This excerpt taken from the OPWV 8-K filed Jan 19, 2006.
Item 2.01. Completion of Acquisition.
On November 9, 2005, Openwave Systems Inc, a Delaware corporation (Openwave), entered into an Amended and Restated Stock Purchase Agreement (the Amended Agreement) with the sellers named therein. The Amended Agreement amended and restated the Stock Purchase Agreement (the Original Agreement) by and among Openwave and the sellers named therein, dated as of September 24, 2005.
On January 13, 2006, Openwave completed its acquisition of Musiwave S.A. (Musiwave) and acquired all outstanding shares of Musiwave for a total purchase price of approximately 97,000,000 Euros (net of actual purchase price adjustments) and under the terms of the Amended Agreement may pay a contingent earn-out of up to an additional 15,000,000. This equates to approximately $117,000,000, and a contingent additional $18,000,000 respectively, based on the Euro-US Dollar exchange rate of January 13, 2006. The actual amount of the contingent earn-out payment, if any, will be determined based upon achievement of certain financial targets by the Musiwave business during calendar year 2006, and is expected to be paid, if applicable, shortly thereafter. The purchase price of 97,000,000 was paid in cash on completion of the transaction, with roughly 10,000,000 of such amount paid into an escrow account and held for an 18 month period (Escrow Amount) after the completion date and roughly 2,400,000 withheld by Openwave for an 18 month period after the completion date (Holdback). The Escrow Amount is set aside for potential claims and litigation under the Amended Agreement. The Holdback is set aside for retention of certain key employees of Musiwave and to secure against potential claims and litigation under the Amended Agreement. The contingent earn-out of up to 15,000,000 is expected to be paid with a mixture of cash and stock. The exact proportions of cash and stock shall be determined by Openwave prior to the payment date, provided that the cash portion shall not be less than approximately 47%.
The foregoing description is qualified in its entirety by reference to the Amended Agreement, which was previously filed as Exhibit 2.1 to Openwaves Current Report on Form 8-K/A on November 14, 2005.
The Amended Agreement contains representations and warranties the parties made to each other as of specific dates. The assertions embodied in those representations and warranties were made solely for purposes of the contract between Openwave and the Musiwave shareholders who are parties to the Amended Agreement and may be subject to important qualifications and limitations agreed by the parties in connection with negotiating its terms. Moreover, certain representations and warranties may not be accurate or complete as of any specified date because they are subject to a contractual standard of materiality different from those generally applicable to shareholders or were used for the purpose of allocating risk between the parties rather than establishing matters as facts. For the foregoing reasons, you should not rely on the representations and warranties as statements of factual information.