Exhibit 10.1
EXPENSES REIMBURSEMENT
&
NON-SOLICITATION AGREEMENT
by and
among
SPK ACQUISITIONS LIMITED
and
IONA TECHNOLOGIES PLC
Dated
as of June 25, 2008
THIS
AGREEMENT is made on June 25, 2008
BETWEEN:
SPK
Acquisitions Limited
having its registered office at
Earlsfort Centre, Earlsfort Terrace,
Dublin 2, Ireland
(hereinafter referred to as “Buyer”)
- and
-
IONA
Technologies plc
having its registered office at
The IONA Building, Shelbourne Road,
Ballsbridge, Dublin 4, Ireland
(hereinafter referred to as “IONA”)
WHEREAS:
| A. |
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This Agreement is the Expenses Reimbursement Agreement provided
for in the Implementation Agreement dated as of the date hereof
between Buyer, IONA, and with respect to Section 7.4 and
Section 7.7 only, Progress Software Corporation (the
“Implementation Agreement”) relating to certain
expenses incurred and to be incurred by Buyer in connection with
the Proposal (as defined below). |
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| B. |
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This Agreement sets out the agreement between the parties as to
the reimbursement of expenses incurred and to be incurred by Buyer
in relation to the Proposal, the non-solicitation of other offers
for the share capital of IONA and certain other matters. |
NOW IT
IS HEREBY AGREED as follows:
| 1. |
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Definitions |
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| 1.1 |
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In this Agreement (including in the Recitals), the following
expressions shall have the following meaning: |
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“ Act ”, the Irish Takeover Panel Act
1997; |
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“ Acting in Concert ”, shall have the
meaning given to that term in Regulation 8(2) of the 2006
Regulations; |
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“ Associate ”, shall have the meaning given
to that term in the Rules; |
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“ Board ”, the directors of IONA; |
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“ Buyer ”, SPK Acquisitions Limited; |
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“ Competing Offer ”, any offer or potential
offer by a party other than Buyer (or an Associate of Buyer or a
party Acting in Concert with Buyer); |
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“ Exclusivity Period ”, shall have the
meaning given to that term in Clause 4.1.1; |
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“ Group ”, IONA and its Subsidiaries; |
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“ Implementation Agreement ”, shall have the
meaning given to that term in the Recitals; |
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“ IONA ”, IONA Technologies PLC; |
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“ IONA Representatives ”, shall have the
meaning given to that term in Clause 4.1; |
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“ IONA’s Shareholders ”, shall have
the meaning given to that term in the Implementation
Agreement; |
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“ Irish Courts ”, shall have meaning given
to that term in the Implementation Agreement; |
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“ Lehman ”, Lehman Brothers Inc.; |
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“ Ordinary Share ”, an ordinary share of
€ 0.0025 par value per
share in the capital of IONA; |
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“ Panel ”, the Irish Takeover Panel; |
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“ Proposal ”, the proposal to acquire the
entire issued and to be issued share capital of IONA by means of
the Scheme, at a price of not less than US$4.05 per Ordinary Share
as set out in the Implementation Agreement and the Rule 2.5
Announcement; |
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“ Rule 2.5 Announcement ”, shall have
the meaning given to that term in the Implementation
Agreement; |
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“ Rules ”, the Irish Takeover Panel Act,
1997, Takeover Rules, 2007 and the Irish Takeover Panel Act, 1997,
Substantial Acquisition Rules, 2007; |
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“ Scheme ”, the proposed acquisition (by
means of a scheme of arrangement under section 201 of the Companies
Act 1963) by Buyer of the entire issued and to be issued share
capital of IONA at the Scheme Price; |
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“ Scheme Price ”, the price per Ordinary
Share offered pursuant to the Proposal (including any price offered
as part of a revised Offer); |
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“ Subsidiaries ”, shall have the meaning
given to that term in the Implementation Agreement; |
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“ Takeover Offer ”, shall have the meaning
ascribed to the term takeover in the Act and shall be deemed to
include a takeover effected by a Takeover Scheme or by a Takeover
Offer; |
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“ Takeover Rules ”, shall have the meaning
given to that term in the Implementation Agreement; |
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“ Takeover Scheme ”, shall have the meaning
ascribed to that term in the Rules; |
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“ Third Party Announcement” , means an
announcement (whether by IONA or any other person other than Buyer
or an Associate of Buyer or a party Acting in Concert with Buyer)
of a Competing Offer or that any such third party is considering,
or has approached or will approach IONA or is in talks with IONA
that may or may not lead to, a Competing Offer; |
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“Third Party Payments” , the payment(s)
provided for in Clause 3.1; and |
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“2006 Regulations” , the European
Communities (Takeover Bids (Directive 2004/25/EC)) Regulations
2006. |
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| 1.2 |
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In this Agreement, the expression “offer” shall
include: |
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1.2.1 |
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an offer, scheme of arrangement, re-capitalisation or other
transaction of any nature whatsoever made by or on behalf of a
party (other than Buyer or any party Acting in Concert with Buyer)
which, if completed, would result in such third party or its
associates holding more than 50% of the voting or other equity
securities of IONA or any material Subsidiary of IONA; or |
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1.2.2 |
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a sale of assets which, if completed, would result in the sale
or transfer to such third party or its Associates of more than 50%
of the consolidated net assets of the Group. |
| 1.3 |
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In this Agreement reference to the word “person” is
deemed to include references to natural persons, firms,
partnerships, companies, corporations, associations, bodies
corporate, trusts and investment funds (in each case whether or not
having a separate legal personality). |
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| 2. |
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Pre-condition |
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This Agreement shall not have effect unless and until the
Rule 2.5 Announcement has been issued. |
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| 3. |
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Reimbursement |
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| 3.1 |
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Subject to the provisions of Clause 3.3, in consideration of
Buyer expending the time and expense to make the Proposal and
engaging advisers to assist in the process, preparing the Offer and
taking all further steps necessary to make the Rule 2.5
Announcement and making the Proposal itself, IONA agrees to pay to
Buyer an amount equal to all specific quantifiable and
documented |
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