Amendment to Sale and Purchase Agreement between P. Meek & Others and Onyx Software Corporation (Onyx Software UK Limited)

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Summary

This agreement, dated July 7, 2000, amends the original Sale and Purchase Agreement between the vendors (P. Meek, T. Holmes, D. Tilley, H. Wheatman, and A. Allkins) and Onyx Software Corporation for the sale of Onyx Software UK Limited. The amendments update certain clauses, adjust the earnout payment terms for the vendors, and clarify the process for issuing shares as consideration. It also details the purchaser's rights to set off claims against earnout payments. All other terms of the original agreement remain unchanged.

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EX-2.2 2 0002.txt AMENDMENTS TO SALE AND PURCHASE AGREEMENT Exhibit 2.2 DATED JULY 7, 2000 - -------------------------------------------------------------------------------- MR P MEEK & OTHERS - and - ONYX SOFTWARE CORPORATION - -------------------------------------------------------------------------------- AMENDMENTS TO SALE AND PURCHASE AGREEMENT relating to the issued share capital of ONYX SOFTWARE UK LIMITED (formerly MARKET SOLUTIONS LIMITED) - -------------------------------------------------------------------------------- TAYLOR JOYNSON GARRETT Carmelite 50 Victoria Embankment Blackfriars London EC4Y 0DX Tel No: 020 7300 7000 Fax No: 020 7300 7100 Ref: SXW THIS AGREEMENT is made the 7th day of July 2000 BETWEEN (1) THE PERSONS whose names and addresses are set out in schedule 1 of this agreement (the "Vendors"); and (2) ONYX SOFTWARE CORPORATION whose address is 3180 139th Avenue SE, Suite 500, Bellevue, Washington, 98005-4091, USA (the "Purchaser"). INTRODUCTION 1. On 1 October 2000 the Vendors and the Purchaser entered into a Sale and Purchase Agreement (the "Sale and Purchase Agreement") pursuant to which the Vendors sold to the Purchaser the whole of the issued share capital of Onyx Software UK Limited (formerly Market Solutions Limited) (the "Company"). 2. The Vendors and the Purchaser have agreed that the Sale and Purchase Agreement should be amended as set out in this agreement. AGREED TERMS 1. Amendments to the Sale and Purchase Agreement 1.1 Clauses 7.3 and 7.4 of the Sale and Purchase Agreement shall be deleted. 1.2 Clauses 7.5 to 7.8 of the Sale and Purchase Agreement shall be re-numbered as clauses 7.3 to 7.6. 1.3 The second sentence of Clause 7.6 shall be replaced as follows: "Thereafter each Warrantor shall not Transfer more than 50 per cent (in aggregate) of the total number of Exchange Shares which have been at any time been issued to him or her (whether or not such Exchange Shares have been previously transferred by him or her) in any period of 3 months." 1.4 Schedule 7 of the Share Purchase Agreement shall be deleted and replaced by schedule 2 of this agreement. 2. No other amendments to the Sale and Purchase Agreement 2.1 Save as set out clause 1 of this agreement no term or provision of the Sale and Purchase Agreement shall be varied or modified by this agreement. -1- 2.2 Unless stated herein or to the contrary words and expressions contained in this agreement shall have the meanings contained in the Sale and Purchase Agreement. 2.3 Clause 13 (Law and Jurisdiction) of the Sale and Purchase Agreement shall apply to this agreement. The parties to this agreement have signed and entered into this agreement as a deed on the date and year first written above. -2- SCHEDULE 1 The Vendors
Name Address =========================================================================== Philip Meek Gosbrook Cottage Commomon Lane Binfield Heath Henley on Thames, Oxon - --------------------------------------------------------------------------- Tania Holmes 26 Temple Mill Island Temple Marlow Buckhampshire SL7 1SQ - --------------------------------------------------------------------------- Dugan Tilley Flat 1 Loddon Park Farm New Bath Road, Twyford RG10 9RY - --------------------------------------------------------------------------- Helena Wheatman 48 Liebenrood Road Reading RG30 2EB - --------------------------------------------------------------------------- Aileen Allkins 86 Top Common Warfield Green Braknell Berkshire RG42 3SY ===========================================================================
-3- SCHEDULE 2 New Schedule 7 of Sale and Purchase Agreement Part A Year One Earnout Consideration 1. On 1 October 2000 (the "First Payment Date") the sum of US$3,600,000 (the "Year One Earnout Consideration") shall become due from the Purchaser to the Vendors. 2. The Year One Earnout Consideration shall be satisfied by the allotment among and issue to the Vendors in the Agreed Proportions (as near as practicable) of such number of Exchange Shares as have a value (at the First Anniversary Price) equal to the Year One Earnout Consideration. 3. For the purposes of paragraph 2 the First Anniversary Price shall be the average of the closing prices of the Purchaser's common stock on the Nasdaq National Market on the three trading days immediately prior to the First Payment Date. SCHEDULE 2 Part B Year Two Earnout Consideration 1. On 1 October 2001 (the "Second Payment Date") the sum of US$4,320,000 (the "Year Two Earnout Consideration") shall become due from the Purchaser to the Vendors. 2. The Year Two Earnout Consideration shall be satisfied by the allotment among and issue to the Vendors in the Agreed Proportions (as near as practicable) of such number of Exchange Shares as have a value (at the Second Anniversary Price) equal to the Year Two Earnout Consideration. 3. For the purposes of paragraph 2 the Second Anniversary Price shall be the average of the closing prices of the Purchaser's common stock on the Nasdaq National Market on the three trading days immediately prior to the Second Payment Date. SCHEDULE 2 Part C Set-Off 1. If there is any claim for any breach of any of the Warranties and/or a claim under the Tax Deed, (a "Relevant Claim") the Purchaser shall, subject to compliance with the provisions of this part C, have the right to set-off any sum claimed by it in respect of any such loss suffered by the Purchaser or the Company in respect of any breach of the Warranties and/or the Tax Deed against any part of the Earnout Consideration for the Sale Shares remaining unsatisfied. 2. The rights of set-off set out in this part C are without prejudice to any other right or remedy which the Purchaser may have against the Vendors or any of them, whether under the terms of this agreement or otherwise, but other than as set out in this part C, the Purchaser shall have no right to withhold the allotment of Exchange Shares, due under this agreement or claim any other form of set-off, deduction or withholding from such amounts. 3. Any exercise by the Purchaser of its right of set-off under paragraph 1.1 shall not operate to prevent or delay settlement of any part of the Earnout Consideration then due, and the Set Off Shares shall be dealt with in accordance with terms of the Escrow Agreement for which purposes all references to "Escrow Shares" shall be deemed to be references to "Set Off Shares", all references to "Shareholders" shall be deemed to be references to "Warrantors". EXECUTED as a deed by ) /s/ Tania Holmes 12 Dovecate Road PHILIP MEEK ) acting as attorney for Philip Meek Reading RG2 8UJ In the presence of: ) /s/ S. S. Greaves EXECUTED as a deed by ) /s/ Tania Holmes 26 Temple Mill Island TANIA HOLMES ) Marlow SL7 15Q In the presence of: ) /s/ S. S. Greaves EXECUTED as a deed by ) /s/ Dugan Tilley Flat 2 Loaddon Park Farm DUGAN TILLEY ) New Bath Rd. In the presence of: ) /s/ S. S. Greaves Berks RG10 9R4 EXECUTED as a deed by ) /s/ Helena Dixon 48 Libenroad Road HELENA DIXON ) Reading In the presence of: ) /s/ S. S. Greaves Berkshire RG30 2EB EXECUTED as a deed by ) /s/ Aileen Allkins 86 Top Common AILEEN ALLKINS ) Warfield Green In the presence of: ) /s/ S. S. Greaves Bracknell Berks RG4 235J EXECUTED as a deed ) /s/ Brent Frei 3180 139th Ave. S. E. for and on behalf of ) Suite 500 ONYX SOFTWARE ) /s/ Paul Dauber Bellevue, WA 98005 CORPORATION ) In the presence of: )