EXHIBIT 10.1
DATED 2004
THE VENDORS (1)
AND
RS GROUP OF COMPANIES, INC. (2)
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AGREEMENT
FOR THE SALE AND PURCHASE OF 49% OF THE
ISSUED SHARE CAPITAL OF
DASHWOOD, XXXXXX & XXXXXX LIMITED
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[GRAPHIC OMITTED][GRAPHIC OMITTED]
00 Xxxxxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
Ref: JOG/GMT/0302012
CONTENTS
1. DEFINITIONS AND INTERPRETATION ..................................... 1
2. SALE AND PURCHASE .................................................. 4
3. CONSIDERATION ...................................................... 4
4. COMPLETION ......................................................... 5
5. WARRANTIES ......................................................... 7
6. LIMITATION ON LIABILITY ............................................ 8
7. INTEREST ........................................................... 9
8. PAYMENTS ........................................................... 9
9. ANNOUNCEMENTS ..................................................... 10
10. FURTHER ASSURANCE ................................................. 10
11. WAIVER ............................................................ 10
12. ENTIRE AGREEMENT .................................................. 11
13. VARIATION ......................................................... 12
14. GENERAL ........................................................... 12
15. COSTS ............................................................. 12
16. ASSIGNMENT ........................................................ 12
17. COUNTERPARTS ...................................................... 13
18. NOTICES ........................................................... 13
19. GOVERNING LAW AND JURISDICTION .................................... 14
SCHEDULE ................................................................ 15
THE VENDORS .......................................................... 15
THIS AGREEMENT is made on 2004
BETWEEN:
(1) THE PERSONS whose names and addresses are set out in column (1) of the
Schedule (the "VENDORS"); and
(2) RS GROUP OF COMPANIES, INC. (a company incorporated in the State of
Florida, U.S.A.) whose corporate address is 000 Xxxxxxxx Xxxx., Xxxxx
000, Xxxxxxx, Xxxxxxx, X0X 0X0 (the "PURCHASER").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following
expressions shall have the meanings set opposite them:
"ACT" the Companies Xxx 0000;
"BUSINESS DAY" a day other than a Saturday or Sunday or a
bank holiday or public holiday in England
and Wales;
"CLAIM" a claim by the Purchaser involving or
relating to a breach of a Warranty, a
representation or any provision of this
Agreement;
"COMPANY" Dashwood, Xxxxxx & Xxxxxx Limited (a
company incorporated in England & Wales
with registered number 687923);
"COMPLETION" completion of the sale and purchase of the
Sale Shares pursuant to clause 4;
"ESCROW ACCOUNT" the bank account to be opened in
the joint names of the Purchaser and the
Company with Natwest Bank Plc, 00
Xxxxxxxxxxx, Xxxxxx XX0X 0XX;
"ESCROW AGREEMENT" the agreement, in the agreed
form, between the Purchaser (1), the
Company (2) and the Vendors (3), regarding
the operation of the Escrow Account;
"ESCROW TERMS" the joint bank mandate between RSC and DBP
in relation to the Escrow Account;
"NASDAQ" the exchange known as NASDAQ;
"NEW ARTICLES OF the new articles of association, in the
ASSOCIATION" agreed form, to be adopted by the Company;
"SALE SHARES" the ordinary shares of (pound)1
each in the capital of the Company set out
in the Schedule, which constitute 49% of
the issued share capital of the Company;
"VENDORS' SOLICITORS" Xxxxx & Co. of 00 Xxxxxxxxx, Xxxxxx XX0X
0XX (Ref: JOG/GMT/0302012); and
"WARRANTIES" the statements contained or referred to in
clause 5.1 (and "WARRANTY" means any one
of them).
1.2 In this Agreement (except where the context otherwise requires):
(a) words in the singular include the plural and vice versa and
words importing any gender include every gender;
(b) references to persons include individuals, firms,
partnerships, companies, corporations, unincorporated
associations, governments, authorities, agencies and trusts
(in each case, whether or not having separate legal
personality);
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(c) any phrase introduced by the terms "INCLUDING", "INCLUDE", "IN
PARTICULAR" or any similar expression shall be construed as
illustrative and shall not limit the sense of the words
preceding those terms;
(d) references to "LIABILITIES" are to all liabilities of any
nature whatsoever, including actual or contingent liabilities
and unquantified or disputed liabilities (and "LIABILITY"
shall be construed accordingly);
(e) a reference to a statute or statutory provision includes a
reference to any subordinate legislation made under it from
time to time and a reference to a statute, statutory provision
or subordinate legislation includes a reference to:
(i) any statute, statutory provision or subordinate
legislation which it re-enacts or replaces (with or
without modification); and
(ii) such statute, statutory provision or subordinate
legislation as from time to time amended, re-enacted
or replaced (whether before or after the date of this
Agreement) save to the extent that any such
amendment, re-enactment or replacement which takes
effect after the date of this Agreement would impose
any new or extended obligation or liability on, or
otherwise adversely affect the rights of, any party;
(f) any reference to a document being "IN THE AGREED FORM" means a
document in the form agreed by the parties to it and signed or
initialled for the purposes of identification by them or on
their behalf, with such alterations (if any) as may
subsequently be agreed by or on behalf of such parties;
(g) references to clauses and the Schedule are to clauses of, and
the Schedule to, this Agreement;
(h) the table of contents and clause headings are included for
ease of reference only and shall not affect the interpretation
of this Agreement;
(i) all references in this Agreement to time are to U.K. time; and
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(j) any reference to any English legal term for any action,
remedy, method of judicial proceeding, legal document, legal
status, court, official or any legal concept or thing shall,
in respect of any jurisdiction other than England, be deemed
to include a reference to the term which most nearly
approximates in that jurisdiction to the English legal term.
1.3 The Schedule forms part of this Agreement and shall have effect as if
set out in full in the body of this Agreement, and any reference to
this Agreement includes the Schedule.
2. SALE AND PURCHASE
2.1 Each of the Vendors shall sell the Sale Shares to the Purchaser with
full title guarantee.
2.2 Each of the Vendors shall sell and the Purchaser shall purchase the
Sale Shares fully paid and free from all claims, liens, charges and
encumbrances, and together with all benefits and rights attaching to
the Sale Shares, including all dividends and other distributions
declared on or after the date of Completion (but excluding all
dividends and other distributions declared prior to the date for
Completion, whether or not paid or made by such date).
2.3 Each of the Vendors irrevocably and unconditionally waives all
pre-emption rights and any other rights of first refusal he may have in
relation to any of the Sale Shares under the articles of association of
the Company or otherwise.
3. CONSIDERATION
3.1 The aggregate consideration shall be the sum of (pound)1,475,426.25
(being (pound)3.75 per Sale Share) which shall be payable by the
Purchaser in cash on Completion.
3.2 The consideration shall be apportioned between the Vendors in the
manner set out in column (3) of the Schedule.
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4. COMPLETION
4.1 Completion shall take place at the offices of the Vendors' Solicitors
on a date which is not earlier than 31 December 2004 and not later than
5 Business Days after 31 December 2004.
4.2 On Completion:
(a) each Vendor will deliver to the Purchaser:
(i) duly executed transfers of the Sale Shares held by
him in favour of the Purchaser (or as it directs)
together with any power of attorney under which such
transfers have been executed;
(ii) the certificates representing the Sale Shares; and
(iii) any waiver, consent or other document necessary to
give the Purchaser (or its nominees) full legal and
beneficial ownership of the Sale Shares; and
(b) each Vendor shall approve, or vote in favour of, a resolution
to adopt the New Articles of Association.
4.3 Immediately upon the signing of this Agreement and on Completion, the
Purchaser will deliver to the Vendors' Solicitors a legal opinion,
addressed to the Vendors and the Company, in a form acceptable to the
Vendors and the Company, confirming that:
(a) the Purchaser is a corporation duly incorporated and validly
existing under the laws of the State of Florida, U.S.A.;
(b) the Purchaser has all necessary corporate power, authority and
capacity to enter into this Agreement and to perform its
obligations hereunder and this Agreement constitutes a valid
and binding obligation of the Purchaser, enforceable against
it in accordance with the terms hereof; and
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(c) no governmental or regulatory authorisation, approval, order,
consent or filing is required on the part of the Purchaser in
connection with the execution, delivery and performance of
this Agreement or any documents or agreements to be delivered
under this Agreement.
4.4 The Vendors will use their reasonable endeavours to procure that a
board meeting of the Company is held at which the directors of the
Company shall resolve to:
(a) register the transfers of the Sale Shares to the Purchaser or
as it directs (subject to stamping); and
(b) appoint such person as the Purchaser nominates as a director
of the Company.
4.5 Upon Completion the Purchaser will pay the consideration stated in
clause 3.1 by means of an electronic funds transfer to the account of
the Vendors' Solicitors with National Westminster Bank PLC, City of
London Office, PO Box 12258, 0 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Sort
Code 60-00-01 and account number 00000000.
4.6 Without prejudice to the obligation of the Purchaser to pay the
consideration pursuant to clause 4.5, the parties acknowledge that the
Purchaser may pay the consideration stated in clause 3.1:
(a) by an electronic funds transfer of the balance standing to the
credit of the Escrow Account to the account set out in clause
4.5; and/or
(b) if the said consideration exceeds the amount standing to the
credit of the Escrow Account referred to in clause 4.6(a)
above, the difference shall be payable by the Purchaser in
accordance with clause 4.5 to the account set out in clause
4.5.
4.7 None of the parties is obliged to complete this Agreement unless:
(a) the other parties comply with all their obligations under
clause 4; and
(b) the purchase of all the Sale Shares is completed
simultaneously,
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PROVIDED ALWAYS that this clause shall be without prejudice to the
Vendors' rights under the Escrow Agreement in respect of any breach by
the Purchaser of clauses 4.3 or 4.5.
4.8 Each of the Vendors hereby undertakes to the Purchaser that so long as
he remains the registered holder of any of the Sale Shares after
Completion he will:
(a) not represent himself as the beneficial owner of any of the
Sale Shares;
(b) stand and be possessed of the Sale Shares and (subject to
clause 2.2) the dividends and other distributions of profits
or surplus or other assets in respect thereof and all rights
arising out of or in connection therewith in trust for the
Purchaser;
(c) at all times hereafter deal with and dispose of the Sale
Shares and the dividends, distributions, surpluses, assets and
rights referred to in clause 4.8(b) above as the Purchaser may
direct;
(d) if so requested by the Purchaser:
(i) vote at all meetings which he shall be entitled to
attend as the registered holder of the Sale Shares in
such manner as the Purchaser may direct; and
(ii) execute all instruments of proxy or other documents
which the Purchaser may require and which may be
necessary or desirable or convenient to enable the
Purchaser to attend and vote at any such meeting.
5. WARRANTIES
5.1 Each of the Vendors severally warrants to the Purchaser, in respect of
the Sale Shares set opposite his name in column (2) of the Schedule,
that at date of this Agreement:
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(a) the Vendor is the beneficial owner and registered holder of
the Sale Shares registered in his name;
(b) the Vendor has full power and authority and has taken all
action necessary to enter into, deliver and perform this
Agreement and the documents to be delivered by the Vendor at
Completion, which constitute, or when executed will
constitute, valid and binding obligations enforceable in
accordance with their terms; and
(c) the Sale Shares which are owned by that Vendor are
beneficially owned free from encumbrances and rights of third
parties and the Vendor will be entitled to transfer the
ownership of such Sale Shares to the Purchaser (or as it
directs) on the terms of this Agreement without the consent of
any third party.
5.2 Immediately before the date of Completion, each Vendor shall be deemed
to warrant that the Warranties contained in clause 5.1 are true and
accurate at the date of Completion.
5.3 Each of the Warranties is a separate and independent Warranty and,
except where expressly stated, no Warranty or other clause in this
Agreement restricts or limits the extent or application of any other
Warranty or any other clause.
5.4 The Warranties shall remain in full force and effect notwithstanding
Completion.
5.5 Any breach of any of the Warranties or any other breach of this
Agreement by any of the Vendors shall give rise only to an action by
the Purchaser for damages and shall not entitle the Purchaser to
rescind or terminate this Agreement.
6. LIMITATION ON LIABILITY
6.1 In the absence of fraud, dishonesty or wilful concealment (together,
"PROSCRIBED CONDUCT") by or on behalf of a Vendor, the aggregate
liability of such Vendor in respect of all Claims shall not exceed the
amount of the consideration which he is to receive pursuant to this
Agreement, being that amount set opposite his name in the third column
of the Schedule.
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6.2 No Vendor shall be liable in respect of a Claim unless notice of the
Claim has been given by or on behalf of the Purchaser to the Vendors'
Solicitors on or before 31 March 2005.
6.3 No Vendor shall be liable in respect of a Claim to the extent that the
Claim results from or is increased by:
(a) without prejudice to clause 1.2(e) the making of, or any
change in, any law (including case law) statute, statutory
provision or subordinate legislation (together "LEGAL
PROVISIONS") or any change in the interpretation of any legal
provision; or
(b) the making of or any change in any rule, regulation,
interpretation or practice of any government, government
department, agency or regulatory authority; or
(c) any judgement delivered,
in each case, after the date of this Agreement and whether or not such
change purports to be effective retrospectively in whole or in part.
7. INTEREST
If the Purchaser defaults in the payment when due of any sum payable by
it under this Agreement (whether determined by agreement or pursuant to
an order of a court or otherwise) interest shall be payable by the
Purchaser on such sum from the date when such payment is due until the
date of actual payment (as well after as before judgment) at a rate per
annum of 4 per cent above the base rate from time to time of Natwest
Bank Plc. Such interest shall accrue from day to day and be compounded
quarterly.
8. PAYMENTS
8.1 All amounts due under this Agreement shall be paid in full without any
deduction or withholding other than as required by law and no party
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shall be entitled to assert any credit, set-off or counterclaim against
the other in order to justify withholding payment of any such amount in
whole or in part.
8.2 If any deduction or withholding is required by law to be made by any
party, that party shall be obliged to pay the receiving party such
additional amount as will result in the receipt by the receiving party
of a net amount equal to what it would have been entitled to receive in
the absence of the requirement to make a deduction or withholding.
9. ANNOUNCEMENTS
9.1 Subject to clause 9.2, no party may make any public announcement or
disclosure or issue any communication or publicity relating to the
subject matter or terms of this Agreement without first obtaining each
of the other parties' written consent, which shall not be unreasonably
withheld or delayed.
9.2 Clause 9.1 shall not apply to any announcement, disclosure,
communication or publicity required by law, by any tax or regulatory
authority or NASDAQ or any other recognised stock exchange provided
that the party required to make or issue it has, if practicable,
consulted with and taken into account the reasonable requirements of
each of the other parties.
10. FURTHER ASSURANCE
Each of the Vendors shall at his own cost and expense use all
reasonable endeavours to do, or procure to be done, all such further
acts and things and execute, or procure the execution of, all such
other documents as the Purchaser may from time to time reasonably
require for the purpose of giving the Purchaser the full benefit of the
provisions of this Agreement.
11. WAIVERS
11.1 The failure to exercise or delay in exercising a right or remedy
provided by this Agreement or by law does not constitute a waiver by
any party of the right or remedy or a waiver of other rights or
remedies and no single or partial exercise of any right or remedy by
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any party will preclude or restrict the further exercise or enforcement
by any party of any such right or remedy.
11.2 A waiver by any party of a breach of any provision of this Agreement
does not constitute a waiver of any other breach and shall not affect
the other provisions of this Agreement. A waiver by any party of a
breach of any provision of this Agreement shall not (unless the terms
of the waiver expressly provide otherwise) be construed as a waiver by
such party of any continuing or subsequent breach of any provision or a
modification of such provision.
11.3 A waiver of any right under this Agreement is only effective if it is
in writing, and any such waiver shall (unless the terms of the waiver
expressly provide otherwise) apply only to the party to whom the waiver
is addressed and the circumstances for which it is given.
12. ENTIRE AGREEMENT
12.1 This Agreement, the Escrow Agreement and the Escrow Terms constitute
the entire agreement and understanding between the parties relating to
its subject matter and supersedes any and all previous agreements,
arrangements and/or understandings (whether written or oral) between
the parties relating to such subject matter.
12.2 Each of the parties acknowledges and agrees that:
(a) in entering into this Agreement it does not rely on, and shall
have no remedy in respect of, any statement, representation,
warranty or understanding (whether negligently or innocently
made) of any person (whether a party to this Agreement or not)
other than as are expressly set out in this Agreement; and
(b) the only remedy available to it under or in respect of this
Agreement shall be for breach of contract under terms of this
Agreement.
12.3 Nothing in this clause shall operate to limit or exclude any liability
for fraud.
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13. ASSIGNMENT
A party may not (whether at law or in equity) without the prior written
consent of each of the other parties (such consent not to be
unreasonably withheld or delayed) assign, transfer, charge or deal in
any other manner with this Agreement or any of its rights under this
Agreement, nor sub-contract any or all of its obligations under this
Agreement, nor purport to do any of the same.
14. VARIATION
No variation of this Agreement shall be effective unless it is in
writing and signed by or on behalf of each of the parties to this
Agreement.
15. GENERAL
15.1 All provisions of this Agreement shall continue in full force and
effect notwithstanding Completion, except those provisions already
performed at Completion.
15.2 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this Agreement but this does not affect any right or remedy of a third
party which exists or is available apart from that Act.
15.3 If any provision of this Agreement is held to be illegal, void, invalid
or unenforceable (in whole or in part) by any court or administrative
body of competent jurisdiction, that provision shall to that extent be
deemed not to form part of this Agreement but the enforceability of the
remainder of this Agreement shall not be affected.
16. COSTS
In relation to the negotiation, preparation, execution and performance
of this Agreement and of each document referred to in it, the Purchaser
shall pay its own costs and the costs of the Vendors shall be paid from
the moneys held in the Escrow Fund.
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17. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of
which when executed shall be an original but all the counterparts shall
together constitute one and the same instrument.
18. NOTICES
18.1 Any notice or other communication to be given under this Agreement
shall be in writing and shall be delivered personally or sent by
pre-paid first class recorded delivery post (if sent to an address
which is in the same country to the party giving the notice or
communication) or by airmail (if sent to an address which is in a
different country to the party giving the notice or communication) or
by fax to the parties' respective registered office or other addresses
set out in this Agreement or as otherwise notified by the relevant
party from time to time (in accordance with the provisions of this
clause).
18.2 A notice or other communication given under this Agreement shall be
deemed to have been received:
(a) if delivered personally, upon delivery to the address referred
to in clause 18.1;
(b) if sent by pre-paid first class recorded delivery post, at 9
a.m. on the next Business Day after the date of posting;
(c) if sent by airmail, at 9 a.m. on the third Business Day after
the date of posting; and
(d) if sent by fax, when confirmation of its uninterrupted
transmission has been recorded by the sender's fax machine
provided that, in such a case, if deemed receipt would
otherwise occur before 9 a.m. on a Business Day the notice or
other communication shall be deemed to have been received at 9
a.m. on that Business Day, and if deemed receipt would
otherwise occur after 5 p.m. on a Business Day, or on any day
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that is not a Business Day, the notice or other communication
shall be deemed to have been received at 9 a.m. on the next
Business Day.
18.3 For the purposes of this Agreement, notices or other communication
shall not be validly given if sent by e-mail.
19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement shall be governed by and construed in accordance with
English law.
19.2 Each party irrevocably agrees to submit to the exclusive jurisdiction
of the courts of England and Wales over any claim or matter arising
under or in connection with this Agreement or the legal relationships
established by this Agreement.
19.3 The Purchaser irrevocably appoints Xxxxxxx Xxxxxx Xxxxxx of Xxxx Xxxx,
Xxxxxxxxx, Xxxx Xxxxxx, XX00 0XX (fax number 00000 000 000) as its
agent to receive on its behalf in England service of any proceedings
arising out of or in connection with this Agreement. Such service shall
be deemed completed on delivery to such agent (whether or not it is
forwarded to and received by the Purchaser. If for any reason such
agent ceases to be able to act as agent or no longer has an address in
England, the Purchaser irrevocably agrees that within 10 Business Days
it shall appoint a substitute agent acceptable to each of the Vendors
with an address in England and deliver to each of the Vendors a copy of
the new agent's acceptance of that appointment, together with its name,
address and fax number. Nothing contained in this Agreement shall
affect the right to serve process in any other manner permitted by law.
IN WITNESS of which this Agreement has been entered into on the date set out at
the head of this Agreement.
SCHEDULE
THE VENDORS
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(1) (2) (3)
NAME AND ADDRESS NUMBER OF SALE CONSIDERATION
OF VENDORS SHARES TO BE SOLD ((POUND))
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(1) Xxxxx Xxxxxx 56,535 212,006.25
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(2) Xxxx Dallmen 2,000 7,500.00
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(3) D.W. Trust Fund 16,824 63,090.00
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(4) Xxxxxxxx Xxxx Hills 2,666 9,997.50
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(5) Xxx XxXxxxxx 486 1,822.50
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(6) Xxxxxxxx XxXxxxxx 8,938 33,517.50
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(7) Xxxxxxx Xxxxxx 972 3,645.00
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(8) Xxxx Xxxxxxxx Xxxxxx 14,005 52,518.75
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(9) Xxxx Xxxxx Xxxxxx 40,000 150,000.00
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(10) Xxxxxx Xxx Xxxxxxxxxx 1 3.75
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(11) Xxxxxxx Xxxxxxx Xxxxxxxx 58,442 219,157.50
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(12) Xxx Xxxxxx 15,267 57,251.25
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(13) Xxxxx Xxxxxxxx Xxxxxxxx 9,005 33,768.75
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(14) Xxxxx Limited 156,156 585,585.00
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(15) Xxxxxxxxxxx Xxxx Xxxx 12,150 45,562.50
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TOTAL 393,447 (pound)1,475,426.25
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SIGNED by )
duly authorised on behalf of )
RS GROUP OF COMPANIES, INC. )
SIGNED by )
XXXXX XXXXXX )
SIGNED by )
XXXX DALLMEN )
SIGNED by )
duly authorised on behalf of )
D. W. TRUST FUND )
SIGNED by )
XXXXXXXX XXXX HILLS )
SIGNED by )
XXX XXXXXXXX )
SIGNED by )
XXXXXXXX XXXXXXXX )
SIGNED by )
XXXXXXX XXXXXX )
SIGNED by )
XXXX XXXXXXXX XXXXXX )
SIGNED by )
XXXX XXXXX XXXXXX )
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SIGNED by )
XXXXXX XXX XXXXXXXXXX )
SIGNED by )
XXXXXXX XXXXXXX XXXXXXXX )
SIGNED by )
XXX XXXXXX )
SIGNED by )
XXXXX XXXXXXXX XXXXXXXX )
SIGNED by )
duly authorised on behalf of )
XXXXX LIMITED )
SIGNED by )
XXXXXXXXXXX XXXX XXXX )
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