exv10w1





 



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.	 	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).
	 
	B.	 	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.	 	Definitions
	 
	1.1	 	In this Agreement (including in the Recitals), the following expressions shall have the
following meaning:
	 
	 	 	“Act”, the Irish Takeover Panel Act 1997;
	 
	 	 	“Acting in Concert”, shall have the meaning given to that term in Regulation 8(2) of the
2006 Regulations;
	 
	 	 	“Associate”, shall have the meaning given to that term in the Rules;




 









 






	 	 	“Board”, the directors of IONA;
	 
	 	 	“Buyer”, SPK Acquisitions Limited;
	 
	 	 	“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);
	 
	 	 	“Exclusivity Period”, shall have the meaning given to that term in Clause 4.1.1;
	 
	 	 	“Group”, IONA and its Subsidiaries;
	 
	 	 	“Implementation Agreement”, shall have the meaning given to that term in the Recitals;
	 
	 	 	“IONA”, IONA Technologies PLC;
	 
	 	 	“IONA Representatives”, shall have the meaning given to that term in Clause 4.1;
	 
	 	 	“IONA’s Shareholders”, shall have the meaning given to that term in the Implementation
Agreement;
	 
	 	 	“Irish Courts”, shall have meaning given to that term in the Implementation Agreement;
	 
	 	 	“Lehman”, Lehman Brothers Inc.;
	 
	 	 	“Ordinary Share”, an ordinary share of €0.0025 par value per share in the capital of IONA;
	 
	 	 	“Panel”, the Irish Takeover Panel;
	 
	 	 	“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;
	 
	 	 	“Rule 2.5 Announcement”, shall have the meaning given to that term in the Implementation
Agreement;
	 
	 	 	“Rules”, the Irish Takeover Panel Act, 1997, Takeover Rules, 2007 and the Irish Takeover
Panel Act, 1997, Substantial Acquisition Rules, 2007;
	 
	 	 	“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);
	 
	 	 	“Subsidiaries”, shall have the meaning given to that term in the Implementation Agreement;
	 
	 	 	“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;
	 
	 	 	“Takeover Rules”, shall have the meaning given to that term in the Implementation
Agreement;
	 
	 	 	“Takeover Scheme”, shall have the meaning ascribed to that term in the Rules;
	 
	 	 	“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;
	 
	 	 	“Third Party Payments”, the payment(s) provided for in Clause 3.1; and
	 
	 	 	“2006 Regulations”, the European Communities (Takeover Bids (Directive 2004/25/EC))
Regulations 2006.
	 
	1.2	 	In this Agreement, the expression “offer” shall include:






	 	1.2.1	 	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
	 
	 	1.2.2	 	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	 	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.	 	Pre-condition
	 
	 	 	This Agreement shall not have effect unless and until the Rule 2.5 Announcement has been
issued.
	 
	3.	 	Reimbursement
	 
	3.1	 	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 third party costs and expenses incurred in connection with the Proposal including
but not limited to:






	 	3.1.1	 	exploratory work carried out in contemplation of and in connection with
the Proposal;
	 
	 	3.1.2	 	legal, financial and commercial due diligence; and
	 
	 	3.1.3	 	the costs associated with engaging advisers to assist in the process;






	 	 	provided that the gross amount payable to Buyer (inclusive of irrecoverable VAT only)
pursuant to this Agreement shall not, in any event, exceed such sum as is equal to 1% of
the aggregate value of the number of shares in IONA which are the subject of the Proposal
multiplied by the Scheme Price.
	 
	3.2	 	Subject to the terms of Clause 3.3, the obligation of IONA to make the Third Party Payments
shall apply only if, following the making of the Rule 2.5 Announcement:






	 	3.2.1	 	the Board, or any one or more of them, withdraw or adversely modify their
recommendation of the Scheme or recommend (or indicate or announce an intention to
recommend) any Competing Offer; or
	 
	 	3.2.2	 	IONA withdraws the Scheme or materially alters any term of the Scheme or
takes or omits to take any action in breach of the Implementation Agreement the
result of which is to prevent IONA’s Shareholders from voting at any meetings to
approve the Scheme; or
	 
	 	3.2.3	 	if the Scheme subsequently lapses or (with the consent of IONA) is
withdrawn or does not become effective and, prior to this occurring, a Third Party
Announcement is made in relation to a Competing Offer and that Competing Offer




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	 	 	 	subsequently becomes effective or unconditional within 12 months of the Third
Party Announcement.






	3.3	 	No Third Party Payments are payable:






	 	3.3.1	 	under Clause 3.2.3, if the Proposal is withdrawn or lapses and, at the
time the Proposal is withdrawn or has lapsed, there has been no Third Party
Announcement of a Competing Offer; or
	 
	 	3.3.2	 	under Clause 3.2, if following the making of the Rule 2.5 Announcement,
either (i) a document incorporating the terms of the Scheme is not posted within 28
days of the date of the issue of the Rule 2.5 Announcement solely as a result of the
actions or omissions of Buyer in breach of the Implementation Agreement or (ii) the
Implementation Agreement is validly terminated by IONA other than pursuant to Section
10.1 of the Implementation Agreement.






	3.4	 	Any Third Party Payments due to be paid in accordance with this Clause 3 shall be paid
(without any set off, withholding or other deduction) no later than seven calendar days after
the submission to IONA of a written request for such payment with written evidence (including
written invoices and written supporting documentation) vouching that expenditure. Buyer shall
be entitled to charge value added tax on any amounts payable hereunder to the extent that it
is required to do so.
	 
	3.5	 	Where the Third Party Payments are payable to Buyer pursuant to Clause 3.2.3, IONA shall,
subject to Buyer providing supporting documentation vouching expenditure in accordance with
Clause 3.4, procure that all such Third Party Payments are approved for payment by IONA prior
to that Competing Offer becoming effective or unconditional such that such Third Party
Payments will be transferred to Buyer on such Competing Offer becoming effective or
unconditional.
	 
	4.	 	Non-Solicitation
	 
	4.1	 	Subject to any actions which IONA is required to take so as to comply with the requirements
of the Rules and/or with the fiduciary duties of the Board, IONA agrees that neither it nor
any member of the Group nor any of their respective directors, officers, employees or advisers
(collectively, the “IONA Representatives”) shall:






	 	4.1.1	 	directly or indirectly, solicit, initiate or knowingly facilitate any
discussions with, or enquiries or proposals from, any person other than Buyer in
respect of or in




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	 	 	 	connection with the acquisition of control (as defined in the Takeover Rules) of
IONA, whether by means of an offer or scheme of arrangement or otherwise, or the
disposal of any interest in a material part of the business of IONA or any
subsidiary of IONA, or a disposal or acquisition of material assets by IONA or
its subsidiaries, or a share exchange (any matter described in the preceding
portion of this clause 4.1.1, a “Third Party Transaction Proposal”) during the
period commencing on the date of this Agreement and ending on the earlier of (i)
December 15, 2008 and (ii) date on which the Scheme is withdrawn by Buyer or
lapses or becomes effective (the “Exclusivity Period”);
	 
	 	4.1.2	 	directly or indirectly, respond to enquiries or proposals from, or engage
in negotiations with, any person other than Buyer in respect of or in connection with
any Third Party Transaction Proposal during the Exclusivity Period;
	 
	 	4.1.3	 	continue pursuing any discussions existing at the date of this Agreement
with any other person, or enter into or continue, facilitate or encourage any
discussions or commitments or agreements in respect of or in connection with any
Third Party Transaction Proposal during the Exclusivity Period;
	 
	 	4.1.4	 	enter into any expenses reimbursement or similar agreement or any
inducement fee agreement of any nature with any person other than Buyer during the
Exclusivity Period; or
	 
	 	4.1.5	 	make available any information relating to IONA and/or its assets and/or
its business and/or any Subsidiary of IONA in respect of or in connection with a
Third Party Transaction Proposal other than to Buyer.






	4.2	 	During the Exclusivity Period, IONA further agrees that, subject to any provision to the
contrary in the Takeover Rules applicable to the Scheme, IONA shall promptly advise Buyer
orally with written confirmation to follow within 24 hours, of any Competing Offer or any
request for non public information in connection with any Competing Offer, or any inquiry with
respect to, or that would reasonably be expected to lead to any Competing Offer, the material
terms and conditions of any such Competing Offer or inquiry and identity of the person making
any such Competing Offer or inquiry. IONA shall (i) keep Buyer fully informed, on a current
basis, of the status and material terms and conditions (including any material change to such
terms) of any such Competing Offer or inquiry, (ii) provide to Buyer as soon as practicable
after receipt or delivery thereof copies of any proposals received by IONA with respect to
such Competing Offer and any draft or final version of any acquisition agreement relating to
such Competing Offer and (iii) if Buyer shall make a counterproposal,




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	 	 	consider in good faith the terms of such counterproposal. Contemporaneously with
providing any information to a third party in connection with any such Competing Offer or
inquiry, IONA shall furnish a copy of such information to Buyer unless such information
has been previously provided or furnished to Buyer by IONA or an IONA Representative.




For the avoidance of doubt and notwithstanding any other term of this Agreement, nothing shall
preclude, restrict or hinder the Board or the directors of any Group company from considering and
engaging with any unsolicited Takeover Offer(s) or unsolicited proposals with a view to a Takeover
Offer being made, in each case to the extent (and only to the extent) required by the Takeover
Rules or by any decision or direction of the Panel.





	5.	 	Other Matters
	 
	5.1	 	The parties agree that the provisions contained in Clause 3 and Clause 4 of this Agreement
shall not come into effect until such time as they have been approved by the Panel in
accordance with the Takeover Rules.
	 
	5.2	 	IONA confirms that it has discussed the terms of this Agreement with its Rule 3 adviser,
Lehman, and that Lehman has sent a letter to the Panel confirming that the terms of this
Agreement are in the best interest of IONA’s Shareholders.
	 
	5.3	 	The invalidity, illegality or unenforceability of a provision of this Agreement does not
affect or impair the continuance in force of the remainder of this Agreement.
	 
	5.4	 	This Agreement shall be construed in accordance with and governed by the laws of Ireland.
The parties submit to the exclusive jurisdiction of the Irish Courts in relation to any
disputes arising out of this Agreement.
	 
	5.5	 	This Agreement may be executed in any number of counterparts, and by the parties on separate
counterparts, but shall not be effective until each party has executed at least one
counterpart. Each counterpart shall constitute an original of this Agreement, but all the
counterparts shall together constitute one and the same instrument.





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IN WITNESS whereof the parties have executed these presents the day and year above written.



	 	 	 	 	 
	PRESENT when the common seal
	 	 	 	 
	of SPK ACQUISITIONS LIMITED
	 	 	 	 
	was affixed hereto:
	 	 	 	/s/ Norman R. Robertson 
	 

	 	 	 	 
	 

	 	 	 	Director
	     [seal
affixed]
	 	 	 	Norman R. Robertson 
	 

	 	 	 	 
	 

	 	 	 	Print name
	 
	 	 	 	/s/ Peter M. Moloney 
	

	 	 	 	 
	 

	 	 	 	Director/Secretary
	 
	 	 	 	Peter M. Moloney 
	 

	 	 	 	 
	 

	 	 	 	Print name
	 
	 	 	 	 
	PRESENT when the common seal
	 	 	 	 
	of IONA TECHNOLOGIES PLC
	 	 	 	 
	was affixed hereto:
	 	 	 	/s/ Peter M. Zotto 
	 

	 	 	 	 
	 

	 	 	 	Director
	 
	 	 	 	Peter M. Zotto 
	 

	 	 	 	 
	 

	 	 	 	Print name
	     [seal
affixed] 
	 	 	 	/s/ Christopher Mirabile 
	 

	 	 	 	 
	 

	 	 	 	Director/Secretary
	 
	 	 	 	Christopher Mirabile 
	 

	 	 	 	 
	 

	 	 	 	Print name