EXHIBIT 2.2
DATED 1999
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▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
MANCHESTER TECHNOLOGY DEVELOPMENTS LIMITED
and
CYBEROPTICS CORPORATION
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TAX DEED
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▇▇▇▇▇▇ & WHITNEY
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
TEL: ▇▇▇▇ ▇▇▇ ▇▇▇▇
65
TAX DEED
DATE 1999
PARTIES
(1) ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, MANCHESTER
TECHNOLOGY DEVELOPMENTS LIMITED details of which are listed in Schedule
1 to the Agreement being together ("the Covenantors"); and
(2) CYBEROPTICS CORPORATION (Incorporated under the laws of Minnesota the
principal place of business is at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇ (the "Purchaser").
RECITAL
Pursuant to an agreement of today's date the Purchaser has today completed the
purchase of the whole of the issued share capital of Kestra Limited in reliance,
among other things, on the undertaking of the Covenantors to enter into this
deed and the undertakings and covenants by the Covenantors contained in it.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS
In this deed the following definitions apply:
"ACCOUNTS" the audited balance sheet and profit and
loss account of each of the Company and
the Subsidiaries as at and for the
period ended on the Accounts Date
together with the notes directors and
auditors reports for that year being
annexure Sup. 37 and Sup. 38 to the
Disclosure Letter;
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"ACCOUNTS DATE" 31st July 1998;
"ACCOUNTING PERIOD" an accounting period as defined in
section 12 of the Taxes Act;
"AGREEMENT" the agreement of today's date between
the Covenantors and others and the
Purchaser for the sale and purchase of
the Shares;
"ASSESSMENT" any claim, assessment, notice, demand,
letter, counterclaim or other document
issued or made, or action taken, by or
on behalf of any Tax Authority by virtue
of which the Company or any Subsidiary
has, or is alleged to have, a Liability
to Tax or from which it appears that the
Company or any Subsidiary has, or will
or may have, a Liability to Tax or from
which it is sought to impose upon the
Company or any Subsidiary a Liability to
Tax;
"BUSINESS DAY" a day other than a Saturday, a Sunday or
Public Holidays or bank holidays in
England and Wales;
"COMPANY" Kestra Limited details of which are set
out in part 1 of Schedule 1;
"CLAIM" a claim by the Purchaser against the
Covenantors pursuant to clause 3;
"CLOSING BALANCE STATEMENT" as defined in the Agreement;
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"COMPLETION" completion of the sale and purchase of
the Shares pursuant to the Agreement;
"COMPROMISE AGREEMENT" as defined in the Agreement;
"COVENANTORS the Warrantors Representative as defined
REPRESENTATIVE" in the Agreement
"DEEMED TAX LIABILITY" a deemed Tax liability as defined in
clause 2.3;
"EVENT" any transaction (including entering into
the Agreement or the purchase or sale of
an asset), act (including Completion,
the migration of a company or the
inclusion of a company within a group of
companies for any purpose), omission,
receipt, distribution or failure to make
sufficient distributions to avoid an
apportionment or deemed distribution of
income or any combination of two or more
such occurrences;
"GROUP" the Company and the Subsidiaries;
"GROUP COMPANY" any company within the Group;
"LIABILITY TO TAX" a liability to pay Tax and any amounts
treated as being a liability to Tax
pursuant to clause 2.2;
"RELIEF" any relief, loss, allowance, exemption,
set-off, deduction or credit in respect
of any Tax or any set-off or deduction
in computing income, profits or gains
for the purposes of any Tax;
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"SHARES" 1,217,052 Preference Shares of
(pound)0.01 each, 62,815 "A" Ordinary
Shares of (pound)1.00 each, 52,632 "B"
Ordinary Shares of (pound)1.00 each and
32,895 Ordinary Shares of (pound)1.00
each, in the share capital of the
Company;
"SUBSIDIARIES" the company, details of which are set
out in part 2 of schedule 1;
"TAX" all taxes, duties, levies, imposts,
charges and withholdings of any nature
whatsoever, whether created or imposed
in the United Kingdom or elsewhere and
at whatever time created or imposed
which are collected and administered by
any Tax Authority including, without
limitation,
(a) within the United Kingdom,
income tax, corporation tax,
advance corporation tax,
capital gains tax, value added
tax, customs' duties
(including import duties,
excise duties), insurance
premium tax, the charge under
section 419 of the Taxes Act,
stamp duty, stamp duty reserve
tax, inheritance tax, national
insurance contributions and
any other forms of taxes,
duties, levies, imposts,
charges or withholdings
similar to or supplementing or
replaced by or replacing them
or any of them excluding rates
and water rates; and
(b) outside the United Kingdom,
taxes on gross or net income,
taxes on profits or gains and
taxes on receipts, sales, use,
occupation, franchise, value
added and personal property.
in all cases together with all
incidental or supplemental penalties,
charges, interest, fines and default
surcharges and costs;
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"TAX AUTHORITY" any taxing or other fiscal authority
(whether within or outside the United
Kingdom) competent to impose, administer
or collect any Tax;
"TAXES ACT" the Income and Corporation Taxes ▇▇▇
▇▇▇▇;
2. INTERPRETATION
2.1 In this deed:
2.1.1 the contents and clause headings are included for convenience only and
do not affect its construction;
2.1.2 words denoting the singular include the plural and vice versa;
2.1.3 words denoting one gender include each and all genders;
2.1.4 a reference to the loss of a Relief or of a right to repayment of Tax
includes a reference to any loss, withdrawal, nullifying or
cancellation of a Relief or of a right to repayment of Tax;
2.1.5 a reference to the utilisation of a Relief or of a right to repayment
of Tax includes a reference to the utilisation or setting off of a
Relief or of a right to repayment of Tax;
2.1.6 a reference to income, profits or gains accrued, or being earned or
received, on or before a particular date or in respect of a particular
period shall include any profits deemed for Tax purposes to have
accrued, or to have been earned or received, on or before that date or
in respect of that period; and
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2.1.7 a reference to income, profits or gains shall include receipts, value
and any other criteria used in establishing the incidence of any Tax or
measure in establishing the amount of any Liability to Tax.
2.2 Subject to clause 2.3 below there shall be treated as an amount equal
to a Liability to Tax which arises as a result of an Event occurring on
or before Completion:
2.2.1 any amount of Relief arising prior to Completion which has been taken
into account in computing, or in obviating the need for, any provision
for Tax or deferred tax in the Accounts or Closing Balance Statement,
or which is shown as an asset in the Accounts or Closing Balance
Statement, which is not available to any Group Company;
2.2.2 all or any part of a right to repayment of Tax which has been treated
as an asset of any Group Company in the Accounts or Closing Balance
Statement or which has been taken into account in computing, or in
obviating the need for, any provision for Tax or deferred tax in the
Accounts or Closing Balance Statement which is not available to any
Group Company;
2.2.3 all or any part of a right to repayment of Tax referred in clause 2.2.2
or which arises as a result of an Event occurring after Completion
which has been set against any liability to make an actual payment of
Tax in circumstances where the Purchaser would (but for such
utilisation or set-off) have been entitled to make a Claim by virtue of
such liability to make an actual payment of Tax;
2.2.4 the amount of any Relief referred to in clause 2.2.1 or which arises as
a result of an Event occurring after Completion which is used to
relieve income, profits or gains in circumstances where (but for such
utilisation) the Purchaser would have been entitled to make a Claim by
virtue of such income, profits or gains;
2.2.5 any amount of consideration for Relief surrendered pursuant to an
agreement to which a Group Company is a party made on or before
Completion which any Group Company is obliged to pay or repay other
than to another Group Company except and to the extent that such
consideration has been treated as a liability of any Group Company in
the Accounts or Closing Balance Statement or has been taken into
account in preparing the Accounts or Closing Balance Statement.
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2.3 In any case falling within clause 2.2 the amount that is to be treated
for the purposes of this deed as a Liability to Tax of a Group Company
("Deemed Tax Liability") shall be determined as follows:
2.3.1 in a case which falls within clause 2.2.1 or clause 2.2.4 where the
relevant Relief consisted of a deduction from or offset against Tax,
the Deemed Tax Liability shall be the amount of that deduction or
offset;
2.3.2 in a case which falls within clause 2.2.1 or clause 2.2.4 where the
relevant Relief consisted of a deduction from or offset against income,
profits or gains, the Deemed Tax Liability shall be:
2.3.2.1 if the Relief is not available, the amount of Tax which would,
on the basis of the rates of tax current at Completion, have
been saved had such Relief been available or
2.3.2.2 if the Relief was the subject of such a utilisation, the
amount of tax which has been saved in consequence of the
utilisation; and
2.3.3 in a case falling within clause 2.2.2 the Deemed Tax Liability shall be
the amount of such repayment of Tax or part of it.
2.3.4 in a case falling within clause 2.2.5 the Deemed Tax Liability shall be
the amount which the relevant Group Company is required to pay.
2.4 In this deed references to an Event occurring on or before any date or
on or before other Events shall be deemed to include any combination of
2 or more Events taking place on or before Completion.
2.5 Words and phrases (if any) which are defined in the Agreement and which
are not expressly defined in this deed shall have the same meaning in
and shall apply to this deed and shall be deemed to be incorporated in
this deed.
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2.6 Words and phrases (if any) neither defined in this deed nor in the
Agreement but which are defined or used in any legislation relating to
Tax and which are relevant in the context shall have the same
respective meanings in this deed as they have in such legislation
(unless the context otherwise requires).
2.7 In this deed, unless otherwise specified or the context otherwise
requires, a reference to:
2.7.1 a person is to be construed to include a reference to any individual,
firm, partnership, company, corporation, association, organisation or
trust (in each case whether or not having a separate legal
personality);
2.7.2 a document, instrument, deed or agreement (including, without
limitation, this deed) is a reference to any such document, instrument,
deed or agreement as modified, amended, varied, supplemented or novated
from time to time;
2.7.3 clause or schedule is a reference to a clause of or schedule to this
deed and a reference to this deed includes its schedule;
2.7.4 a statutory provision is to be construed as a reference to such
provision as amended, consolidated or re-enacted from time to time and
to any orders, regulations, instruments or other subordinate
legislation (and relevant codes of practice) made under the relevant
statute except to the extent that any amendment, consolidation, or
re-enactment coming into force after the date of this deed would
increase or extend the liability of any party to this deed to any other
party.
2.8 In this deed, unless otherwise specified, the rule of construction
known as the 'ejusdem generis rule' shall not apply so that words or
phrases of a generally descriptive nature shall not be given a
restrictive meaning by reason only of the fact that they are preceded
by more specific words or phrases and words of a generally descriptive
nature shall not be given a restrictive meaning by reason only of the
fact that they are followed by specific examples.
3. COVENANT
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3.1 Subject to the following clauses of this deed, the Covenantors jointly
and severally covenant with the Purchaser as follows:
3.1.1 to pay to the Purchaser an amount equal to any Liability to Tax of a
Group Company which arises as a consequence of or by reference to:
3.1.1.1 any Event occurring on or before Completion;
3.1.1.2 any income, profits or gains which accrued, or which were
earned or received, on or before Completion or in respect of a
period ending on or before Completion; or
3.1.1.3 any dividend or other distribution made by a Group Company
before Completion; or
in each case whether or not such Liability to Tax is also chargeable
against or attributable to any other person; and
3.1.2 to pay to the Purchaser within 7 days from written notice by the
Purchaser amounts equal to any reasonable costs and expenses reasonably
incurred by the Purchaser or the Group Company in connection with any
Liability to Tax as referred to in clause 3.1.1 or any Claim or in
taking or defending any successful action pursuant to this deed.
3.2 Each of the covenants contained in clauses 3.1.1.1, 3.1.1.2 and 3.1.1.3
shall be construed as giving rise to separate and independent
obligations and shall not be restricted by the other save that (for the
avoidance of doubt) any payment by the Covenantors in respect of a
liability under one covenant shall discharge any liability under the
other to the extent of such payment and in so far as it arises from the
same subject matter.
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4. LIMITATIONS
4.1 EXCLUSIONS
The Covenantors shall have no liability in respect of any Claim under
clause 3.1.1 and 3.1.2 to the extent that:
4.1.1 the Accounts or the Closing Balance Statement make specific provision
or reserve in respect of such Liability to Tax (not being a provision
or reserve for deferred tax); or
4.1.2 it arises from the passing of, or change in, after the date of the
Agreement, any law, regulation, rule or published practice of any
government, governmental department, agency, regulatory body or Tax
Authority or any judgment delivered after the date of the Agreement
with retrospective effect, or any increase in the rates of Taxation or
any imposition of Taxation not in effect at the date of the Agreement
or any retrospective withdrawal of a change in after the date of the
Agreement any practice or extra-statutory concession previously
published by any Tax Authority; or
4.1.3 such Liability to Tax would not have arisen but for a change after
Completion in accounting policy or practice or to the accounting
reference date of a Group Company save where such change complies with,
or is to comply with, generally accepted accounting practice within the
United Kingdom.
4.1.4 such liability to Tax was discharged on or before Completion at no
expense to the Purchaser; or
4.1.5 payment has already been made in respect of such Liability to Tax at no
expense to the Purchaser; or
4.1.6 such Liability to Tax or other liability would not have arisen but for
a voluntary act, transaction or omission of the Company and/or
Subsidiary after Completion:-
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4.1.6.1 otherwise than pursuant to a legally binding obligation
entered into by the Company and/or subsidiary (as the case may
be) on or before Completion or imposed on the Company and/or
the Subsidiary by any legislation whether coming into force
before, on or after Completion; and
4.1.6.2 which the Purchaser knew or ought reasonably to have known
would give rise to the Liability to Tax; and
4.1.6.3 otherwise than in the ordinary course of business of the
Group; or
4.1.7 such Liability to tax not would have arisen but for the Company and//or
Subsidiary ceasing to carry on any trade or business after Completion
or effecting a major change after Completion in the nature or conduct
of the business as compared to the business carried on by it at
Completion; or
4.1.8 such Liability to Tax would not have arisen but for the failure by the
Company and/or Subsidiary after Completion to make any claim, election,
surrender or disclaimer or to give any notice or consent or to do any
other thing, the making, giving or doing of which was permitted by law
and which was taken into account:-
4.1.8.1 in computing and so reducing any provision for current or
deferred Tax which appears in the Accounts (or eliminating any
provision for current or deferred Tax which, but for such
Relief, would have appeared in the Accounts); or
4.1.8.2 in computing any right to a repayment of Tax which appears in
the Accounts;
and in the case of either 4.1.8.1 or 4.1.8.2 full details of which are
included in the Disclosure Letter or appear on the face of the
Accounts; or
4.1.9 such Liability to Tax would not have arisen but for the withdrawal or
amendment by the Company and/or the Subsidiary after Completion of any
claim, election, surrender, disclaimer, notice or consent made by it
and (where appropriate) agreed with the relevant Tax
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authority prior to Completion in relation to any Relief arising in an
accounting period ending on or before the Accounts Date; or
4.1.10 such Liability to Tax would not have arisen but for any failure or
delay by the Purchaser or the relevant Group Company in paying over to
any Tax Authority any payment previously made the Covenantors under
this Deed; or
4.1.11 such Liability to Tax is a liability of a Group Company to account for
advance corporation tax which such Group Company is entitled to utilise
by way of set off against its overall liability to corporation tax in
respect of the same or any earlier accounting period, or
4.1.12 such Liability to Tax is in respect of the actual earning, receipt or
accrual for any Tax purposes of any income, profit or gain which is not
recognised in the Accounts where such income, profit or gain arises in
relation to the period beginning after the Accounts Date and ending on
the Completion Date; or
4.1.13 a Relief, other than a Relief referred to in clause 2.2 or arising as a
result of any Event occurring after Completion, is available to be used
against the liability in question; or
4.1.14 such Liability to Tax arises from the Payment made by the Company to
▇▇▇▇ ▇▇▇▇▇▇▇ under Clause 4 of the Compromise Agreement.
4.2 For the avoidance of doubt, the limitations and stipulations contained
in clauses 8.1.1, 8.2, 8.3.2, 8.8 and 8.12 of the Agreement shall apply
mutatis mutandis in respect of any liability or potential liability of
the Covenantors pursuant to the provisions of this Deed.
5. CONDUCT OF CLAIMS
5.1 If the Purchaser becomes aware of any Assessment which does or may give
rise to a Claim the Purchaser shall or shall procure that the relevant
Group Company will:-
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5.1.1 give notice in writing of such Assessment including an estimate of the
amount of the liability to Tax to which the Assessment relates as soon
as reasonably practicable and, in any event within 14 Business Days
after the receipt of such Assessment, to the Covenantors provided that
the giving of such notice shall not be a condition precedent to the
liability of the Covenantors under this deed;
5.1.2 not settle or take any action in relation to the Assessment without
first giving the Covenantors the opportunity to dispute, avoid, resist,
appeal, compromise or contest the Assessment in accordance with
paragraph 5.2 below; and
5.1.3 at the Covenantors request and expense submit a protective Notice of
Appeal against the Assessment to the relevant Tax Authority.
5.2 If the Covenantors shall indemnify the relevant Group Company and the
Purchaser to their reasonable satisfaction against any losses, fines,
penalties, interest, charges, reasonable costs and expenses, the
Purchaser shall and shall procure that the Company shall, subject to
clause 5.3, take such lawful and reasonable action as the Covenantors
shall reasonably require to avoid, dispute, resist, appeal, compromise
or contest such Assessment (the "Covenantor's Action"), including
(subject to clauses 5.3 to 5.8):-
5.2.1 applying to postpone (so far as legally possible) the payment of any
Tax; and
5.2.2 except in the case of an Assessment where any Tax Authority alleges
dishonest or fraudulent conduct on the part of the Covenantors or any
Group Company taking place on or before Completion allowing the
Covenantors to undertake at the Covenantors' own cost and expense, the
conduct of any dispute, appeal, negotiation or other proceedings
relating directly to the Assessment, Provided that:
5.2.2.1 the Covenantors shall keep the Purchaser and/or the relevant
Company fully informed and shall consult with the same in
respect thereof; and
5.2.2.2 no material communication, written or otherwise pertaining to
any dispute, appeal, negotiation or other proceedings relating
to the Assessment shall be sent to a relevant Tax Authority
without first having been submitted to the Purchaser for its
written approval such approval not to be unreasonably withheld
or delayed.
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5.3 Neither the Purchaser nor any Group Company shall be obliged to appeal
against any Assessment if, having given the Covenantor notice of the
receipt of that Assessment, it has not within 10 Business Days received
instructions in writing from the Covenantors in accordance with clause
5.2 to make that appeal.
5.4 Neither the Purchaser nor any Group Company shall be obliged to take
any action or further action under this clause in respect of any
Assessment if it reasonably appears to the Purchaser that either the
Covenantors or the relevant Group Company prior to its being in the
ownership of the Purchaser, have committed acts or omissions which may
constitute fraudulent or negligent conduct.
5.5. Neither the Purchaser nor any Group Company shall be required to take
any action which would or would be likely materially to interfere with
or prejudice the carrying on of the business of the Group or interfere
or prejudice the relationship of the Company and each member of the
Group with its customers and suppliers or with any Tax Authority;
In each case, in the event of any dispute, to be determined by
reference to an opinion obtained from a reputable specialist Tax
Counsel of not less than 7 years' standing, practising in London. In
obtaining such opinion the Covenantors Representative and the Purchaser
shall agree upon the identity of the barrister to be instructed (or in
default of agreement, to be appointed by the President of the Bar
Council of England and Wales) and shall, in addition, agree upon the
instructions to be provided.
5.6 Neither the Purchaser nor any Group Company shall be obliged to take
any action under this clause 5 which involves contesting any Assessment
before any court or other appellate body (excluding the Tax Authority
demanding the Tax in question) unless an opinion has been obtained
pursuant to Clause 5.5 to the effect that an appeal against the
Assessment in question will, on the balance of probabilities, be won
5.7 The Purchaser and any Group Company shall be at liberty without
reference to the Covenantors to acting reasonably admit, compromise,
settle, discharge or otherwise deal with any Assessment after whichever
is the earliest of:
5.7.1 the Purchaser or the relevant Group Company being notified by the
Covenantors that it considers the Assessment should no longer be
resisted;
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5.7.2 the expiry of a period of 10 days following the service of a notice
explaining the consequences of this clause 5.7 by the Purchaser or the
relevant Group Company on the Covenantors requiring the Covenantors to
clarify or explain the terms of any request made under clause 5.2
during which period no such clarification or explanation has been
received by the Purchaser or the relevant Group Company; and
5.7.3 if appropriate, the expiration of any period prescribed by applicable
legislation for the making of an appeal against either the Assessment
or the decision of any court or tribunal in respect of any such
Assessment, as the case may be.
5.8 The Covenantors shall be bound to accept for the purposes of this deed
any admission, compromise, settlement or discharge of any Assessment
and the outcome of any proceedings relating to it made or arrived at in
accordance with the provisions of this clause 5.
6. DUE DATE FOR PAYMENT
6.1 Where the Covenantors become liable to make any payment pursuant to
CLAUSE 3, the due date for the making of that payment shall be:
6.1.1 in a case that involves an actual payment of Tax by a Group Company,
the date that is 3 Business Days immediately before the last date on
which the relevant Group Company would have had to have paid to the
relevant Tax Authority the Tax that has given rise to the Covenantors
liability under this deed in order to avoid incurring a liability to
interest or a charge or penalty in respect of that Liability to Tax
("the payment date") and (unless it is apparent from the correspondence
between the parties) the Purchaser or relevant Group Company shall
notify the Covenantors of the payment date in sufficient time to allow
the Covenantors to make a payment to the Purchaser 3 Business Days
before such payment date; or
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6.1.2 in a case falling within clause 2.2 the date falling 5 Business Days
after the date on which the Covenantors have been notified by the
Purchaser that the auditors for the time being of the Group have
certified, at the request of the Purchaser, that there is liability for
a determinable amount under CLAUSE 2.3.
6.2 If any payment required to be made to the Purchaser or to the
Covenantors under this deed is not made by the due date then, that
payment shall carry interest from (and including) that due date until
(but excluding) the date when the payment is actually made at the rate
of 4 per cent above the base rate from time to time of Barclays Bank
PLC.
7. DEDUCTIONS FROM PAYMENTS
7.1 All sums payable by the Covenantors to the Purchaser under this deed
shall be paid free and clear of all deductions or withholdings
whatsoever, save only as may be required by law.
7.2 If any deduction or withholding in respect of Tax or otherwise is
required by law to be made from any of the sums payable as mentioned in
clause 7.1, the Covenantors shall be obliged to pay to the Purchaser
such greater sum as will, after such deduction or withholding as is
required to be made has been made (taking into account any Relief which
is or will be received by the Purchaser by reason of such deduction or
withholding), leave the Purchaser with the same amount as it would have
been entitled to receive in the absence of any such requirement to make
a deduction or withholding.
7.3 All sums payable by the Covenantors under this deed are to be paid in
the currency or currencies appropriate to the Assessment as a result of
which the liability to make a payment of Tax has arisen.
7.4 The Purchaser may direct the Covenantor to pay to any Group Company any
sums due to the Purchaser under this deed and such payment shall be
treated as a payment to the Purchaser and not a payment to the relevant
Group Company.
7.5 In the event of an assignment by the Purchaser of the terms of this
Deed pursuant to clause 12.4, the Covenantors shall not be required to
pay to any such assignee a greater sum than they would have been
obliged to pay to the Purchaser by virtue of clause 7.2, had such
assignment not taken place.
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8. MITIGATION
Subject to the express provisions of this deed, neither the Purchaser
nor any Group Company shall be under any obligation or duty to mitigate
any loss or take any other action to reduce the Covenantor's liability
under this deed.
9. PURCHASER'S COVENANTS
9.1 The Purchaser covenants with the Covenantors to pay to the Covenantors
an amount equal to any liability to Tax assessed upon the Covenantors
under section 767A or 767AA ICTA in connection with any event,
transaction, omission or occurrence occurring in the accounting period
of the Company current at Completion or in any earlier account period
and arising as a result of the Company failing to discharge such
liability together with any reasonable costs, fees or expenses incurred
by the Covenantors in connection with such liability.
9.2 The Purchaser will be entitled to set off against any amount which it
is liable to pay to the Covenantors under paragraph 9.1 (or any amount
which it is liable to pay under section 767B ICTA 1988 should the
Covenantors have to enforce their entitlement to payment under that
section) any amount which the Covenantors are liable to pay the
Purchaser under this Deed (ignoring for this purpose the financial
limits in clauses 8.1 and 8.2 of the Agreement).
9.3 To the extent that a payment is made by the Purchaser to the
Covenantors pursuant to paragraph 12.1, the Covenantors will not
enforce its entitlement to payment of any amount under section 767B (2)
ICTA 1988.
10. GENERAL
10.1 All payments by the Covenantors under this Deed will be treated as
repayments by the Covenantors of the consideration paid for the Shares
to this Agreement, provided that this paragraph 10.1 will not operate
in any way to limit the liability of the Covenantors under this Deed.
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11. REPAYMENTS
11.1 If at the Covenantors' request and expense, the Auditors determine and
certify that any Group Company has obtained a repayment of Tax where
the Covenantors have made a payment under this Deed in respect of the
same Tax which is the subject of the repayment ("Repayment"), or that
any Tax liability which has resulted in a payment being made by the
Covenantors has given rise to a saving for a Group Company
("Saving"),the Repayment or Saving will be applied as follows:-
11.1.1 first, the amount of the Repayment or Saving will be set off against
any payment then due from the Covenantors under this Deed;
11.1.2 secondly, to the extent that there is an excess, the Purchaser will,
within 10 Business Days pay to the Covenantors the lesser of:-
11.1.2.1 the amount of the excess; and
11.1.2.2 any amount previously paid by the Covenantors under this Deed;
11.1.3 thirdly, to the extent that the excess referred to in paragraph 11.1.2
is not exhausted, the remainder of that excess will be carried forward
and set off against any future liability of the Covenantors under this
Deed;
11.2 The Purchaser will inform the Covenantors as soon as reasonably
practicable after it or any Group Company becomes aware that any Group
Company may obtain a Repayment or Saving.
11.3 The relevant Group Company will so far as is reasonable utilise any
Relief (other than a Relief referred to in clause 2.2 or arising as a
result of an Event occurring after Completion), which gives rise to a
Saving or a Repayment in priority to any other Relief (other than a
Relief referred to in clause 2.2 or arising as a result of an Event
occurring after Completion), as soon as practicable, unless and to the
extent that such utilisation would prejudice the availability of any
other Relief.
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11.4 In determining whether or not a Group Company has obtained a Saving or
Repayment and if so, the amount, the Auditors will act as experts and
not as arbitrators and their determination will (in the absence of
manifest error) be conclusive and binding on the parties.
12. OTHER PROVISIONS
12.1 JOINT AND SEVERAL LIABILITY
All representations, agreements, covenants, indemnities and obligations
made or given or entered into by the Covenantors in this deed are made
or given or entered into jointly and severally by each Covenantor.
The liability of either Covenantor may, in whole or in part, be
released, compounded or compromised or other relaxation or indulgence
may be given by the Purchaser (in its absolute discretion) without in
any way prejudicing or affecting the Purchaser's rights against any
other Covenantor.
12.2 WAIVERS AND REMEDIES
12.2.1 No failure or delay to exercise, or other relaxation or indulgence
granted in relation to, any power, right or remedy under this deed of
either party to it shall operate as a waiver of it or impair or
prejudice it nor shall any single or partial exercise or waiver of any
power, right or remedy preclude its further exercise or the exercise of
any other power, right or remedy.
12.2.2 All rights of the parties contained in this deed are in addition to all
rights vested or to be vested in it pursuant to common law or statute.
12.3 SUCCESSORS
This deed shall be binding on and enure to the benefit of each party
and its lawful successors
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and permitted assigns.
12.4 ASSIGNMENT
The rights, benefits or obligations under this deed shall be assignable
in accordance with clause 13.8 of the Agreement as if references in
that clause to the Agreement were references to this deed.
12.5 COUNTERPARTS AND DELIVERY
12.5.1 This deed may be executed in 2 counterparts, each of which shall be
deemed an original and which shall together constitute one and the same
document.
12.5.2 If this deed is executed in more than one counterpart, it shall be
deemed to be delivered and shall have effect when:
12.5.2.1 each party has signed a counterpart of this deed;
12.5.2.2 each party has handed over such counterpart to the other party
to this deed; and
12.5.2.3 each of the counterparts has been dated.
12.5.3 If this deed is not executed in more than one counterpart, it shall be
deemed to be delivered and has effect when each party has signed it and
it has been dated.
13. CORPORATION TAX RETURNS AND CONDUCT OF TAXATION AFFAIRS
13.1 The Purchaser's agents ("the authorised agents")) will prepare the
corporation tax returns and
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computations of the Group for all accounting periods ending on or after
Completion, to the extent that they have not been prepared before
Completion, and will forward copies to the Covenantors.
13.2 The Purchaser will procure that the Group causes the returns and
computations mentioned in clause 13.1 to be authorised, signed and
submitted to the Group's Inspector of Taxes without amendment or with
such amendments as the Covenantors reasonably request provided that the
Purchaser and the relevant Group Company shall not be obliged to make
any amendment in relation to any return or computation that is not
full, true and accurate in all material respects.
13.3 The Purchaser's authorised agents will prepare all documentation and
deal with all matters (including correspondence) relating to the
corporation tax returns and computations of the Group for all
accounting periods ending on or after Completion and shall keep the
Covenantors fully informed in respect thereof. The Purchaser will not
without the prior written consent of the Covenantors (such consent not
to be unreasonably withheld or delayed) transmit any communication to,
or agree any matter with, the Groups Inspector of Taxes which will
create or increase any Tax liability of the Group for which the
Covenantors may be liable under this Deed.
13.4 The Covenantors will not and the Purchaser will not and will procure
that the Company and the Subsidiary do not, amend or withdraw any such
return or computation as is referred to in clauses 13.1 or 13.2 without
the prior written consent of the Covenantors or the Purchaser, as the
case may be.
13.5 For the avoidance of doubt subject to Clause 4, nothing done by the
Purchaser or a relevant Company pursuant to this Clause 13 shall in any
respect restrict or reduce any rights which the Purchaser may have to
make a claim against the Covenantors.
14. NOTICES
14.1 Each party may give any notice or other communication under or in
connection with this deed by letter or facsimile transmission addressed
to the other party. Any notice which the Purchaser gives to the
Covenantors Representative shall be deemed to have been given to each
Covenantor. The address for service of each party shall be the address
set out in clause 14.3 or such other address within the United Kingdom
for service as the addressee may from time to time notify to the other
party for the purposes of this clause.
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14.2 Any such communication will be deemed to be served:
14.2.1 if personally delivered, at the time of delivery and, in proving
service, it shall be sufficient to produce a receipt for the notice
signed by or on behalf of the addressee;
14.2.2 if by letter, at noon, on the Business Day after such letter was posted
(or, in the case of airmail, 5 Business Days after such letter was
posted) and, in proving service, it shall be sufficient to prove that
the letter was properly stamped first class (or airmail), addressed and
delivered to the postal authorities; and
14.2.3 if by facsimile transmission, at the time and on the day of
transmission, and in proving service, it shall be sufficient to produce
a transmission report from the sender's facsimile machine indicating
that the facsimile was sent in its entirety to the recipient's
facsimile number.
14.3 Details of each party for service of notice are as follows:
Name: The Purchaser c/o The Purchaser's Solicitors ▇▇▇▇▇▇ &
Whitney
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel No: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: E ▇▇▇▇▇▇▇▇▇▇▇/J R ▇▇▇▇▇
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Name: The Covenantors c/o the Covenantors' Representative
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel No: ▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇. ▇▇▇▇▇
15. LAW AND JURISDICTION
15.1 This deed, and all disputes or claims arising out of or in connection
with it, shall be governed by and construed in accordance with English
law.
15.2 The parties to this deed irrevocably and unconditionally agree that the
High Court of Justice in England shall have non-exclusive jurisdiction
over all disputes or claims arising out of or in connection with this
deed.
15.3 Clauses 15.3 and 15.4 of the Agreement shall apply to this deed mutatis
mutandis.
IN WITNESS of which this deed has been duly signed as a deed and delivered on
the date written at the beginning of this deed.
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Executed and Delivered as a Deed by
CYBEROPTICS CORPORATION
acting by:
Director
Director/Secretary
Witness:
-------------------------------
Signature:
-----------------------------
Name:
----------------------------------
Address:
-------------------------------
---------------------------------------
---------------------------------------
Occupation:
----------------------------
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Executed and Delivered as a Deed
by ▇▇▇▇▇▇▇ ▇▇▇▇▇
in the presence of:-
Witness:
-------------------------------
Signature:
-----------------------------
Name:
----------------------------------
Address:
-------------------------------
---------------------------------------
---------------------------------------
Occupation:
----------------------------
Executed and Delivered as a Deed
by ▇▇▇▇ ▇▇▇▇▇▇▇
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in the presence of:-
Witness:
-------------------------------
Signature:
-----------------------------
Name:
----------------------------------
Address:
-------------------------------
---------------------------------------
---------------------------------------
Occupation:
----------------------------
Executed and Delivered as a Deed
by ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of:-
Witness:
-------------------------------
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Signature:
-----------------------------
Name:
----------------------------------
Address:
-------------------------------
---------------------------------------
---------------------------------------
Occupation:
----------------------------
Executed and Delivered as a Deed by
MANCHESTER TECHNOLOGY
DEVELOPMENTS LIMITED acting by:
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Director
Director/Secretary
Witness:
-------------------------------
Signature:
-----------------------------
Name:
----------------------------------
Address:
-------------------------------
---------------------------------------
---------------------------------------
Occupation:
----------------------------
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