailing lists, goodwill or
other intangible property used or used in connection with the
Company's business.
(c) Mr. Kelly, Mr. Duffy and Mr. Meade shall procure that no body
corporate owned or controlled directly or indirectly by him will act
in such a way as would be a contravention of the obligations
contained in this clause if any one of them were so to act.
10.2 Modifications. While the restrictions in this clause are considered
by the parties to be reasonable and indispensable in all circumstances as of
the date of this Agreement it is acknowledged that restrictions of that
nature may be invalid because of changes in circumstances or other unforeseen
reasons; therefore if any restrictions are held to be void by any court or
regulatory authority but would be valid if part of the wording were amended
or the relevant period or scope reduced these restrictions will apply with
the modifications necessary to make them valid and effective and these
modifications will not effect the validity of any other restriction in this
agreement.
PAGE 20 -- STOCK PURCHASE AGREEMENT
<PAGE>
Section 11. Termination.
11.1 Termination for Cause. If, pursuant to the provisions of Section 7
or 8 of this Agreement, Mr. Kelly, Mr. Duffy or Mr. Meade or the Purchaser is
not obligated at the Completion Date to consummate this Agreement, then the
party who is not so obligated may terminate this Agreement.
11.2 Termination Without Cause. Anything herein or elsewhere to the
contrary notwithstanding, this Agreement may be terminated and abandoned at
any time without further obligation or liability on the part of any party in
favour of any other by mutual consent of the Purchaser and Mr. Kelly, Mr.
Duffy and Mr. Meade.
11.3 Termination Procedure. Any party having the right to terminate this
Agreement due to a failure of a condition precedent contained in Sections 7
or 8 hereto may terminate this Agreement by delivering to the other party
written notice of termination, and thereupon, this Agreement will be
terminated without obligation or liability of any party.
Section 12. Miscellaneous Provisions.
12.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified, or supplemented only by a written
agreement signed by the Purchaser and Mr. Kelly, Mr. Meade and Mr. Duffy.
12.2 Waiver of Compliance; Consents
12.2.1 Any failure of any party to comply with any obligation,
covenant, agreement, or condition herein may be waived by the party entitled
to the performance of such obligation, covenant, or agreement or who has the
benefit of such condition, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement, or condition will not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
12.2.2 Whenever this Agreement requires or permits consent by or on
behalf of any party hereto, such consent will be given in a manner consistent
with the requirements for a waiver of compliance as set forth above.
12.3 Payment of Fees and Expenses. Each party to this Agreement will
be responsible for, and will pay, all of its own fees and expenses, including
those for its own counsel and accountants, incurred in the negotiation,
preparation, and consumption of this Agreement and this purchase and sale.
12.4 Notices. Notice under this Agreement shall be in writing
and shall be effective when actually delivered. If mailed, notice shall be
deemed effective 48 hours after mailing by express mail, directed to the
other party at the address set forth below or such other address as the party
may indicate by written notice to the other
addressed to Stocker & Yale at::
32 Hampshire Road
Salem, New Hampshire 03079
addressed to CorkOpt Ltd. at::
Unit 12, Penrose Wharf
Cork, Ireland,
addressed to W.M. Kelly at:
PAGE 21 -- STOCK PURCHASE AGREEMENT
<PAGE>
Birchfield House, Carrigaline, Co. Cork
Addressed to Mr. Duffy at:
3 Eyrecourt, Rochestown, Co. Cork
Addressed to Mr. Meade at:
Barnavara House, Glanmire, Co. Cork
or at any other address as any party may, from time to time, designate
by notice given in compliance with this section.
12.5 No Release. The parties agree that the covenants,
representations and warranties made by the parties hereto will survive the
Closing of this agreement for two years from the date of Closing and the
Closing shall not serve to release any party from any obligations herein.
12.6 Waiver. Failure of any party hereto at any time to require
performance of any provision of this Agreement shall not limit the party's
right to enforce the provision, nor shall any waiver of any breach of any
provision be a waiver of any succeeding breach of any provision or a waiver
of the provision itself for any other provision.
12.7 Assignment. Except as otherwise provided within this
Agreement, no party hereto may transfer or assign this Agreement without
prior written consent of the other parties.
12.8 Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of Ireland.
12.9 Attorney Fees. In the event a suit or action is brought by
any party under this Agreement to enforce any of its terms, or in any appeal
therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the trial and/or appellate court.
12.10 Titles and Captions. All article, section and paragraph
titles or captions contained in this Agreement are for convenience only and
shall not be deemed part of the context nor affect the interpretation of this
Agreement.
12.12 Pronouns and Plurals. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular
or plural as the identity of the Person or Persons may require.
12.13 Entire Agreement. This Agreement contains the entire
understanding between and among the parties and supersedes any prior
understandings and agreements among them respecting the subject matter of
this Agreement.
12.14 Agreement Binding. This Agreement shall be binding upon
the heirs, executors, administrators, successors and assigns of the parties
hereto.
12.15 Further Action. The parties hereto shall execute and
deliver all documents, provide all information and take or forbear from all
such action as may be necessary or appropriate to achieve the purposes of
this Agreement.
12.16 Counterparts. This Agreement may be executed in several
counterparts and all so executed shall constitute one Agreement, binding on
all the parties hereto even though all the parties are not signatories to the
original or the same counterpart.
12.17 Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the
<PAGE>
application of such provision to persons or circumstances other than those as
to which it is held invalid, shall not be affected thereby.
The parties hereto have signed this Agreement by their authorized
representatives as of the date set forth above.
SIGNED on behalf of
STOCKER & YALE INC.
in the presence of;
SIGNED on behalf of
CORKOPT LIMITED
in the presence of;
SIGNED SEALED AND
DELIVERED by
WILLIAM M. KELLY
in the presence of;
SIGNED SEALED AND
DELIVERED by
THOMAS MEADE
in the presence of;
SIGNED SEALED AND
DELIVERED by
GARY DUFFY
in the presence of;
PAGE 23 -- STOCK PURCHASE AGREEMENT
<PAGE>
EXHIBIT & SCHEDULE LISTS
PAGE 24 -- STOCK PURCHASE AGREEMENT
<PAGE>
2.16(A) AND 2.16(B): 1999 FINANCIAL STATEMENTS
PAGE 25 -- STOCK PURCHASE AGREEMENT
<PAGE>
2.16(C) YEAR 2000 FINANCIAL STATEMENTS
PAGE 26 -- STOCK PURCHASE AGREEMENT
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE
NUMBERS DESCRIPTION
<S> <C>
2.10 'B' Shares: SEE PRIVATE PLACEMENT DOCUMENTS DATED SEPTEMBER 1996 AND
28TH FEBRUARY 1998 IN RELATION TO THE ISSUES OF B SHARES UNDER THE
BUSINESS EXPANSION SCHEME IN 1997 AND 1998. THE WARRANTORS HAVE NO
OBLIGATIONS OR RESPONSIBILITIES TO THE HOLDERS OF THE `B' SHARES. IN
VIEW OF THE PROVISIONS OF SECTION 495 OF TAXES CONSOLIDATION ACT
1997 A CONCESSION WAS SOUGHT FROM THE REVENUE COMMISSIONERS IN
RELATION TO THE CHANGE IN CONTROL RESULTING FROM THE ACQUISITION BY
THE PURCHASER OF THE SHARES (EXCLUDING THE `B' SHARES). A COPY OF
LETTER FROM RONAN DALY JERMYN DATED 24TH MARCH 2000 AND COPY OF
RESPONSE FROM THE REVENUE DATED 6TH APRIL 2000 ARE ATTACHED.
2.12 Exceptions to Section 2.12's representation of no default on other
contracts: NONE.
2.16 Exceptions to events in the financial statements: NONE.
2.17 Exceptions to events described in the financial statements: NONE.
2.19 Material adverse changes: NONE, SAVE LEASE DATED 5TH MAY 2000
ENTERED INTO BY THE COMPANY WITH BANK OF IRELAND FINANCE LIMITED IN
RELATION TO A DATACON MULTI-CHIP DIE BONDER, COPY ALREADY FURNISHED.
2.21 Exceptions to Company's marketable title to its property:
NONE, SAVE THE LETTING AGREEMENT DATED 4TH SEPTEMBER 1997
WITH PARK VINE LIMITED WHICH RESERVES A RENT OF
(POUND)1,000 PER MONTH (EXCLUSIVE OF VAT) HAS NOT BEEN
STAMPED.
2.23 Exceptions to Section 2.23 representation of no lawsuits
against Company: NONE, SAVE THE FOLLOWING - THE COMPANY IS
IN DISPUTE WITH A CUSTOMER, LASIRVIS, IN RELATION TO SUPPLY
OF LASER DRIVE ELECTRONICS. LASIRVIS HAVE PURCHASED LASER
DRIVE ELECTRONICS FROM THE COMPANY SINCE EARLY 1998, WITH
NO PROBLEMS REPORTED. IN JULY 1999, LASIRVIS PLACED AN
ORDER FOR 500 LASER DRIVE ELECTRONICS AT IEP6.35 EACH
(P0628F107). THE ORDER WAS DELIVERED IN FULL TO LASIRVIS ON
INVOICE NUMBERS 990720, 990807, 990815. INVOICE NUMBERS
990720 AND 990807 HAVE BEEN PAID IN FULL. A BALANCE OF
(POUND)1,587.50 REMAINS UNPAID ON INVOICE NUMBER 990815. IN
OCTOBER 1999, LASIRVIS PLACED AN ORDER FOR 500 LASER DRIVE
ELECTRONICS AT IEP6.35 EACH (P0628F140). 50% OF THIS ORDER
WAS DELIVERED ON 1/11/99 ON INVOICE NUMBER 991101. THIS
INVOICE ((POUND)1,587.50) REMAINS UNPAID. LASIRVIS INFORM
THE COMPANY THAT THEY ARE EXPERIENCING DIFFICULTIES WITH
THE LASER DRIVE ELECTRONICS SINCE THEY CHANGED THE LASER
WHICH THEY ARE USING. THE COMPANY HAS MADE EFFORTS TO
OBTAIN SAMPLES OF THE LASERS FROM LASIRVIS IN AN ATTEMPT TO
UNDERSTAND AND RECTIFY THE PROBLEM, HOWEVER LASIRVIS HAVE
NOT BEEN PREPARED TO SUPPLY US WITH A SAMPLE OF THEIR
LASERS. THE COMPANY TESTED THE LASER DRIVE
PAGE 27 -- STOCK PURCHASE AGREEMENT
<PAGE>
ELECTRONICS IN-HOUSE AND HAVE NOT EXPERIENCED ANY
DIFFICULTIES. IN SUMMARY, LASIRVIS CURRENTLY OWE THE
COMPANY (POUND)3,195. THEY ARE REFUSING TO PAY THIS AMOUNT
and MAY BE RETURNING THE GOODS TO THE COMPANY. UNTIL THE
GOODS ARE RECEIVED WE ARE IN A POSITION TO KNOW WHETHER OR
NOT THE GOODS ARE FIT FOR RESALE.
2.24 Exceptions to Section 2.24 representation of all taxes paid and
reported: NONE, SAVE THAT THE ROYALTIES PAID BY THE COMPANY
TO MR. KELLY IN THE PERIOD DECEMBER 1994 TO MAY 2000 ON
FOOT OF THE PATENT ROYALTY AGREEMENT DATED 1ST SEPTEMBER
1994 WERE PAID GROSS WITHOUT DEDUCTION OF WITHHOLDING TAX.
SUCH TAX WAS NOT WITHHELD ON THE BASIS THAT THE ROYALTIES
ARE TAX EXEMPT IN THE HANDS OF MR. KELLY AND ANY TAX SO
WITHHELD WOULD HAVE, IN ANY EVENT, BEEN CLAIMED BACK BY MR.
KELLY FROM THE REVENUE COMMISSIONERS. IT IS ESTIMATED THAT
THE AMOUNT OF TAX IN QUESTION IS APPROXIMATELY
IR(POUND)31,660 WITH POTENTIAL INTEREST OF IR(POUND)6,500.
TO DATE, NO CLAIM OR DEMAND HAS BEEN made by the REVENUE
COMMISSIONERS TO THE COMPANY FOR SUCH TAX OR INTEREST.
2.26 Exceptions to Section 2.26 representation of no broker's fees due:
NONE.
2.27 List of insurance policies -
a. KEYMAN LIFE ASSURANCE POLICY ON THE LIFE OF WILLIAM M. KELLY
FOR (POUND)300,000 WITH NORWICH UNION; POLICY NUMBER
A417426OU.
b. OMNIBUS INSURANCE POLICY WITH ST. PAUL INTERNATIONAL INSURANCE
COMPANY LIMITED; POLICY NUMBER ICTSI3398683.
2.28 Exceptions to Section 2.28 representations regarding employees and
labour matters: NONE.
2.32 Exceptions to Section 2.32 representations regarding powers of
attorney: NONE.
2.34 List of Company's contracts: AGENCY AGREEMENT WITH BEMITECH
COMPRISED OF LETTERS DATED 30/11/99 AND 13/12/99, ROYALTY AGREEMENT
WITH W.M. KELLY T/A BARBICAN CONSULTANTS DATED 1/9/94, LEASE
AGREEMENT DATED 11TH MARCH 1998 WITH BANK OF IRELAND FINANCE
LIMITED. LEASE AGREEMENT DATED 5TH MAY 2000 WITH BANK OF IRELAND
FINANCE LIMITED. LEASE AGREEMENT DATED 20TH OCTOBER 1997 WITH
WOODCHESTER FINANCE LIMITED. LETTING AGREEMENT DATED 4TH SEPTEMBER
1997 WITH PARK VINE LIMITED.
2.35 List of all personal property: SEE FIXED ASSET REGISTER ATTACHED.
2.37 List of all real property: LETTING AGREEMENT DATED 4TH SEPTEMBER
1997 WITH PARK VINE LIMITED.
2.38 Officer, director, & employee info:
2.38.1: EMPLOYEES:
WILLIAM M. KELLY
CHRISTIAN HEGARTY
BRIAN JONES
SIMON STANLEY
LISA MORRISON
NORA MURPHY
ALAN DORGAN
MARK GILLIS
SIOBHAN O'SULLIVAN (PART-TIME)
GRAHAM KELLS
EDMOND O'CARROLL
PAGE 28 -- STOCK PURCHASE AGREEMENT
<PAGE>
2.38.2: DIRECTORS:
WILLIAM M. KELLY
GARY DUFFY
TOM MEADE
ANNE KELLY
2.38.3 SEE CONTRACTS OF EMPLOYMENT ALREADY FURNISHED.
2.38.4: NONE
2.38.5: NONE
2.38.6: SEE CONTRACTS OF EMPLOYMENT ALREADY FURNISHED
2.39 List of intellectual property: THE COMPANY PAYS ROYALTIES TO W.M. KELLY
T/A BARBICAN CONSULTANTS UNDER LICENCE AGREEMENT DATED 1ST
SEPTEMBER 1994.
2.40 Description of all "Employee Welfare Benefit Plans" and
"Employee Pension Benefit Plans": THE COMPANY
HAS ESTABLISHED A RETIREMENT BENEFIT SCHEME TO
WHICH EMPLOYEES WHO HAVE COMPLETED 2 YEARS
SERVICE ARE INVITED TO JOIN. SEE ATTACHED
LETTERS FROM WINTRUST LTD OF 4TH MAY 2000 AND
LETTER FROM REVENUE COMMISSIONERS DATED 28TH
FEBRUARY 2000.
2.42 List transactions with affiliates: NONE.
2.52 Grant Agreements etc: SEE ATTACHED.
3.4 Exceptions to Section 3.4's representation regarding
effects of the Agreement on other Purchaser contracts,
laws, etc.: REPORT ON FORM 8-K. FORM D NOTICE OF
SALE OF SECURITIES PURSUANT TO REGULATION D,
SECTION 4(6), AND/OR UNIFORM LIMITED OFFERING
EXEMPTION.
</TABLE>
PAGE 29 -- STOCK PURCHASE AGREEMENT
<PAGE>
EXHIBIT 1
'A' ORDINARY SHARES OF IR(POUND)1 EACH
<TABLE>
<CAPTION>
NAME OF SHAREHOLDER ADDRESS NO. OF SHARES HELD
---------------------------------------------------------------------------------------
<S> <C> <C>
William M. Kelly Birchfield House, Carrigaline
Co. Cork 24028
Thomas Meade Barnavara House, Glanmire,
Co. Cork 2930
University College Cork Western Road, Cork 2051
Gary Duffy 3 Eyrecourt, Rochestown,
Co. Cork 1491
Gerard Conlon 45 Glenwood, Carrigaline,
Co. Cork 519
Anne Kelly Birchfield House, Carrigaline,
Co. Cork 293
All shares allotted and paid up.
"B" ORDINARY SHARES OF IR(POUND)1 each
All shares allotted and paid up.
NAME OF SHAREHOLDER ADDRESS NO. OF SHARES HELD
------------------------------------------------------------------------------------
Liam Coughlan Lackaroe, Glenbrook,
Co. Cork 5000
NAME OF SHAREHOLDER ADDRESS NO. OF SHARES HELD
------------------------------------------------------------------------
Edward Holland Lisfehill, Ballinhassig,
Co. Cork 5000
Dermot Moloney Coakley Moloney Solicitors
49 South Mall, Cork 2500
Martin O'Sullivan 42 Shannon Drive, Corbally
Limerick 5000
Helen Mary Crowley "The Gift Shop", The Square,
Bantry, Co. Cork 2000
Gerard Murphy 7000
P.J. Dineen Dineen Financial, 59 South
Mall, Cork 5000
"Gemini", Mount Oval,
Rochestown, Co. Cork 5000
PAGE 30 -- STOCK PURCHASE AGREEMENT
<PAGE>
John Kiely DunArd, Firville West, Mallow
Co. Cork 5000
Seamus Buckley 64 Richmond Wood, Glanmire
Co. Cork 15000
James Lyons Lazy Acre, Clogheen, Co. Cork 10000
Desmond Byrne 32 Springfort Crescent,
Montenotte, Cork 5000
Kieran Hart Ringrone, Kinsale, Co. Cork 10000
David Irish Ballylangley, Bandon, Co. Cork 10000
Patricia Horan Castledillon, Straffan, Co. Kildare 25000
Basil Casserly 27 Woodvale Road, Beaumont,
Cork 5000
Tom Meade Barnavara House, Glanmire, 25000
Co. Cork
Gary Duffy 3 Eyrecourt, Rochestown,
Co. Cork 25000
Mary Coady 17 Gilford Avenue, Sandymount
Dublin 4 7000
Fiona Duffy 44 Merlyn Park, Ballsbridge
Dublin 4 10000
Nora O'Dowling 1 Knockrea, Blackrock Road, Cork 10000
Joseph Barter Castlequinn, Caherciveen,
Co. Kerry 5000
P.J. O'Driscoll Kilbrogan Hill, Bandon, Co.
Cork 12500
Bernard Cronin "Haven", Maryborough Hill,
Douglas, Cork 13000
Dennis J. O'Reilly Killkerran, Ballinspittle, Kinsale,
Co. Cork 10000
Jerome O'Reilly Killkerran, Ballinspittle, Kinsale, Co. Cork 10000
PAGE 31 -- STOCK PURCHASE AGREEMENT
<PAGE>
Fintan Crowley Greencloyne, Mallow,
Co. Cork 5000
Kieran Quill Nelson House, Emmet Place,
Youghal, Co. Cork 5000
Mick McCarthy Freshford, Co. Kilkenny
15000
Jerry Moynihan 6 Princes Street Market, Cork 10000
Pat Dineen Temple Lawn House, Blackrock
Road, Cork 10000
P O'Shea 20 Innishmaan Road, Whitehall,
Dublin 9 3000
"C" ORDINARY SHARES OF IR(POUND)1 each
NAME OF SHAREHOLDER ADDRESS NO. OF SHARES HELD
----------------------------------------------------------------------------------
Enterprise Ireland Wilton Place, Dublin 2 36534
All shares allotted and paid up.
REDEEMABLE PREFERENCE SHARES OF IR(POUND)1 each
NAME OF SHAREHOLDER ADDRESS NO. OF SHARES HELD
-----------------------------------------------------------------------------------
Enterprise Ireland Wilton Place, Dublin 2 10000
All shares allotted and paid up.
</TABLE>
STOCK PURCHASE AGREEMENT
PAGE 32 -- STOCK PURCHASE AGREEMENT
<PAGE>
RONAN DALY JERMYN
SOLICITORS
12 SOUTH MALL
CORK
9367 Corkopt/000526 Revised Stock Purchase Agreement
PAGE 33 -- STOCK PURCHASE AGREEMENT
