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DATED February 12, 1997
WARRANTY AND COVENANT AGREEMENT
in relation to
EDEN GROUP LIMITED
THE WARRANTORS (1)
THE PRINCIPAL SELLERS (2)
GEOWORKS (3)
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INDEX
PARTIES 1
INTRODUCTION 1
INTERPRETATION 1
OPERATIVE PROVISIONS 8
1 Conditions Precedent 8
2 The Offer and Termination of this Agreement 8
3 Operation of the Business Prior to Completion 9
4 Completion 12
5 Warranties, covenants, representations and undertakings 14
6 Confidentiality 17
7 Restrictions 17
8 Restrictive Trade Practices Act 18
9 Use of the Company's names 19
10 Access and Review 19
11 General Provisions 19
SCHEDULE 1 22
Part 1 22
The Warrantors 22
Part 2 23
Principal Sellers 23
Part 3 24
Other Shareholders 24
Part 4 31
Optionholders 31
SCHEDULE 2 33
Part 1 33
Particulars of the Company 33
Part 2 35
Particulars of the Subsidiaries 35
Part 3 37
Particulars of the Buyer 37
SCHEDULE 3 38
Warranties by the Warrantors 38
1 Information 38
2 Capital, distribution, contracts and liabilities 39
3 The Shares and the Company 40
4 Accounts 40
5 Business and Trading 41
6 Stocks, assets and insurance 42
7 Sale of the Shares 43
8 Taxation 44
9 Employees, agents and pensions 46
10 Pensions 47
11 Litigation 47
12 Capital commitments, unusual contracts, guarantees etc. 48
13 Borrowings and lendings 48
14 Continuation of facilities 49
15 The Properties 49
16 Environmental 52
17 Insolvency 52
18 Intellectual Property 53
19 Competition 55
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20 Financial Services 55
21 Non Trading Companies 56
SCHEDULE 4 57
The Properties 57
SCHEDULE 5 58
Intellectual Property 58
Part 1 - Outward Licenses 58
Part 2 - Inward Licenses 58
Part 3 - Intellectual Property Registrations and Applications 59
Unregistered Intellectual Property 60
SCHEDULE 6 61
The Software 61
SCHEDULE 7 62
The Tax Covenants 62
1 Introduction 62
2 Covenant to pay 63
3 Exclusions 64
4 General 64
ATTESTATIONS 65
AGREED FORM DOCUMENTS REFERRED TO IN THIS AGREEMENT
1 The Disclosure Letter
2 Escrow Agreement
3 Irrevocable Undertakings
4 The Management Accounts
5 The Offer
6 Options Agreement
7 Termination Agreement
8 Resignations of Directors
9 Acknowledgements and waivers from each of the Sellers and the Company
10 Resignation of the Auditors
11 Waivers and consents by all members of Company to enable Buyer to be registered as the holder of the shares
12 Certified copies of Resolutions
13 Properties title deeds
14 Preference share sale letter agreement
15 3i/Acer releases and re-assignments
16 Ernst & Young Opinion Letter
17 Declaration of Registration Rights
18 Affiliates' Agreement
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WARRANTY AND COVENANT AGREEMENT
DATE
February 12, 1997
PARTIES
(1) THE PERSONS whose names and addresses are set out in Part 1 of
Schedule 1 (collectively "the Warrantors" and individually a
"Warrantor");
(2) THE PERSONS whose names and addresses are set out in Part 2 of
Schedule 1 (collectively "the Principal Sellers" and individually a
"Principal Seller"); and
(3) GEOWORKS, a California corporation whose principal office is at 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, XX 00000, Xxxxxx Xxxxxx of
America ("the Buyer").
INTRODUCTION
(A) The Company was incorporated in England and Wales on 9 March 1989
under the Companies Xxx 0000 and is registered under number 2357515
as a private company limited by shares. It has at the date of this
Agreement an authorised share capital of L.1,138,500 divided into
1,611,580 ordinary shares of L.0.10 each and 977,342 redeemable
cumulative preference shares, of which only the Shares have been
issued and are fully paid or credited as fully paid. Each of the
Sellers is the legal and beneficial owner of the Shares shown against
his name in column (3) of Schedule 1 and as such has the right, power
and authority to sell and transfer those Shares free from all and any
claims, charges, liens, encumbrances and equities.
(B) The business of the Company is the development, marketing and
licensing of computer software for mobile communications devices,
companion software for use on personal computers and the provision to
customers of related services.
(C) The Buyer was incorporated in California on September 27, 1983 under
the California Corporations Code. The capital structure of the Buyer
at the date of this Agreement consists of 20,000,000 shares of common
stock, no par value (the "Common Stock"), and 2,000,000 shares of
undesignated preferred stock, no par value (the "Preferred Stock"),
of which there have been issued and are fully paid the shares set out
in Part 3 of Schedule 2.
(D) The Buyer wishes to make an offer to buy all the Shares on the terms
and subject to the conditions of the Offer and each of the Sellers is
willing to sell his Shares by accepting the Offer and on the terms
and subject to the conditions of this Agreement.
INTERPRETATION
(1) In this Agreement (including the Introduction and Schedules), the
following expressions shall have the meanings set out below:
the Accounts the balance sheet of the Company and the
consolidated audited balance sheets of
the Company as at the Accounts Date and
the profit and loss account of the
Company and the consolidated audited
profit and loss accounts of the Company
for the year ended on the Accounts Date
together with the directors' reports and
other documents required by law to be
annexed thereto
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the Accounts Date 30 June 1996
Affiliates Agreement an agreement in the agreed form to
be delivered by the shareholders or
optionholders in the Company identified
as Affiliates in Schedule 1
Board(s) the board of directors for the time
being of the Buyer and the Company as
specifically referred to
the Business the activities of the Company
described in paragraph (B) of the
Introduction
Business Day any day (not being a Saturday
or a Sunday) on which the Stock Exchange
and banks in San Francisco are open for
business
the Buyer's Solicitors X X Xxxxxx & Co of 000 Xxxxx
Xxx Xxxx, Xxxxxx XX0X 0XX
CAA the Capital Allowances Act 1990
the Companies the Company and the Subsidiaries and
each of them
Commercial Know-how all information, other than Computer
Know-how, relating to the Business and
the Company's prospects, markets,
pricing, customers, suppliers,
employees, consultants and such policies
as it has
the Company Eden Group Limited, brief details of
which are set out in Part 1 of
Schedule 2
the Company's Auditors Ernst & Young of Commercial Xxxxx Xxxxx,
Xxxxxx Xxxxxx, Xxxxxxxxxx X0 0XX
Completion completion of this Agreement in
accordance with the terms of clause 4,
which will take place simultaneously
with the completion of the Offer upon
satisfaction of the Offer Conditions
Computer Know-how all information not at present in the
public domain (including information
contained in or arising from research,
designs, flow charts, expressions,
methodology, logic flows,
specifications, drawings, manuals lists
and instructions in whatever form held)
relating to computer hardware and
software including:
(a) systems integration, integrated and
other circuits and digitiser technology;
(b) memory organisation, object
representation and display management;
(c) porting, interfaces and signal
processing;
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(d) operating and applications software,
including graphics, windows and
hypermedia;
(e) menu structures, macro facilities,
programming languages and tools,
software interfaces, and source code;
(f) the design, selection, procurement,
construction, installation use, repair,
service or maintenance of any software;
(g) the Company's current or future
range of software;
(h) the supply, storage computer
software or components therefor; and
(i) quality control, testing or
certification
the Conditions the conditions to this Agreement set
out in clause 1
the Consideration
Shares the 1,304,250 shares of Common Stock
of the Buyer, having the rights and
being subject to the restrictions set
out in the Articles of Incorporation of
the Buyer, to be issued to the Sellers
upon Completion in accordance with and
subject to the provisions of clause 4
the Declaration of
Registration Rights the declaration of registration rights
in the agreed form, proposed to be
entered into by the Buyer for the
benefit of all the Sellers and other
shareholders of the Company selling
pursuant to the Offer
the Directors the persons specified as directors of
the Company in Part 1 of Schedule 2, the
expression "Director" meaning any of
them
the Disclosure Letter a letter dated the same date as this
Agreement from the Warrantors to the
Buyer in the agreed form disclosing
certain facts in connection with the
Warranties
Disposal includes any disposal of any legal or
beneficial interest whatever including,
without limitation, any sale or transfer
of or grant of any option or Encumbrance
in the property in question and
"Dispose" shall be construed accordingly
the Employees those persons (including directors)
whose names appear in the list attached
to the Disclosure letter
Encumbrance any security interest of any nature
whatever including, without limitation,
any mortgage, charge, pledge, lien,
assignment by way of security
Environment air, water, land, buildings, flora,
fauna and humans
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Environmental Consents any permit, licence, authorisation,
approval or consent required under or
agreement made pursuant to any
Environmental Law
Environmental Law all laws which are in force or enacted
at the date of this Agreement (including
common laws, statutes and subordinate
legislation), regulations, codes of
practice or guidance notes concerning
the Environment or health and safety
Escrow Agreement the agreement in the agreed form
governing the establishment of an escrow
fund of some of the Consideration Shares
Escrow Amount 65,213 of the Consideration Shares to be
issued to the Warrantors
the Existing Options the options granted to directors,
employees and others in the terms of the
schemes and agreements set out in or
annexed to the Disclosure Letter, brief
details of which appear in Part 4 of
Schedule 1
the Freehold Property the Xxxxxx, Xxxxxx, Xxxxxxxx XX00 0XX
FSA Financial Services Xxx 0000
ICTA the Income and Corporation Taxes Act
1988
Incidental Amount the amount of a Material of
Environmental Concern present in the
Environment which is insufficient to
cause harm or have a deleterious effect
on the Environment
Intellectual Property copyrights, trade and service marks,
trade names, rights in logos and get-up,
inventions, confidential information,
trade secrets and know-how including
Commercial Know-how and Computer
Know-how, registered designs, design
rights, patents, utility models,
semi-conductor topographies, all rights
of whatsoever nature in computer
software and data, all moral rights,
including rights of paternity and
integrity, all rights of privacy and all
intangible rights and privileges of a
nature similar or allied to any of the
foregoing, in every case in any part of
the world and whether or not registered;
and including all granted registrations
and all applications for registration in
respect of any of the same
the Investor Loan
Agreements the agreements in the agreed form
between the Company and each of 3i Group
plc and AII Holding Corporation dated 27
June 1995
Investor Loans the long term loans advanced to the
Company by 3i Group plc and AII Holding
Corporation pursuant
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to the Investor Loan Agreements and all
amounts due and payable thereunder
Irrevocable Undertakings irrevocable undertakings to accept the
Offer, in the agreed form
the Management Accounts the management accounts of the Company
for the period of seven months from the
Accounts Date in the agreed form
Materials of
Environmental Concern any substance which may cause harm to or
have a deleterious effect on the
Environment
the Properties the Freehold Property and leasehold
properties short particulars of which
appear in Parts 1 and 2 of Schedule 4
and references to "the Properties" shall
extend to any part or parts thereof
the Offer the offer proposed to be made in the
agreed form by the Buyer to all the
holders of the Shares
the Offer Conditions the conditions precedent to the Offer,
as set out therein
the Options Agreement an agreement in the agreed form pursuant
to which all the holders of Existing
Options will agree to exercise their
Existing Options and accept the Offer on
the terms set out therein
the Parties the parties to this Agreement, the
expression "Party" meaning any of them
the Patents the patents and applications for
patents, brief particulars of which are
set out in Schedule 5
Relief any relief, allowance, deduction or
credit in respect of Taxation
Restricted Activities the businesses carried on by the Company
as at today's date as described in
paragraph (B) of the Introduction
the Sellers collectively, the Warrantors and the
Principal Sellers, each of the foregoing
being individually a "Seller"
the Shares all the issued ordinary shares in the
capital of the Company on the date of
Completion, as set out in column (3) of
Parts 1, 2 and 3 of Schedule 1 and the
ordinary shares arising upon exercise of
the options listed in Part 4 of Schedule
1 and upon capitalisation of the
Investor Loans, shown in column (4) of
Part 2 of Schedule 1
the Software all computer software developed or
written or being developed or written by
or on behalf of the
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Company, or acquired or licensed to the
Company, including that listed or
referred to in Schedule 6
SSAP a statement of Standard Accounting
Practice published by the former
Accounting Standards Committee or the
present Accounting Standards Boards, as
the same have effect on the date of this
Agreement
Subsidiaries those companies short particulars of
which appear in Part 2 of Schedule 2,
being all the subsidiaries of the
Company, and the expressions
"Subsidiary" shall mean any of the
Subsidiares
the Stock Exchange London Stock Exchange Limited
the Tax Covenants the covenants relating to Taxation, set
out in Schedule 7
Taxation, Taxing Authority
Transaction the same respective meanings as in the
Tax and Covenants
TCGA the Taxation of Chargeable Gains Xxx
0000
VAT Value Added Tax
VATA the Value Added Tax Xxx 0000
Trade Marks all trade marks or names owned and/or
used by or on behalf of the Company,
including the registrations and the
applications listed in Part 3 of
Schedule 5 and the unregistered trade
marks or names set out in Part 4 of
Schedule 5
the Warranties the representations, warranties and
undertakings pursuant to clause 5 and
set out in Schedule 3 and including,
where the context permits, any
individual paragraph or statement in
Schedule 3
the Warrantors the persons listed in Column (1) of Part
1 of Schedule 1
the Warrantors' Solicitors Dibb Xxxxxx Xxxxx of Xxxxxxx Xxxxx,
Xxxxxx Xxx, Xxxxxxxxxx, X0 0XX
(2) All references to statutory provisions or enactments shall include
references to any amendment, modification or re-enactment of any such
provision or enactment coming into force prior to the date hereof and
to any regulation or order made under such provision or enactment
which is currently in force.
(3) The words "subsidiary" and "holding company" have the meanings given
in sections 736 and 736A of the Companies Xxx 0000 and the expression
"subsidiary undertakings" shall have the meaning given in section 258
of the Companies Xxx 0000.
(4) References to documents "in the agreed form" are to documents in
terms agreed on or before the date hereof between the Parties and
signed (for the purpose of identification only) by the
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Warrantors' Solicitors and the Buyer's Solicitors and on behalf of 3i
Group plc and AII Holding Corporation where either is a party to such
document.
(5) References to those of the Parties who are individuals include
references to their respective legal personal representative(s).
(6) References to the clauses, Parties, Introduction, and Schedules are
references respectively to the clauses of and the Parties,
Introduction, and Schedules to this Agreement.
(7) Section 839 of ICTA (connected persons) is to apply to determine
whether a person is connected with another for the purposes of this
Agreement.
(8) References in clause 3 or in Schedule 3 to an "agreement" or a
"contract" include any written or oral promise, undertaking or
arrangement which is capable of being treated as a legally
enforceable agreement.
(9) Save where the context specifically requires otherwise, words
importing one gender shall be treated as importing any gender, words
importing the singular shall be treated as importing the plural and
vice versa, wording importing individuals shall be treated as
importing corporations and vice versa, and words importing the whole
shall be treated as including a reference to any part thereof. The
obligations of the Parties are, save where specifically provided,
several and not joint or joint and several.
(10) The captions, clause and paragraphs headings of this Agreement are
included for ease of reference only and shall not affect
construction.
OPERATIVE PROVISIONS
1 CONDITIONS PRECEDENT
1.1 This Agreement is conditional upon the conditions in paragraphs (a)
to (d) below of this clause 1.1 being fulfilled to the satisfaction
of the Buyer or being waived in writing in whole or in part by the
Buyer:
(a) each of the holders of Existing Options and the Buyer
executing and unconditionally exchanging the Options
Agreement;
(b) each of 3i Group plc and AII Holding Corporation agreeing
in terms satisfactory to the Buyer to capitalise the
Investor Loans as new ordinary shares of L.0.10 each in the
Company and to release of the related security for the
Investor Loans;
(c) each of the persons listed in Schedule 1 marked with the
suffix "I.U." having delivered to the Buyer duly executed
Irrevocable Undertakings;
(d) the execution and delivery by 3i Group plc and 3i plc of a
letter agreement in the agreed form selling all its
Preference Shares in the Company to the Buyer in return for
the aggregate sum of L.100 in cash to be paid at
Completion.
1.2 In the event that any of the Conditions are not or have not been
satisfied or waived in writing by the Buyer upon the date of this
Agreement immediately following its signature by all the Parties, or
by such later date as may be agreed by the Warrantors' Solicitors and
the Buyer's Solicitors and 3i Group plc and AII Holding Corporation,
this Agreement shall lapse and be null and void and no Party shall
have or make any claim against any other Party in respect of this
Agreement.
1.3 Upon the Conditions being satisfied or waived pursuant to clause 1.2
the Warrantors shall deliver the Disclosure Letter to the Buyer.
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2 THE OFFER AND TERMINATION OF THIS AGREEMENT
2.1 Subject to the terms and subject to the conditions of this Agreement:
(a) the Buyer undertakes:
(i) to make the Offer within 24 hours after the
Conditions have all been satisfied or waived
pursuant to clause 1.2;
(ii) not to withdraw the Offer prior to 14 March 1997; and
(iii) to declare the Offer unconditional as to acceptances
if holders of shares holding at least 90% in nominal
amount of the ordinary shares accept the Offer;
(b) each of the Sellers agrees irrevocably to accept the Offer
in accordance with the Irrevocable Undertakings within
three Business Days of the making of the Offer;
(c) each of the Sellers agrees to use reasonable endeavours to,
procure (insofar as he is able using all voting powers at
his disposal) that the Board of the Company unanimously
recommend in accordance with the form of Chairman's letter
set out in the Offer the acceptance of the Offer by the
holders of the Shares; and
(d) none of the Sellers shall effect or agree to effect any
Disposal of any of the Shares held or beneficially owned by
him or it other than pursuant to an acceptance of the Offer
and none of the Sellers shall give a transfer notice under
Article 13 of the Company's articles of association until
Completion or the termination or lapse of this Agreement,
whichever is the earliest to occur.
2.2 Each of the Sellers (other than 3i Group plc) shall use all
reasonable endeavours to ensure that the Offer shall be accepted and
become unconditional in accordance with its terms and shall (without
limiting the foregoing general obligation) keep the Buyer informed of
all relevant matters in connection with the acceptance of the Offer
and fulfilment of the Offer Conditions.
2.3 This Agreement shall terminate forthwith and none of the Parties
shall, other than for any breach of clauses 2.1 or 2.2, be under any
further obligation to any other Party if the Offer lapses, is
withdrawn or is declared incapable of becoming unconditional.
3 OPERATION OF THE BUSINESS PRIOR TO COMPLETION
3.1 Each of the Warrantors hereby covenants with and undertakes to the
Buyer that neither he nor the Company nor either of the Subsidiaries
shall at any time prior to Completion without the prior written
consent of the Buyer do, knowingly allow or procure any act or
omission which would (or would be likely to) cause, constitute or
result in a breach of the Warranties if the same were to be expressly
repeated at Completion or which they are aware would make any of
Warranties untrue, incorrect, inaccurate or misleading if they were
expressly repeated at Completion.
3.2 The Warrantors shall, and each of the other Sellers agrees to use
reasonable endeavours to, procure (insofar as he is able using all
voting and contractual powers at his disposal) that between the date
of this Agreement and the earliest to occur of Completion or the date
of termination or lapse hereof (both dates inclusive):
(a) the Company shall advise the Buyer on operational
developments which they consider to be material and the
general status of its operations; and
(b) the Company shall not without the Buyer's prior written
consent:
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(i) save as provided in the Offer permit or cause to
be proposed any alteration to its share capital
(including any increase thereof) or the rights
attaching to its shares;
(ii) save as provided in the Offer create, allot,
issue, redeem, consolidate, convert or
sub-divide any share or loan capital or grant or
agree to grant any options for the issue of any
share or loan capital;
(iii) subscribe or otherwise acquire, or dispose of
any shares in the capital of any company;
(iv) acquire or dispose of the whole or part of the
undertaking of it or of any other person, firm
or company;
(v) send any notice to its shareholders or pass any
shareholder resolution save as required by law
or relating to the matters dealt with by this
Agreement or the Offer;
(vi) cease or propose to cease to carry on its
business or be wound up or enter into
receivership, administrative receivership or any
form of management or administration of its
assets, save as required by law;
(vii) permit or suffer any of its insurances to lapse
or knowingly do anything which would make any
policy of insurance of it null or voidable;
(viii) apply or permit its directors to apply to
petition to the Court for an administration
order or similar order to be made in respect of
it, save as required by law;
(ix) make any change to its auditors, its bankers or
the terms of the mandate given to such bankers
in relation to its account(s), or its accounting
reference date;
(x) enter into or vary any transaction or
arrangement with, or for the benefit of any of
its directors or shareholders or any other
person who is connected with any of its
directors or shareholders;
(xi) borrow monies (other than by way of its agreed
overdraft facility) or accept credit (other than
normal trade credit) or make payments out of or
drawings on its bank accounts other than in the
ordinary course of business prior to the date of
this Agreement;
(xii) make any payment otherwise than on an arm's
length basis;
(xiii) enter into or give or permit or (save in respect
of the charges referred to in Schedule 2) suffer
to subsist any guarantee of or indemnity or
contract of suretyship for or otherwise commit
itself in respect of the due payment of money or
the performance of any contract, engagement or
obligation of any other person or body;
(xiv) grant any lease or third party right in respect
of any of or any part of any of the Properties
or assign or dispose or deal with any of the
Properties or any part of any of them or acquire
any right, title or interest in any other
property;
(xv) propose or pay any dividend or propose or make
any other distribution;
(xvi) enter into any partnership or joint venture;
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(xvii) incur any capital expenditure (including
obligations under hire purchase and leasing
arrangements) exceeding in aggregate L.100,000
or as regards any single item L.25,000;
(xviii) dispose of any asset of a capital nature with a
book or market value in excess of L.50,000 with
the exception of the Freehold Property;
(xviv) engage any employee on terms that either his
contract cannot be terminated by three months'
notice or less or his emoluments and/or
commissions or bonuses are or are likely to be
at the rate of L.50,000 per annum or more or
increase the emoluments and/or commissions or
bonuses or any employee to more than L.50,000
per annum or vary the terms of employment of any
employee earning (or so that after such
variation he will, or is likely to earn) more
than L.50,000 per annum;
(xx) vary or make any binding decisions on the terms
of employment and service of any officer or any
of the Employees, increase or vary the salary or
other benefits of any such officer or employee,
or appoint or dismiss any officer or such
employee;
(xxi) mortgage or charge or permit the creation of or
(save in respect of the charges referred to in
Schedule 2) suffer to subsist any mortgage or
charge over the whole or any part of its assets
or (save as described in the Offer) redeem any
of the foregoing;
(xxii) make any loan or give any credit (other than
normal trade credit or to employees in the
normal course) or acquire any loan capital of
any corporate body (wherever incorporated);
(xxiii) effect or agree to any Disposal or licence of
any of its Intellectual Property including the
Software
(xxiv) surrender or agree to any material change in or
waive or compromise any rights under the terms
of any supply, distribution, licensing or other
commercial agreement to which it is from time to
time a party;
(xxv) enter into any leasing, hire, hire purchase or
other agreement for payment on deferred terms,
any contract not in the ordinary course of
business or any unusual or onerous contract or
any other material or major or long term
contract;
(xxvi) make any change in its business or do any act or
thing outside the ordinary course of the
business carried on by it;
(xxvii) conduct any litigation (save for the collection
of debts arising in the ordinary course of
business) or settle or compromise any claim or
dispute; or
(xxviii) enter into any contract or commitment to do any
of the acts or matters referred to in this
clause 3.2.
3.3 Each of the Sellers hereby covenants with and undertakes to the Buyer
that such Seller shall not at any time prior to the earliest to occur
of Completion or the date of termination or lapse of this Agreement:
(a) effect or attempt to Dispose of any of his Shares;
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(b) enter into discussions with any persons as regards the
Disposal of any of his Shares or a material part of the
assets or business of the Company or the Subsidiaries; or
(c) vote in favour of any resolution in general or class
meeting, except in accordance with the Offer Conditions.
3.4 The Warrantors insofar as they are respectively able using the voting
rights at their disposal hereby covenant with and undertake to the
Buyer to procure that between the date of this Agreement and
Completion or, if earlier, the date of termination or lapse:
(a) the Company will continue to pay its creditors in the
ordinary course of business or on its usual basis;
(b) the Company will keep the Properties in no worse condition
than as at the date of this Agreement;
(c) the Company shall continue to operate in the ordinary
course of business and will not knowingly take or permit
any action, omission, neglect or default which would damage
the Business; or
(d) the Company will maintain the insurances as have been
maintained prior to the date of this Agreement, as set out
in the Disclosure Letter.
3.5 Each Warrantor shall give notice to the Buyer promptly upon the
Warrantor becoming aware of any breach of clause 3.1 and/or any event
or matter having or which may have a material adverse effect on the
Company or its business operations or prospects.
3.6 Upon any breach of any of the provisions of clauses 3.1 to 3.4
(inclusive) the Buyer shall be entitled at any time prior to
Completion (without liability and without prejudice to its other
rights in respect of such breach) to terminate this Agreement by
notice in writing to the Warrantors' Solicitors and to 3i Group plc
and AII Holding Corporation.
4 COMPLETION
4.1 Subject to the other terms and conditions of this Agreement,
Completion shall take place as soon as reasonably practicable and not
later than two Business Days after satisfaction of the Offer
Conditions. Completion shall take place at the offices of the
Buyer's Solicitors or any other time and location agreed by the
Warrantors' Solicitors and the Buyer's Solicitors and 3i Group plc
and AII Holding Corporation.
4.2 At Completion the Sellers shall (in so far as they are respectively
able using board and shareholder voting powers at their disposal)
deliver or procure delivery of the following (where appropriate as
agent for the Company or the Subsidiaries) to the Buyer:
(a) transfers in respect of the Shares held by or for each of
the Sellers, duly executed by the registered holders
thereof in favour of the Buyer or as it may direct;
(b) certificates for the Shares held by the each of the Sellers
and any other documents which may be required to give good
title to the Shares and to enable the Buyer to procure
registration of the same in its name or as it may direct;
(c) the Escrow Agreement duly executed by the Warrantors;
(d) the resignations under seal of each of the Directors (other
than Xxxxx Xxxxx) of each of the Companies in the agreed
form;
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(e) acknowledgements and waivers in the agreed form from each
of the Sellers and the Companies confirming that at and
immediately after Completion nothing is owing nor is there
any outstanding claims between any of the Companies on the
one hand and any of the Sellers on the other and, to the
extent that there are possible claims by the Sellers, that
these are waived;
(f) statements drawn up to the preceding day relating to the
Company's bank accounts;
(g) in relation to each of the Companies, certificates of
incorporation, certificates of incorporation on change of
name (if applicable), common seals, statutory registers,
minute books, share certificate books, books of account and
all other books (all duly written up to date);
(h) all title deeds and documents in the agreed form relating
to the Properties;
(i) certificates for all shares in the Subsidiaries and duly
executed transfers in favour of the Company or as the Buyer
shall direct (to be delivered in the same manner as the
Shares) of all such shares not registered in the Company's
name;
(j) all waivers and consents in the agreed form signed by all
members of the Companies to enable the Buyer (or its
nominee) to be registered as the holder of the Shares (each
of the Sellers hereby irrevocably waiving all and any
rights of pre-emption to which it may be entitled under any
articles of association, agreement, law or otherwise in
respect of the transfer of the Shares);
(k) a release, discharge and reassignment in the agreed form of
all and any fixed or floating charges and other securities
over the Properties or any other assets of each of the
Companies;
(l) any power of attorney under which any document required to
be delivered under this clause 4.2 has been executed;
(m) certified copies of resolutions of the Company in the
agreed form, passed pursuant to the Offer Conditions and
(n) Affiliates Agreements duly executed by parties thereto.
4.3 At Completion the Buyer shall deliver to the Warrantors for the
benefit of all the Sellers and other shareholders of the Company
accepting the Offer the duly executed Declaration of Registration
Rights
4.4 The Warrantors shall arrange for meetings of the board of Directors
and members of the Company to be duly convened and held immediately
prior to or at Completion at which resolutions in the agreed form
shall be passed appointing Xxxxxx Xxxxx and Xxxxxx Xxxxxxx as
directors and approving and authorising the registration of the
transfers of the Ordinary Shares in respect of which the Offer has
been accepted and the Preference Shares either pursuant to this
Agreement or pursuant to the terms of the Offer (subject only to the
forms being duly stamped) and the other matters referred to in clause
4.2.
4.5 Upon the Sellers and the Buyer having complied with their respective
obligations under the terms of clauses 4.2, 4.3 and 4.4 the Buyer
shall, in accordance with and subject to the terms and conditions of
the Offer, on Completion issue the Consideration Shares to the
Sellers and the shareholders who shall have assented their Shares to
the Offer less the Escrow Amount, which shall be delivered to the
Escrow Agent pursuant to the Escrow Agreement and shall deliver to
the
16
Warrantors' Solicitors or, if the Sellers so request, post in
accordance with the Offer duly executed stock certificates in respect
of the Consideration Shares, less the Escrow Amount.
4.6 If for any reason the provisions of clause 4.2 are not fully complied
with, the Buyer shall be entitled (in addition and without prejudice
to any other right or remedy available to it) to elect:
(a) to rescind this Agreement in which case the Buyer shall not
be obliged to purchase any of the Shares or pay any of the
Consideration; or
(b) to complete the purchase of the Shares or some of the
Shares (at the Buyer's option) in which case the Sellers
shall be bound to complete the sale of all or part of the
Shares accordingly and the Buyer shall be entitled to pay
only the amount of the Consideration due for the Shares it
is acquiring; or
(c) to fix a new date for Completion: or
(d) to proceed to Completion so far as practicable, each of the
Sellers then being obliged to use all reasonable endeavours
to perform or procure the performance of any of the
outstanding provisions of clause 4.2 which have not been
performed by him or it.
5 WARRANTIES, COVENANTS, REPRESENTATIONS AND UNDERTAKINGS
5.1 The Warrantors hereby:
(a) acknowledge that the Buyer enters into this Agreement and
will offer to purchase the Shares on the basis (inter alia)
of the Warranties; and
(b) jointly and severally warrant, represent and undertake to
the Buyer that each and every Warranty is true, correct and
not misleading at the date of this Agreement and undertakes
to the Buyer that each and every Warranty will continue to
be true and correct and not misleading throughout the
period from the date of this Agreement up to and including
Completion, subject only to:
(i) the matters stated in the Disclosure Letter,
provided that such matters will be treated as
qualifying or limiting the application of any
Warranty Statement only to the extent that such
disclosure is fair, accurate in all material
respects, and relates specifically to the
subject matter thereof and does not omit any
fact which may render the same untrue,
inaccurate or misleading in any material
respect; and
(ii) any matter arising in the ordinary and proper
course of its business and in its best interests
after the date of this Agreement and prior to
Completion, but without prejudice to the rights
of the Buyer pursuant to clause 3;
(iii) any exceptions for which express provision is
made pursuant to this Agreement; and
(c) covenant to the Buyer in the terms of the Tax Covenants.
5.2 Each Warranty is a separate and independent warranty, representation
and undertaking in relation to each of the Warranty Statements and no
Warranty shall be limited by reference to any other Warranty.
5.3 The Buyer shall not be entitled to make any claim for breach of the
Warranties or under the Tax Covenants, unless:
17
(a) notice giving reasonable details of the claim:
(i) shall, in the case of any claim under the Tax
Covenants or relating to any Warranty Statement
other than Warranty Statements 18.1 to 18.20
(inclusive), have been delivered to the
Warrantors by the Buyer not later than the date
of publication of audited financial statements
for the period ending 31 March 1997; and
(ii) insofar as such breach relates to Warranty
Statements 18.1 - 18.20 (inclusive) or, shall
have been delivered to the Warrantors by the
Buyer on or before 31 December 1997; and
(b) the amount of the claim when aggregated with all other
claims exceeds L.150,000 in which event the whole of such
claims (and not merely the excess) may be claimed under
legal proceedings.
(c) if the claim is due to any change after Completion in the
accounting principles, bases, policies and methods adopted
by the Companies from those used in the preparation of the
Accounts or any provision or reserve in the Accounts or the
Management Accounts is insufficient by reason only of any
increase in rates of Taxation or change in the law after
the date hereof having a retrospective effect;
(d) if the breach arises as a result of the passing or
amendment of any legislation (including any subsidiary
legislation) after Completion with retrospective effect;
(e) if the breach would not have arisen but for a voluntary act
or transaction, which could reasonably have been avoided,
which was carried out by the Buyer after Completion other
than in the ordinary course of business and not as a
consequence of anything done or omitted to be done before
Completion, and which the Buyer was aware would cause the
breach;
(f) if the claim would not have arisen but for a claim,
election, surrender or disclaimer made, or notice or
consent given, after Completion, under or in connection
with, a provision of an enactment or regulation relating to
Taxation save where the same should have been made before
Completion but was not or where it has been assumed the
same will be made in preparing the Accounts or any tax
computations for the Company for any period ended on or
before Completion.
5.4 The Warrantors shall not be liable to make any payment in respect of
any claim under the Warranties based upon a contingent liability of
the Company, without prejudice to the Buyer's right to establish the
Warrantors' liability in respect of that claim and save to the extent
an amount in respect of the contingent liability is properly provided
for in the accounts of the Company.
5.5 If the Company or the Buyer is or becomes entitled to be indemnified
by or to recover from any other person (including any Taxation
Authority or other authority) in respect of a matter which would
(apart from this paragraph) give rise to a claim under the
Warranties, the Buyer shall procure that:
(a) the Warrantors are notified as soon as practicable after
the Company or the Buyer becomes aware of the possible
entitlement;
(b) before enforcing that claim against the Warrantors, take
all steps as the Warrantors reasonably request to enforce
the indemnity or right of recovery.
18
5.6 The Buyer is not entitled to recover more than once in respect of any
one matter giving rise to a claim under the Warranties but this shall
not prejudice the Buyer's right to claim under more than one
Warranty.
5.7 Nothing in this clause 5 restricts or limits the Buyer's general
obligation at law to mitigate any loss or damage which it may incur
in consequence of a matter giving rise to a claim under the
Warranties.
5.8 The total amount of the liability of the Warrantors for damages for
breach of the Warranties or under the Tax Covenants shall be limited
to the portion of the Escrow Amount held by the Escrow Agent for the
relevant Warrantor and shall be governed by the Escrow Agreement.
5.9 The rights and remedies of the Buyer in respect of any breach of the
Warranties shall not be affected by Completion, by any investigation
made by or on behalf of the Buyer into the affairs of the Companies.
5.10 If prior to the Completion any of the Warranties is found to be
untrue, incorrect, inaccurate or misleading in a material respect the
Buyer shall be entitled either to complete and claim damages or
rescind this Agreement by notice to the Warrantors' Solicitors save
that the Buyer's rights pursuant to clause 3 shall survive any such
rescission.
5.11 The Warrantors shall promptly give written notice to the Buyer of the
occurrence of any event which results or may result in any of the
Warranties being untrue, incorrect, inaccurate or misleading giving
sufficient details of the event.
5.12 Any information supplied by any of the Companies or any of their
respective officers or employees to the Warrantors, their agents,
representatives or advisers in connection with, or to form the basis
of, the Warranties or any matter covered in the Disclosure Letter, or
for any other reason, shall be deemed not to include or have included
a representation, warranty or guarantee of its accuracy to the
Warrantors and shall not constitute a defence to the Warrantors to
any claim made by the Buyer. The Warrantors waive any and all claims
against the Companies, their officers or employees in respect of any
information so supplied.
5.13 References to the awareness or knowledge of the Warrantors in a
Warranty Statement in Schedule 3 shall only limit that Warranty by
the Warrantors' awareness or knowledge if each of the Warrantors has
made all due and careful enquiries to ascertain if the relevant
information in all material respects is true, correct and not
misleading unless otherwise stated in the Warranty Statement.
5.14 Any amount paid or satisfied by the Warrantors pursuant to the Escrow
Agreement in respect of any claim under the Warranties or Tax
Covenants shall be treated as a reduction of the consideration paid
for their Shares.
6 CONFIDENTIALITY
Each of the Sellers hereby agrees (save as necessary to its
professional advisers in connection with this Agreement) to keep
secret and confidential and not to use, disclose or divulge to any
third party or enable or cause any person to become aware of any
confidential information relating to any of the Companies or the
Buyer including but not limited to Intellectual Property (whether
owned or licensed by any of the Companies), lists of customers and
customer contract information, reports, product data and information
concerning the supply and pricing of products or services, notes,
marketing and sales research memoranda and all other documentary
records pertaining to the Companies or the Buyer or their respective
business affairs, finances, suppliers, customers or contractual or
other arrangements ("Confidential Information") provided always that
the restrictions contained in this clause 6 shall not apply to any
Confidential Information which:
19
(a) is required to be disclosed by an order of a court or
tribunal of competent jurisdiction or the Stock Exchange or
any other regulatory authority to which the Seller is
subject (provided that the Buyer is given prior written
notice of such intended disclosure);
(b) comes into the public domain otherwise than as a result of
its wrongful disclosure by such Seller; or
(c) any Seller is an employee of the Company is required to
disclose in order to perform his duties to the Company;
provided that nothing in clause 6 above shall prevent the use by 3i
Group plc of confidential information concerning the Company solely
within the group of companies of which 3i Group plc forms part, for
investment appraisal and training purposes only.
7 RESTRICTIONS
7.1 To ensure that the Buyer receives the full benefit of the goodwill of
the business of each of the Companies, each of the Warrantors hereby
represents and undertakes that he will not for a period commencing on
the date of this Agreement and ending two years after Completion or,
if later, the date which is three months after the date of
termination for any reason of such Warrantor's employment by the
Company either alone or for, together with or as agent, officer or
employee of any other person, firm or company or through the medium
of any company directly or indirectly:
(a) solicit, interfere with or attempt to entice away from any
of the Companies any person who is at the date hereof or
was within the previous 12 months an employee or agent of
any of the Companies, or who is reasonably considered by
any of the Companies to be or have been a regular client or
customer of or supplier to the Companies on the date of
this Agreement or during the 12 months immediately
preceding the date of this Agreement; or
(b) interfere or attempt to interfere with the supply or
continued supply of goods or services to or by the
Companies; or
(c) carry on or be engaged, concerned, interested or hold
shares or other securities in any company or businesses
which competes with the Restricted Activities at the date
of this Agreement, save pursuant to a holding of up to 3%
of the issued shares in a company whose shares are listed
on The Stock Exchange.
7.2 Each of the restrictions contained in each paragraph of clause 7.1 is
a separate and distinct restriction and is to be construed separately
from the other restrictions. Each of the Warrantors acknowledges
that the restrictions are reasonable when taken together as well as
individually, that the duration, extent and application of each
restriction are no greater than is necessary for the protection of
the goodwill of the businesses of the Companies and that the
consideration to be paid by the Buyer to the Warrantors for their
Shares takes into account and provides adequate compensation for the
restraints and restrictions imposed. Should any restriction be found
to be void or unenforceable without the deletion of some part of it
or the reduction in area or duration specified, that restriction
shall apply with such modification as may be necessary to make it
valid.
7.3 The parties agree that the benefit of the covenants and undertakings
given in clauses 7.1 and 7.2 shall be assignable in whole or in part
by the Buyer to, and become enforceable by, any of the Companies and
any subsidiary or holding company of any of the Companies or the
Buyer, which from time to time is the holder of the Shares or of any
shares of the Subsidiaries or to which any part of the business(es)
of the Company and/or the Subsidiaries shall have been transferred.
20
7.4 After Completion, none of the Sellers shall without the Buyer's
express agreement hold itself out as being interested in or in any
way connected (other than as a matter of current or historic fact
including, where relevant, as employees of the Company) with the
Companies or any of them.
8 RESTRICTIVE TRADE PRACTICES ACT
No provision of this Agreement or of any agreement or arrangement of
which it forms part (or any modification, amendment or variation to
any of the same) by virtue of which this Agreement or the relevant
agreement or arrangement of which it forms part is subject to
registration under the Restrictive Trade Practices Act 1976 shall
take effect until the day after the day on which particulars of this
Agreement or such agreement or arrangement are furnished to the
Director General of Fair Trading for registration under the said Act
and a copy of the Office of Fair Trading's acknowledgement of receipt
of such particulars shall be conclusive evidence that such
particulars shall have been received by the Director General of Fair
Trading on the day indicated by such acknowledgement.
9 USE OF THE COMPANY'S NAMES
The Warrantors shall not object to the Buyer after Completion using
the Trade Marks or any variation thereof as part of the Companies
and the Buyer's names and in the Companies and the Buyer's business
dealings and each of the Warrantors hereby confirms that he shall do
everything reasonably within his power to assist the Buyer in using
the Trade Marks if it wishes and none of the Warrantors shall use any
of the Trade Marks or any variations thereof in any dealings, except
in accordance with the proper performance of their duties for the
Companies or as otherwise expressly authorised by the Buyer.
10 ACCESS AND REVIEW
10.1 With effect from the date of this Agreement the Buyer shall be
permitted to continue its due diligence in regard to the Company's
business affairs without limiting any of the Buyer's rights under
this Agreement or at law. The Sellers (to the extent they are
respectively able using board and shareholder voting powers at their
disposal) shall procure that the Company shall afford and, with
respect to paragraph (b) of this clause 10 below, shall cause the
Company's Auditors to afford:
(a) to the officers, agent's and other authorised
representatives of the Buyer reasonable access to the
documents, Properties, records and personnel of the
Company; and
(b) to the internal and independent accountants of the Buyer
reasonable access to the audit work papers and other
records of the Company's Auditors and the Company.
10.2 The rights of the Buyer pursuant to clause 10.1 shall be exercised in
consultation with the Warrantors.
11 GENERAL PROVISIONS
11.1 The Buyer may at its absolute discretion in whole or in part release,
compound or compromise, or grant time or indulgence to the Sellers
for any liability under this Agreement without affecting its rights
against any Seller under the same or any other liability.
11.2 The express or implied waiver by any Party of any of its rights under
this Agreement shall constitute neither a continuing waiver of the
right waived nor a waiver of any other right under this Agreement.
11.3 This Agreement, together with any document expressly referred to in
any of its terms, contains the entire agreement between the Parties
relating to its subject-matter. No oral explanation or oral
21
information given by any Party shall alter the interpretation of this
Agreement. There are no other agreements between any of the Parties
other than this Agreement or the agreements referred to herein.
11.4 This Agreement is personal to the Parties and shall not be capable of
assignment save that the Buyer may assign the whole or part of any of
its rights in this Agreement to any wholly-owned subsidiary of the
Buyer.
11.5 No amendment, change or addition to this Agreement shall be binding
on any Party unless it is in writing and has been signed by all the
Parties or their authorised representatives.
11.6 Any notices:
(a) must be in writing and may be given:
(i) to any company which is a Party at its
registered office or, in the case of the Buyer,
its principal office;
(ii) to any individual who is a Party at the address
of that individual given in Schedule 1 or as
shown above together with a copy of the
Warrantors' Solicitors;
or in any case to such other address as may have been
notified in accordance with this Agreement to the other
Parties;
(b) will be effectively served:
(i) on the day of receipt where any hand-delivered
letter, any fax message is received on a
Business Day before or during normal working
hours; or
(ii) on the following Business Day, where any
hand-delivered letter, any fax message is
received either on a Business Day after normal
working hours or on any day which is not a
Business Day;
provided that in the case of faxed copies a complete and legible copy
shall have been received by the recipient.
11.7 This Agreement may be executed in any number of counterparts, each of
which taken together shall be deemed to constitute one and the same
agreement and each of which individually shall be deemed to be an
original, whether being the original signed copy or a faxed copy of
the original, with the same effect as if the signature on each
counterpart were on the same original.
11.8 Each of the Sellers hereby undertakes with the Buyer at the request
of the Buyer and at the expense of such Seller to do or procure to be
done all such further acts and things and execute or procure to be
executed all such further deeds and documents as may be necessary or
desirable fully and effectively to vest in the Buyer the legal and
beneficial ownership of the Shares owned by such Seller and the
benefits of this Agreement and the agreements entered into in the
agreed form to which such Seller is a party and, pending such
vesting, each of the Sellers shall hold such Shares in trust for the
Buyer and shall receive all monies in connection therewith as trustee
of the Buyer and shall account to the Buyer forthwith on receipt.
11.9 No party shall divulge to any third party (other than their
respective professional advisers or insurers) the fact that this
Agreement or any of the documents in the agreed form has been entered
into or any information regarding its terms or any matters
contemplated by this transaction or make any announcement relating to
it without the prior agreement (not to be unreasonably withheld or
delayed) of the other parties unless such announcement or information
is required by
22
the Inland Revenue and/or a court of competent jurisdiction, by the
Securities Exchange Commission, National Association of Securities
Dealers or by The Stock Exchange, or by any other regulatory
authority the rules of which such Party is subject, in which event
the other parties shall be given prior written notice of such
intended announcement. Any announcement as to the entering into this
Agreement shall in any event be made or issued only in a form
approved by the Buyer and with the consent of the Sellers (not to be
unreasonably withheld or delayed).
11.10 This Agreement is governed by and is to be construed in accordance
with English law and save as otherwise provided under the Escrow
Agreement and in regard to matters relating to the Consideration
Shares and the Declaration of Registration Rights (which shall be
governed by the laws of the State of California and the California
courts) the Parties hereby submit to the jurisdiction of the English
courts.
11.11 The Buyer irrevocably agrees that any service document may be
sufficiently and effectively served on in connection with proceedings
in England and Wales by service on its agent X X Xxxxxx & Co
(reference 11/G10687.1) of 000 Xxxxx Xxx Xxxx, Xxxxxx XX0X 0XX or on
a replacement agent if one has been appointed and notified to the
other Parties.
11.12 The Sellers (other than 3i Group plc) irrevocably agree that any
service document may be sufficiently and effectively served on in
connection with proceedings in England and Wales by service on its
agent Dibb Xxxxxx Xxxxx of Xxxxxxx Xxxxx, Xxxxxx Xxx, Xxxxxxxxxx, X0
0XX (for the attention of Xxxx Xxxxxxx) or on a replacement agent if
one has been appointed and notified to the other Parties. Each of 3i
Group plc and 3i plc may be served at its registered office for the
time being.
23
SCHEDULE 1
PART 1
THE WARRANTORS
(1) (2) (3)
NAME ADDRESS NO OF ORDINARY
SHARES OF 10P
EACH OWNED
Xxxxx Xxxxxx Xxxx Xxxxx The Woodlands 495 I.U.
Xxxx Xxxx
(Affiliate) Xxxxxxxxxx
Xxxxxxxx
XX00 0XX
Xxxxx Xxx Xxxxxxx 5 Xxxxxxxxx Farm 12,000 I.U.
Moor Lane
(Affiliate) Xxxxxxxxxx
Xxxxxx Xxxx Xxxxx
Xxxxxxx XX00 0XX
Xxxxxxxx Xxxxxxx 000 Xxxx Xxxxxx 12,000 I.U.
Yatton
(Affiliate) Avon
XX00 0XX
-------
Total Part 1 24,495
=======
24
PART 2
PRINCIPAL SELLERS
(1) (2) (3) (4)
NAME ADDRESS NO OF ORDINARY NO OF ORDINARY SHARES OF 10P
SHARES OF 10P ARISING ON CAPITALISATION OF
EACH OWNED INVESTOR LOANS
Xxxxxx Xxxxxx Xxxxxx Hawthorn House - -
Thurning
(Affiliate) Xxxxxxx
Xxxxxxx
XX00 0XX
Skanco Trustees Limited Derby House 102,005 I.U. -
as trusteeof The 2nd Floor
D Crisp Settlement Xxxxx Xxxxxx
Xxxxxxx
Xxxx xx Xxx
XX0 0XX
Skanco Trustees Limited Derby House 18,000 I.U. -
as trustee of The 2nd Floor
X X Xxxxxxx Settlement Athol Street
Xxxxxxx
Isle of Man IM1 1JD
Skanco Trustees Limited Derby House 18,000 I.U. -
as trustee of The 2nd Floor
A Xxxxxxx Settlement Athol Street
Douglas
Isle of Man IM1 1JD
3i Group plc* 00 Xxxxxxxx Xxxx 330,000 I.U. 75,033
London
(Affiliate) XX0 0XX
A.I.I Holding Corporation Craigmuir Xxxxxxxx 140,200 I.U. 22,799
(Affiliate) XX Xxx 00
Xxxx Xxxx
Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxxx
--------------------------------------------------
total Part 2 608,205 97,832 730,532 c/f
==================================================
3i 977,342 Redeemable Preference Shares of L.1 each to be sold for L.100 in aggregate (325,782 legally and
beneficially owned by 3i Group plc and 651,560 legally and beneficially owned by 3i plc)
__________________________________
* 185,033 legally and beneficially owned by 3i Group plc
220,000 legally owned by 3i plc but beneficially owned by 3i Group plc
25
SCHEDULE 3
WARRANTIES BY THE WARRANTORS
1 INFORMATION
1.1 The information contained or referred to in the Introduction relating
to the Company and Schedules 1, 2, 4, 5 and 6 is true and accurate
and not misleading, the Subsidiaries are the only subsidiaries of the
Company and in the seven years prior to Completion and at Completion
the Company has not had a subsidiary or an associated company other
than the Subsidiaries.
1.2 All information contained or referred to in the Disclosure Letter is
true, complete and accurate in all material respects.
1.3 So far as the Warrantors are aware, (without having made any specific
enquiry) all statutory, municipal, governmental, court and other
requirements applicable to the formation, continuance in existence,
creation and issue of securities, management, property or operations
of the Company, and all licences and consents (including planning
consents) involved or that should be involved in the carrying on of
the business of the Company, have been obtained and complied with and
there is no contemplated revocation of any such licence or consent.
1.4 The records, statutory books and books of account of the Company are
duly entered up and maintained in accordance with all statutory
requirements applicable thereto and contain true and accurate records
of all matters required to be dealt with therein and all such books
and all records and documents (including, without limitation, all
documents of title, accounts, books, ledgers and contracts to which
it is a party) which are its property are in its possession or under
its control and all accounts, documents, returns and forms required
to be delivered or made to the Registrar of Companies have been duly
and correctly delivered or made.
1.5 The Company has not committed and is not liable for any criminal,
illegal, unlawful, ultra xxxxx or unauthorised act or breach of
covenant, contract or statutory duty and there is no violation of, or
default with respect to, any statute, regulation, order, decree or
judgment of any court or central or local government agency of the
United Kingdom or any foreign country which has or could have a
material adverse effect upon the assets, business or profitability of
the Company and so far as each of the Warrantors is aware no director
or engineer of the Company has been convicted of any crime (other
than minor traffic offences).
1.6 All registers required to be kept by the Company under the provisions
of the Companies Acts are true and accurate and the copy of the
Memorandum and Articles of Association of the Company annexed to the
Disclosure Letter (including resolutions passed by the Company in
general meeting to which Section 380 of the Companies Xxx 0000
applies whether or not the same have yet been filed with the
Registrar of Companies) are true and accurate.
1.7 No resolution has been passed by the Company or any class of its
members since incorporation other than resolutions relating to
business at Annual General Meetings which was not special business.
1.8 In the last three years the Company has not done any act or thing or
engaged in any activity or incurred any debts and liabilities
otherwise than in the ordinary course of the business carried on by
it at the date of this Agreement.
1.9 Since changing its name to that shown in Schedule 1, the Company has
not traded under any other name and no action has been taken against
the Company under Section 28 of the Companies Acts.
2 CAPITAL, DISTRIBUTION, CONTRACTS AND LIABILITIES
26
2.1 The Company has no loan capital outstanding and since the Accounts
Date no loan or share capital of the Company has been put under
option or agreed to be allotted or issued or to be put under option
and no person has the right (whether exercisable now or in the future
and whether contingent or not) to call for the issue of any share or
loan capital of the Company.
2.2 The Company has not at any time:
(a) repaid, redeemed or purchased or agreed to repay, redeem or
purchase any shares of any class of its share capital or
otherwise reduced or agreed to reduce its issued share
capital or any class thereof; or
(b) directly or indirectly provided any financial assistance
(as defined in section 151, Companies Act 1985) for the
purpose of the acquisition of shares of the Company or for
the purpose of reducing or discharging any liability
incurred in any such acquisition; or
(c) capitalised or agreed to capitalise in the form of shares,
debentures or any other securities or in paying up any
amounts unpaid on any shares, debentures or other
securities any profits or reserves of any class or
description or passed or agreed to pass any resolutions to
do so.
2.3 The Company has not received a distribution from any company in
contravention of section 263 Companies Xxx 0000.
2.4 There is not outstanding any indebtedness or other liability (of
whatsoever nature, whether present or future, actual or contingent)
owing:
(a) by the Company to any Sellers or to any director or former
director of the Company or to any independent contractor
through which the services of any such persons are or were
provided or to any person connected with the Company or
with any Seller or with any such director, former director
or contractor; or
(b) to the Company by any Seller or by any such director,
former director or contractor or by any person connected
with the Company or with any Seller or with any such
director, former director or contractor.
2.5 There are no existing contracts to which the Company is a party and
in which any of the Sellers or any director of the Company or any
person connected with any of them is interested (and for the purposes
of this paragraph a person shall be deemed to be interested in a
contract in accordance with the provisions of Section 317 of the
Companies Act 1985).
2.6 The Company does not have one customer that is responsible for in
excess of 10% of the Company's trade, turnover or profitability in
the current financial year or one supplier that supplies in the
current financial year in excess of 10% of the Company's supplies (as
quantified by payments to all suppliers in that year).
3 THE SHARES AND THE COMPANY
3.1 The Shares constitute the whole of the issued and allotted share
capital of the Company and are fully paid or credited as fully paid
and, other than the Existing Options, there are no options over any
shares or options to subscribe shares in the Company.
3.2 The Sellers are the legal and beneficial owners of the number of
Shares set opposite their respective names in column (3) of Schedule
1 and sell the Shares with full title guarantee.
3.3 There is no pledge, lien, option, warrant, charge or encumbrance on,
over or affecting any of the Shares or the shares in the
Subsidiaries, no agreement to create such pledge, lien, option,
warrant,
27
charge or encumbrance has been made and no claim has been received
that is outstanding that any person is entitled to any such pledge,
lien, charge or encumbrance.
4 ACCOUNTS
4.1 The Accounts have been prepared in accordance with the applicable
requirements of the Companies Acts and in accordance with accounting
principles, standards and practices which are generally accepted in
the United Kingdom, are accurate in all material respects and give a
true and fair view of the state of affairs of the Company at the
Accounts Date and of the profits and losses for the period concerned.
4.2 The Accounts make proper provision for or, in the case of actual
liabilities, disclose or take into account as at the Accounts Date:
(a) all assets;
(b) all liabilities whether actual contingent or disputed;
(c) all capital commitments whether actual or contingent; and
(d) all bad and doubtful debts.
4.3 The combined profits of the Companies for the three consecutive
periods ending on the Accounts Date as shown by the Accounts and by
the audited accounts of the Companies covering the two previous
financial periods which have been delivered to the Buyer has not
(except as disclosed in such accounts) resulted from inconsistencies
in accounting practices or the inclusion of exceptional or
extraordinary items of income or expenditure.
4.4 So far as the Warrantors are aware, no debt owing to any of the
Companies is subject to any set-off or counter-claim.
4.5 The profits (or losses) shown in the Accounts have not to a material
extent been affected (except as disclosed therein) by any
extraordinary or exceptional event or circumstance or by any other
factor rendering such profits unusually high or low.
4.6 None of the current book debts included in the Accounts and the
Management Accounts or which have subsequently arisen have been
outstanding for more than two months from their due dates for payment
and all such debts (other than those shown in the Management
Accounts as bad or doubtful) have realised or so far as the
Warrantors are aware will realise in the normal course of collection
their full value as included in the Accounts, the Management Accounts
or in the books of the Company.
4.7 The Management Accounts have been prepared on a basis consistent with
the Accounts and fairly reflect the financial position of the Company
for the periods to which they relate.
5 BUSINESS AND TRADING
5.1 Since the Accounts Date:
(a) no members' resolution of the Company of any kind has been
passed other than resolutions relating to business at
annual general meetings which was not special business;
(b) no share, loan capital or (otherwise than in the ordinary
course of business) loan has been issued or allotted or
repaid, or agreed to be issued or allotted or repaid by the
Company;
28
(c) the Company has not carried on its business otherwise than
in the ordinary course as regards the nature of the same
and so far as possible to maintain it as a going concern;
(d) the Company has not acquired or disposed of or agreed to
acquire or dispose of any business or any asset other than
in the ordinary course of business or assumed or acquired
any material liability (including any contingent liability)
except on terms determined on an arm's length basis;
(e) the Company has paid its creditors in accordance with its
normal practice;
(f) the Company's business and turnover (excluding seasonal
variations) have not deteriorated or been adversely
affected to a material extent by any act or omission of the
Company or by the loss of any important employee, customer
or supplier or by any abnormal factor and none of the
Warrantors is aware of any facts likely to give rise to any
such loss;
(g) no dividend or other distribution has been declared, made
or paid to the members of the Company except as provided
for in the Accounts and all dividends or distributions
declared, made or paid by the Company have been made, paid
or declared in accordance with its Articles of Association
and the provisions of any applicable legislation;
(h) no change has been made in the emoluments or other terms of
employment of any of the Company's employees who are in
receipt of remuneration in excess of L.20,000 per annum or
of any of the Directors and the Company has not paid any
bonus or special remuneration to any such employee or any
Director;
(i) no liability or contingent liability for Taxation has
arisen otherwise than as a result of trading activities in
the ordinary course of business;
(j) all amounts received by the Company have been paid into the
relevant bank account and appear in the appropriate books
of account;
(k) the Company has not repaid or become liable to repay any
loan, loan capital or other debenture by reason of its
default (and no notification has been received since the
Accounts Date that any such liability has arisen for any
other reason) or (except in the ordinary course of business
or for payments in reduction of bank overdrafts) borrowed
any money;
(l) no debtor has been released by the Company for less than
the book value of any debt and no debt owing to the Company
has been deferred, subordinated or written off or has
proved to be irrecoverable to any material extent; and
(m) no material commission has been paid and no material
discount has been allowed by the Company at a rate or
otherwise on terms different from those upon which
commissions and discounts were paid or allowed for in the
accounting period ended on the Accounts Date.
5.2 All the Company's assets and all debts due to it which are included
in the Accounts or have otherwise been represented as being at the
Accounts Date its property or due to it or used or held for the
purposes of its business were at the Accounts Date its absolute
property and (save for those subsequently disposed of or realised in
the ordinary course of the business) all such assets and debts and
all assets and debts which have subsequently been acquired or arisen
are now its absolute property and none is the subject of any
encumbrance (excepting only liens arising in the normal course of
trading) or the subject of any factoring arrangement, hire- purchase,
retention of title, conditional sale or credit sale agreement.
29
6 STOCKS, ASSETS AND INSURANCE
6.1 The Company owns or has on lease or hire purchase (as referred to)
the motor vehicles the make, model, registration number and driver of
which are set out opposite its name in the schedule annexed to the
Disclosure Letter.
6.2 All equipment owned or used by the Company are in good repair,
condition and working order and have been properly maintained as and
when necessary and none is in need of renewal or replacement during
the current financial year, save as provided for in the Management
Accounts.
6.3 Maintenance contracts are in full force and effect in respect of all
assets which the Company is obliged to maintain or repair under any
leasing or similar agreement and in respect of any assets which it is
necessary to have maintained by outside or specialist contractors.
6.4 The Company does not maintain an asset register.
6.5 All equipment used by the Company is the absolute property of the
Company and is not subject to any leasing, hire or hire purchase
agreement or agreement for payment on deferred terms or any similar
agreement or arrangement nor are they loaned or otherwise unavailable
to the Company.
6.6 Without being capable of remedy by the Company without undue
expenditure or effort within a 30 day period, the Company has not
sold or distributed any products which were, are or will become
defective or which do not comply in any respect with and express or
implied warranties or representations made by any person or with all
applicable regulations, standards and requirements and the Company
does not give and has not given express warranties, guarantees or
indemnities as to the fitness for purpose, quality or otherwise of
any of its products.
6.7 There has been no exercise or purported exercise of, or any claim
for, any charge, lien, encumbrance or equity over any of the fixed
assets of the Companies which is still outstanding.
6.8 All the assets of the Company which are of an insurable nature have
been at all material times and are at the date of this Agreement
insured to their replacement value against fire and other risks as
shown in the relevant annexure to the Disclosure Letter and the
Company has at all times been and is adequately covered against
accident, employer's liability, third party (including products
liability), loss of profits for the full replacement value of such
assets as shown in the relevant annexure to the Disclosure Letter;
and in respect of all such insurances:
(a) all premiums have been duly paid to date;
(b) all the policies are in full force and effect and so far as
the Warrantors are aware are not voidable on account of any
act, omission or non-disclosure on the part of the insured
party;
(c) particulars are contained in the Disclosure Letter;
(d) so far as the Warrantors are aware there are no
circumstances which would or might give rise to any claim
and no insurance claim is outstanding; and
(e) all policies are held in the name of the Company.
7 SALE OF THE SHARES
7.1 So far as each of the Warrantors is aware (without having made any
specific enquiry of its customers or suppliers), as a result of the
acquisition of the Shares by the Buyer:
30
(a) no material supplier of the Company will cease or reduce or
be entitled to cease or reduce its supplies to the Company;
(b) no material customer of the Company will, or will be
entitled to, cease dealing with or reduce the level of
business done with the Company; and
(c) no director or engineer of the Company will leave (other
than as may be provided for in this Agreement).
7.2 No consent, approval, authorisation or order of any court or
government or local agency or body or any other policy which is
required by any of the Sellers or the Company for the execution or
implementation of this Agreement and the agreements in the agreed
form and compliance with the terms of this Agreement is outstanding
and each of the agreements in the agreed form does not and will not:
(a) conflict with, result in the breach of or constitute a
default under any obligation by which the Company may be
bound or any provision of the Memorandum or Articles of
Association of the Company;
(b) relieve any person from any material obligation to the
Company;
(c) result in the creation, imposition, crystallisation or
enforcement of any encumbrance on any of the assets of the
Company; or
(d) result in any present or future indebtedness of the Company
becoming due, or capable of being declared due, and payable
prior to its stated maturity.
7.3 No person is entitled to receive from any of the Companies any
finder's fee, brokerage or other commission in connection with the
sale and purchase of the Shares.
8 TAXATION
8.1 Proper provision or reserve has been made in the Accounts for all
Taxation liable to be assessed on the Company or for which it is, or
for which the Warrantors believe it may become, accountable in
respect of the period ended on the Accounts Date.
8.2 The Company has duly and within the relevant time limits made all
returns and given or delivered all notices and accounts which ought
to have been made, given or delivered and information which it was
requested to give, to any Taxing Authority and such returns, notices,
accounts and information are up-to-date, complete and accurate and
have been made or provided on a proper and consistent basis.
8.3 The Company is not involved in any dispute with any Taxing Authority
concerning any liability (whether accrued, contingent or future) of
it to Taxation and the Company is not aware of any matter which may
lead to such dispute not having made inquiry of any Taxing Authority.
8.4 The Disclosure Letter contains sufficient details of all matters
relating to Taxation in respect of which the Company (either alone or
jointly with any other person) has, or at Completion will have, an
entitlement to make any appeal against an assessment to or
determination affecting Taxation, or to make any application for the
postponement of Taxation.
8.5 No Relief has been claimed by and/or given to the Company, or taken
into account in determining the provision for Taxation in the
Accounts, which could be withdrawn, postponed or restricted.
31
8.6 All clearances and consents obtained from any Taxing Authority by the
Company in the last six years have been disclosed to the Buyer in the
Disclosure Letter and were based on full and accurate disclosure of
all material facts and circumstances.
8.7 The Company has duly and within the relevant time limits paid all
Taxation for which it is liable.
8.8 No liability of the Company to Taxation has arisen or will arise up
to Completion save for tax payable in respect of the Company's normal
trading or income tax deductible under PAYE regulations or national
insurance contributions or VAT for which it is accountable to any
Taxing Authority.
8.9 The Company is not, nor was at any time during the six years ended on
the Accounts Date, a close company.
8.10 The Company is resident in the United Kingdom for Taxation purposes
and will be so resident at Completion and is not and never has been
resident for any purpose in any other country and does not have and
has never had any permanent establishment, Taxation liability or
taxable presence in any other country.
8.11 No amount of an income nature in excess of L.25,000 per annum which
has been paid or is payable by the Company or which it is under an
obligation entered into before Completion to pay is wholly or partly
disallowable as a deduction, charge on income or otherwise in
computing its liability to Taxation.
8.12 There are set out in the Disclosure Letter full details of all
Reliefs available for carry forward for Taxation purposes by the
Company and the Sellers are not aware of any reason why such Reliefs
might cease to be available or might become restricted (including by
virtue of the application of Section 245, 768 or 768A ICTA).
8.13 All capital expenditure incurred or to be incurred by the Company
prior to Completion has qualified and continues to qualify for
capital allowances and full disclosure in the Disclosure Letter of
all allowances made to the Company has been made to the Buyer and the
book value of the assets of the Company in or adopted for the
purposes of the Accounts does not exceed the written down value of
such asset for the purposes of CAA or where the assets form a pool
for purposes of the CAA does not exceed the pool of qualifying
expenditure.
8.14 The expenditure allowable as a deduction for the purposes of the
computation of any chargeable gain or allowable loss attributable to
any asset of the Company for the purposes of corporation tax on
chargeable gains is not less than the value of that asset as shown in
the Accounts.
8.15 There are set out in the Disclosure Letter full details of any held
over gains within Section 154 TCGA.
8.16 The Company has not made any election or claim or given any consents
under or entered into any agreements or arrangements relating to
Section 240, 247 or 402 ICTA or Section 102 of the Finance Xxx 0000
respectively nor is it liable to make or repay any payment in
relation to any such relief.
8.17 The Company has not acquired an asset which could be deemed to be
disposed of if Section 179 TCGA were to apply and the entry into this
Agreement and/or Completion will not give rise to any deemed disposal
under Section 179 TCGA.
8.18 There is no liability to Taxation for which the Company is liable to
be assessed or to account where such Taxation is primarily chargeable
against some other person.
32
8.19 All documents in the possession of the Company or the production of
which would be needed to prove its title to any of its assets and
which attract stamp or transfer duty in the United Kingdom or
elsewhere have been properly stamped.
8.20 The Company has not entered into or been a party to any schemes or
arrangements designed wholly or partly for the purpose of it or any
other person avoiding Taxation.
8.21 The Company:
(a) has not agreed any special method of attributing,
accounting or otherwise in relation to VAT with HM
Customs & Excise;
(b) does not own any capital items which are subject to Part XV
of the Value Added Tax Regulations 1995;
(c) does not own any land or buildings (including any interest
in or right over any land or buildings) which is the
subject of any lease or licence granted to any other party;
and
(d) is not and never has been a member of a group of companies
for VAT purposes.
9 EMPLOYEES, AGENTS AND PENSIONS
9.1 The Employees are all the employees of any of the Companies as at
Completion and the names, current weekly wage and other emoluments,
date of birth, the date of commencement of the respective periods
deemed to be their period of continuous employment with the Companies
and job descriptions of the Employees are as set out in the schedule
annexed to the Disclosure Letter.
9.2 The Disclosure Letter also includes full details of all employee
share schemes, employee share option schemes, profit related pay
schemes or other employee benefit schemes of any kind of the
Companies now in force and there are no other such schemes planned.
9.3 There is no liability to make any payment to or for the benefit of
any of the Employees or the wife or widow or any other relative of
any of the Employees in respect of past service or the termination of
the employment of that or any other person by way of pension
contribution, pension retirement benefit or otherwise and the Company
has no superannuation fund, retirement benefit or other pension
schemes or arrangements to provide benefits to past or present
employees or directors (or their dependants) by reason of retirement,
death, disability or sickness or otherwise.
9.4 No assurances or undertakings (whether legally binding or not) have
been given to any of the Employees as to the continuance or
introduction or increase or improvement of any retirement, death,
sickness or disability scheme.
9.5 There is no outstanding commitment (whether legally binding or not)
to increase the remuneration of any Employee.
9.6 All contracts of service or consultancy or for services with
directors or employees or consultants or independent contractors
providing the services of individual personnel of the Company can be
terminated by three months' notice or less without giving rise to any
claim for damages or compensation (other than a statutory redundancy
payment or statutory compensation for unfair dismissal, if
applicable).
9.7 Except where any provision or allowance is made in the Accounts:
(a) no liability has been incurred in the 12 months prior to
Completion by the Company for breach of any contract of
service or consultancy, for redundancy payments (including
33
protective awards), for compensation for wrongful dismissal
or unfair dismissal or loss of office or for failure to
comply with any order for the reinstatement or
re-engagement of any officer or employee; and
(b) no payment has been made or promised by the Company in
connection with the termination, suspension or variation of
any contract of service or consultancy or for services of
any present or former officer or employee.
9.8 So far as the Warrantors are aware, the Company has in relation to
each of the Employees and its former employees complied in all
material respects with all material obligations imposed on it by all
contracts, statutes, orders, regulations, collective agreements,
awards and codes of conduct and practice relevant to conditions of
service and to the relations between it and the Employees and former
employees and has in all material respects maintained adequate and
suitable records regarding the service of the Employees and former
employees.
9.9 The Company has not entered into any recognition agreement with any
trades union nor has it done any act which could be construed as an
act of recognition and the Company is not involved in and there are
no present circumstances which are likely to give rise to any
industrial or trade dispute or any dispute or negotiation regarding a
claim of material importance with any trade union or association of
trade unions or organisation or body of employees.
9.10 In the 12 months prior to Completion, the Company has not given
notice of any redundancies to the Secretary of State for Employment
or started consultations with any trade union or unions under the
provisions of Part IV of the Employment Protection Act 1975 and the
Company has not failed to comply with any such obligations under Part
IV.
10 PENSIONS
The Company has no agreement, arrangement or understanding (whether
contractual, under trust or otherwise) which exists for the provision
of relevant benefits (as defined in Section 612 ICTA) for any past or
present officer or employee of the Company (or a predecessor in
business of the Company) or for any relative or dependant of such a
person in connection with which the Company is or may become legally
or morally liable to make any payment.
11 LITIGATION
11.1 The Company is not and so far as the Warrantors are aware no person
for whose acts and defaults it may be vicariously liable is at
present engaged whether as plaintiff, defendant or otherwise in any
legal action, proceeding or arbitration which is either in progress,
or is threatened or is pending (other than as plaintiff in the
collection of debts arising in the ordinary course of the business
carried on by it none of which exceeds L.1,000 and which do not
exceed L.5,000 in aggregate) or is being prosecuted for any criminal
offence and no written notice of any claim in damages or for an
injunction has been received by the Company and the Warrantors are
not aware of any governmental or official investigation or inquiry
concerning the Company which is in progress or pending.
11.2 The Warrantors are not aware of any circumstances likely to lead to
any such claim or legal action, proceeding or arbitration,
prosecution, investigation or enquiry.
11.3 No distress, execution or other process has been levied in respect of
the Company during the last six years nor is there any judgment or
court order outstanding against the Company.
11.4 No act, transaction or omission has occurred as a result of which the
Companies are or may be held liable to refund in whole or in part any
investment grant (or other grant or loan received from any
governmental department or agency or any local or other authority by
virtue of any statute) or
34
any such grant or loan for which application has been made by them
will or may not be paid or will or may be reduced.
12 CAPITAL COMMITMENTS, UNUSUAL CONTRACTS, GUARANTEES ETC.
The Company:
(a) has no capital commitments which individually exceed
L.25,000 or in aggregate exceed L.100,000;
(b) is not a party to any contract, arrangement or commitment
(whether in respect of capital expenditure or otherwise)
which is of a long term or an unusual or abnormal nature or
outside the ordinary course of business;
(c) has not delegated any powers under a power of attorney
(other than as an incidental part of a larger transaction)
which remains in effect or has appointed any agent under an
authority which has not been revoked and other than any
ostensible or implied authorities to directors or employees
and consultants to enter into routine contracts in the
normal course of their duties;
(d) by reason of its default has not become bound, and no
person has become entitled (or with the giving of notice
and/or the issue of a certificate will become entitled) to
require it, to repay prior to its stipulated due date any
loan capital or other debenture, redeemable preference
share capital or borrowed money and no notice has been
received since the Accounts Date of such liability having
arisen for any other reason;
(e) is not a party to any agreement which is or may become
terminable as a result of the entry into or Completion
under this Agreement;
(f) has not entered into or is bound by any guarantee or
indemnity under which any liability or contingent liability
is outstanding;
(g) is not or was not the original lessee or surety of a lessee
of any leasehold property other than the leasehold
Properties or has at any time acquired, assigned or
otherwise disposed of any other leasehold property in such
a way that it retains any residual liability;
(h) has not entered into any agreement which is outstanding and
which requires or confers any right to require the sale
(whether for cash or otherwise) or transfer by them of any
material asset;
(i) is not party to any joint venture, consortium, partnership
or profit sharing arrangement or agreement;
(j) is not aware of any default under any written agreement or
covenant to which it is a party; or
(k) has not, nor has agreed to, charge any of its assets or
shares.
13 BORROWINGS AND LENDINGS
13.1 Full details of all limits on the Company's bank facilities are
accurately set out in the Disclosure Letter and the total amount
borrowed by the Company from its bankers does not exceed its
overdraft facilities (if any).
35
13.2 The total amount borrowed by the Company does not exceed any
limitation on its borrowing powers contained in its Articles of
Association, or in any debenture or other deed or document binding on
it.
13.3 The Company does not have outstanding, nor has agreed to create or
issue, any loan capital, nor has it factored any of its debts, or
engaged in financing of a type which would not require to be shown or
reflected in the Accounts, or borrowed any money which it has not
repaid, except for borrowings not exceeding the amounts shown in the
Accounts.
13.4 Other than in the ordinary course of business, the Company has not
lent any money which has not been repaid, or owns the benefit of any
debt (whether or not due for payment), other than debts which have
arisen in the ordinary course of business and the Company has not
made any loan or quasi-loan contrary to any legislation.
14 CONTINUATION OF FACILITIES
In relation to all debentures, acceptance credits, overdrafts, loans
or other financial facilities outstanding as at the date hereof or
available to the Companies or any of them (referred to in this
Warranty as "Facilities"):
(a) there are attached to the Disclosure Letter full and
complete copies of all documents relating to the Facilities;
(b) so far as each of the Warrantors is aware there has been no
material contravention of, or material non-compliance with,
any provision of any document relating to any of the
Facilities;
(c) no steps for the early repayment of any indebtedness have
been taken of which they are not having made enquiry or
threatened in writing;
(d) so far as each of the Warrantors is aware not having made
enquiry there have not been, nor are there, any
circumstances as a result of which the continuation of any
of the Facilities might cease or be prejudiced, or which
may give rise to any alteration in the terms and conditions
of any of the Facilities;
(e) none of the Facilities is dependent on the guarantee or
indemnity of, or any security provided by, any party other
than any of the Companies;
(f) none of the Facilities may according to its terms be
terminated or mature prior to their stated maturity as a
result of the making of the Offer or the acquisition of the
Shares (or any of the Shares) by the Buyer; and
(g) the Facilities are adequate to allow the Companies to
continue trading after Completion on the same basis as
prior to Completion.
15 THE PROPERTIES
15.1 The Company is the sole legal and beneficial owner of each of the
Properties, shown against its name in Schedule 4.
15.2 The particulars of the Properties specified in Schedule 4 are true,
complete and accurate in all respects.
15.3 Save as specified in Schedule 4 the Company exclusively occupies the
whole of each of the Properties shown against its name in Schedule 4
and the Properties are free from all leases,
36
licences, service occupancies, tenancies, options, rights of
pre-emption, mortgages, charges, rent charges, liens or rights of
occupation or any agreement to create any of the same.
15.4 The Company does not own or have any interest in any land or building
other than the Properties, and the Company has not entered into any
legally binding agreement for the purchase of any such interest.
15.5 The Company occupies and uses the Properties for the purpose of
conducting the Business only and occupies or uses no other properties
for such purpose.
15.6 So far as the Warrantors are aware, all covenants, obligations,
restrictions and conditions affecting the Property have been observed
and performed and all outgoings have been duly paid and all consents
(where necessary) obtained and complied with and no notice of any
alleged breach of such covenants, obligations, restrictions and
conditions has been received and so far as the Warrantors are aware,
there are no circumstances now existing which would entitle the
landlord of any leasehold Property to exercise any power of entry
upon or take possession of any Property or to draw upon any rental
deposit or other security available to it.
15.7 No notice, action or proceedings affecting any of the Properties has
been served (so far as the Warrantors are aware) and there are no
disputes concerning any of the Properties with any person and (so far
as the Warrantors are aware) there are no circumstances now existing
which are likely to result in any such notice, action or proceedings
being served or commenced or any such dispute arising.
15.8 So far as the Warrantors are aware, there has been no notice or
complaint that any of the Properties does not comply (as to buildings
and use) with the lease (if any) under which any leasehold Property
is held, the applicable provisions of the Town and Country Planning
Acts, and with all associated statutory and bye-law requirements and
all necessary consents relating to any such requirements are subject
only to conditions which have been satisfied and the Company is not
aware of any intended or contemplated refusal or revocation of any
such licence consent or requirements.
15.9 None of the Properties or the Company as owner or lessee of any of
the Properties:
(a) is, so far as the Warrantors are aware, subject to any
rights, reservations, covenants, obligations, restrictions,
conditions or overriding interests (as defined by Section
70 of the Land Registration Act 1925) which are of an
unusual or onerous nature or which would affect the use or
continued use of any of the Properties for the purposes of
the business carried on at that Property by the Company or
the value of that Property;
(b) is affected by any of the following matters:
(i) any closing order, demolition order or clearance
order;
(ii) any planning application which has not yet been
determined;
(iii) any enforcement or stop notice;
(iv) any compensation received upon a refusal of any
planning consent or the imposition of
restrictions on or the modification or
withdrawal of any such consent;
(v) any order or proposal or private Act for the
compulsory acquisition or requisition of the
whole or any part thereof or the modification of
any planning permission or the discontinuance of
any use or the removal of any building;
37
(vi) any agreement with any planning authority,
statutory undertaker or other public body or
authority regulating the use or development
thereof;
(vii) any rights of common; or
(viii) any other notice compliance with which would
involve expenditure;
and, so far as the Warrantors are aware there are no circumstances
which may result in any of the matters referred to in this paragraph
(b) arising.
15.10 Where the title to any of the Properties is, or is required to be,
registered at H M Land Registry it is so registered with Title
Absolute.
15.11 In so far as the Warrantors are aware (but without having carried out
any survey) no deleterious materials not approved by the relevant
Codes of Practice (including without limitation High Alumina cement)
have been used in the construction of any of the Properties or any
alterations thereto or are now present in any of the Properties and
no subsidence flooding or other defect of any kind has affected the
Properties.
15.12 The Company is entitled to rights of way and rights for the supply of
services and all other rights and easements sufficient for the
present use of the Properties or for the use for which they were
valued in the preparation of the Accounts and all such rights are
perpetual and unconditional.
15.13 The Company is not under any immediate or prospective liability
certain or contingent as a result of notices under sections 25 or 26
of the Landlord and Xxxxxx Xxx 0000 in respect of any of the
Properties or as a result of improvements made to any of the
Properties by any tenant or undertenant thereof to pay any
compensation under section 1 of the Landlord and Xxxxxx Xxx 0000 and
the Company has not received any notice under section 3(d) of that
Act.
15.14 No lease under which the Company holds any of the leasehold
Properties:
(a) was granted pursuant to an order excluding the operation of
any part of the Landlord and Xxxxxx Xxx 0000 from the
tenancy created by that lease;
(b) contains any provision enabling the landlord to terminate
the lease prior to the term determination date other than
by reason of the tenant's default.
15.15 The Company is not engaged in any negotiation for review of the rent
payable under any lease under which it holds any of the leasehold
Properties, no such negotiations have been concluded changing the
rent from that specified in Schedule 4 and there are no rent reviews
capable of being implemented by the landlord in respect of the period
prior to completion.
15.16 In so far as the Warrantors are aware, the replies given to enquiries
raised by the Buyer's Solicitors in respect of the Properties are
true and accurate in all material respects.
15.17 The Warrantors are not aware of any alteration refurbishment or
renewal of the whole or any part of any of the Properties or the
building or estate of which any Property forms part which may be
incurred by or charged in whole or part to the Company.
15.18 The Company is entitled to transitional relief in accordance with
Schedule 7A to the Local Government Finance Act l988 for non-
domestic rates in respect of each of the Properties and has not done
anything which would or might cause (it) (them) to lose such relief
nor made any proposal for alteration of the April l990 rating list in
respect of any of the Properties.
38
15.19 There is no actual or contingent liability on the part of the Company
arising directly or indirectly out of any lease, agreement for lease,
conveyance or licence or other deed including any actual or
contingent liability arising directly or indirectly out of:
(a) any estate or interest previously held by the Company as an
original lessee or underlessee; or
(b) any covenant made by the Company in favour of any lessor or
any guarantee given by the Company in relation to a lease
or underlease.
16 ENVIRONMENTAL
16.1 The Company has received written no indication and is not otherwise
aware that it has or may have failed to obtain or is or may be in
material breach of the terms and conditions of all Environmental
Consents required in respect of the Company's activities.
16.2 The Company has received no written indication that and is not
otherwise aware that it is or may be responsible for all or any part
of costs or expenses imposed as a result of Environmental Law.
16.3 The Company has received no written indication and is not otherwise
aware of any actual or threatened actions by regulatory authorities
or third parties in respect of any alleged non-compliance with or
liability arising under Environmental Law.
17 INSOLVENCY
17.1 No administrator, administrative receiver, receiver, manager of
assets, liquidator or any other similar officer has ever been
appointed in respect of the whole or any part of the assets or
undertaking of the Company and no order has been made, petition
presented or resolution passed for the purpose of the making of any
order in relation to administration, administrative receivership,
receivership, liquidation, management of assets or any other similar
situation of the Company.
17.2 The Company is not insolvent nor unable to pay its debts as they fall
due (as such expression is defined in either sub-section (1)(a) to
(d) (inclusive) or sub-section (2) of Section 123 of the Insolvency
Act 1986).
17.3 No voluntary arrangement (as referred to in the Insolvency Act 1986)
or scheme of arrangement as regards its creditors has been proposed
by the Directors or is in operation in relation to the Company.
17.4 The Company has not entered into any transaction nor been given a
preference to which sections 238, 239 or 423 of the Insolvency Xxx
0000 apply or which may otherwise be liable to be set aside or
avoided for any reason.
18 INTELLECTUAL PROPERTY
18.1 So far as the Warrantors are aware, the businesses of the Company and
the processes, data, material and software employed by it and the
goods, services and software including the Software supplied by it in
the United Kingdom or elsewhere in the world do not infringe, use,
involve the misappropriation of, or embody the subject matter of, or
(except as set out in Part 2 of Schedule 5) require a licence which
has not been granted on terms disclosed to the Buyer under any
Intellectual Property in which any other person has rights of any
nature; and no claims have been made by any person which, if pursued,
might be in breach of or be otherwise material to any of the
warranties in this or any other part of this paragraph 18.
39
18.2 Where Software is owned by the Company, it has sole possession of the
source code and has not granted any rights whatsoever in or over the
source code to any person or entity, subject to the terms of the
licence agreements set out in Part 1 of Schedule 5.
18.3 In the case of any Software licensed to the Company, the Company has
full rights of access to and use of the source code to the Software
in the event of any insolvency, administrative receivership,
receivership, administration or bankruptcy (or equivalent event in
any relevant jurisdiction).
18.4 Short particulars of all licences entered into by the Company in
relation to Intellectual Property, and in respect of which any of the
Company is a licensor, are set out in Part 1 of Schedule 5; and in
respect of which the Company is a licensee or otherwise a party, are
set out in Part 2 of Schedule 5 and the entitlement of the Company to
use the software concerned is subject to the terms thereof.
18.5 No goods, services, documentation, software, data or other items used
by the Company in the course of its business has or have been
supplied under:
(a) any agreement or arrangement which precludes its or their
sale, transfer, assignment, disposal or use by any other
person; or
(b) any licence or permission that may cease on any change in
the control of any of the Companies or any transfer of the
legal or beneficial interest in any shares in any of the
Companies.
18.6 No Intellectual Property in which the Company has any interest and
which is, or is likely to be, material to the Business of the Company
is:
(a) so far as the Warrantors are aware (without having made
specific enquiry of the customers of the Company), being
infringed, misappropriated or used without permission by
any other person; or
(b) subject to any licence, estoppel or authority or similar
right in favour of any other person, except as set out in
the agreements listed in Part 1 & 2 of Schedule 5.
18.7 Details of all Intellectual Property which is owned or used by any of
the Companies, or in respect of which any of the Companies has made
application for registration is:
(a) listed and briefly described in Part 3 of Schedule 5;
(b) legally and beneficially vested in or validly granted to
the Company, are not restricted in any way and all renewal
fees and steps required for their maintenance and
protection have been paid and taken; and
(c) so far as each of the Warrantors is aware, valid and
enforceable.
18.8 Such copyright as the Company has in its products and all
unregistered trade marks owned or used by the Companies are:
(a) listed and briefly described in Part 4 of Schedule 5;
(b) legally and beneficially vested or validly granted to the
Companies and are not restricted in any way; and
(c) so far as each of the Warrantors is aware, valid and
enforceable.
40
18.9 The Company has not received any notice that any other person has
registered or applied to register in any country any Intellectual
Property made, or claimed to be owned, by the Companies.
18.10 The licences, agreements and arrangements listed in Parts 1 and 2 of
Schedule 5 (true, current and complete copies of each of which have
been supplied to the Buyer) have been entered into in the ordinary
course of business, are in full force and effect and no notice has
been given on either side to terminate any of them and no amendment
has been made or accepted to their terms since they were first
entered into; and the obligations of all parties under each of the
same have been fully complied with and no disputes exist or are
anticipated in respect of any of them.
18.11 Other than to the Buyer and to agents, employees, shareholders or
professional advisers of the Buyer under the provisions of the Non-
Disclosure Agreement dated 31 October 1996, none of the Companies has
not knowingly disclosed, or knowingly or recklessly permitted to be
disclosed, or undertaken or arranged to disclose, to any person any
of its Confidential Information.
18.12 No claim has been made, and none of the Warrantors is aware of any
facts or circumstances which may result in any claim, for
compensation by an employee of any of the Companies carrying on trade
in the UK under Section 40 of the Patents Xxx 0000 or under any
comparable legislation in any part of the world or under any award
scheme.
18.13 The Software and all earlier versions of and predecessors to the
Software were developed and all the Computer Know-how was conceived
by, employees of the Company in their capacities as such and without
any reliance on any trade secret or proprietary information belonging
to any other person and constitute original works of authorship of
such persons.
18.14 The Company does not operate as a computer bureau, as that term is
defined in the Data Protection Xxx 0000, in the United Kingdom or
elsewhere in the world; and no notice of any kind has been served on
the Company under any provision under any part of that Act or any
analogous legislation in any part of the world. Insofar as the
Company is a "Data User" under the Act or in an equivalent position
under any analogous legislation in any other country:
(a) all necessary applications for registration have been duly
made; and
(b) the details supplied to the Registrar, or other official
concerned, in relation to each application are accurate and
complete.
18.15 The Company owns or has valid and enforceable licences in respect of
all Intellectual Property necessary to operate its business.
18.16 Neither of the Subsidiaries owns or has any legal or equitable right,
title or interest in, over or in respect of any of the Software or
Computer Know-how.
18.17 The Company has taken all steps necessary and desirable for the
protection of all Intellectual Property where the same is registrable
in the markets in which it operates. In addition, the appropriate
copyright notices have been placed on all copies of the Software
which have been distributed to the public. The appropriate
restricted rights legend required under the Federal Acquisition
Regulation to reserve the Company's full ownership rights has been
placed on all copies of the Software which have been distributed to
agencies or instrumentalities of the United States government.
18.18 The Company is not aware that the Software fails to conform and
perform in any of its material functions to the specifications set
out in the user manuals and other documentation written for and/or
supplied with the Software and any defects, bugs or faults other than
those of a minor or cosmetic nature in any code for the Software and
which are not more extensive or damaging to the performance or
functioning of the Software than can reasonably be expected given the
nature of computer software; none of the Warrantors is aware of any
defect other than those of a minor or
41
cosmetic nature in any code for the Software that has an adverse
effect on the performance, functionality of the Software or future
developments and enhancements of the Software.
18.19 The Company does not require any intellectual or industrial property
rights other than the Intellectual Property identified in Schedules 5
for the operation of any part of the Business as presently carried
on.
18.20 Brief details of all the Software are set out in Schedule 6 and a
disk containing the Software has been delivered to the Buyer.
19 COMPETITION
So far as the Warrantors are aware, the Company has not done anything
which, and is not a member or party to any agreement or arrangement
which, contravenes or requires registration or notification under any
of the provisions of the Fair Trading Xxx 0000, the Restrictive Trade
Practices Acts, the Resale Prices Xxx 0000, the Treaty of Rome; or
the Competition Xxx 0000 or any other anti- trust, anti-monopoly or
anti-cartel legislation or regulation in any country of the world in
which or with which it does business.
20 FINANCIAL SERVICES
None of the Companies carries on or has carried on at any time any
investment business in the United Kingdom within the meaning of the
FSA nor has any of the Companies contravened, or received notice from
the Securities and Investments Board or the Department of Trade and
Industry or any other regulator that it may have contravened any
provision of the FSA or any rules or regulations made thereunder
(whether relating to cold calling, investment advertisements or
otherwise).
21 NON TRADING COMPANIES
As regards each of the Subsidiaries:
(a) it has not at any time been the holding company of any
company or a member of or the beneficial owner of shares in
any company;
(b) there are no agreements or arrangements (whether legally
enforceable or not) for the payment of any pensions,
allowances, lump sums or other like benefits on retirement
or on death or during periods of sickness or disablement
for the benefit of any director or former director or
employee or former employee of it or for the benefit of the
dependants of any such person;
(c) it has not traded or undertaken any activities of any sort
and (save as contemplated by this Agreement and other
agreements specifically referred to herein) has no
liabilities or obligations actual or contingent (save in
relation to incorporation and setting up costs and
expenses) nor is it involved in any litigation nor has been
threatened with any proceedings of any kind; and
(d) Save as expressly anticipated by this Agreement, it has not
charged any of its assets or granted any option or issued
any warrant or other right to subscribe any shares or
debentures or agreed conditionally or unconditionally to
grant any such option or issue any such warrant or other
right and has not (save as aforesaid) entered into any
agreement which requires or may require or confers any
right to require the issue by it of any shares or
debentures or options or warrants or other rights to
subscribe shares or debentures.
42
SCHEDULE 7
THE TAX COVENANTS
1 INTRODUCTION
1.1 In this Schedule, unless the context otherwise requires, words and
expressions not expressly defined in paragraph 1.2 below shall have
the respective meanings given to them in the Interpretation Section
of this Agreement.
1.2 The following expressions shall have the following meanings:
Claim any notice, demand, assessment, letter or other
document issued, or action taken, by or on behalf
of any Taxing Authority (including the imposition
of any withholding) from which it appears that a
Taxation Liability is or may be imposed which may
give rise to a claim under clause 5.1 of this
Agreement and this Schedule;
Relief any loss, relief, allowance, exemption, set off,
deduction or credit in computing or against
income, profits, gains or Taxation and any right
to a repayment of Taxation;
Taxation all forms of taxation, duties, rates, levies,
contributions, withholdings, deductions, charges
and imposts imposed or arising in the United
Kingdom , including but not limited to:
(a) income tax to which the Pay as You Earn
system applies, advance corporation tax,
any liability arising under Sections 419
or 601 ICTA, national insurance
contributions, value added tax and input
tax within the meaning of Section 24 VATA;
(b) all penalties, charges, costs and interest
levied by or awarded to a Taxing Authority
or arising under any Taxation legislation
in respect of any of the above;
Taxing Authority the Inland Revenue, H M Customs & Excise and any
other governmental, local governmental or
municipal authority, body or official of the
United Kingdom;
Transaction any transaction, act, omission, arrangement or
event whatsoever (including, but not limited to,
entering into this Agreement, Completion, any
change in the residence of any person or the
death, winding up or insolvency of any person).
1.3 In this Schedule, references to a "Taxation Liability" mean not only
a liability to make any payment (or increased payment) of or in
respect of Taxation (whether or not such payment is primarily payable
by the Buyer or the Company and whether or not the Buyer or the
Company has or may have any right of reimbursement from any other
person) but also include:
43
(a) the loss or set off of any Relief arising in respect of any
Transaction occurring on or before Completion;
(b) the use or set off of any Relief which arises after
Completion where the use or set off of that Relief has the
effect of reducing or eliminating any liability to Taxation
which would otherwise have arisen and have constituted a
Taxation Liability for the purposes of this Schedule;
PROVIDED THAT:
(i) in any case falling within paragraph (a) or (b)
above, where the Relief lost or set off would
have operated as a deduction from gross income,
profits or gains, the Taxation Liability shall
be treated as being equal to the amount of the
Relief multiplied by the rate of corporation tax
in force at the date when it is lost, or set
off;
(ii) in any other case falling within paragraph (a)
or (b) above, the Taxation Liability shall be
treated as being equal to the amount of the
Relief lost used or set off.
1.4 In this Schedule:
(a) any reference to a Transaction occurring on or before
Completion shall include the combined effects of two or
more Transactions provided that the first or some of which
shall have occurred on or before Completion;
(b) any reference to the occurrence of a Transaction on or
before a particular date shall include a Transaction which
is deemed for Taxation purposes to have, or is regarded for
Taxation purposes as having occurred or existed on or
before that date; and
(c) any reference to income, profits or gains arising, earned,
accrued, received or payable on or before a particular date
shall include income, profits or gains which are deemed for
Taxation purposes to have arisen or are deemed for Taxation
purposes to have been earned, accrued, received or payable
on or before that date.
2 COVENANT TO PAY
Subject as provided in this Schedule and in clauses 5.3, 5.4, 5.5 and
5.8 of this Agreement the Warrantors shall be liable to the Buyer in
an amount equal to:
(a) any Taxation Liability of the Company arising in respect of
or by reference to or in consequence of any of the
following:
(i) any Transaction occurring on or before
Completion; or
(ii) any income, profits or gains arising, earned,
accrued, received or payable on or before
Completion;
(b) any Taxation Liability which is also a Taxation Liability
of another person and which is payable by the Company by
virtue of:
(i) the other person failing to discharge such
Taxation Liability; and
(ii) the Company having been at any time prior to
Completion a member of the same group as such
other person or otherwise connected with or
related to such other person for any Taxation
purpose;
44
(c) any liability of the Company to make a payment by way of
reimbursement, recharge, indemnity or damages in respect of
or arising from any Transaction occurring on or before
Completion or any income, profits or gains arising, earned,
accrued, received or payable on or before Completion; and
(d)] all third party costs and expenses properly and reasonably
incurred and payable by the Buyer or the Company in
connection with or in consequence of a Taxation Liability
which is imposed and for which the Buyer has a claim under
this Schedule.
3 EXCLUSIONS
3.1 The Warrantors shall not be liable under this Schedule in respect of
any Taxation Liability:
(a) to the extent that specific provision or reserve (not
including any provision for deferred Taxation) has been
made for such liability in the Accounts; or
(b) to the extent that it arises out of a Transaction
undertaken after the Accounts Date but before Completion by
the Company in the ordinary course of its day to day
trading operations.
3.2 The Buyer shall not be entitled to make a claim under this Schedule
if and to the extent that the same subject matter has given rise to a
claim for breach of the Warranties and that claim has been satisfied
in full.
4 GENERAL
4.1 The liability of the Warrantors under this Schedule and the Escrow
Agreement shall be joint and several but shall only be recoverable by
the Buyer in accordance with clause 5.8 of this Agreement and the
maximum of their combined liability shall be in accordance with
clause 5.8 of this Agreement.
4.2 Any liability to the Buyer under this Schedule may be released,
compounded or compromised in whole or in part and time or indulgence
may be given by the Buyer in its absolute discretion as regards a
Warrantor under such liability without in any way prejudicing or
affecting its rights against such Warrantor in respect of any other
liability under this Schedule or against any other Warrantor under
the same or a like liability.
45
ATTESTATIONS
SIGNED by ) /s/ D. P. Xxxxxx
XXXXXX XXXXXX XXXXXX )
in the presence of: Xxxx Xxxxxxxx ) /s/ Xxxx Xxxxxxxx
SIGNED by ) /s/ Xxxxx Xxxxxx Xxxx Xxxxx
XXXXX XXXXXX XXXX XXXXX )
in the presence of: Xxxxxxx Xxxx ) /s/ Xxxxxxx Xxxx
SIGNED by ) /s/ Xxxxx Xxx Xxxxxxx
XXXXX XXX XXXXXXX )
in the presence of: Xxxx Xxxxxxxx ) /s/ Xxxx Xxxxxxxx
SIGNED by ) /s/ Xxxxxxxx Xxxxxxx
XXXXXXXX XXXXXXX )
in the presence of: Xxxxxxx Xxxx ) /s/ Xxxxxxx Xxxx
SIGNED by )
duly authorised for and on behalf of )
SKANCO TRUSTEES LIMITED ) /s/ Skanco Trustees Limited
as duly authorised trustee of the )
D Crisp Settlement )
SIGNED by )
duly authorised for and on behalf of )
SKANCO TRUSTEES LIMITED ) /s/ Skanco Trustees Limited
as duly authorised trustee of the )
X X Xxxxxxx Settlement )
SIGNED by )
duly authorised for and on behalf of )
SKANCO TRUSTEES LIMITED ) /s/ Skanco Trustees Limited
as duly authorised trustee of the )
A Xxxxxxx Settlement )
SIGNED by )
duly authorised for and on behalf of ) /s/ Xxxxx Xxxxxxx Xxx
3i GROUP plc ) /s/ Xxxx Xxxxxxxx
in the presence of: Xxxx Xxxxxxxx )
46
SIGNED by )
duly authorised for and on behalf of ) /s/ Xxxxx Xxxxxxx Xxx
3i plc ) /s/ Xxxx Xxxxxxxx
in the presence of: Xxxx Xxxxxxxx )
SIGNED by )
duly authorised for and on behalf of ) /s/ A.I.I. Holding Corporation
A.I.I. HOLDING CORPORATION ) /s/ Xxx Xxxxxxx
in the presence of: Xxx Xxxxxxx )
SIGNED by )
duly authorised for and on behalf of ) /s/ Xxxxxx Xxxxxxx
GEOWORKS ) /s/ Xxxxxx Xxxxx
in the presence of: Xxxxxx Xxxxx )
