EXHIBIT 1.1
6,000,000 AMERICAN DEPOSITARY SHARES
REPRESENTING 3,000,000
ORDINARY SHARES
(nominal value $0.0027 per share)
TRINTECH GROUP PLC
GLOBAL UNDERWRITING AGREEMENT
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April __, 2000
Deutsche Bank AG (London Branch)
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
Xxxxx Securities Inc.
As Representatives of the
Several Underwriters
c/o Deutsche Bank AG (London Branch)
0 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Ladies and Gentlemen:
Trintech Group PLC, a public limited company incorporated under the laws of the
Republic of Ireland (the "Company"), proposes to sell to the several
underwriters (the "Underwriters") named in Schedule I hereto, for whom you are
acting as representatives (the "Representatives"), an aggregate of 6,000,000
American Depositary Shares ("Firm ADSs") representing 3,000,000 ordinary shares
of nominal value $0.0027 each of the Company (the "Firm Shares") to be deposited
pursuant to the Deposit Agreement hereinafter referred to. The respective
amounts of the Firm ADSs to be so purchased by the several Underwriters are set
forth opposite their names in Schedule I hereto. The Company and certain
shareholders of the Company (the "Selling Shareholders") propose to sell, at the
Underwriters' option, an aggregate of up to 900,000 additional American
Depositary Shares ("Option ADSs") representing 450,000 ordinary shares, nominal
value $0.0027 each of the Company (the "Option Shares") to be deposited pursuant
to the Deposit Agreement if and to the extent you shall have determined to
exercise the right to exercise the option as set forth below. The Company and
the Selling Shareholders are sometimes referred to herein collectively as the
"Sellers."
As the Representatives, you have advised the Company and the Selling
Shareholders (a) that you are authorized to enter into this Agreement on behalf
of the several Underwriters, and (b) that the several Underwriters are willing,
acting severally and not jointly, to purchase the number of Firm ADSs set forth
opposite their respective names in Schedule I, plus their pro rata portion of
the Option ADSs if you elect to exercise the over-allotment option in whole or
in part for the accounts of the several Underwriters. The Firm ADSs and Option
ADSs (to the extent the aforementioned option is exercised) are herein
collectively called the "Shares" or "ADSs". The Shares will be evidenced by
American Depositary Receipts (the "ADRs") issuable in accordance
with a Deposit Agreement to be dated as of September 27, 1999 among the Company,
The Bank of New York, as Depositary (the "Depositary"), and all owners and
beneficial owners from time to time of the Shares (the "Deposit Agreement").
Unless the context otherwise requires, references herein to the Shares shall
include the ADRs evidencing the Shares.
In consideration of the mutual agreements contained herein and of the interests
of the parties in the transactions contemplated hereby, the parties hereto agree
as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING SHAREHOLDERS.
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(a) The Company represents and warrants to each of the Underwriters as
follows:
(i) A registration statement on Form F-1 (File No. 333-10738) with
respect to the Shares has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), and the Rules and Regulations (the
"Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed with
the Commission under the Act. Copies of such registration
statement, including any amendments thereto, the preliminary
prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits and financial
statements, as amended and revised through the date hereof, have
heretofore been delivered by the Company to you. Such
registration statement on Form F-1, together with any
registration statement filed by the Company pursuant to Rule
462(b) under the Act, herein referred to as the "Registration
Statement," which shall be deemed to include all information
omitted therefrom in reliance upon Rule 430A and contained in
the prospectus referred to in the next sentence, has become
effective under the Act, and no post-effective amendment to the
Registration Statement has been filed as of the date of this
Agreement. "Prospectus" means the form of prospectus first
filed by the Company with the Commission pursuant to Rule
424(b). Each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective or
filed pursuant to Rule 424(a) under the Act is herein referred
to as a "Preliminary Prospectus." Any reference herein to any
Prospectus shall be deemed to include any supplements or
amendments thereto filed with the Commission after the date of
filing of the Prospectus under Rule 424(b) or Rule 430A, and
prior to the termination of the offering of the Shares by the
Underwriters.
(ii) A registration statement on Form F-6 (File No. 333-10742) with
respect to the ADRs and the ADSs has been carefully prepared by
the Company in conformity with the requirements of the Act and
the Rules and Regulations and has been filed with the Commission
under the Act. The Company has complied with the conditions for
the use of Form F-6. Copies of such registration statement,
including any amendments
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thereto, the prospectus (meeting the requirements of the Rules
and Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have
heretofore been delivered by the Company to you. The
registration statement on Form F-6 with respect to the ADRs and
the ADSs, as amended at the time when it becomes effective, is
herein referred to as the "ADR Registration Statement".
(iii) Prior to the date of this Agreement, the Company has prepared
an uncompleted German sales prospectus ("Preliminary German
Sales Prospectus"/Unvollstanddiger Wertpapierverkaufsprospekt")
and it will prepare a German Stock Exchange Admission Prospectus
("German Admission Prospectus"/Verkaufsprospekt,
Untemehmensbericht) in connection with the admission of the
Shares for trading and quotation in the Regular Market/New
Market on the Frankfurt Stock Exchange.
The Preliminary German Sales Prospectus and the German Admission
Prospectus (on their respective dates and together with each and
all amendments and supplements thereto the "German Offer
Documents") are -- with regard to the most substantial aspects -
- a translation of the Prospectus. The German Offer Documents
are substantially in conformity with the rules and regulations
under German Law and contain all statements which are required
to be stated therein, excluding statements waived by the
Frankfurt Stock Exchange (the "FSE").
(iv) Deutsche Bank AG, acting for the Underwriters, has informed us
that they will on behalf of and in cooperation with the Company
apply for the admission of the total share capital of the
Company for trading in the Regular Market/New Market on the
Frankfurt Stock Exchange. In accordance with requirements of
the listing agent between the Company and Deutsche Bank AG, in
connection with such application, the Company, in cooperation
with Deutsche Bank AG, shall endeavor to obtain the listing as
promptly as possible and the Company and Deutsche Bank AG shall
furnish any and all documents, instruments, information, notices
and representations and warranties that may be necessary or
advisable in order to obtain and to maintain the listing of all
Shares of the Company on the Frankfurt Stock Exchange. The
Company makes no representation as to whether Deutsche Bank AG
will perform as described in this paragraph.
(v) The Company has been duly organized and is validly existing as a
company under the laws of the Republic of Ireland, with
corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement
and the German Offer Documents. Each of the subsidiaries of the
Company, as set forth in the Registration Statement and the
German Offer Documents, (collectively, the "Subsidiaries") has
been duly organized and is validly
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existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with corporate power and
authority to own or lease its properties and conduct its
business as described in the Registration Statement and the
German Offer Documents. The Subsidiaries, as set forth in the
Registration Statement and the German Offer Documents, are the
only owned subsidiaries, direct or indirect, of the Company.
The Company and each of the Subsidiaries will be duly
qualified, prior to the Closing Date, to transact business in
all jurisdictions in which the conduct of their business
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
business, property, financial condition or operations of the
Company and the Subsidiaries, taken as a whole (a "Material
Adverse Effect").
(vi) Except as disclosed in the Registration Statement, the
outstanding shares of capital stock of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid
and non-assessable and are owned directly or indirectly by the
Company free and clear of all liens, charges, encumbrances,
security interests, restrictions and claims; and no options,
warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations
into shares of capital stock or ownership interests in any of
the Subsidiaries are outstanding.
(vii) The Company has an authorized capitalization as set forth in
the Registration Statement and the German Offer Documents. All
capital stock of the Company outstanding prior to the issuance
of the ordinary shares underlying the ADSs to be sold by the
Company hereunder have been duly authorized and are validly
issued, fully paid and not subject to any call.
(viii) The unissued ordinary shares underlying the ADSs to be sold by
the Company to the Underwriters hereunder have been duly and
validly authorized and, when issued and deposited under the
Deposit Agreement in accordance with the terms of this
Agreement, will be duly and validly issued, fully paid and not
subject to any call. The ordinary shares underlying the ADSs to
be sold by the Selling Shareholders hereunder have been duly
authorized and when deposited under the Deposit Agreement, in
accordance with the terms of this Agreement, will be fully paid
and not subject to any call. The issuance of such ordinary
shares and the offering, sale and issuance of the ADSs and ADRs
will not be subject to any preemptive or similar rights other
than those which have been waived or satisfied. Neither the
filing of the Registration Statement, the German Offer
Documents, the ADR Registration Statement, nor the offering and
sale of the ADSs as contemplated by this Agreement and the
Deposit Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the
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registration of any ordinary shares or other capital stock of
the Company.
(ix) Upon the deposit of the ordinary shares underlying the ADSs to
be sold by the Company hereunder with the Depositary pursuant
to the Deposit Agreement against issuance of the ADRs
representing such ADSs, all right, title and interest in such
ADSs, subject to the Deposit Agreement, will be transferred to
the Depositary or its nominee, as the case may be, free and
clear of all liens, charges, encumbrances, security interests,
restrictions, and claims; upon the due issuance by the
Depositary of ADRs evidencing ADSs against the deposit of the
ADSs in accordance with the provisions of the Deposit
Agreement, such ADRs will be duly and validly issued and
persons in whose names such ADRs are registered will be
entitled to the rights of registered holders of ADRs specified
therein and in the Deposit Agreement.
(x) The issuance and deposit with the Depositary of the ordinary
shares underlying the ADSs to be sold by the Sellers hereunder
against issuance of the ADRs evidencing such ADSs, the sale and
delivery of such ADSs and the execution and delivery by the
Sellers of, and the performance by the Sellers of their
obligations under, this Agreement and the Deposit Agreement
will not contravene any provision that is material to the
Company and its Subsidiaries taken as a whole, of the federal
laws of the United States or the laws of the Republic of
Ireland, or the Memorandum or Articles of Association of the
Company, or any agreement or other instrument binding upon the
Company or any of its Subsidiaries that is material to the
Company and its Subsidiaries taken as a whole or any judgment,
or decree of any United States, Irish or German governmental
body, agency or court having jurisdiction over the Company or
any of its Subsidiaries, and no consent, approval,
authorization or order of, or qualification with, any United
States, Irish or German governmental body or agency is required
for the performance by the Company of its obligations under
this Agreement and the Deposit Agreement except such as may be
required by the securities or Blue Sky laws of the various
states within the United States in connection with the offer
and sale of the ADSs.
(xi) The information set forth under the caption "Capitalization" in
the Prospectus and under the caption "Kapitalisierung" in the
German Offer Documents is true and correct (other than for
subsequent issuances and grants pursuant to benefit plans
described in the Prospectus or the exercise of outstanding
options described in the Prospectus). All of the ordinary
shares, ADSs and the ADRs conform, in all material respects, to
the descriptions thereof contained in the Registration
Statement, the ADR Registration Statement and the German Offer
Documents. The form of certificate for the ordinary shares
conforms to the corporate law of the Republic of Ireland.
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(xii) The Commission has not issued an order preventing or suspending
the use of any Preliminary Prospectus or Prospectus relating to
the proposed offering of the Shares nor instituted proceedings
for that purpose. The Registration Statement, the ADR
Registration Statement and the Prospectus contain, and any
amendments or supplements thereto will contain, all statements
which are required to be stated therein by, and in all material
respect conformed or will conform, as the case may be, to the
requirements of the Act and the Rules and Regulations. Neither
the Registration Statement, the ADR Registration Statement, nor
any amendment or supplement thereto contains or will contain,
as the case may be, any untrue statement of a material fact or
omits or will omit to state any material fact required to be
stated therein or necessary to make the statement therein, not
misleading and neither the Prospectus nor any amendment or
supplement thereto contains or will contain, as the case may
be, any untrue statement of a material fact or omits or will
omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, provided, however, that
the Company makes no representations or warranties as to
information contained in or omitted from the Registration
Statement, the ADR Registration Statement or the Prospectus, or
any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Company
by or on behalf of any Underwriter through the Representatives,
specifically for use in the preparation thereof.
Neither the German Offer Documents nor any amendment or
supplement thereto contains or will contain, as the case may
be, any untrue statement of a material fact or omits or will
omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the
German Offer Documents, or any such amendment or supplement
thereto, in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives, specifically for use
in the preparation thereof.
(xiii) The consolidated financial statements of the Company and the
Subsidiaries, together with the related notes thereto as set
forth in the Registration Statement, the Prospectus and the
German Offer Documents present fairly the financial position
and the results of operations and cash flows of the Company and
the Subsidiaries on a consolidated basis, at the indicated
dates and for the indicated periods. Such financial statements
have been prepared in accordance with United States generally
accepted accounting principles consistently applied throughout
the periods involved, and all adjustments necessary for a fair
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presentation of results for such periods have been made. The
amounts reserved in such financial statements for the payment
of unpaid Irish, U.S. federal or other income taxes are
adequate. The summary financial and statistical data included
in the Registration Statement, the Prospectus and the German
Offer Documents present fairly the information shown therein
and, to the extent such information is derived from the
financial statements of the Company and the Subsidiaries, have
been compiled on a basis consistent with the financial
statements presented therein. The pro forma financial
information included in the Registration Statement and the
Prospectus have been prepared in accordance with the
Commission's rules and guidelines with respect to such pro
forma financial information, have been properly compiled on the
pro forma bases described therein, and, in the reasonable
opinion of the Company, except to the extent otherwise required
to comply with the Commission's rules and guidelines with
respect to pro forma financial information, the assumptions
used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(xiv) Except as disclosed in the Registration Statement, the
Prospectus and the German Offer Documents, there is no legal or
governmental action, suit, claim or proceeding pending or, to
the knowledge of the Company, threatened against the Company or
any of the Subsidiaries before any court or administrative
agency or otherwise which would reasonably be expected to
result in a Material Adverse Effect or to prevent the
consummation of the transactions contemplated hereby.
(xv) The Company and the Subsidiaries have good and marketable title
to all of the properties and assets reflected in the financial
statements (or as described in the Registration Statement and
the German Offer Documents) hereinabove described, subject to
no lien, mortgage, pledge, charge, security interest or
encumbrance of any kind except liens for taxes not yet due,
those reflected in such financial statements (or as described
in the Registration Statement and the German Offer Documents)
or which are not material in amount. The Company and the
Subsidiaries occupy their leased properties under valid,
subsisting and enforceable leases with such exceptions as are
not material and do not materially interfere with the use made
and proposed to be made of such properties by the Company and
its Subsidiaries.
(xvi) The Company and each of the Subsidiaries have filed with the
appropriate taxing authorities all Irish, U.S. federal, state
and foreign income and franchise tax returns which are required
to have been filed through the date hereof and have paid all
taxes indicated by said returns and all assessments received by
any of them to the extent that such taxes have become due and
are not being contested in good faith. All unpaid tax
liabilities have been adequately provided for in the financial
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statements of the Company and the Subsidiaries, and the
Company does not know of any actual or proposed additional
material tax assessments.
(xvii) Since the respective dates as of which information is given
in the Registration Statement, the ADR Registration
Statement, the Prospectus and the German Offer Documents, as
they may be amended or supplemented, there has not been any
material adverse change or a development involving a material
adverse change in or affecting the earnings, business,
management, properties, assets, results of operations,
condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole, whether or not
occurring in the ordinary course of business, and there has
not been any material transaction entered into by the Company
or any of the Subsidiaries, other than changes, developments
or transactions in the ordinary course of business and
changes, developments and transactions set forth in or
contemplated by the Registration Statement, the Prospectus
and the German Offer Documents, as they may be amended or
supplemented. Neither the Company nor any of the Subsidiaries
have contingent obligations material to the Company and the
Subsidiaries taken as a whole which are not disclosed in the
Registration Statement and the German Offer Documents, as
they may be amended or supplemented.
(xviii) Neither the Company nor any of the Subsidiaries is, nor do
there exist facts or circumstances that, with the giving of
notice, would cause the Company or any of the Subsidiaries to
be, in violation of or in default under its Memorandum of
Association, Articles of Association, Certificate of
Incorporation or By-laws or other organizational documents,
as the case may be, or under any material agreement, lease,
contract, indenture or other instrument or obligation to
which it is a party or by which it, or any of its properties,
is bound. The issuance of ordinary shares underlying the ADSs
and the issuance and the sale of the ADSs, the consummation
of the transactions herein contemplated and the fulfillment
of the terms hereof will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by
which the Company or any of the Subsidiaries is bound or to
which any of the property or assets of the Company or any of
its Subsidiaries is subject; nor will such action result in
any violation of the provisions of the Memorandum of
Association, Articles of Association, Certificate of
Incorporation or By-laws or other organizational documents,
as a case may be, of the Company or any of the Subsidiaries
or any Irish, German or U.S. order, rule or regulation
applicable to the Company or any of the Subsidiaries or any
Irish, German or U.S. court or any regulatory body or
administrative agency or other Irish, German or U.S.
governmental body having jurisdiction over the Company or any
of its Subsidiaries or any of their properties.
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(xix) The Company has full legal right, power and authority to enter
into this Agreement and the Deposit Agreement and perform the
transactions contemplated hereby. This Agreement and the
Deposit Agreement have been duly authorized, executed and
delivered by the Company and constitute the valid and binding
obligations of the Company in accordance with their terms.
(xx) Each approval, consent, order, authorization, resignation,
designation, declaration, qualification or filing by or with
any Irish, German or U.S. regulatory, administrative or other
governmental body required in connection with the issuance of
the ordinary shares underlying the ADSs and the issuance and
sale of the Shares, the execution and delivery by the Company
of this Agreement and the Deposit Agreement and the
consummation of the transactions contemplated hereby (except
such additional steps as may be required by the National
Association of Securities Dealers, Inc. ("NASD") or except as
may be necessary to qualify the Shares for public offering by
the Underwriters under U.S. state securities or Blue Sky laws
or except as may be necessary for listing and quotation on the
Frankfurt Stock Exchange) has been obtained or made and is in
full force and effect.
(xxi) The Company and each of the Subsidiaries hold all material
licenses, certificates and permits from governmental
authorities which are necessary to the conduct of their
businesses.
(xxii) Except as generally disclosed in the Registration Statement,
the Prospectus and the German Offer Documents, neither the
Company nor any of the Subsidiaries owns any material patent,
patent rights, registered designs or registered trademarks.
Except as disclosed in the Prospectus and the German Offer
Documents, the Company and the Subsidiaries have received all
approvals and governmental authorizations, and have the right
to use all trademarks, trade names, trade secrets,
servicemarks, inventions, patent rights, mask works,
copyrights, licenses, software code, audiovisual works,
formats, algorithms and underlying data now used in, or which
are necessary for fulfillment of their respective obligations
or the conduct of their respective businesses as now conducted
or proposed to be conducted as described in the Prospectus or
the German Offer Documents, except for such would not have a
Material Adverse Effect; and the Company has no knowledge of
any infringement by it or by any of the Subsidiaries of
trademarks, trade name rights, patent rights, mask works,
copyrights, licenses, trade secret, servicemarks or other
similar rights of others, and except as described in the
Prospectus or the German Offer Documents, there is no claim
being made against the Company or any of the Subsidiaries
regarding trademark, trade name, patent, mask work, copyright,
license, trade secret or other infringement or assertion of
intellectual property rights which could have a Material
Adverse Effect.
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To the Company's knowledge, no person or entity has
infringed any of the Company's or any of the Subsidiaries'
trade names, trademarks, trade secrets or copyrights, which
infringement is material to the business of the Company and
the Subsidiaries taken as a whole.
(xxiii) Ernst & Young, who have certified certain of the financial
statements filed with the Commission as part of the
Registration Statement and with the Deutsche Borse as part
of the German Offer Documents and who will give "comfort
letters" to the Underwriters with regard to the financial
statements and certain financial information included in the
Registration Statement and the German Offer Documents, are
independent public accountants as required by the Act and
the Rules and Regulations.
(xxiv) Neither the Company, nor any of the Subsidiaries, is, nor
upon consummation of the transactions contemplated hereby
and the application of the net proceeds as described in the
Registration Statement under the caption "Use of Proceeds"
and the German Offer Documents under the caption "Verwendung
des Emissionserloses" shall be, subject to registration as
an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(xxv) The ADSs have been approved for quotation on the Nasdaq
National Market subject to official notice of issuance.
(xxvi) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with
management's general or specific authorization, (ii)
transactions are recorded as necessary to permit preparation
of financial statements in conformity with United States
generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is
permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accountability
for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to
any differences.
(xxvii) The Company and each of the Subsidiaries carry, or are
covered by, insurance in such amounts and covering such
risks as is customary for companies engaged in similar
industries.
(xxviii) Neither the Company nor any of the Subsidiaries is involved
in any labor dispute, nor, to the knowledge of the Company,
is any such dispute threatened, other than individual
employee grievances in the ordinary course of business.
(xxix) Neither the Company nor any of the Subsidiaries have
incurred any liability for a fee, commission, or other
compensation on account of the
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employment of a broker or finder in connection with the
transactions contemplated by this Agreement other than as
contemplated hereby.
(xxx) All material transactions during the Company's current or
last three fiscal years between the Company, any of the
Subsidiaries and the officers, directors and 10%
shareholders of the Company or any of the Subsidiaries have
been accurately disclosed in the Prospectus and the German
Offer Documents to the extent required by the Rules and
Regulations; and to the Company's knowledge, the terms of
each such transaction are in all material respects fair to
the Company and the Subsidiaries and no less favorable to
the Company and the Subsidiaries than the terms that could
have been obtained from unrelated parties.
(xxxi) Except as disclosed in the Registration Statement, the
Company is not, and upon the consummation of the
transactions contemplated hereby and the application of the
net proceeds as described in the Registration Statement
under the caption "Use of Proceeds" and in the German Offer
Documents under the caption "Verwendung des
Emissionserloses" will not become, a "passive foreign
investment company" ("PFIC") as defined in Section 1297(a)
of the Internal Revenue Code of 1986, as amended (the
"Code").
(b) Each of the Selling Shareholders hereby represents and warrants as
follows:
(i) Each of the Selling Shareholders has as of the date of this
Agreement and at the Option Closing Date, as the case may be
(as such dates are hereinafter defined) will have good and
valid title to the ordinary shares to be deposited by it
with the Depositary pursuant to the Deposit Agreement, free
of any liens, charges, encumbrances, security interests,
restrictions and claims and full right, power and authority
to effect such deposit and the sale and delivery of the ADSs
representing such ordinary shares; and upon the sale and
delivery of the ADSs to be sold by such Selling Shareholder
hereunder, good and valid title thereto, free of any liens,
charges, encumbrances, security interests, restrictions and
claims, subject to the Deposit Agreement, will be
transferred to the several Underwriters who purchase such
shares in good faith without notice of adverse claims;
(ii) Such Selling Shareholder has (A) full right, power and
authority to execute and deliver this Agreement, and the
Custody Agreement and Power of Attorney referred in Section
2(a) and such Selling Shareholder's obligations under such
documents. The execution and delivery of this Agreement, the
Custody Agreement and Power of Attorney, the consummation by
such Selling Shareholder of the transactions herein and
therein contemplated and the fulfillment by such Selling
Shareholder of the terms hereof and thereof will not require
any consent, approval, authorization or order of or
declaration or filing with
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any court, regulatory body, administrative agency or other
governmental body (except as may be required under the Act
or United States state securities law or Blue Sky laws) and
will not result in a breach of any of the terms and
provisions of, or constitute a default under, the
organizational documents of such Selling Shareholder, if not
an individual, or any material indenture, mortgage, deed of
trust or other agreement or instrument to which such Selling
Shareholder is a party, or of any order, rule or regulation
applicable to such Selling Shareholder of any court or of
any regulatory body or administrative agency or other
governmental body having jurisdiction over such Selling
Shareholder;
(iii) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to, or which has
constituted or which might reasonably be expected to cause
or result in stabilization or manipulation of the price of
the ADSs to facilitate the sale or resale of the ADSs;
(iv) The information pertaining to such Selling Shareholder under
the caption "Principal Shareholders" in the Prospectus and
in the German Offer Documents under the caption
"Hauptaktionare" is complete and accurate in all material
respects;
(v) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date
of the Prospectus, such Selling Shareholder shall not offer,
sell, contract to sell or otherwise dispose of, except as
provided hereunder, any securities of the Company that are
substantially similar to the ordinary shares or the ADSs,
including but not limited to any securities that are
convertible into or exchangeable for, or that represent the
right to receive, ordinary shares or ADSs or any such
substantially similar securities (other than pursuant to
employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement),
without your prior written consent;
(vi) Certificates representing all of the ordinary shares to be
deposited by such Selling Shareholder hereunder have been
placed in custody under a Custody Agreement, in the form
heretofore furnished to you (the "Custody Agreement"), duly
executed and delivered by such Selling Shareholder to an
account in the name of the Company, as custodian (the
"Custodian"), and such Selling Shareholder has duly executed
and delivered a Power of Attorney, in the form heretofore
furnished to you (the "Power of Attorney"), appointing R.
Xxxx Xxxxx and Xxxx XxXxxxx as the Selling Shareholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority
to execute and deliver this Agreement on behalf of such
Selling Shareholder, to determine the purchase price to be
paid by the Underwriters to such Selling Shareholder as
provided in Section 2 hereof, to authorize the delivery of
the ordinary shares to be deposited
-12-
by such Selling Shareholder hereunder and otherwise to act
on behalf of such Selling Shareholder in connection with the
transactions contemplated by this Agreement and the Custody
Agreement; and
(vii) The ordinary shares represented by the certificates held in
custody for such Selling Shareholder under the Custody
Agreement are subject to the interests of the Underwriters
hereunder; the arrangements made by such Selling Shareholder
for such custody, and the appointment by such Selling
Shareholder of the Attorneys-in-Fact by the Power of
Attorney, are to that extent irrevocable; the obligations of
such Selling Shareholder hereunder shall not be terminated
by operation of law, whether by the death or incapacity of
such Selling Shareholder or, in the case of an estate or
trust, by the death or incapacity of any executor or trustee
or the termination of such estate or trust, or in the case
of a partnership or corporation, by the dissolution of such
partnership or corporation, or by the occurrence of any
other event; if such Selling Shareholder or any such
executor or trustee should die or become incapacitated, or
if any such estate or trust should be terminated, or if any
such partnership or corporation should be dissolved, or if
any other such event should occur, before the delivery of
the ordinary shares hereunder, certificates representing the
ordinary shares shall be deposited by or on behalf of such
Selling Shareholder in accordance with the terms and
conditions of this Agreement and the Custody Agreements; and
actions taken by the Attorneys-in-Fact pursuant to the Power
of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred,
regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received
notice of such death, incapacity, termination dissolution or
other event.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM ADSs AND OPTION ADSs.
------------------------------------------------------------
(a) On the basis of the representations, warranties and covenants herein
contained, and subject to the conditions herein set forth, the Company agrees to
sell to the Underwriters and each Underwriter agrees, severally and not jointly,
to purchase, at a price of (i) $10.74 per ADS, 53.75% of the number of Firm ADSs
set forth opposite the name of each Underwriter in Schedule I hereof, subject to
adjustments in accordance with Section 9 hereof and (ii) euro 10.23 per ADS,
46.25% of the number of Firm ADSs set forth opposite the name of each
Underwriter in Schedule I hereof, subject to adjustments in accordance with
Section 9 hereof.
The Selling Shareholders have delivered certificates in negotiable form
representing the total number of ordinary shares (with stock transfer forms
executed in blank) to be sold hereunder by the Selling Shareholders which have
been placed in custody with the Company or its agent as custodian (the
"Custodian") pursuant to the Custody Agreement and Power of Attorney executed by
Selling Shareholders for delivery of any Option ADSs to be sold hereunder by the
Selling Shareholders. Each of the Selling Shareholders specifically agrees that
any ordinary shares which will represent Option ADSs represented by the ADRs
held in custody for the Selling Shareholders under the Custody Agreement and
Power of Attorney are subject to the interests of
-13-
the Underwriters hereunder, that the conditions of such renunciation or
arrangements made by the Selling Shareholders for such custody, as the case may
be, are to that extent irrevocable, and that the obligations of the Selling
Shareholders hereunder shall not be terminable by any act or deed of the Selling
Shareholders (or by any other person, firm or corporation including the Company,
the Custodian or the Underwriters) or by operation of law (including the death
of such Selling Shareholder) or by the occurrence of any other event or events,
except as set forth in this Agreement, the Custody Agreement and Power of
Attorney. If any such event should occur prior to the issuance and delivery of
the ADRs evidencing the Option ADSs to the Underwriters hereunder, ADRs
evidencing the Option ADSs shall be delivered by the Custodian in accordance
with the terms and conditions of this Agreement as if such event had not
occurred. The Custodian is authorized to receive and acknowledge receipt of the
proceeds of sale of the Option ADSs held by it against delivery of ADRs
representing such Option ADSs.
ADRs evidencing the ADSs shall (unless otherwise determined by you, and the
Company is so notified) be delivered in definitive form, and be registered in
such names and in such denominations as you shall request in writing addressed
to the Company not later than the Closing Date or the Option Closing Date, as
the case may be.
The Company and the Selling Shareholders, as the case may be, shall pay any
transfer or other taxes in connection with the sale and delivery of ADSs by the
Company or the Selling Shareholders, as the case may be, as contemplated by this
Agreement, including, without limitation, any Irish stamp duty and any Irish
income, capital gains, withholding, transfer or other tax, including any
indirect tax, incident to the deposit of the ordinary shares pursuant to the
Deposit Agreement, the issue by the Depositary of ADSs, the delivery by the
Company or the delivery to the Selling Shareholders, as the case may be, of the
ADSs against receipt of the ordinary shares by the Depositary, and the issue or
delivery to the Company or the Selling Shareholder, as the case may be, of the
ADSs to the Underwriters and the sale and delivery of the ADSs by the
Underwriters.
(b) Payment for the Firm ADSs to be sold hereunder is to be made by wire
transfer(s) in federal (same day) funds to an account designated by the Company
for the shares to be sold by it, against delivery of ADRs therefor to the
Representatives for the several accounts of the Underwriters. Such payment and
delivery are to be made through the facilities of the Depository Trust Company
at 10:00 a.m., New York time, on the fourth business day after the date of this
Agreement, or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date being
herein referred to as the "Closing Date." (As used herein, "business day" means
a day on which the New York Stock Exchange is open for trading and on which
banks in New York are open for business and are not permitted by law or
executive order to be closed.) The ADRs evidencing the Firm ADSs will be
delivered in such denominations and in such registrations as the Representatives
request in writing not later than the second full business day prior to the
Closing Date.
(c) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
and the Selling Shareholders hereby grant an option to the several Underwriters
to purchase the Option ADSs at the price of $10.74 per ADS. The option granted
hereby may be exercised once in whole or in part, at any time upon written
notice given within 30 days after the date of this Agreement, by
-14-
you, as Representatives of the several Underwriters, to the Company and the
Custodian setting forth the number of Option ADSs as to which the several
Underwriters are exercising the option, the names and denominations in which the
ADRs evidencing the Option ADSs are to be registered and the time and date as
which such ADRs are to be delivered. The time and date at which ADRs evidencing
Option ADSs are to be delivered shall be determined by the Representatives but
shall not bear earlier than three nor later than 10 full business days after the
exercise of such option, nor in any event prior to the Closing Date (such time
and date being herein referred to as the "Option Closing Date"). If the date of
exercise of the option is three or more days before the Closing Date, the notice
of exercise shall set the Closing Date as the Option Closing Date. The number of
Option ADSs to be purchased by each Underwriter shall be in the same proportion
to the total number of Option ADSs being purchased as the number of Firm Shares
being purchased by such Underwriter bears to the total number of Firm Shares,
adjusted by you in such manner as to avoid fractional shares. The option with
respect to the Option ADSs granted hereunder may be exercised only to cover
over-allotments in the sale of the Firm Shares by the Underwriters. You, as
Representatives of the several Underwriters, may cancel such option at any time
prior to its expiration by giving written notice of such cancellation to the
Company and the Custodian. To the extent, if any, that the option is exercised,
payment for the Option ADSs shall be made on the Option Closing Date by wire
transfer(s) in federal (same day) funds to an account designated by the Company
for the Option ADSs to be sold by it and by wire transfer in federal (same day)
funds to accounts designated by each Selling Shareholder for the Option ADSs to
be sold by such Selling Shareholder, in each case against delivery of ADRs
therefor to the Representatives for the several accounts of the Underwriters.
3. OFFERING BY THE UNDERWRITERS. It is understood that the several
----------------------------
Underwriters are to make a public offering of the Firm ADSs as soon as the
Representatives deem it advisable to do so. The Firm ADSs are to be initially
offered to the public at the initial public offering price set forth in the
Prospectus. The Representatives may from time to time thereafter change the
public offering and other selling terms. To the extent, if at all, that any
Option ADSs are purchased pursuant to Section 2 hereof, the Underwriters will
offer them to the public on the foregoing terms.
It is further understood that you will act as the Representatives for the
Underwriters in the offering and sale of the ADSs in accordance with a Master
Agreement Among Underwriters entered into by you and the several other
Underwriters. The Representatives, on behalf of themselves and the several
Underwriters, represent and warrant to the Company and the Selling Shareholders
that they have all corporate and governmental licenses, authorizations and
approvals necessary to enter into this Agreement and to consummate the
transactions contemplated hereby.
4. COVENANTS OF THE COMPANY AND THE SELLING SHAREHOLDERS.
-----------------------------------------------------
(a) The Company covenants and agrees with the several Underwriters:
(i) To prepare the Prospectus in a form reasonably approved by you
and to file such Prospectus pursuant to Rule 424(b) under the
Act containing information previously omitted at the time of
effectiveness in reliance on Rule 430A of the Rules and
Regulations not later than the Commission's
-15-
close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable,
such earlier time as may be required by Rule 430A(a)(3) under
the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved
by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement or the ADR Registration
Statement has been filed or becomes effective or any supplement
to the Prospectus or any amended Prospectus has been filed and
to furnish you with copies thereof; to advise you, promptly
after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus,
of the suspension of the qualification of the ADSs for offering
or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement, the ADR Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or Prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order.
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the ADSs for offering and sale
under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of
the ADSs, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any
jurisdiction.
(iii) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any
Preliminary Prospectus as the Representatives may reasonably
request. The Company will deliver to, or upon the order of, the
Representatives during the period when delivery of a Prospectus
is required under the Act, as many copies of the Prospectus in
final form, or as thereafter amended or supplemented, as the
Representatives may reasonably request. The Company will deliver
to the Representatives at or before the Closing Date, five
signed copies of the Registration Statement and the ADR
Registration Statement and all amendments thereto including all
exhibits filed therewith, and will deliver to the
Representatives such number of conformed copies of the
Registration Statement and the ADR Registration Statement
(including such number of copies of the exhibits filed therewith
that may reasonably be requested), and of all amendments
thereto, as the Representatives may reasonably request.
-16-
(iv) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations
of the Commission thereunder and the German Sales Prospectus Act
(Verkaufsprospektgesetz), the Stock Admission Act
(Boersengesetz) and the rules and regulations of the New Market
(Neuer Markt) of the Frankfurt Stock Exchange, so as to permit
the completion of the distribution of the ADSs as contemplated
in this Agreement, the Prospectus and the German Offer
Documents. If, during the period in which a Prospectus is
required by the Act, any event shall occur as a result of which,
in the judgment of the Company or in the reasonable opinion
Deutsche Bank AG acting as representative of the Underwriters,
it becomes necessary to amend or supplement the Prospectus or
the German Offer Documents in order to make the statements
therein, in the light of the circumstances existing at the time,
not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus or the German Offer Documents to
comply with the Act, the Verkaufsprospektgesetz or the
Boersengesetz, the Company promptly will prepare and file with
the Commission and/or the Deutsche Borse, an appropriate
amendment to the Registration Statement, supplement to the
Prospectus or amendment to the German Offer Documents so that
the Registration Statement, the Prospectus or the German Offer
Documents, whichever is applicable, as so amended or
supplemented will not, in the light of the circumstances when it
is so delivered, be misleading, or so that the Registration
Statement, Prospectus or the German Offer Documents will comply
with the Act or the Verkaufsprospektgesetz and Boersengesetz.
(v) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event
no later than 45 days after the end of the 12-month period
beginning at the end of the fiscal quarter of the Company during
which the effective date of the Registration Statement and the
ADR Registration Statement occurs (or 90 days if such 12-month
period coincides with the Company's year end), an earning
statement (which need not be audited) in reasonable detail,
covering such 12-month period, which earning statement shall
satisfy the requirements of Section 11(a) of the Act and Rule
158 of the Rules and Regulations and will advise you in writing
when such statement has been so made available.
(vi) The Company will, for a period of five years from the Closing
Date, deliver to the Representatives copies of annual reports
and all other documents, reports and information furnished by
the Company to its shareholders or filed with any securities
exchange or the Nasdaq National Market pursuant to the
requirements of such exchange or the Nasdaq National market or
with the Commission pursuant to the Act or the Exchange Act or
the Boersenzulassungsverordnung or the regulation of the New
Market (Neuer Markt) of the Frankfurt Stock Exchange.
-17-
(vii) No offering, sale, short sale or other disposition of any
ordinary shares or any other capital stock of the Company or
other securities convertible into or exchangeable or
exercisable for ordinary shares or ADSs will be made for a
period of 90 days after the date of the Prospectus, directly or
indirectly, by the Company otherwise than hereunder or with the
prior written consent of Deutsche Bank AG, except that the
Company may, without such consent, issue ordinary shares or
ADSs upon the exercise of options outstanding on the date of
this Agreement and grant options pursuant to the Trintech Group
Limited Share Option 1990 Scheme, the Trintech Group Limited
Share Option 1997 Scheme, the Trintech Group Limited Directors
and Consultants Share Option Scheme, the 1999 Employee Savings
Related Share Option Scheme and the 1999 Employee Share
Purchase Plan (collectively, "Share Plans") and issue shares or
ADSs upon the exercise of any such option.
(viii) The Company shall cause each director, executive officer and
Selling Shareholder to furnish to you, on or prior to the date
of this Agreement, a letter or letters, in form and substance
satisfactory to the Underwriters, pursuant to which each such
person shall agree not to offer, sell, sell short or otherwise
dispose of any ordinary shares or ADSs of the Company or other
capital stock of the Company, or any other securities
convertible into, exchangeable or exercisable for ordinary
shares owned by such person (or as to which such person has the
right to direct the disposition of) for a period of 90 days
after the date of the Prospectus, except with the prior written
consent of Deutsche Bank AG.
(ix) The Company shall apply the net proceeds of the sale of the
ADSs hereunder as set forth under the caption "Use of Proceeds"
in the Prospectus and under the caption "Verwendung des
Emissionserloses" in the German Offer Documents.
(x) The Company shall not invest, or otherwise use the net proceeds
received by the Company from the sale of the ADSs to the
Underwriters in such a manner as would require the Company or
the Subsidiary to register as an "investment company" under the
1940 Act.
(xi) The Company will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Company or if
required for the Nasdaq National Market designation, a
registrar for its ordinary shares and ADSs.
(xii) The Company will not take, directly or indirectly, any action
designated to cause or result in, or that has constituted or
might reasonably be expected to constitute, the stabilization
or manipulation of the price of any securities of the Company
to facilitate the sale or resale of ordinary shares or the
ADSs.
-18-
(xiii) The Company will furnish to each of the Underwriters until the
end of the distribution period for the ADSs and for three
months thereafter, copies of the German Offer Documents in such
quantities as Deutsche Bank AG may from time to time reasonably
request, and, if at any time prior to the completion of the
initial distribution, or up to three months thereafter, of the
ADSs, any event shall have occurred as a result of which any
German Offer Document as then amended or supplemented would
include an untrue statement of material fact or omit to state
any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading or, if for any other reason it shall be required
under applicable law during such period to amend or supplement
any German Offer Document, if during such period to amend or
supplement any German Offer Document, it will notify Deutsche
Bank AG promptly and confirm such notice in writing, and will
prepare and furnish to each of the Underwriters, without charge
to any of the Underwriters, as many copies as Deutsche Bank AG
may, from time to time, reasonably request of an amendment or
supplement to such German Offer Documents which will correct
such statement or omission or effect such compliance.
(xiv) The Company will notify Deutsche Bank AG, for the benefit of
all of the Underwriters, promptly of any material change
affecting any of the Company's representations, warranties,
agreements and indemnities contained herein at any time prior
to payment at the Closing Date, and will take such steps as may
be reasonably requested by the Underwriters to remedy and/or
make appropriate disclosure regarding the same.
(xv) The Company will take such action and file such information
from time to time on a timely basis as may be necessary to
list, and maintain the listing of the ADSs on the Regulated
Market/New Market of the Frankfurt Stock Exchange, and comply
with all obligations and requirements of the Regulated
Market/New Market of the Frankfurt Stock Exchange so as to
cause such listing to be maintained.
(xvi) The Company will not make or cause to be made, any press or
public announcement or statement likely to lead to the
publication of information concerning the offer of the ADSs, in
Germany or elsewhere, after the execution and delivery hereof
and prior to the Closing Date; provided, however, the foregoing
-------- -------
shall not apply in relation to events or activities in the
ordinary course of business (other than in relation to the
offer), which were already in the public domain before the date
hereof, or in relation to announcements or statements which, in
the opinion of Deutsche Bank AG will not have or are not likely
to have an adverse effect on the offer of the ADSs. If an
announcement ("Mitteilung") is required to be made pursuant to
any applicable law, regulation or order, the Company may make
such announcement; provided, however, that the Company shall
-----------------
provide Deutsche Bank AG with prior notice thereof
-19-
and consult with Deutsche Bank AG prior to the making of such
announcement to the extent practicable and legally
permissible.
(xvii) The Company will use its best efforts to ensure that it will
not become a PFIC and, if it becomes a PFIC, to comply with
any applicable reporting and other requirements of Subparts A,
B and C of Part VI of Subchapter P of the Code.
(xviii) To the extent that, and for as long as, the laws of the
Republic of Ireland, Germany or the United States require any
permit or approval by, or exemption of, any local authority of
the transactions contemplated hereby to be legally permitted
and to remain effective, the Company will use commercially
reasonable best efforts to obtain and maintain each such
permit, approval or exemption valid and in full force and
effect.
(xix) To pay any and all stamp, transfer, withholding or other
similar taxes in connection with the execution and delivery of
this Agreement and delivery of the ADSs Shares that are sold
by the Company to the Underwriters.
(b) Each of the Selling Shareholders covenants and agrees with the several
Underwriters that:
(i) No offering, sale or other disposition of any ordinary shares
or any other capital stock of the Company, including any
right, convertible, exchangeable or exercisable into ordinary
shares or ADSs, will be made for a period of 90 days after the
date of the Prospectus, directly or indirectly, by the Selling
Shareholders otherwise than hereunder or with the prior
written consent of Deutsche Bank AG.
(ii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and
Fiscal Responsibility Act of 1982 and the Interest and
Dividend Tax Compliance Act of 1983 with respect to the
transactions herein contemplated, each of the Selling
Shareholders agrees to deliver to you prior to or at the
Option Closing Date a properly completed and executed U.S.
Treasury Department Form W-8 or W-9 (or other applicable form
or statement specified by Treasury Department regulations in
lieu thereof).
(iii) Such Selling Shareholders will not take, directly or
indirectly, any action designed to cause or result in, or that
has constituted or could reasonably be expected to constitute,
the stabilization or manipulation of the price of any
securities of the Company.
5. COSTS AND EXPENSES. The Company will pay all costs, expenses and fees
------------------
incident to the performance of the obligations of the Company under this
Agreement, including, without limiting the generality of the foregoing, the
following: accounting fees of the Company; the fees and disbursements of
counsel for the Company; the cost of printing and delivering to, or as
-20-
requested by, the Underwriters copies of the Registration Statement, the ADR
Registration Statement Preliminary Prospectuses, the Prospectus, the German
Offer Documents, this Agreement, the Agreement Among Underwriters, the
Underwriters' internal Selling Memorandum, the Underwriters' Questionnaire, the
Invitation Letter, the Deposit Agreement and any supplements or amendments
thereto; the filing fees of the Commission; the filing fees, incident to
security any required review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Shares; and the Listing Fee of
the Nasdaq Stock Market, Inc. To the extent, if at all, that the Selling
Shareholders engage special legal counsel to represent them in connection with
this offering, the fees and expenses of such counsel shall be borne by the
Selling Shareholders. Any transfer taxes (including, without limitation, Irish
stamp duty) imposed on the sale of the ADSs to the several Underwriters will be
paid by the Company with respect to the ordinary shares transferred by it and by
each Selling Shareholder with respect to the ordinary shares transferred by it.
The Company shall not, however, be required to pay for any of the Underwriters'
expenses (other than those incident to secure any required review by the NASD)
except that, if this Agreement shall not be consummated because the conditions
in Section 6 hereof are not satisfied, or because this Agreement is terminated
by the Representatives pursuant to Section 11(b)(i) hereof, or by reason of any
failure, refusal or inability on the part of the Company or the Selling
Shareholders to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on their part to be
performed, unless such failure to satisfy said condition or to comply with said
terms are due to the default or omission of any Underwriter, then the Company
shall reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the ADSs or in
contemplation of performing their obligations hereunder but the Company shall
not in any event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the ADSs;
provided, however, that nothing in this Section shall make the Company liable
for any costs or expenses incurred exclusively in connection with the sale of
American Depositary Shares by any Selling Shareholder and not requested or
necessary for the performance by the Company of its obligations under this
Agreement and any such costs or expenses so incurred shall be paid by the
relevant Selling Shareholder.
6. CONDITIONS AND OBLIGATIONS OF THE UNDERWRITERS. The several obligations of
----------------------------------------------
the Underwriters to purchase the ADSs representing the Firm ADSs on the Closing
Date and the ADSs representing the Option ADSs, if any, on the Option Closing
Date are subject to the accuracy, as of the Closing Date or the Option Closing
Date, as the case may be, of the representations and warranties of the Company
and the Selling Shareholders contained herein, and to the performance by the
Company and the Selling Shareholders of their covenants and obligations
hereunder and to the following additional conditions:
(a) The Registration Statement and the ADR Registration Statement and all
post-effective amendments thereto shall have become effective and any and all
filings required by Rule 424 and Rule 430A of the Rules and Regulations shall
have been made, and any request of the Commission for additional information (to
be included in the Registration Statement or otherwise) shall have been
disclosed to the Representatives and complied with to their reasonable
satisfaction. No stop order suspending the effectiveness of the Registration
Statement or the ADR Registration Statement, as amended from time to time, shall
have been issued and no
-21-
proceedings for that purpose shall have been taken or, to the knowledge of the
Company and the Selling Shareholders, shall be contemplated by the Commission;
and no injunction, restraining order, or order of any nature by a federal or
state court of competent jurisdiction shall have been issued as of the Closing
Date or Option Closing Date, as the case may be, which would prevent the
issuance of the ADSs.
(b) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of A&L Goodbody, Irish
counsel for the Company and the Selling Shareholders, dated the Closing Date or
the Option Closing Date, as the case may be, addressed to the Underwriters (and
stating that it may be relied upon by counsel to the Underwriters) and
incorporating the qualifications and assumptions set forth in the form of
opinion attached hereto to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a company under the laws of the Republic of Ireland, is duly
qualified to do business in the Republic of Ireland, and has
the corporate power and authority necessary to own or hold its
properties and conduct the business in which it is engaged as
described in the Prospectus and the German Offer Documents.
(ii) Based solely upon a certificate to that effect from the
Secretary of the Company and an inspection of the share
register maintained by the Company, the Company has an
authorized capitalization as set forth in the Prospectus under
the caption "Capitalization", and all of the issued shares of
capital stock of the Company (including the ordinary shares
underlying the Shares being delivered on such Closing Date or
Option Closing Date) have been duly and validly authorized and
issued, are fully paid and not subject to any call and conform
to the description thereof contained in the Prospectus and the
German Offer Documents and all of the issued shares of capital
stock of the Subsidiaries are owned directly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iii) Except as described in the Prospectus and in the German Offer
Documents, there are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any ordinary shares pursuant to the Company's
Articles of Association or Memorandum of Association;
(iv) The Company has the corporate power and authority to issue,
sell and deliver the ordinary shares or ADSs in accordance with
and upon the terms and conditions set forth in this Agreement.
The filing of the Registration Statement, the ADR Registration
Statement, the Prospectus and the German Offer Documents with
the Commission and, with the appropriate German authorities, to
the extent required, has been duly authorized by and on behalf
of the Company and has been duly executed in accordance with
Irish law; no further approval or authority of the
-22-
shareholders or the Board of Directors of the Company is
required for the issuance of the ordinary shares or ADSs;
(v) Other than as set forth in the Prospectus and in the German
Offer Documents and based solely on a certificate to that
effect from the Secretary of the Company and on searches
conducted in the central office of the Irish High Court, there
are no legal or governmental proceedings pending to which the
Company or any of its Subsidiaries is a party or of which any
property or assets of the Company or any of its Subsidiaries is
the subject which, if determined adversely to the Company or
any of its Subsidiaries, might have a Material Adverse Effect
and, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) The statements in the Registration Statement, the Prospectus
and the German Offer Documents, insofar as they are
descriptions of contracts, agreements, or other legal
documents, are accurate insofar as such statements are
statements of Irish law.
(vii) The statements contained in the Prospectus, Registration
Statement and the German Offer Documents under the captions
"Risk Factors," "Dividend Policy," "Management's Discussion and
Analysis of Financial Condition and Results of Operations,"
"Taxation -- Ireland" and "Indemnification of Directors and
Officers," and the corresponding sections in the German Offer
Documents insofar as they describe Irish statutes, rules and
regulations, constitute a fair summary thereof.
(viii) The form of ADR for the ADSs, delivered on the Closing Date or
the Option Closing Date, as the case may be, are in due and
proper form under Irish law.
(ix) Upon issuance and delivery of the ADSs to be sold by the
Company pursuant to this Agreement and payment therefor, as
contemplated herein, insofar as concerns the laws of the
Republic of Ireland, the Underwriters will receive good, valid
and marketable title to the ADSs being sold by the Company
thereunder, free and clear of all liens, encumbrances, claims,
security interests, restrictions on transfer, shareholders'
agreements, voting trusts and other defects of title whatsoever
arising through the Company.
(x) The submission by the parties to the jurisdiction of any
federal or State court sitting in the State of New York would
be upheld by the Irish courts. In any proceedings taken in
Ireland for the enforcement of this Agreement, the choice of
the law of the State of New York as the governing law of this
Agreement would be upheld by the Irish courts unless it were
considered contrary to public policy, illegal or made in bad
faith. A judgment of the courts of the State of New York would
be
-23-
recognized and enforced by the courts of Ireland except that
to enforce a judgment given by United States court or State
court in the State of New York or county of New York and
Ireland, it would be necessary to obtain an order of the Irish
courts. Such order would be granted upon proper proof of the
United States or State court judgment and the merits of the
case would not be considered unless it were contended that the
foreign court did not have jurisdiction according to the laws
of Ireland, that the judgment of the United States or State
court had been obtained by fraud or was contrary to national
justice as understood in Irish law or was repugnant to Irish
public policy. Such judgment would have to be final and
conclusive, be for a definite sum of money and the procedural
rules of the United States or State court would have to have
been observed. These latter exclusions would extend to cover
the situation where the Company had not entered an appearance
before the United States or State court.
(xi) This Agreement, the Deposit Agreement, the Custody Agreement
and Power of Attorney have been duly authorized, and insofar as
Irish law governs the formalities for execution and delivery
thereof, executed and delivered by the Selling Shareholders
incorporated in Ireland, assuming this Agreement creates valid
and binding obligations of the parties under New York law, and
constitute valid and binding agreements of the Selling
Shareholders, enforceable in accordance with their respective
terms, except as enforcement (a) may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting
creditors' rights generally, and (b) is subject to general
principles of equity.
(xii) Immediately prior to the Closing Date or the Option Closing
Date, as the case may be, and based solely on a certificate to
that effect from the Secretary of the Company and an inspection
of the share register of the Company, the Selling Shareholders
were the registered owner of the Shares to be sold by the
Selling Shareholders under this Agreement, and, based solely on
a certificate to that effect from the Selling Shareholders of
the Company, such shares are free and clear of all liens,
encumbrances, equities or claims, except as provided in the
Custody Agreement and Power of Attorney and this Agreement, and
each of the Selling Shareholders has the power and authority to
sell, assign, transfer and deliver such Shares to be sold by
such Selling Shareholders hereunder.
(xiii) This Agreement has been duly authorized and executed by the
Company and assuming this Agreement creates valid and binding
obligations of the parties under New York law, the laws of the
Republic or Ireland will not prevent this Agreement from being
the valid and binding obligation of the Company.
-24-
(xiv) The issuance and deposit with the Depositary of the ordinary
shares underlying the ADSs to be sold by the Company and the
Selling Shareholders under this Agreement, the sale and
delivery of such ADSs on the Closing Date or the Option
Closing Date, and the execution and delivery of this
Agreement and the Deposit Agreement and the consummation of
the transactions contemplated by such agreements do not and
will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, the
Memorandum or Articles of Association of the Company, and do
not and will not contravene any provision of the laws of the
Republic of Ireland, or to such counsel's knowledge, any
judgment or decree of any Republic of Ireland court in which
such counsel has represented the Company.
(xv) No approval, consent, order, authorization, or filing by or
with any Republic of Ireland regulatory, administrative or
other governmental body or agency is necessary in connection
with the issue of the ADSs or any of the Shares represented
thereby or the sale of the ADSs and the execution and
delivery of this Agreement and the Deposit Agreement and the
consummation of the transactions therein contemplated by the
Company and the Selling Shareholders except such as have been
specified in such opinion obtained or made, specifying the
same.
(xvi) Except as disclosed in the Prospectus, (x) no stamp or other
issue or transfer taxes or duties and no capital gains,
income, withholding or other taxes are payable to the
Republic of Ireland or any political subdivision or taxing
authority thereof or therein in connection with (A) the
deposit with the Custodian under the Custody Agreement of the
Shares by the Selling Shareholders, (B) the deposit with the
Depositary of the Shares by the Company and the Selling
Shareholders against the creation of ADSs and the issue of
the ADRs, (C) the issue of Shares by the Company or the issue
and delivery by or on behalf of the Company and the Selling
Shareholders of such ADSs to or for the respective accounts
of the Underwriters or (D) the sale and delivery by the
Underwriters of such ADSs to the initial purchasers thereof
and (y) any dividends and other distributions declared and
payable on the Shares may under Republic of Ireland laws and
regulations be paid to the Depositary in Irish pounds that
may be converted into foreign currency, including U.S.
dollars that may be freely transferred out of the Republic of
Ireland.
(xvii) The statements under the captions "Description of Share
Capital" and "Irish Exchange Control Regulation" in the
Prospectus, and in Items 14 and 15 in the Registration
Statement, insofar as such statements constitute a summary of
documents referred to therein governed by Republic of Ireland
law, are accurate summaries and fairly and correctly present
the information called for with respect to such documents and
matters.
-25-
(xviii) The Prospectus was, on or before the date of its publication,
duly delivered to the Registrar of Companies in the Republic
of Ireland for registration in accordance with Sections 47
and 51 of the Irish Companies Act having endorsed thereon, or
attached thereto, all such matters as are required by the
said Section 47 to be endorsed on or attached to it.
(xix) Such counsel is not presently representing the Company in any
legal proceedings which have been commenced in the courts of
the Republic of Ireland other than as specified in such
opinions.
(c) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Xxxxx, Xxxxxx & Xxxxxx,
LLP, counsel for the Depositary, dated the Closing Date or the Option Closing
Date, as the case may be, addressed to the Underwriters to the effect that:
(i) the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and, assuming due authorization,
execution and delivery of the Deposit Agreement by the
Company and further assuming that the Deposit Agreement is a
valid and binding agreement of the Company, constitutes a
valid and legally binding obligation of the Depositary
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar
laws of general application relating to or affecting
creditors' rights and by general principles of equity;
(ii) upon the issuance by the Depositary of ADRs evidencing ADSs
against the deposit of ordinary shares in accordance with the
provisions of the Deposit Agreement (assuming such ordinary
shares were, at the time of such deposit, (a) duly authorized
and validly issued, fully paid and non-assessable and (b)
registered in compliance with the Act), such ADRs will be
duly and validly issued and will entitle the holder thereof
to the rights specified therein and in the Deposit Agreement;
and
(iii) the ADR Registration Statement has been declared effective
under the Act and, to the best of our knowledge, no stop
order suspending the effectiveness of the ADR Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the ADR
Registration Statement, and each amendment as of their
respective effective dates, complied as to form in all
material respects with the requirements of the Act and the
Rules and Regulations.
(d) The Representative shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Xxxxxx Xxxxxxx Xxxxxxxx
& Xxxxxx P.C., U.S. counsel to the Company, addressed to the Underwriters and
dated the Closing Date or the Option Closing
-26-
Date, as the case may be, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) Trintech, Inc. (the "U.S. Subsidiary") has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of California, is duly
qualified to do business and is in good standing as a foreign
corporation in the United States where the lack of
qualification would have a Material Adverse Effect and has the
corporate power and authority necessary to own or hold its
properties and conduct its businesses as described in the
Prospectus and the German Offer Documents.
(ii) To such counsel's knowledge, all of the issued shares of
capital stock of the U.S. Subsidiary have been duly and validly
authorized and issued and are fully paid, nonassessable and are
owned by the Company.
(iii) To such counsel's knowledge without independent investigation,
there are no legal or governmental actions, suits or
proceedings pending to which the U.S. Subsidiary is a party or
of which any property of the U.S. Subsidiary is the subject
which, if determined adversely to the U.S. Subsidiary, would
reasonably be expected to have a Material Adverse Effect; and,
to such counsel's knowledge, no such proceedings are threatened
by United States governmental authorities against the U.S.
Subsidiary.
(iv) The execution and delivery of this Agreement by the Company,
and the consummation of the transactions contemplated hereby
will not conflict with or result in any violation of the
certificate of incorporation or by-laws of the U.S. Subsidiary.
(v) The Registration Statement has become effective under the Act,
any required filing of the Prospectus was filed with the
Commission has been made in the manner and within the time
period required by Rule 424(b) and, to such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and, no proceeding for
that purpose is pending or threatened by the Commission.
(vi) The Registration Statement, the Prospectus and any further
amendments or supplements thereto made by the Company prior to
the Closing Date or Option Closing Date, as the case may be,
comply as to form in all material respects with the
requirements of the Act and the Rules and Regulations.
(vii) The statements contained in the Prospectus under the caption
"Taxation -- Our Taxation -- United States Taxation;" "--
Taxation of Dividends -- United States Taxation;" and "-- U.S.
Information Reporting and Backup Withholding;" insofar as they
refer to statements of law of the
-27-
United States or legal conclusions thereunder, present fairly
in all material respects the information described therein.
(viii) To such counsel's knowledge, there are no contracts or other
documents which are required to be filed as exhibits to the
Registration Statement or ADR Registration Statement by the Act
or by the Rules and Regulations which have not been filed as
exhibits as required.
(ix) No consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency of the
United States or, to such counsel's knowledge, any United
States jurisdiction thereof, is required for the execution and
delivery of this Agreement by the Company or the consummation
of the transactions contemplated hereby except (a) compliance
with Blue Sky and state securities laws applicable to the
offering and sale of the Shares contemplated by this Agreement
and the clearance of the underwriting arrangements relating to
such offering and sale by the NASD and (b) for the order of the
Commission declaring the Registration Statement effective.
(x) Assuming conduct of their business as described in the
Registration Statement and the Prospectus, neither the Company
nor any of the Subsidiaries is, and assuming the application of
the net proceeds from the sale of the Shares as described in
the Prospectus under the caption "Use of Proceeds" will be,
upon consummation of the transactions contemplated by this
Agreement, required to register as an "investment company" as
such term is defined under the 0000 Xxx.
(xi) The statements under the caption "Description of American
Depositary Receipts" in the Prospectus, insofar as such
statements constitute a summary of the terms of the ADSs and
the ADRs, fairly and accurately present in all material
respects the information called for under the Rules and
Regulations with respect to the terms of the ADSs and the ADRs.
The statements under the caption "Risk Factors - Future Sales
by Existing Shareholders Could Depress the Market Price of Our
ADSs," in the Prospectus, and the statements under Item 15 of
Part II of the Registration Statement, insofar as they refer to
statements of law of the United States or legal conclusions
thereunder, present fairly in all material respects the
information described therein.
In addition, such counsel shall state that they have participated in conferences
with officers and other representatives of the Company, German and Irish counsel
for the Company, representatives of the independent accountants of the Company,
representatives of the Underwriters and representatives of the German and United
States counsel for the Underwriters, at which the contents of the Registration
Statement, the ADR Registration Statement and the Prospectus and related matters
were discussed and, although such counsel need not pass upon, and need not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the ADR Registration
Statement or the
-28-
Prospectus (except for those referred to in the opinion in subsection (vii)
above) and has made no independent check or verification thereof, such counsel
shall state that on the basis of the foregoing, no facts have come to such
counsel's attention that has led them to believe that the Registration Statement
or the ADR Registration Statement, as of the date hereof, contained an untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading or that the Prospectus, as of its date and as of the Closing Date or
the Option Closing Date, as the case may be, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that such counsel need
express comment or belief with respect to the financial statements and
supporting schedules and other financial and statistical data included therein
or excluded or derived therefrom or the exhibits to the Registration Statement.
(e) The Representatives shall have received from Oppenhoff & Xxxxxx, German
counsel to the Company, a translation certificate and opinion dated the Closing
Date (i) confirming in all material respects fair translation of certain
portions of the US Prospectus (excluding in particular the F-Pages and the MD&A
and all financial tables), and (ii) relating to the due registration and
existence as a limited liability company of Trintech GMBH, the German subsidiary
of the Company, the approval (Billigung) of the German Prospectus and the
approval of listing (Zulassung) of the ADSs of the Company to the regulated
market of the Frankfurt Stock Exchange.
(f) The Representatives shall have received on the Closing Date a
certificate regarding intellectual property in a form reasonably satisfactory to
the Representatives.
(g) The Representatives shall have received from Xxxxxxx Xxxx & Xxxx
International, counsel for the Underwriters, an opinion dated the Closing Date
or the Option Closing Date, as the case may be that, substantially to the effect
specified in subparagraphs (vi), (vii) and (x) of Paragraph (c) of this Section
6. In rendering such opinion, Xxxxxxx Xxxx & Xxxx International may rely as to
all matters governed other than by the laws of the State of Delaware or U.S.
federal laws on the opinions of counsel referred to in Paragraph (b) of this
Section 6. In addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that (i) the Registration Statement or any
amendment thereto, as of the time it became effective under the Act (but after
giving effect to any modifications incorporated therein pursuant to Rule 430A
under the Act) and as of the Closing Date or the Option Closing Date, as the
case may be, 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, and (ii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and Regulations and as
of the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact,
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that such
counsel need express no view as to financial statements and other financial and
statistical information included therein). With respect to such statement,
Xxxxxxx Xxxx & Xxxx International may state that their belief is based upon the
procedures set forth therein, but is without independent check and verification.
-29-
(h) The Representatives shall have received, on each of the date of this
Agreement and the Closing Date and the Option Closing Date, a letter dated the
date of delivery thereof in form and substance satisfactory to you, of Ernst &
Young confirming that they are independent accountants within the meaning of the
Act and the applicable published Rules and Regulations thereunder and stating
that in their opinion the financial statements examined by them and included in
the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published Rules
and Regulations and disclosing any deviations, if any, from such accounting
requirements, and containing such other statements and information as is
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and Prospectus.
(i) The Representatives shall have received on the Closing Date or the
Option Closing Date, as the case may be, a certificate or certificates furnished
to you, on behalf of the Company, of the Chief Executive Officer and the
Executive Chairman of the Company to the effect that, as of the Closing Date or
the Option Closing Date, as the case may be, as follows:
(i) The Registration Statement, the ADR Registration Statement and
the German Offer Documents have become effective under the Act
and the applicable German law, as applicable, and no stop order
suspending the effectiveness of the Registration Statement, the
ADR Registration Statement or the German Offer Documents has
been issued, and no proceedings for such purpose have been taken
or are, to his knowledge, contemplated by the Commission or the
Deutsche Borse;
(ii) He does not know of any litigation instituted or threatened
against the Company or any of its Subsidiaries of a character
required to be disclosed in the Registration Statement or the
German Offer Documents which is not so disclosed; he does not
know of any material contract required to be filed as an exhibit
to the Registration Statement or the German Offer Documents
which is not so filed; and the representations and warranties of
the Company contained in Section 1 hereof are true and correct
as of the Closing Date or the Option Closing Date, as the case
may be;
(iii) He has carefully examined the Registration Statement, the
Prospectus and the German Offer Documents and, to his knowledge,
as of the effective date of the Registration Statement and the
ADR Registration Statement, the statements contained in the
Registration Statement, the ADR Registration Statement, the
Prospectus and the German Offer Documents, were true and
correct, and such Registration Statement, ADR Registration
Statement, Prospectus and the German Offer Documents did not
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading
and, to his knowledge, since the effective date of the
Registration Statement and the ADR Registration Statement no
event has occurred which should have been set forth in a
supplement to or an
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amendment of the Prospectus and the German Offer Documents which
has not been so set forth in such supplement or amendment; and
(iv) Since the respective dates as of which information is given in
the Registration Statement, the ADR Registration Statement,
Prospectus and the German Offer Documents, to his knowledge
there has not been any material adverse change or any
development involving a material prospective adverse change in
or affecting the condition, financial or otherwise, of the
Company and the Subsidiaries taken as a whole or the earnings,
business affairs, management or business prospects of the
Company and the Subsidiaries taken as a whole, whether or not
arising in the ordinary course of business.
(j) The Company and the Selling Shareholders shall have furnished to the
Representatives such further certificates and documents confirming the
representations and warranties contained herein and related matters as the
Representatives may reasonably have requested.
(k) A Nasdaq National Market Listing Application covering the Firm ADSs and
Option ADSs has been approved by The Nasdaq Stock Market, Inc., and the listing
of the Firm ADSs and the Option ADSs has been approved by the Frankfurt Stock
Exchange for trading on the Neuer Market.
(l) The Company shall have delivered to you written agreements (the "Lockup
Agreements") described in Section 4(a)(viii).
(m) All filings required to have been made pursuant to Rules 424 or 430A
under the Act have been made.
The opinions and certificates mentioned in this Agreement shall be deemed to be
in compliance with the provisions hereof only if they are in all material
respects satisfactory to the Representatives and to Xxxxxxx Xxxx & Xxxx
International counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, the
obligations of the Underwriters hereunder may be terminated by the
Representatives by notifying the Company and the Selling Shareholders of such
termination in writing or by telegram at or prior to the Closing Date or the
Option Closing Date, as the case may be.
In such event, the Selling Shareholders, the Company and the Underwriters shall
not be under any obligation to each other (except to the extent provided in
Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE SELLERS. The obligations of the
--------------------------------------------
Sellers to sell and deliver the portion of the Shares required to be delivered
as and when specified in this Agreement are subject to the conditions that at
the Closing Date or the Option Closing Date, as the case may be, no stop order
suspending the effectiveness of the Registration Statement or the ADR
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
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8. INDEMNIFICATION.
---------------
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the Act
against any losses, claims, damages or liabilities to which such Underwriter or
such controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the ADR Registration Statement, any Preliminary Prospectus, the
Prospectus, the German Offer Documents, or any amendment or supplement thereto,
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or (iii) any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the shares or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided, that the Company shall not be
liable under this clause (ii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriters through its gross
negligence or willful misconduct); and will reimburse each Underwriter and each
such controlling person within thirty (30) days of demand for such reimbursement
for any legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such loss,
claim, damage or liability, action or proceeding and expenses reasonably
incurred in responding to a subpoena or governmental inquiry whether or not such
Underwriter or controlling person is a party to any action or proceeding,
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement, or omission or alleged
omission made in the Registration Statement, the ADR Registration Statement, any
Preliminary Prospectus, the Prospectus, the German Offer Documents, or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use in the preparation thereof; and provided further that the
Company will not be liable to any Underwriter, the directors, officers,
employees or agents of such Underwriter or any person controlling such
Underwriter with respect to any loss, claim, or liability (or actions or
proceedings in respect thereof) arising out of or based on any untrue statement
or alleged untrue statement or omission or alleged omission to state a material
fact in a Preliminary Prospectus or the German Preliminary Sales Prospectus
which is corrected in the Prospectus or the German Admission Prospectus if the
person asserting any such loss, claim, damage or liability purchased Shares from
such Underwriter but was not sent or given a copy of the Prospectus or the
German Admission Prospectus at or prior to the written confirmation of the sale
of such Shares to such person, provided the Company has complied with the
provisions of Section 4(a)(iii). This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Selling Shareholder, severally and not jointly, agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Act against any losses,
claims, damages or liabilities to which such Underwriter or such controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or
-32-
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the ADR Registration Statement,
any Preliminary Prospectus, the Prospectus, the German Offer Documents or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and will reimburse within
thirty (30) days of demand any legal or other expenses reasonably incurred by
such Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that each Selling Shareholder will be liable in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission has been made in the Registration
Statement, the ADR Registration Statement, any Preliminary Prospectus, the
Prospectus, the German Offer Documents or such amendment or supplement, in
reliance upon and in conformity with written information furnished by such
Selling Shareholder specifically for use in the preparation of the sections set
forth in Section 13 of this Agreement; and provided further that such Selling
Shareholder will not be liable to any Underwriter, the directors, officers,
employees or agents of such Underwriter or any person controlling such
Underwriter with respect to any loss, claim, or liability (or actions or
proceedings in respect thereof) arising out of or based on any untrue statement
or alleged untrue statement or omission or alleged omission to state a material
fact in a Preliminary Prospectus or the German Preliminary Sales Prospectus
which is corrected in the Prospectus or the German Admission Prospectus if the
person asserting any such loss, claim, damage or liability purchased Shares from
such Underwriter but was not sent or given a copy of the Prospectus or the
German Admission Prospectus at or prior to the written confirmation of the sale
of such Shares to such person, provided the Company has complied with the
provisions of Section 4(a)(iii). This indemnity agreement will be in addition to
any liability which such Selling Shareholder may otherwise have.
(c) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, and the Selling Shareholders and each person,
if any, who controls the Company or the Selling Shareholders within the meaning
of the Act, against any losses, claims, damages or liabilities to which the
Company or any such director, officer, Selling Shareholder or controlling person
may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the ADR Registration
Statement, any Preliminary Prospectus, the Prospectus, the German Offer
Documents or any amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made, and
will reimburse within thirty (30) days of demand any legal or other expenses
reasonably incurred by the Company or any such director, officer, Selling
Shareholder or controlling person in connection with investigating or defending
any such loss, claim, damage, liability, action or proceeding; provided,
however, that each Underwriter will be liable in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission has been made in the Registration Statement, the
ADR Registration Statement, any Preliminary Prospectus, the Prospectus, the
German Offer Documents or such amendment or supplement, in reliance upon and in
conformity with written
-33-
information furnished to the Company by or through the Representatives
specifically for use in the preparation of the sections set forth in Section 13
of this Agreement. This indemnity agreement will be in addition to any liability
which such Underwriter may otherwise have.
(d) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to this Section 8, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing. No indemnification provided for in Section 8(a), (b) or (c)
shall be available to any party who shall fail to give notice as provided in
this Section 8(d) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was materially prejudiced
by the failure to give such notice, but the failure to give such notice shall
not relieve the indemnifying party or parties from any liability which it or
they may have to the indemnified party for contribution or otherwise than on
account of the provisions of Section 8(a), (b) or (c). In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its own expense. Notwithstanding the foregoing,
the indemnifying party shall pay as incurred the fees and expenses of the
counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by you in the case of parties
indemnified pursuant to Section 8(a) or (b) and by the Company in the case of
parties indemnified pursuant to Section 8(c). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. In
addition, the indemnifying party hereunder will not, without the prior written
consent of the indemnified party hereunder, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action or
proceeding of which indemnification may be sought hereunder (whether or not any
indemnified party is an actual or potential party to such claim, action or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action or proceeding.
(e) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless any indemnified party under Section 8(a), (b)
or (c) above in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or
-34-
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company, the Selling Shareholders and the
Underwriters from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law then each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company, the
Selling Shareholders and the Underwriters in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Shareholders and the Underwriters shall be deemed to be in the same
proportion as (i) the total net proceeds from the offering (before deducting
expenses) received by the Company, (ii) the total proceeds from the offering
(before deducting expenses) received by the Selling Shareholders, and (iii) the
total underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus and in the German Offer Documents. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Shareholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct to prevent such statement or
omission.
The Company, the Selling Shareholders and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 8(e) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
8(e). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 8(e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discount and
commissions applicable to the Shares purchased by such Underwriter, (ii) the
Selling Shareholders shall not be required to contribute an amount in excess of
the net proceeds of the offering received by the Selling Shareholder, and (iii)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 8(e) to contribute are several in proportion to their respective
underwriting obligations and not joint. The Selling Shareholders' obligations
in this Section 8(e) to contribute are several in proportion to their respective
number of Option ADSs sold and not joint.
(f) In any proceeding relating to the Registration Statement, the ADR
Registration Statement, any Preliminary Prospectus, the Prospectus, the German
Offer Documents or any supplement or amendment thereto, each party against whom
contribution may be sought under this Section 8 hereby consents to the
jurisdiction of any court having jurisdiction over any other contributing party,
agrees that process issuing from such court may be served upon him or it by any
other contributing party and consents to the service of such process and agrees
that any other
-35-
contributing party may join him or it as an additional defendant in any such
proceeding in which such other contributing party is a party.
(g) Notwithstanding anything else to the contrary in this Section 8 or
elsewhere in this Agreement, the aggregate liability of the Selling Shareholder
under this Section 8 shall not exceed the lesser of (i) that portion of the
total losses, claims, damages or liabilities for which indemnification is to be
made hereunder (including legal and other expenses) that is equal to the
proportion of the number of Shares sold hereunder by the Selling Shareholder to
the total number of Shares sold hereunder by the Company and all of the Selling
Shareholder; and (ii) the amount equal to the proceeds from the sale of the
Shares sold hereunder by the Selling Shareholder net of underwriting discounts
and commissions paid with respect thereto.
9. DEFAULT BY UNDERWRITERS. If on the Closing Date or the Option Closing Date,
-----------------------
as the case may be, any Underwriter shall fail to purchase and pay for the
portion of the Shares which such Underwriter has agreed to purchase and pay for
on such date (otherwise than by reason of any default on the part of the Company
or the Selling Shareholders), you, as Representatives of the Underwriters, shall
use your best efforts to procure within 36 hours thereafter one or more of the
other Underwriters, or any others, to purchase from the Company such amounts as
may be agreed upon and upon the terms set forth herein, the Firm ADSs or Option
ADSs, as the case may be, which the defaulting Underwriter or Underwriters
failed to purchase. If during such 36 hours you, as such Representatives, shall
not have procured such other Underwriters, or any others, to purchase the Firm
ADSs or Option ADSs, as the case may be, agreed to be purchased by the
defaulting Underwriter or Underwriters, then (a) if the aggregate number of
shares with respect to which such default shall occur does not exceed 10% of the
Firm ADSs or Option ADSs, as the case may be, covered hereby, the other
Underwriters shall be obligated, severally, in proportion to the respective
numbers of Firm ADSs or Option ADSs, as the case may be, which they are
obligated to purchase hereunder, to purchase the Firm ADSs or Option ADSs, as
the case may be, which they are obligated to purchase hereunder, to purchase the
Firm ADSS or Option ADSs, as the case may be, which such defaulting Underwriter
or Underwriters failed to purchase, or (b) if the aggregate number of shares of
Firm ADSs or Option ADSs, as the case may be, with respect to which such default
shall occur exceeds 10% of the Firm ADSs or Option ADSs, as the case may be,
covered hereby, the Company or you as the Representatives of the Underwriters
will have the right, by written notice given within the next 36-hour period to
the parties to this Agreement, to terminate this Agreement without liability on
the part of the nondefaulting Underwriters or of the Company or of the Selling
Shareholder except to the extent provided in Section 8 hereof. In the event of
a default by any Underwriter or Underwriters, as set forth in this Section 9,
the Closing Date or Option Closing Date, as the case may be, may be postponed
for such period, not exceeding seven days, as you, as Representatives, may
determine in order that the required changes in the Registration Statement or in
the Prospectus or in any other documents or arrangements may be effected. The
term "Underwriter" includes any person substituted for a defaulting Underwriter.
Any action taken under this Section 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. NOTICES. All communications hereunder shall be in writing and, except as
-------
otherwise provided herein, will be mailed, delivered, telegraphed or sent by
facsimile and confirmed as follows: if to the Underwriters, to Deutsche Bank
XX, Xxxxxxxxxxxx 00, X-00000, Xxxxxxxxx
-00-
xx Xxxx; Attention: Xxxx Xxxxxxx (facsimile: 011-44-173-933-7463); if to the
Company or the Selling Shareholders to Trintech Group PLC, South County Business
Park, Leopardstown, Dublin 18, Ireland, Attention: Xxxx X. XxXxxxx (facsimile:
353-1-207-4000), with a copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxxx Xxxxxxx Xxxxxxxx
& Xxxxxx P.C., 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000-0000 (facsimile:
000-000-0000).
11. TERMINATION. This Agreement may be terminated by you by notice to the
-----------
Company and the Selling Shareholders as follows:
(a) at any time prior to the earlier of (i) 11:30 a.m. on the first
business day following the date of this Agreement or (ii) the time the ADSs are
released by you for sale by notice to the Underwriters.
(b) at any time after the date hereof if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement, the ADR Registration Statement, the Prospectus and the
German Offer Documents, any material adverse change or any development involving
a prospective material adverse change in or affecting the condition, financial
or otherwise, of the Company and its Subsidiaries taken as a whole or the
earnings, business affairs, management or business prospects of the Company and
its Subsidiaries taken as a whole, whether or not arising in the ordinary course
of business, (ii) any outbreak or escalation of hostilities or declaration of
war or national emergency or other national or international calamity or crisis
or change in economic or political conditions either in the United States, the
Republic of Ireland or Germany if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change in the financial markets of
the United States, Germany or elsewhere would, in your reasonable judgment, make
the offering or delivery of the ADSs impracticable or inadvisable, (iii)
suspension of trading in securities on the New York Stock Exchange, the American
Stock Exchange, the Nasdaq National Market or the Frankfurt Stock Exchange, or
limitation on prices (other than limitations on hours or numbers of days of
trading and other than suspensions relating to information systems failures) for
securities on any such Exchange or Market, (iv) the enactment, publication,
decree or other promulgation of any statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects or will materially and adversely affect the business or
operations of the Company, (v) declaration of a banking moratorium by the
Republic of Ireland, the United States, Germany or New York State authorities,
or (vi) the taking of any action by any governmental body or agency in respect
of its monetary or fiscal affairs which in your reasonable opinion has a
material adverse effect on the securities markets in the United States or
Germany, or
(c) as provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS. This Agreement has been and is made solely for the benefit of
----------
the Underwriters, the Company and the Selling Shareholders and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the ADSs from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
-37-
13. INFORMATION PROVIDED BY UNDERWRITERS. The Company, the Selling
------------------------------------
Shareholders and the Underwriters acknowledge and agree that the only
information furnished or to be furnished by any Underwriter to the Company for
inclusion in the Prospectus or the Registration Statement consists of the
information set forth in the last paragraph on the front cover page of the
Prospectus (for both the United States and international offerings) and the
German Offer Documents (insofar as such information relates to the
Underwriters), information provided in connection with Item 502(d) of Regulation
S-K under the Act, information regarding the names of the Underwriters and the
number of ADSs to be purchased by each Underwriter, all information contained in
the paragraph containing the concession figure appearing under the caption
"Underwriting" in the Prospectus (for the U.S. offering), all information
contained in the paragraph describing the determination and publication of the
offering price appearing under the caption "Underwriting" in the Prospectus (for
the international offering), or "bernahme" in the German Offer Documents, the
information contained in the last four paragraphs under the caption
"Underwriting" in the Prospectus (for the U.S. offering), and the information
contained in the last seven paragraphs under the caption "Underwriting" in the
Prospectus (for the international offering) and "bernahme" in the German Offer
Documents.
14. MISCELLANEOUS. The reimbursement, indemnification and contribution
-------------
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers and (c) delivery of and payment for the
Shares under this Agreement. The other covenants of the Company in this
Agreement shall remain in full force and effect regardless of (x) any
investigation made by or on behalf of any Underwriter or controlling person
thereof and (y) delivery of and payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York (without regard to the choice of law provisions
thereof).
The Company and the Selling Shareholders hereby irrevocably agree that any legal
action, suit, or proceedings against any of them with respect to any of their
obligations, liabilities or any other matter under or arising out of or in
connection with this Agreement may be brought in any state or federal court in
New York and, by execution and delivery of this Agreement, the Company and the
Selling Shareholders hereby irrevocably accept and submit to the non-exclusive
jurisdiction of each of the aforesaid courts in personam generally and
unconditionally with respect to any such action, suit, or proceeding for
themselves and in respect of any of their property. The Company and the Selling
Shareholders further agree that final judgment against any of them in any
action, suit or proceeding arising out of or in connection with this Agreement
shall be conclusive and may be enforced in any other jurisdiction, within or
outside the United States, by suit or the judgment, a certified or exemplified
copy of each shall be conclusive evidence of the fact and of the amount of their
respective obligations and liabilities.
-38-
In addition, the Company and the Selling Shareholders hereby irrevocably and
unconditionally waive any objection which they may now or hereafter have to the
laying of venue of any of the aforesaid actions, suits or proceedings arising
out of or in connection with this Agreement brought in any of the aforesaid
courts, and hereby further irrevocably and unconditionally waive and agree not
to plead or claim that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
Each of the Company and each Selling Shareholder who is not a U.S. corporation
appoints Trintech, Inc. as his, her or its authorized agent (the "Authorized
Agent") to receive service of process in any action based on this Agreement
against the Company or such Selling Shareholder in any state or federal court in
New York by any Underwriter or by any person controlling any Underwriter. Each
Selling Shareholder who is not a U.S. corporation represents to each Underwriter
that they have notified Trintech, Inc. of such appointment and that Trintech,
Inc. has accepted the same in writing. Such appointment shall be irrevocable
for a period of five years from and after the Closing Date unless and until a
successor Authorized Agent shall be appointed and such successor shall accept
such appointment for the remainder of such five-year period. The Company and
each such Selling Shareholder will notify each Underwriter in writing of the
appointment. The Company and each such Selling Shareholder will take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment or appointments in full force and
effect as aforesaid. Service of process upon the Authorized Agent (or its
successor) and written notice of such service to the Company or such Selling
Shareholder by mail to the address for the Company or such Selling Shareholder
specified pursuant to Section 10, shall be deemed in every respect, effective
service of process upon the Company and such Selling Shareholder, as the case
may be. In addition to any other method of service of process on the Company or
a Selling Shareholder under applicable law, service of process on the Company or
a Selling Shareholder by notice sent registered mail return receipt requested or
delivered, by courier or otherwise, to the address for the Company or such
Selling Shareholder, as the case may be, specified pursuant to Section 10, shall
be deemed in every respect, effective service of process upon the Company or
such Selling Shareholder, as the case may be.
If the foregoing Agreement is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Shareholders and the several Underwriters in accordance with its terms.
Any person executing and delivering this Agreement as Attorney-in-Fact for a
Selling Shareholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
TRINTECH GROUP PLC
By: ______________________________
-39-
Name: Xxxxx XxXxxxx
Title: President
SELLING SHAREHOLDERS
By: ______________________________
Name: Xxxxx XxXxxxx
Title: President
As Attorney-in-Fact acting on behalf of each
of the Selling Shareholders
Accepted as of the date hereof at
Frankfurt, Germany
Deutsche Bank AG (London Branch)
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation
FleetBoston Xxxxxxxxx Xxxxxxxx, Inc.
WestLB Panmure Limited
By: ___________________________________
Deutsche Bank AG (London Branch)
On behalf of each of the Underwriters
-40-
SCHEDULE I
Number of
Total Number of Option ADSs
Firm ADSs to be Purchased
Underwriter to be Purchased if Option Exercised
--------------------------------------- --------------------------- -------------------------
Deutsche Bank AG.......................
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation................
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.....
Chase Securities Inc...................
Total..............................
-41-
